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United States of America v. Gezo Goeong Edwards

November 13, 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

After the trial commenced, including over seven days of testimony, Defendant Edwards again moved to suppress the wiretap at issue in this case on November 7, 2012. The Defendant's [548] Pro Se Motion to Reconsider Denial of Motion to Reconsider Denial of Motion to Suppress Evidence Obtained From Interception of Wire Communication in Light of New Evidence ("Defendant's Motion") represents the Defendant's second pro se motion, and fourth motion overall on this subject. As with the Defendant's prior motions, the Defendant fails establish any legal basis for suppressing the wiretap. Therefore, for the reasons stated below, the Defendant's motion is DENIED.

I. BACKGROUND

The Court exhaustively outlined the factual and procedural background of this in its prior opinions, which the Court incorporates in full herein. See generally 7/26/12 Mem. Opin., ECF No. [354]; 9/16/12 Mem. Opin., ECF No. [432]; 10/23/12 Mem. Opin., ECF No. [524]. Briefly, 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. Superseding Indictment, ECF No. [28], at 2-3, 6.*fn1 Throughout the course of its investigation, the Government obtained wiretaps on three cellular telephones associated with Defendant William Bowman. The Defendant's motion focuses on the affidavits filed in support of the wiretap authorization on one of those cellular telephones---"TT2." The Government obtained the relevant authorizations for TT2 on January 13, February 11, March 11, and April 8, 2011. 7/26/12 Mem. Opin. at 3-5. The affidavit filed in support of the applications for wire interceptions of 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, and Defendant Edwards was disclosed as a possible target of the TT3 interception in the supporting affidavit. Id. at 5. Agent Pak's affidavit indicated that pen register information obtained from TT3 reflected 939 attempted and completed calls between Defendant Edwards and TT3 between January 27, 2010 and March 11, 2011.

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].

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), once again 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). Section 2518(1)(e) further provides that the application must contain: a full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept, or for approval of interceptions of, wire, oral, or electronic communications involving any of the same persons, facilities or places specified in the application, and the action taken by the judge on each such application[.]

III. DISCUSSION

Styled as a motion to reconsider, the Defendant's motion simply re-argues his previous pro se motion in response to Court's findings in its October 23, 2012 Memorandum Opinion. The Defendant argues that the Government should have disclosed him as a possible target of the interception insofar as it had probable cause to believe Defendant's conversations would be recorded as part of "background conversations" of activations intercepted as part of the wiretap of TT2.*fn2

As a threshold issue, the Defendant acknowledges that the Supreme Court held in Donovan that a violation of subsection b is not a basis for suppressing a wiretap. Def.'s Mot. at 17. See Donovan, 429 U.S. at 439-440; 10/23/12 Mem. Opin. at 10. To avoid this issue, the Defendant incorporates an argument made by counsel in the second motion regarding the wiretap: that, even if a violation of subsection b itself is not a basis for suppressing the wiretap, the Court may suppress the wiretap on the basis that the Government also violated subsection e by not disclosing information known regarding Defendant Edwards. However, as the Court noted when it initially rejected this argument, the Defendant must first show that he should have been disclosed as a target pursuant to subsection b before the Government has any obligation to disclose information regarding Edwards pursuant to subsection e. 9/16/12 Mem. Opin. at 7-8. As set forth below, the Defendant once again fails to make the threshold showing; accordingly the Court does not reach the issue of whether or not a violation of subsection e would justify suppressing the wiretap.

In terms of the merits of his motion, the Defendant first argues that it is natural to assume Defendant Bowman and Defendant Edwards met in person. Even if the Court credits this assumption, the relevant question under Donovan is not whether Bowman and Edwards ever met in person, or even did so on a routine basis. Rather, the relevant inquiry is whether Bowman and Edwards met often enough under circumstances that made it probable that Edwards' conversations ...


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