UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v.
Criminal Nos. 11-129-1, 2, 11 (CKK)
GEZO GOEONG EDWARDS, et al.,
Defendants.
MEMORANDUM OPINION
(November 13, 2012)
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, 6.1 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].
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Counts Nine and Ten of the Superseding Indictment charge the Defendant with
separate violations of 18 U.S.C. 924(c). The Government has conceded that it can only pursue a
single count against Defendant Edwards in light of the single predicate offense.
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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
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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 TT2.2
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
2
For purposes of this motion, the Court once again assumes without deciding, that the
Government had probable cause to believe Edwards was engaged in the criminal activity under
investigation and that the Government had an obligation to disclose possible targets that would
be intercepted only as part of background conversations.
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Edwards met often enough under circumstances that made it probable that Edwards’
conversations would be intercepted in the background activations over one (TT2) of the three
cellphones associated with Defendant Bowman.
The Defendant’s second argument addresses the Government’s claim, in opposition to his
prior pro se motion, that prior to March 11, 2011 the Government had not intercepted Edwards’
voice in the background of any activations of TT2. As the Court noted in its October 23, 2012
Memorandum Opinion, the fact that over the course of the first two authorizations to intercept
wire communications with TT2, the Government did not intercept Edwards over TT2 strongly
supported the Government’s claim that as of March 11, 2011, it lacked probable cause to believe
it would intercept Edwards over TT2 going forward. 10/23/12 Mem. Opin. at 9. The Defendant
now argues that the Government could not recognize Edwards’ voice as of March 11, 2011, and
thus the fact they could not identify his voice on any interceptions prior to that date was
irrelevant to their probable cause determination. Def.s Mot. at 4-5. Setting aside the fact the
Government did not intercept any communications involving Edwards during the first two
authorizations with respect to TT2, viewing the evidence in the light most favorable to the
Defendant, the record still fails to show the Government had probable cause to believe Edwards’
conversations would be intercepted over TT2 as of March 11, 2011.
The Defendant devotes much of his motion to establishing a “pattern”---after Defendant
Bowman received a shipment of cocaine, he and Defendant Edwards would meet in person
before Defendant Bowman began distributing the drugs to his (Bowman’s) customers. Def.’s
Mot. at 13. According to the Defendant: “the FBI knew it was highly probable Edwards would
meet Bowman face-to-face while Bowman [told his customers] ‘aint nothing…soon though,’”
but before Bowman informed his customers “‘got word for you.’” Id. at 14. On this basis, the
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Defendant argues the Government had probable cause to believe Edwards’ conversations would
be intercepted over TT2 by at least the February 2011 affidavit, and certainly the March 2011
affidavit.
There are a number of issues with the conclusion the Defendant urges the Court to draw
from these “facts.” The evidence cited in the record indicates that the first evidence of this so
called pattern was discovered in February; the Government could not have discerned it was a
pattern the Defendants would repeat until after it had occurred more than once. The second
occurrence did not take place until less than one week before the Government submitted the
March 11 application to renew the wiretap on TT2. With the benefit of hindsight bias, the
Defendant now points to a “pattern,” which, as of March 2011, may reasonably have been
viewed as nothing more than a coincidence. Second, at best, this “pattern” reflects what the GPS
data cited in the Defendant’s previous motion demonstrates: on two occasions in early February
and March 2011, Defendants Edwards and Bowman met in person while Defendant Bowman
was in possession of TT2. Third, assuming for the sake of argument that the Government
recognized this supposed pattern and could predict with absolute certainty that Bowman and
Edwards would meet in person following the next shipment, this still fails to show probable
cause. See 10/23/12 Mem. Opin. at 7. The Defendants meeting once or twice per month while
Bowman carries TT2 in his pocket does not create a reasonable likelihood that the Government
would intercept Edwards’ conversations over TT2.
In the Defendant’s view, having explained away the lack of interceptions involving
Edwards during the first two authorizations with respect to TT2, three pieces of evidence are
key: (1) records indicate over 7,000 activations over TT2 during the course of the wiretap
authorizations; (2) records indicate Defendant Bowman carried TT2 on his person daily; and (3)
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the “natural assumption” that, given their relationship, Bowman and Edwards met in person on a
regular basis. The Defendant contends that, in combination, this evidence demonstrates that the
Government had probable cause to believe it would intercept Edwards’ conversations over TT2
as of March 11, 2011. Assuming each of these assertions is true—and the Court is forced to
make that assumption because the Defendant does not cite evidence in the record3 for these
contentions—other evidence in the record demonstrates why the Government lacked probable
cause. Despite routinely carrying TT2 and making or receiving thousands of phone calls with
TT2, Defendant Bowman only carried the phone to in person meetings with Defendant Edwards
on two occasions prior to March 11, 2011: February 8 and March 9. In other words, over the
course of nearly sixty days, there were only two days on which Defendant Edwards’ was in the
vicinity of TT2. On this basis, the Government did not have probable cause to believe it would
intercept Edwards’ conversations over TT2 going forward.
IV. CONCLUSION
Defendant’s present motion is nothing more than a re-hash of his prior motion, only with
weaker evidence than previously presented. The “natural assumptions” the Defendant would
have the Court (and the Government) make, in combination with the actual evidence of
Defendant Edwards’ interactions with Defendant Bowman, confirm the conclusion the Court has
reached on two prior occasions: as of March 11, 2011, the Government did not have probable
cause to believe that it would intercept Defendant Edwards’ conversations over interceptions of
TT2. Accordingly, Defendant Edwards’ [548] Pro Se Motion to Reconsider Denial of Motion to
Reconsider Denial of Motion to Suppress Evidence Obtained From Interception of Wire
3
Instead, the Defendant attaches what appears to be pen register data for TT3 (Def.’s Ex.
1), and line sheet summaries of interceptions over TT2 between February 2 and 4, 2011 (Def.’s
Ex. 2).
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Communication in Light of New Evidence is DENIED. An appropriate Order accompanies this
Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
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