United States v. Williams ( 2012 )

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
(July 26, 2012)
Defendants Gezo Goeong Edwards, William Bowman, Henry Brandon Williams, and
eleven co-Defendants were charged by superseding indictment with one count of conspiracy to
distribute and possess with intent to distribute five kilograms or more of cocaine and thirteen
other individual counts. Superseding Indictment, ECF No. [28], at 1-8. Defendants Edwards,
Bowman, and Williams are proceeding to trial. Presently before the Court are the following
motions in limine:
 Defendant Edwards’ [241] Motion to Suppress Evidence Seized from 1219 Elm
Grove Circle, Silver Spring, MD;
 Defendant Edwards’ [242] Motion to Suppress Evidence Obtained from
Interception of Visual Non-Verbal Conduct in or Near Storage Unit A306;
 Defendant Edwards’ [244] Motion to Suppress Evidence Obtained from
Interception of Wire Communications and Seizure of Electronic Communications;
 Defendant Edwards’ [247] Motion to Amend Motion to Suppress Evidence
Obtained from Interception of Wire Communications (Doc #244);
 Defendant Bowman’s [248] Motion to Suppress Evidence and Statements
Resulting from Illegal Wiretap Surveillance;
 Defendant Bowman’s [252] Motion to Suppress Evidence Obtained from the
Search and Seizure of the Defendant’s Cell Phones After His Arrest on April 26,
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2011, as Fruit of the Poisonous Tree;
 Defendant Bowman’s [253] Motion to Suppress Statements Made by the
Defendant After his Arrest on April 26, 2011, as Fruit of the Poisonous Tree;
 Defendant Bowman’s [256] Motion to Suppress Visual and Non-Verbal Evidence
Obtained from the Use of a Closed Circuit Television (“CCTV”) Placed Inside of
Storage Unit A306, at the Public Storage Store Located at 3005 Kenilworth
Avenue, Hyattsville, Maryland; and
 Defendant Bowman’s [257] Motion to Suppress Evidence Obtained from Storage
Unit A306, at the Public Storage Store Located at 3005 Kenilworth Avenue,
Hyattsville, Maryland.
Defendant Edwards’ [244] motion to suppress and Defendant Bowman’s [248] motion to
suppress seek to suppress the wiretap interception authorizations issued for telephones
purportedly used by Defendant Bowman. Defendant Edwards’ [247] motion to amend seeks to
amend his motion to suppress the wiretap to include the affidavits filed in support of the wiretap
applications, which were inadvertently omitted from his initial filings. The other motions listed
above ask the Court to suppress other evidence obtained at least in part because of the
intercepted communications, on the basis that this evidence is “fruit of the poisonous tree.” For
the reasons stated below, Defendant Edwards’ [247] Motion to Amend Motion to Suppress
Evidence Obtained from Interception of Wire Communications is GRANTED; the remaining
motions are DENIED.
I. BACKGROUND
The Government alleges that from January 2009 until April 2011, the Defendants
engaged in a conspiracy to distribute and possess with intent to distribute large quantities of
cocaine. Superseding Indictment at 1-3. Specifically, the Government asserts that Defendants
Edwards and Bowman obtained large quantities of cocaine from supplier(s) in southern
California, and transported the cocaine back to the Washington, D.C. metropolitan area. Gov’t
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Resp., ECF No. [290], at 2. Defendant Bowman would then (1) distribute some of the cocaine to
other narcotics traffickers, including Defendant Williams; (2) distribute some of the cocaine on
behalf of Defendant Edwards; and (3) convert some of the cocaine to cocaine base (“crack
cocaine”), and distribute the crack cocaine to his own customers. Id. As part of the
investigation, the Government applied for and received several court-authorized wiretap
interceptions of three separate cellular telephones, discussed below.
A. Target Telephone 1: 202-262-2549
On December 7, 2010, the Government submitted an application for an order authorizing
the interception of wire communications to and from Target Telephone 1. The Affidavit of FBI
Special Agent Timothy S. Pak noted that the cellular phone was registered to John Doe and
associated with a fictitious address in the District of Columbia, but had been used by Bowman on
several occasions. 12/7/10 Pak Aff. ¶¶ 4b, 7. Judge Richard W. Roberts granted the application,
but the wiretap was terminated due to a lack of activity on December 27, 2010. Gov’t Resp. at 4
n.3. 1/13/11 Pak Aff. ¶ 4c.
B. Target Telephone 2: 202-445-1553
On January 13, 2011, the Government submitted an application for an order authorizing
the interception of wire communications to and from Target Telephone 2. 1/13/11 Pak Aff. TT2
was registered to “Sam Leonard” and associated with a fictitious address in the District of
Columbia. Id. at ¶ 7. The Affidavit listed Bowman, Andrew Colter, Omar Ismaeel, Slonsio
Cheah, and Michael Rivers as possible targets of the wiretap. Id. at ¶ 5. It specifically alleged
that the investigation “has determined that Bowman is utilizing the target telephone to discuss
and facilitate drug trafficking in the Washington, D.C. area,” and the wiretap was sought in order
to determine:
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(i) “the nature scope, and extent of the narcotics trafficking and other illegal
activities in which the targets are engaged”;
(ii) “the methods of operations and procedures of the targets including, but not
limited to, the means and manner by which individuals are obtaining and
redistributing large quantities of cocaine in various locations in the United
States”;
(iii) “the identities, roles, and telephone numbers of participants in the illegal
activities, including accomplices, aiders and abettors, co-conspirators, and other
participants in their illegal activities”;
(iv) “the source of money and controlled substances, primarily cocaine”;
(v) “the manner in which these illegal activities are being conducted, including the
distribution and possession of said controlled substances, and the money involved
in those activities”;
(vi) “the existence and location of apartments, residences, businesses, and other
premises utilized in furtherance of these illegal activities”;
(vii) “the methods of operation for laundering proceeds of illegal drug sales”;
(viii) “the existence and location of records of the illegal activities”;
(ix) “the existence, location, and source of the resources used to finance the illegal
activities”;
(x) “the existence, location, and disposition of the proceeds from those activities”;
(xi) “the existence and locations of other items or means used in furtherance of those
activities”;
(xii) “the dates, times, and details for the continued commission of the above-
mentioned offenses”; and
(xiii) “other evidence necessary for the successful prosecution and conviction of the
above-described criminal activities.”
1/13/11 Pak Aff. ¶¶ 7, 9b. The factual allegations contained in the Affidavit are discussed at
length infra, Section III.A, C. Chief Judge Royce C. Lamberth authorized the wiretap for thirty
days. Gov’t Ex. A. Judge Richard W. Roberts reauthorized the wiretap for additional thirty day
periods on February 11, 2011, March 11, 2011, and April 8, 2011. Gov’t Exs. B-D. Defendant
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Edwards was added as a possible target as part of the April 8, 2011 reauthorization. 4/8/11 Pak
Aff. ¶ 6.
C. Target Telephone 3: 202-425-5430
On March 19, 2011, the Government submitted an application for an order authorizing
the interception of wire communications to and from Target Telephone 3. 3/21/11 Pak Aff. TT3
was registered to William Bowman and associated with 125 16th Street, NE, Washington, D.C.
Id. at ¶ 7. The Affidavit listed Bowman, Edwards, Slonsio Cheah, Tracy Brooks, Willie Moorer,
Robert Richards, and Shawn Lucas as possible targets of the wiretap. Id. at ¶ 5. Judge Roberts
reauthorized the wiretap for an additional thirty days on April 15, 2011. Gov’t Ex. F.
D. Superseding Indictment
The Grand Jury returned the Superseding Indictment on June 16, 2011, charging fourteen
Defendants with one count of conspiracy to distribute and possess with intent to distribute five
kilograms or more of cocaine. Superseding Indictment at 2-3. The Superseding Indictment
alleges the Defendants engaged in the conspiracy from about January 2009 until at least April 26,
2011. Id. at 2. In addition to Edwards, Bowman, and Williams, the Superseding Indictment
named Robert Richards, Willie Moorer, Nathaniel Harrison, Omar Ismaeel, Earl Charles, Sean
Crawford, Joseph Tolbert, William Wilson, Jr., Roscoe Minns, Tracy Brooks, and Shawn Lucas
as co-Defendants and co-conspirators. Id. at 2-3. Defendant Edwards faces two counts of using,
carrying, and possessing a firearm during a drug trafficking offense in violation of 18 U.S.C.
§ 924(c). Id. at 6. Defendant Bowman also faces three counts of using, carrying, and possessing
a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c), three counts of
unlawful distribution of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and two
counts of unlawful distribution of cocaine base in violation of 21 U.S.C. §§ 841(a)(1),
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841(b)(1)(C).1 Id. at 3-4, 6-7. Defendant Williams is only charged in the conspiracy count.
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.
Upon such application the judge may enter an ex parte order, as requested or as
modified, authorizing or approving interception of wire, oral, or electronic
communications within the territorial jurisdiction of the court in which the judge
is sitting (and outside that jurisdiction but within the United States in the case of a
mobile interception device authorized by a Federal court within such jurisdiction),
if the judge determines on the basis of the facts submitted by the applicant that--
(a) there is probable cause for belief that an individual is
committing, has committed, or is about to commit a particular
offense enumerated in section 2516 of this chapter;
(b) there is probable cause for belief that particular
communications concerning that offense will be obtained through
such interception;
(c) normal investigative procedures have been tried and have failed
or reasonably appear to be unlikely to succeed if tried or to be too
dangerous;
(d) except as provided in subsection (11), there is probable cause
for belief that the facilities from which, or the place where, the
wire, oral, or electronic communications are to be intercepted are
being used, or are about to be used, in connection with the
commission of such offense, or are leased to, listed in the name of,
or commonly used by such person.
18 U.S.C. § 2518(3). Subsection “c” is referred to as the “necessity requirement.” United States
v. Carter, 449 F.3d 1287, 1292 (D.C. Cir. 2006). The statute further provides specific
requirements for the contents of the order granting an application under Title III, including that
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The Superseding Indictment charged Defendant Bowman with two counts of unlawful
distribution of 5 grams or more of cocaine base, but the Government indicated it will proceed
against Defendant Bowman on the lesser included offense of unlawful distribution of cocaine
base. Gov’t Resp. at 3 n.2.
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the order require that the interception “shall be conducted in such a way as to minimize the
interception of communications not otherwise subject to interception under this chapter.” 18
U.S.C. § 2518(5). This “minimization requirement” obliges the Government to make reasonable
efforts to minimize the interception of non-relevant conversations. Carter, 449 F.3d at 1292.
Any “aggrieved person”—that is, any person who was a party to any intercepted
communication, 18 U.S.C. § 2510(11)—may move to suppress the contents of any interception
under Title III on the basis that: (1) “the communication was unlawfully intercepted”; (2) “the
order of authorization or approval under which [the communication] was intercepted is
insufficient on its face”; or (3) “the interception was not made in conformity with the order of
authorization or approval.” 18 U.S.C. § 2518(10)(a). Here, Defendants Bowman and Edwards
contend their communications were “unlawfully intercepted,” and that the interceptions did not
conform to the court’s authorization insofar as the Government did not comply with the
minimization requirement. The Defendants also request a Franks hearing to challenge the
application in the event the Court determines the affidavit is facially valid.
A movant seeking to obtain a Franks hearing must show that (1) the affidavit
contained false statements; (2) the statements were material to the issue of
probable cause; and (3) the false statements were made knowingly and
intentionally, or with reckless disregard for the truth. To mandate an evidentiary
hearing, the movant’s attack on the affidavit supporting the warrant must be more
than conclusory.
United States v. Becton, 601 F.3d 588, 594 (D.C. Cir. 2010) (internal quotation marks and
citations omitted).
III. DISCUSSION
The Defendants’ motions challenge the validity of the initial authorization for
interception of communications to and from TT2 on January 13, 2011, and by extension all
future authorizations on TT2 and TT3, but do not independently challenge the validity of any
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later authorizations. Defendants allege the January 13, 2011 authorization is invalid for three
reasons: (1) facially, the warrant did not meet the necessity requirement for issuance of a
wiretap; (2) the Government did not comply with the minimization requirement in carrying out
the wiretaps; and (3) Special Agent Pak’s Affidavit omitted material information, entitling the
Defendants to a Franks hearing regarding the validity of the wiretap authorization. The Court
finds the January 13, 2011 Affidavit met the necessity requirement for a Title III wiretap, the
Defendants failed to set forth a challenge the Government’s minimization efforts, and the
Defendants failed to make a substantial showing that the Government omitted material
information from the wiretap affidavit. Accordingly, Defendants’ motions to suppress the Title
III wiretaps are denied.
A. The January 13, 2011 Pak Affidavit Provides Sufficient Facts to Establish the
Necessity of the Requested Interceptions
Defendants contend that Special Agent Pak’s January 13, 2011 Affidavit failed to satisfy
Title III’s necessity requirement because it failed to establish that traditional investigative
techniques were insufficient. “Congress created the necessity requirement to ensure that
‘wiretapping is not resorted to in situations where traditional investigative techniques would
suffice to expose the crime.’” Carter, 449 F.3d at 1293 (quoting United States v. Kahn, 415 U.S.
143, 153 n.12 (1974)). Although the Court must “give close scrutiny” to contested applications
and “reject[] generalized and conclusory statements that other investigative procedures would
prove unsuccessful,” “the statutory command was not designed to foreclose electronic
surveillance until every other imaginable method of investigation has been unsuccessfully
attempted.” United States v. Williams, 580 F.2d 578, 588 (D.C. Cir. 1978) (internal quotation
marks omitted). “[A] court may authorize the wiretap of the phone of a member of an operation
if traditional investigative techniques have proved inadequate to reveal the operation’s ‘full
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nature and scope.’” United States v. Brown, 823 F.2d 591, 598 (D.C. Cir. 1987) (quoting
Williams, 580 F.2d at 590). In this case, Defendants argue that Special Agent Pak’s Affidavit
fails to allege with sufficient particularity that (1) undercover officers/confidential sources; (2)
physical surveillance; (3) trash covers; (4) search warrants/Grand Jury subpoenas; and (5) pen
registers would be insufficient to reveal the full scope of Bowman’s suspected operation.
1. Undercover Officers/Confidential Sources
Special Agent Pak’s Affidavit indicates that neither undercover officers nor confidential
sources would be successful in learning Bowman’s source(s) of cocaine or the hierarchy of
Bowman’s organization for two reasons: (1) individuals like Bowman do not want to reveal their
sources and have their customers go to the source directly for narcotics; and (2) Bowman
specifically was guarded about revealing the location of his stash house(s) and other details of
his operation. 1/13/11 Pak Aff. ¶ 38. Defendants challenge the Affidavit’s conclusions, arguing
Special Agent Pak offered no explanation as to why the undercover officer and sources could not
obtain additional information, since Bowman was not “guarded” in so far as he sold crack
cocaine to the undercover officer and CS-2, despite not knowing either individual. Special
Agent Pak specifically averred that the undercover officer “was unable to obtain any information
about Bowman’s narcotics trafficking organization.” Id. Moreover, the fact that Bowman was
willing to sell narcotics to the undercover officer and confidential sources he barely knew does
not negate Special Agent Pak’s observation that Bowman kept certain information, such as the
location of his stash house, from his customers. Id.
Defendant Edwards offers a new argument in his reply, stating that the fact Bowman had
to travel to his stash house to obtain the narcotics during controlled purchases “shows [sic]
common practice among drug dealers, who typically do not carry drugs on their persons for fear
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of being arrested or robbed.” Def. Edwards’ Reply, ECF No. [303], at 3. Even if this assertion
were true, it does not establish why Bowman declined to disclose the location of his stash house
to the confidential sources, arranging to sell the narcotics at a neutral location. Moreover,
Defendants do not dispute that because the confidential sources were merely customers and not
members of Bowman’s organization, Bowman would not reveal details of the organization to
them. 1/13/11 Pak Aff. ¶ 39. Defendants speculate that “neither CS1 nor the [undercover
officer] ever attempted to learn more about Bowman’s organization.” Def. Edwards’ Reply at 4.
Assuming the Court was to read the Pak Affidavit in the manner suggested by Defendants, the
Government was not required to pursue this course in light of the other evidence in the affidavit
indicating such inquiries likely would have been unsuccessful.
For the first time in his Reply, Defendant Edwards contends the Government misled the
court by failing to disclose that CS-1 was incarcerated for a period of time with Bowman, and the
two actually shared a cell. If anything, this information would have bolstered the conclusion that
CS-1 could not obtain additional information about Bowman’s organization: despite their
history, Bowman only met CS-1 in neutral locations, and would not reveal to CS-1 where the
stash house was located. 1/13/11 Pak Aff. ¶ 38.; id. at ¶¶ 19, 20.
The Defendants take issue with Special Agent Pak’s contention that Bowman was
suspicious of CS-2 as indicated by Bowman’s refusal to provide CS-2 with his new telephone
number (TT2) after abandoning TT1. Defendants contend that Special Agent Pak’s conclusion
“is completely belied by the fact the CS2 had another working number for Bowman and that they
used that number to discuss drug dealing.” Def. Edwards’ Mot. at 10. This argument misses the
point. The issue with CS-2 was not that he/she could not get in touch with Bowman, but rather
that Bowman’s refusal to provide CS-2 with TT2 after multiple requests reflected the fact
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Bowman was suspicious of CS-2. It is because of this suspicion—not a lack of means to contact
Bowman—that meant CS-2 would not be a further source of useful information. 1/13/11 Pak
Aff. ¶¶ 26-27, 38.
Curiously, Defendants argue that “[a]lthough CS3 was apparently incarcerated as a result
of it’s [sic] continued drug dealing even after it began cooperating, there is nothing in the
Affidavit to indicate that CS3 could not be a further source for information to law enforcement.”
Def. Edwards’ Mot. at 10. Special Agent Pak explained that at the time of the affidavit “CS-3
[was] incarcerated and therefore no longer in a position to proactively cooperate in the
investigation.” 1/13/11 Pak Aff. ¶ 38. Given CS-3’s incarceration, “it would be unreasonable to
require pursuit of [this] avenue[] of investigation,” before resorting to a wiretap. Carter, 449
F.3d at 1293. Defendants note that CS-3 was able to obtain some insight into Bowman’s
operation; the Affidavit notes that Bowman purportedly informed CS-3 that Bowman typically
purchases four kilograms of cocaine at a time. The Affidavit also reflects the fact that CS-3
purchased quantities of cocaine from Bowman that were significantly greater than those
purchased by both CS-1 and CS-2. Compare 1/13/11 Pak Aff. ¶ 16 (indicating on multiple
occasions CS-3 purchased 125 grams of cocaine from Bowman) with id. at ¶¶ 19, 22 (noting CS-
1 and CS-2 purchased from Bowman 11 grams and 63 grams of narcotics respectively). The fact
that Bowman was more open with a customer who purchased significantly greater quantities of
cocaine does not negate the evidence in the Affidavit to indicate Bowman was guarded in his
interactions with other customers, including CS-1, CS-2, and the undercover officer.
Defendants further argue that Special Agent Pak’s statement that the confidential sources
supplied information such as “telephone numbers, descriptions of vehicles, names, [and]
addresses” calls into question Special Agent Pak’s ultimate conclusion that confidential sources
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could not reveal the full scope of Bowman’s operation. To be precise, Special Agent Pak only
made this statement as to CS-1, not CS-2. 1/13/11 Pak Aff. ¶ 12, 15. But fundamentally, this
statement is consistent with Special Agent Pak’s description of the confidential sources’ roles in
arranging and performing controlled purchases of narcotics. The Affidavit indicates the
confidential sources provided phone numbers for Bowman and information concerning
controlled buys, none of which contradicts Special Agent Pak’s conclusion that the sources could
not provide any additional information regarding the conspiracy at large. The affidavit
contained sufficient facts for Chief Judge Lamberth to find that confidential sources and
controlled purchases could not reveal the full scope of Bowman’s suspected operation, and
therefore a wiretap under Title III was necessary.
2. Physical Surveillance
Special Agent Pak explained that “[a]lthough physical surveillance has provided some
helpful information,” it is by itself of limited value to investigators. 1/13/11 Aff. ¶ 40. For this
investigation, Special Agent Pak noted that investigators observed two meeting between CS-1
and Bowman in July 2010. Id. Agents observed Bowman arrive at the meeting location, leave
the meeting and travel to his apartment building, then return to the meeting with CS-1. Id. The
Government believes that Bowman retrieved narcotics from his residence, but “physical
surveillance alone was unable to confirm that Bowman actually retrieved narcotics from this
location, and if so, where specifically within the building the narcotics were stored.” Id.
Moreover, Bowman did not conduct a significant amount of his narcotics activity outside, further
limiting the usefulness of physical surveillance, including pole cameras. Id. at ¶¶ 40-41.
Defendants’ motions omit any reference to these specific limitations of physical surveillance of
Bowman’s activities. Defendants claim that Bowman did not detect any physical surveillance
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and would not necessarily flee if he determined he was being observed. Even if this were true,
Defendants never respond to Special Agent Pak’s contention that given the nature of Bowman’s
organization, physical surveillance would never disclose the entirety of the organization. The
Affidavit indicates the Government engaged in physical surveillance and obtained some useful
information, but at the point it would continue to fail to reveal the full scope of the conspiracy,
the necessity requirement was satisfied. Becton, 601 F.3d at 596.
In his Reply, Defendant Edwards suggests that the physical surveillance attempted in this
case was inadequate because the Affidavit refers to physical surveillance only in the context of
five controlled purchases of narcotics. Def. Edwards’ Reply at 9. Defendant’s reliance on United
States v. Gonzalez, 412 F.3d 1102 (9th Cir. 2005) for this proposition is misplaced. In Gonzalez,
the investigators only attempted a single instance of physical surveillance before giving up,
compared to five instances in this case. Id. at 1114. Through these five observations,
investigators confirmed that Bowman engaged in most of his conduct indoors, while the
investigators in Gonzalez could only speculate after a single, brief instance of physical
surveillance. Id. Moreover, the Ninth Circuit employs a different standard for necessity than
this Circuit. Compare id. at 1112 with Brown, 823 F.2d at 598. The five instances of physical
surveillance, and the related factual detail regarding Bowman’s operation, were sufficient to
show that physical surveillance would not reveal the full scope of Bowman’s operation, and
wiretaps were therefore necessary. Brown, 823 F.2d at 598.
3. Trash Covers
In terms of performing trash covers, Special Agent Pak explained that Bowman resided in
a multi-story apartment building, which utilized a communal trash dumpster located between the
building in which Bowman resided and another multi-unit apartment building, in view of
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apartments from both buildings and the street. 1/13/11 Pak Aff. ¶ 43. The dumpster itself was
enclosed by a secure five-foot fence. Id. Thus, it would be difficult, if not impossible, for agents
to search the dumpster without being detected. Id. Special Agent Pak further noted that multiple
units used the dumpster, making it virtually impossible to link any trash to Defendant Bowman.
Id.
The Defendants fault Special Agent Pak for failing to explain “why a trash cover could
not be conducted under cover of darkness . . . or whether any agents of the FBI would have
trouble climbing the fence.” Def. Edwards’ Mot. at 13. Assuming for the sake of argument that
agents could access the dumpster, and could do so undetected, the Affidavit established any
search of the dumpster would be futile because the Government would face extreme difficulty in
connecting Defendant Bowman to evidence recovered from a communal dumpster. Requiring
the Government to engage in a trash cover that was not likely to succeed in recovering any
usable evidence would be unreasonable. A trash cover was “impracticable under the
circumstances” and therefore not necessary before resorting to a wiretap application. Carter,
449 F.3d at 1293.
4. Search Warrants/Grand Jury Subpoenas
The Affidavit explains that agents had not sought or executed any search warrants or
issued any Grand Jury subpoenas for two primary reasons: (1) these tools would alert the co-
conspirators to the investigation before the full scope of the conspiracy was determined; and (2)
the warrants/subpoenas would be unsuccessful in uncovering broader information regarding the
conspiracy, such as stash house locations and cash flow. 1/13/11 Pak Aff. ¶¶ 44-45. Defendants
contend that “[t]here is nothing in this section that indicates why any of these specific
investigative techniques would not be fruitful in this investigation.” Def. Edwards’ Mot. at 13.
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To the contrary, Special Agent Pak explained that although a search of Bowman’s residence
would likely confirm the agents’ suspicions that it served as a stash house, a search would be
unlikely to reveal additional stash locations, the identity of co-conspirators, or the full scope of
the conspiracy. 1/13/11 Pak Aff. ¶ 44. Likewise, the Affidavit noted that the Government did
not have sufficient information regarding Bowman’s drug trafficking organization to effectively
issue targeted subpoenas for financial records. Id. at ¶ 45. The application for the initial wiretap
for TT2 offered specific reasons as to why search warrants and Grand Jury subpoenas would be
ineffective to reveal the full scope of the conspiracy in this case, and therefore satisfied the Title
III necessity requirement on this front.
5. Pen Registers
The Affidavit asserted that call detail records and pen registers were useful to some
extent, but would not satisfy the Government’s burden of proof at trial because the registers
alone provide no information regarding the content of the conversations taking place. 1/13/11
Pak Aff. ¶ 47. In terms of call detail records and pen registers, the Defendants are correct that
the Affidavit provides only “boilerplate assertions” in the relevant paragraph. However,
“[s]ections of an affidavit framed in conclusory terminology” cannot be separated from
“preceding detailed descriptions” of investigative efforts. United States v. Sobamowo, 892 F.2d
90, 93 (D.C. Cir. 1989). Special Agent Pak’s Affidavit indicates that using pen registers, agents
were able to establish a usage pattern on TT2 of “a larger number of calls to a limited number of
phone numbers, and calls of a short duration,” typical of narcotics trafficking. 1/13/11 Pak Aff.
¶ 32. Furthermore, call records established that TT2 contacted or attempted to contact suspected
co-conspirators Colter and Ismaeel. Id. at ¶¶ 33-34. The use of pen registers in this case, and the
inherent nature of pen registers (as described by Special Agent Pak) logically lead to the ultimate
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conclusion offered in the Affidavit that pen registers are “useful mainly in establishing
relationships and patterns of operations,” but “provide little direct evidence as to the significance
of the telephone calls.” Id. at ¶ 47.
Defendants further contend that wiretaps were unnecessary because using pen registers,
the Government could identify individuals with a high level of contact with Bowman, then use
physical surveillance and controlled buys to confirm involvement in the conspiracy. As
explained above, controlled purchases alone could not have revealed the full extent of the
conspiracy. The combination of pen registers and controlled buys could have—and did—
provide some relevant information. The limitations on these techniques in this case, as explained
in Special Agent Pak’s Affidavit, demonstrated wiretaps were necessary to achieve the full
objective of the investigation.
6. Combined Traditional Investigative Techniques
In addition to disputing the effectiveness of individual investigative methods, Defendants
contend that wiretap interceptions were not necessary because the combination of traditional
tools employed by investigators were sufficient. E.g., Def. Edwards’ Mot. at 12. Defendants
correctly note that the combination of pen registers, physical surveillance, and confidential
sources enabled the investigators to arrange and observe controlled buys of narcotics from
Bowman. However, even in combination the information gathered provided limited insight into
the conspiracy. The Government was unable to determine, among other things, where in his
apartment building Bowman stored the narcotics, 1/13/11 Pak Aff. ¶ 40, the location of other
stash houses, id. at ¶ 40, or where assets and proceeds related to the conspiracy were held, id. at
¶ 45. That combining techniques provided relevant information does not mean investigators
were foreclosed from using wiretaps to determine the full extent of the conspiracy. Becton, 601
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F.3d at 596. Defendants harp on the fact that many of the limitations identified by Special Agent
Pak are common issues in law enforcement investigations. The fact that officers might run into
similar barriers in other investigations has no bearing on whether or not Special Agent Pak
provided an adequate factual basis to show those barriers were present in this investigation.
Ultimately, the Pak Affidavit provided sufficient facts to support Chief Judge Lamberth’s
determination that the necessity requirement had been met, and thus the initial wiretap on TT2
was properly authorized. Sobamowo, 892 F.2d at 93.
B. Defendants Failed to Sufficiently Challenge the Government’s Minimization
Efforts
In his motion to suppress, Defendant Edwards challenged the Government to “make a
prima facie showing that minimization was complied with respecting conversations between
Edwards and others.” Def. Edwards’ Mot. at 22. Defendant’s request reverses the order of proof
required in the context of minimization challenges.
What the wiretapping statute forbids is failure by the government to make
reasonable efforts to minimize interceptions of non-pertinent communications;
consequently, a defendant must identify particular conversations so that the
government can explain their non-minimization. Having failed to identify
“specific conversations that should not have been intercepted, or even . . . a
pattern of such conversations,” the issue of reasonable minimization [is] simply
not in play.
Carter, 449 F.3d at 1295 (quoting United States v. Anderson, 39 F.3d 331, 342 (D.C. Cir. 1994)).
The Government is not required to make any showing regarding its minimization efforts unless
and until the Defendants identify “any conversation or pattern of conversations by which the
[Court] could determine whether or not the government [has] met its minimization obligations.”
Id. Having failed to do so, Defendants’ minimization argument fails.
C. Defendants are Not Entitled to a Franks Hearing
Defendants argue that Special Agent Pak knowingly and intentionally, or with reckless
17
disregard for the truth, omitted material information from the Affidavit. An affidavit filed in
support of an application for a Title III wiretap is presumptively valid. United States v.
Maynard, 615 F.3d 544, 550 (D.C. Cir. 2010). However,
where the defendant makes a substantial preliminary showing that a false
statement knowingly and intentionally, or with reckless disregard for the truth,
was included by the affiant in the warrant affidavit, and if the allegedly false
statement is necessary to the finding of probable cause, the Fourth Amendment
requires that a hearing be held at the defendant's request.
Franks, 438 U.S. at 155-56. This test applies to material omissions from affidavits as well as
false statements. United States v. Johnson, 696 F.2d 115, 118 n.21 (D.C. Cir. 1982). An
omission is “material” only if its “‘inclusion in the affidavit would defeat probable case.’”
United States v. Spencer, 530 F.3d 1003, 1007 (D.C. Cir. 2008) (quoting United States v.
Colkley, 899 F.2d 297, 301 (4th Cir. 1990)). The Defendants must make a substantial showing
that is “more than conclusory” and “accompanied by an offer of proof.” United States v. Gatson,
357 F.3d 77, 80 (D.C. Cir. 2004).2 Defendants contend that the Affidavit omitted two material
issues that require a Franks hearing: (1) prior investigations of Bowman and Edwards; and (2)
prior use of investigative techniques Special Agent Pak claimed would not be fruitful in this
case. The Court finds Defendants failed to make a substantial showing that the purported
omissions were material, and therefore an evidentiary hearing is not required.
1. The Failure to Disclose Prior Investigations of Bowman and Edwards was
Not a Material Omission
Defendants identify several prior “investigations” of Edwards and Bowman that,
2
Without any reference to authority, Defendant Edwards asserts that he need only
provide a “statement of supporting reasons” to satisfy his burden to make an offer of proof. Def.
Edwards’ Mot. at 5. The Franks decision indicates defendants are required to submit not only “a
statement of supporting reasons,” but also “[a]ffidavits or sworn or otherwise reliable
statements,” or an explanation as to why the affidavits could not be furnished. Franks v.
Delaware, 438 U.S. 154, 171 (1978).
18
according to Defendants, belie the stated intention of the wiretap, that is, to gain information
regarding Bowman’s sources and co-conspirators, their roles/relationships, and methods of
packaging and distribution. Def. Edwards’ Mot. at 15-16. The Defendants identify the
following investigations as relevant:
 “Early 2000s” investigation “into alleged crimes committed by” Edwards, Earl
Davis, Terrence Jones, Thomas Holley, Bowman, James Parker, Shawn Lucas,
and Robert Richards;
 2004 investigation of Earl Davis, who was arrested for murder while accompanied
by Edwards;
 2007 investigation of Edwards involving “alleged federal drug trafficking and
murder conspiracy”;
 A separate conspiracy charged in United States v. Glover, No. 07-153 (D.D.C.
Filed June 12, 2007);
 2008 search warrant executed at the residence shared by Robert Richards and
Terrence Jones; and
 2008 Grand Jury subpoena issued to Katrina Belton, the mother of Edwards’
child.
The parties devote a great deal of effort to discussing particular facts about each
investigation. The Defendants in particular lose the forest for the trees: the stated purpose of the
wiretap application was to develop information regarding Bowman’s operation, including
sources, co-conspirators, and methods of distribution. To the extent the Government had
knowledge of Edwards’ illicit activities, Defendant Edwards does not show (or even attempt to
show) that this information satisfied the objectives regarding Bowman as stated in the Affidavit.
See 1/13/11 Pak Aff. ¶ 9b. Defendants claim that “the government deftly portrayed Bowman, a
known associate of Edwards’, as the initial target of the investigation,” but offer no basis for the
Court to ignore the stated intention of the wiretap: to intercept communications from Bowman’s
telephone in order to gain information about Bowman’s drug trafficking operation. Id. at ¶¶ 7,
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9b. The Government’s suspicion that Edwards supplied Bowman with narcotics does not
undermine the Government’s representation that the purpose of the investigation was to discover
the scope of Bowman’s narcotics-related activity.
Defendants generally allege that the early investigations “reveal[] a pattern that federal
law enforcement was accumulating information about Edwards and, by extension, his
associates,” but this conclusory statement falls far short of a substantial showing that the
Government withheld material information regarding the scope of its knowledge of Bowman’s
drug trafficking organization in seeking to intercept wireless communications with Bowman.
Defendants provide no explanation for the Government’s purported knowledge of the roles and
relationships of Bowman’s co-conspirators, methods of packaging and distribution, nature and
scope of the conspiracy, financing and use of proceeds, or numerous other aspects of the
investigation. Assuming Defendants could show the Government knew Edwards supplied
Bowman with narcotics and that Edwards was Bowman’s only supplier, there remain a number
of significant aspects of Bowman’s operation that the Government lacked information on.
1/13/11 Pak Aff. ¶ 9b(i)-(iii), (v)-(xiii). Negating a single purpose of the wiretap does defeat the
necessity finding for the entire wiretap authorization. United States v. Reed, 575 F.3d 900, 911
(9th Cir. 2009) (“[T]he necessity requirement is directed to the objective of the investigation as a
whole.”)).
The lack of materiality is particularly striking with regards to the investigations of
Edwards between 2001 on 2007, during which time Bowman was incarcerated. Gov’t Resp. at
18. Defendants provide no explanation as to how investigation of Edwards’ conduct during this
time frame is material to the Government’s knowledge of Bowman’s alleged drug trafficking,
which did not begin (or resume) until at least 2008. Defendants’ assertion regarding the
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materiality of the 2008 investigation of Terrence Jones takes speculation to a whole new level.
Several basic facts are undisputed: (1) in 2008, agents executed a search warrant of the residence
occupied by Jones and Richards; (2) neither Jones nor Richards were charged in connection to
the drugs recovered during the search; and (3) later in 2008, Jones was arrested on narcotics
charges, which led to his incarceration beginning in 2010. From this, Defendants allege that the
investigation of Bowman “was a continuation of the Jones investigation.” Def. Edwards’ Reply
at 17. Defendants’ only support for this assertion is that Jones’ telephone number was
intercepted on Bowman’s pen register (though Defendants do not disclose how many times), and
the initial indictment in this case alleged the conspiracy began in 2008. Id. at 17-18. In his
Reply, Defendant Edwards places great weight on a purported statement by Agent Bevington—
made in 2012—that Agent Bevington believed Jones should have been charged in this case.
Defendants claim this statement was a tacit admission that the 2008 investigation of Jones and
the investigation in this case concerned a single conspiracy. This argument assumes the
conclusion Defendants seek to prove: that all of Jones’ narcotics-related activity, dating back to
2008, was part of the conspiracy in this case. Defendants offer no evidence to establish the link
between Jones’ narcotics activity in 2008 and the conspiracy at issue here. Even if the Court
were to take the multiple leaps of logic Defendants’ theory requires, the Court would still lack
any evidence that the 2008 Jones investigation revealed any of the information purportedly
sought by the January 13, 2011 wiretap application such that the Jones investigation would have
been even arguably material to the necessity finding.
The only offer of proof submitted by the Defendants demonstrating any sort of
connection between prior investigations and Defendant Bowman is the affidavit submitted by
Katrina Belton. Ms. Belton’s submission indicates that in “2008 or 2009” she was subpoenaed
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to appear before a Grand Jury in Greenbelt, Maryland. Belton Decl., ECF No. [303-2], ¶ 3. Ms.
Belton indicates she was questioned “about Mr. Edwards and his associates,” and shown pictures
of Mr. Edwards, Bowman, Jones, Richards, James Parker, and Earl Davis. Id. at ¶ 4. Ms. Belton
states that “[f]rom the questions being asked, it was obvious to me that the agents and officers
already knew a great deal of information about Mr. Edwards and his associates,” but offers no
further insight into her discussions with the authorities. Id. At best, Defendants make a
substantial showing that as of January 2011, the Government knew Edwards and Bowman were
associates, but this in and of itself would not defeat the finding of necessity or probable cause.
For his part, Defendant Bowman focuses on the fact the Government omitted from the
January 13, 2011 affidavit any discussion of the volume of calls between TT3 and Edwards,
Richards, and Moorer.3 Def. Bowman’s Mot. at 5. Defendant Bowman offers that the number
of contacts between these three co-Defendants and Bowman far exceed the contacts between
Bowman and Colter and Ismaeel, who were mentioned in the January 13, 2011 affidavit. Id.
Defendant Bowman offers no explanation as to why inclusion of this information in the January
13, 2011 affidavit would have defeated probable cause, and the Court will not make Defendant’s
arguments for him.
Defendant Bowman also emphasizes information purportedly provided by CS-4,
referenced by the Government for the first time in the March 19, 2011 affidavit in support of the
first application for a wiretap interception on TT3. 3/21/11 Pak Aff. ¶ 21. The affidavit
3
To the extent Defendants are correct that the Government was obliged by statute to
disclose Edwards as a target of the January 13, 2011 authorization, see United States v. Kahn,
415 U.S. 143 (1974), this does not mean the Court is required to suppress the results of the
interceptions. The Defendants never contest the Government’s assertion that the good faith
exception to the exclusionary rule would apply, and the intercepted communications would thus
still be admissible. Gov’t Resp. at 24.
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indicates that CS-4 has provided information to law enforcement agents for at least 10 years, has
known Bowman, Edwards, and Richards for over ten years, and in February 2011, informed law
enforcement officials that he had seen Edwards and Bowman together in the last three months.
Id. CS-4 also “advised that through CS-4’s own observations and familiarity with Richards,
Edwards, and Bowman, CS-4 knows that they are acquainted and are working in concert to
traffick in narcotics.” Id. From this, Defendant Bowman argues that “[t]hose assertions, in
addition to the pen register information taken from Mr. Edwards’ telephone, support the
defendant’s position that law enforcement knew of the drug operation and its participants for
many years.” Defendant Bowman offers no proof to support his assertion that law enforcement
knew of CS-4’s “own observation and familiarity” prior to February 2011, or what those
observations might have entailed.
Similarly, Defendant Edwards argues—yet again, for the first time in his Reply—that
“Agent Pak’s introduction of CS4 in the March 19 Affidavit is extremely misleading because it
gave the issuing courts the false impression that law enforcement learned of the illicit
relationship between Bowman, Edwards, and Richards from CS4.” Def. Edwards’ Reply at 7.
The Court notes that Defendant Bowman’s argument regarding CS-4 in fact implies that the
Government did learn about this “illicit relationship” from CS-4. In any case, the Defendants
fail to articulate how this representation was material to the finding of probable cause or
necessity in January or March 2011. The omission of a cooperating source does not, without
more, invalidate a warrant that otherwise establishes probable cause and the necessity of
interceptions. Becton, 601 F.3d at 597. Absent evidence CS-4 provided the Government with
information that would overcome the probable cause or necessity showings in Special Agent
Pak’s Affidavit(s), the omission of CS-4 from the January 13, 2011 wiretap application was
23
immaterial.
2. The Omitted Investigations Do Not Show Traditional Investigative
Techniques Would Have Revealed the Full Scope of the Conspiracy
Defendants finally argue that the specific methods employed by agents during the earlier
investigations demonstrate traditional tools were adequate to achieve the objective of the
investigation. Initially, it is important to note that none of the traditional investigative techniques
referenced by the Defendants as part of this argument were employed against Bowman, and
therefore do not disturb the finding that such techniques would not reveal the full scope of
Bowman’s drug trafficking organization. Additionally, these prior investigations reinforce the
conclusion that such techniques could reveal the full scope of Bowman’s organization, rather
than undermine such a conclusion.4 There is no allegation that Edwards was ever charged, much
less convicted, of any offenses in connection with the early 2000s, 2004, or 2007 investigations.
The 2008 search warrant concerning Jones and Richards likewise failed to lead to any
convictions. Neither the 2004 search of Edwards’ residence, nor Ms. Belton’s Grand Jury
testimony yielded any identifiable results. The Court notes that Defendants failed to offer any
explanation as to what information law enforcement obtained from these traditional techniques
such that the Court could find these methods overcome the facts in the Affidavit supporting the
necessity of a wiretap. Just because the Government utilized certain techniques in the past does
not mean that (1) those techniques achieved the full objective of the investigation, Becton, 601
F.3d at 596, or (2) that the situations in which those methods were employed were sufficiently
analogous so as to be relevant to the effectiveness of the same methods in the investigation at
issue in this case. The prior uses of traditional investigatory techniques as proffered by the
4
Defendant Edwards cites no authority for his assertion that the Government is obliged
to include every possible fact that might support a showing of necessity in an application for a
Title III wiretap. See 18 U.S.C. § 2158(1)(c).
24
Defendants simply would not disturb the necessity finding based on Special Agent Pak’s
Affidavit, and are therefore immaterial and do not warrant a Franks hearing.
IV. CONCLUSION
For the reasons stated above, the Court finds the Title 3 wiretap interceptions employed
in this case were properly authorized. The Affidavit submitted by FBI Special Agent Timothy
Pak in support of the wiretap applications provided sufficient factual detail of this particular
investigation to support a finding that traditional investigatory techniques were inadequate to
reveal the full scope of Defendant Bowman’s alleged drug trafficking conspiracy, satisfying the
“necessity requirement” for obtaining a wiretap. The Defendants failed to identify any non-
relevant conversations intercepted as part of the wiretaps, therefore the Court need not examine
the Government’s minimization efforts. The prior investigations of Defendant Edwards and his
“associates,” if included in the affidavit, would not have undermined the stated purpose for the
wiretap. Finally, information regarding the prior investigative techniques would not have altered
the finding of necessity. Since the omitted investigations were not material to the finding of
probable cause to issue the wiretaps, the Defendants are not entitled to a Franks hearing on their
challenge to the facially valid affidavit. Accordingly, Defendant Edwards’ [247] Motion to
Amend Motion to Suppress Evidence Obtained from Interception of Wire Communications is
GRANTED; Defendant Edwards’ [241], [242], [244], and Defendant Bowman’s [248], [252],
[253], [256], and [257] motions in limine are DENIED. An appropriate Order accompanies this
Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
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