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, 1 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

2 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:

3 (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

4 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

(c).

. Defendant Bowman also faces three counts of using, carrying, and possessing

a firearm during a drug trafficking offense in violation of

(c), three counts of

unlawful distribution of cocaine in violation of

(a)(1), 841(b)(1)(C), and two

counts of unlawful distribution of cocaine base in violation of

(a)(1),

5 841(b)(1)(C).1

. 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,

et

seq., provides that a district court may authorize an application for interception of certain wire,

oral, and/or electronic communications.

.

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.

(3). Subsection “c” is referred to as the “necessity requirement.” United States

v. Carter,

(D.C. Cir. 2006). The statute further provides specific

requirements for the contents of the order granting an application under Title III, including that

1 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. 6 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.”

(5). This “minimization requirement” obliges the Government to make reasonable

efforts to minimize the interception of non-relevant conversations. Carter,

.

Any “aggrieved person”—that is, any person who was a party to any intercepted

communication,

(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.”

(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,

(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 7 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,

(quoting United States v. Kahn,

, 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,

(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 8 nature and scope.’” United States v. Brown,

(D.C. Cir. 1987) (quoting

Williams,

). 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.”

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.

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

9 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

10 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,

. 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

11 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

12 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,

.

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,

(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.

. 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.

Moreover, the Ninth Circuit employs a different standard for necessity than

this Circuit. Compare

at 1112 with Brown,

. 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,

.

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

13 apartments from both buildings and the street. 1/13/11 Pak Aff. ¶ 43. The dumpster itself was

enclosed by a secure five-foot fence.

Thus, it would be difficult, if not impossible, for agents

to search the dumpster without being detected.

Special Agent Pak further noted that multiple

units used the dumpster, making it virtually impossible to link any trash to Defendant Bowman.

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,

.

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.

14 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,

(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

15 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

16 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,

.

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,

(quoting United States v. Anderson,

(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.”

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,

(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,

, 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,

(D.C. Cir. 2008) (quoting United States v.

Colkley,

(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,

(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,

(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, 19 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,

(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

20 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

21 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,

(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. 22 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.

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.”

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,

. 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,

, 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

(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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