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United States of America v. Gezo Goeong Edwards

October 23, 2012

UNITED STATES OF AMERICA,
v.
GEZO GOEONG EDWARDS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Defendant Gezo Edwards is charged by superseding indictment with one count of conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine, and one count of carrying a firearm during and in relation to or possessing a firearm in furtherance of a drug trafficking offense. Much of the evidence the Government seeks to present against Edwards at trial was derived---directly or indirectly---from court-authorized wiretaps of two telephones associated with Edwards' co-Defendant William Bowman. For the third time, Edwards asks the Court to suppress the wiretap as illegally obtained, specifically for failing to disclose Edwards as a possible target of the interceptions until the third renewal of the wiretap. Upon consideration of the pleadings,*fn1 the relevant legal authorities, and the record as a whole, for the reasons stated below, Defendant Edwards' [515] Motion for Leave to File Defendant's Pro Se Motion is GRANTED,*fn2 and Edwards' [515-2] Pro Se Motion to Reconsider Denial of Motion to Reconsider Denial of Motion to Suppress Evidence Obtained from Interception of Wire Communications in Light of New Evidence is DENIED.

I. BACKGROUND

The Court detailed the factual history relevant to Defendant Edwards' motion at length in its prior Memorandum Opinion denying Edwards' motion regarding the wiretap, 7/26/12 and 9/16/12 Mem. Opins., ECF Nos. [354, 432], and incorporates herein those opinions in full. In short, the three remaining co-Defendants, Edwards, Bowman, and Henry Williams, are charged with conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine. Superseding Indictment, ECF No. [28], at 2-3. Defendants Edwards and Bowman also each face one count of carrying a firearm during and in relation to or possessing a firearm in furtherance of a drug trafficking offense. Id. 6-7.*fn3 As part of its investigation of the charged conspiracy, the Government obtained orders authorizing the interception of wire communications to and from three cellular telephones allegedly operated by Defendant Bowman, referred to as "TT1," "TT2," and "TT3." 7/26/12 Mem. Opin. at 2-4. The Government initially obtained a wiretap authorization for TT1 on December 7, 2010, but the wiretap was terminated on December 27, 2010, due to a lack of activity. Id. at 3. The Government obtained the relevant authorizations for TT2 on January 13, February 11, March 11, and April 8, 2011. Id. at 4-5. The affidavit filed in support of the applications for TT2, signed by FBI Special Agent Timothy S. Pak, did not disclose Defendant Edwards as a possible target of the interception until the April 8, 2011 application. Id. at 5. The Government first obtained a wiretap authorization for TT3 on March 19, 2011, which was renewed on April 15, 2011. Defendant Edwards was disclosed as a possible target of the TT3 interception in both applications. Id. The orders authorizing the wiretaps on TT2 and TT3 permitted the Government to "intercept wire communications to and from the [target telephones], including any background conversation intercepted in the vicinity of the [the target telephone] while the telephone is off the hook or otherwise in use." Gov't Ex. A (1/13/11 Order re TT2), ECF No. [290-1], at 3; accord Gov't Ex. B (2/14/11 Order re TT2), ECF No. [290-2] at 4; Gov't Ex. C (3/11/11 Order re TT2), ECF No. [290-3], at 4; Gov't Ex. D (4/8/11 Order re TT2), ECF No. [290-4], at 5; Gov't Ex. E (3/19/11 Order re TT3), ECF No. [290-5]; at 4; Gov't Ex. F (4/15/11 Order re TT3), ECF No. [290-6], at 4.

II. LEGAL STANDARD

Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., provides that a district court may authorize an application for interception of certain wire, oral, and/or electronic communications. 18 U.S.C. § 2518. Defendant Edwards, as an "aggrieved person," see 18 U.S.C. § 2510(11), moves to suppress the contents of the interceptions on the basis that the communications were "unlawfully intercepted." 18 U.S.C. § 2518(10)(a). Section 2518(1) sets forth the requirements for applications seeking Title III authorizations, and provides that applications must include, among other information:

[A] full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including . . . (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted[.]

18 U.S.C. § 2518(1)(b) ("Subsection b"). Subsection b requires the Government to name an individual as a possible target of a wiretap if the Government (1) "has probable cause to believe that the individual is engaged in the criminal activity under investigation"; and (2) "expects to intercept the individual's conversations over the target telephone." United States v. Donovan, 429 U.S. 413, 428 (1977).

III. DISCUSSION

The Defendant's present motion asks the Court to reconsider its denial of Edwards' previous motion to dismiss on the grounds that "newly discovered facts" demonstrate that, as of March 11, 2011, the Government had probable cause to believe it would intercept Defendant Edwards' conversations in the background of wire communications intercepted over TT2. The "new facts" identified by Defendant Edwards, viewed in the light most favorable to the Defendant, do not justify granting the Defendant's motion.. Although the Government may have been generally obligated to disclose the identity of any person who met the Donovan criteria but whose conversations would only be intercepted in the background of the wiretap, the record does not indicate the Government had probable cause as of March 11 to believe it would intercept Defendant Edwards' conversations in the background of TT2 activations. Moreover, Defendant Edwards' motion cannot succeed as the Supreme Court indicated in Donovan that any error in this regard by the Government would not be a basis for suppressing the wiretap.

A.Scope of the Government's Disclosure Requirement In response to the Court's inquiry, the Government indicated in its opposition that it was unable to find any legal authority to support the position that it was required to "list a person as a target in a Title III application where the person otherwise meets the requirements under Donovan, but whose conversations would only be overheard in the background during intercepted wire communications." Gov't's Opp'n ¶ 2. The Court likewise was unable to locate any direct legal authority on this point. Much of the case law concerning background conversations concerns the legality of the use of such conversations if the interception of background conversations was not specifically authorized by the order authorizing the wiretap. E.g., United States v. Baranek, 903 F.2d 1068, 1071-72 (6th Cir. 1990) (finding use of information obtained from the interception of background conversations, although not explicitly authorized by the wiretap order, was permissible pursuant to the "plain view" doctrine); United States v. Couser, 732 F.2d 1207, 1209-10 (4th Cir. 1984) (holding the interception of background conversations, even if not permitted on the face of the wiretap order, was not a basis for suppressing the wiretap). However, the plain language of Subsection b-requiring the disclosure of "the identity of the person, if known, committing the offense and whose communications are to be intercepted"-would appear to encompass all communications recorded as a result of the wiretap, regardless of the whether the conversation took place over, or merely in the vicinity of, the target telephone. The Donovan Court specifically referenced conversations that would be intercepted "over the target telephone," 429 U.S. at 428, but there is nothing to indicate that the Donovan Court considered, much less intended to absolve the Government of any obligation to identify individuals whose conversations may be intercepted in the background of the target telephone. Cf. United States v. Borch, 695 F. Supp. 2d 898, 900 (E.D. Mich. 1988) (explaining that background conversations can be considered to have been intercepted "over" the target telephone). In any event, the Court need not resolve the scope of the Government's burden in this respect because the Defendant failed to show that he should have been named as a target even if the Donovan requirements applied to backgrounds conversations.

B. The Government Was Not Obligated To Disclose Defendant Edwards As A Possible Target On TT2 Prior To April 8, 2011

Before addressing the purportedly new facts the Defendant includes in his motion, the Court notes that the Defendant misconstrues one aspect of the Court's September 16, 2012 Memorandum Opinion. Contrary to the Defendant's assertion, the Court did not find that the Government was required to disclose Edwards as a possible target in the April 8, 2011 application for renewal of the wiretap as to TT2. The Court explicitly found that "the Government was not required to disclose Edwards as a possible target prior to the April 8, 2011 application for TT2," but made no findings as to the April 8 application because the issue is irrelevant: the Government in fact named Edwards as a target in the April 8 application concerning TT2. Not only was the issue irrelevant, neither party presented evidence as to the Government's knowledge as of April 8 such that the Court could draw such a conclusion. Section III.A. of the Court's September 16, 2012 Memorandum Opinion held only that the Government was not required to disclose Edwards as a target in the January, February, or March applications for authorization of wiretap interceptions over TT2. Accordingly, the Court does not address any of the factual claims Defendant Edwards makes regarding events that occurred after March 11, 2011.

The crux of the Defendant's argument is that, as of March 11, 2011, the Government had sufficient evidence to show probable cause that Edwards' was engaged in drug trafficking with Bowman, and Edwards' conversations would be intercepted in the background of TT2. For purposes of this motion, the Court assumes, but does not decide, that Edwards' first contention is correct. As to his second ...


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