                           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].



       1
           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.

                                                  2
                                    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

                                                  3
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.

                                                 4
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

                                               5
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)

                                               6
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).

                                                7
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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