United States v. Savage, CRIMINAL ACTION NO. 07-550

Decision Date02 April 2013
Docket NumberCRIMINAL ACTION NO. 07-550
PartiesUNITED STATES OF AMERICA v. KABONI SAVAGE ROBERT MERRITT STEVEN NORTHINGTON KIDADA SAVAGE
CourtU.S. District Court — Eastern District of Pennsylvania

SURRICK, J.

MEMORANDUM

Presently before the Court are Defendant Kaboni Savage's Motion to Suppress Intercepted Wire and Oral Communications (ECF No. 386), Supplemental Motion to Suppress Intercepted Wire and Oral Communications and Request for a Franks Hearing - SHU (ECF No. 500), and Supplemental Motion to Suppress Intercepted Wire and Oral Communications and Request for Franks Hearing - Landline (ECF No. 501). For the following reasons, Defendant's Motions are denied.1

I. BACKGROUND
A. Factual Background

On May 9, 2012, a federal grand jury returned a seventeen-count Fourth Superseding Indictment ("Indictment") charging Defendant Kaboni Savage with conspiracy to participate in the affairs of a racketeering ("RICO") enterprise, in violation of 18 U.S.C. § 1962(d) (Count 1), twelve counts of murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1) (Counts 2-7, 10-15), tampering with a witness, in violation of 18 U.S.C. § 1512(a) (Count 8)2, conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5) (Count 9), retaliating against a witness, in violation of 18 U.S.C. § 1513(a) (Count 16), and using fire to commit a felony, in violation of 18 U.S.C. § 844(h)(1) (Count 17). (Indictment, ECF No. 480.) Savage was charged, along with three co-defendants, Steven Northington, Robert Merritt, and his sister, Kidada Savage. Defendant Lamont Lewis was also charged in the First Superseding Indictment. The charges against Lewis were disposed of by guilty plea on April 21, 2011.3 On March 14, 2011, the Government filed a notice of intent to seek the death penalty against Savage, Merritt and Northington. (ECF Nos. 196, 197, 198.) The Government is not seeking the death penalty against Kidada Savage.

In February of 2005, a grand jury returned a twenty-four count Second Superseding Indictment (the "2005 Indictment") against Defendant, Northington, and four co-defendants not named in the instant Indictment. See United States v. Savage, No. 04-269 (E.D. Pa.), at ECF No. 448.4 The 2005 Indictment charged Defendant, Northington, and four co-conspirators, including Gerald Thomas, with conspiracy to manufacture and distribute cocaine and with other crimes. Id. Defendant and Thomas were alleged to have supervised, managed and organized a drug trafficking enterprise referred to as the "Thomas-Savage Organization." Id. The enterprise operated in and around Philadelphia, obtained large quantities of drugs, supplied the drugs to co-conspirators for distribution, and collected the proceeds. Id. Savage and Northington were both found guilty of the drug conspiracy, and sentenced for that and other crimes. See Savage, No. 04-269, at ECF Nos. 847, 896.

The charges against Defendant in the instant Indictment relate to a long-standing RICO conspiracy involving drug trafficking, murder, and witness intimidation.5 The Government alleges that all four Defendants were members of a regional criminal organization based in North Philadelphia and referred to as the Kaboni Savage Organization ("KSO"). From late 1997 through April 2010, this racketeering enterprise conspired and agreed to distribute large quantities of controlled substances, to commit murder and arson, and to tamper with, and retaliate against, witnesses who had testified, or were about to testify, against the racketeering enterprise or its members. In addition to its drug trafficking activities, it is alleged that the KSO was committed to maintaining, preserving, protecting and expanding its power, territory, and profits by tampering with and retaliating against Government witnesses and their families through the use of threats, intimidation, violence, and murder. Six of the twelve murder counts charged in the instant Indictment relate to the alleged firebombing of the home of Eugene Coleman, a former associate of Defendant. Suspicious that Coleman was cooperating with the Government, Defendant, together with his sister, allegedly solicited and ordered Lamont Lewisand Merritt to set fire to Coleman's home. The firebombing took the lives of Coleman's mother, infant son, and four other relatives. The Government intends to show at trial that the firebombing was ordered by Defendant in order to intimidate Coleman and prevent him from testifying against Defendant at the 2005 drug conspiracy trial.

B. The Wiretap Orders

During the course of investigating the Thomas-Savage Organization and the KSO, the Government obtained court authorizations to intercept wire and oral communications of Defendant and many of his co-conspirators pursuant to Title III of the Omnibus Crime Control and Safety Street Act of 1968, 18 U.S.C. §§ 2510, et seq. ("Title III"). Defendant seeks to suppress evidence obtained pursuant to six of the seven Title III Orders.6

On September 26, 2000, United States District Court Judge Eduardo Robreno entered Order No. 00-2006, which authorized the interception of wire communications of Gerald Thomas, Defendant, and others, occurring on the cellular telephone of Gerald Thomas (the "Thomas Title III Order"). (Def.'s Mot. Ex. A.) The application for this interception (the "Thomas Title III Application") contains a ninety-three page, sworn affidavit of Special Agent Kevin Lewis (the "Thomas Title III Affidavit"). (Id.) Judge Robreno reauthorized the Thomas Title III Order by entering extension orders on four occasions: November 2, 2000 (first extension); December 1, 2000 (second extension); January 5, 2001 (third extension); and February 5, 2001 (fourth extension).7 (Def.'s Mot. Exs. A(1), A(2), A(3) & A(4).)

On March 16, 2001, Judge Robreno entered Order No. 00-2006-02, which authorized the interception of wire communications of Defendant and others occurring on the cellular telephone subscribed to the name Horace Lacey, but used by Defendant (the "Savage Title III Order"). (Def.'s Mot. Ex. B.) The application for this interception (the "Savage Title III Application") contains a sixty-four page, sworn affidavit of Special Agent Lewis (the "Savage Title III Affidavit"). (Id.) After eight days of monitoring the communications pursuant to this Order, Defendant was taken to the hospital after being shot. (Def.'s Mot. 3; June 11 Hr'g Tr. 38.) Shortly thereafter, Defendant was taken into custody for violating the conditions of his house arrest. (June 11 Hr'g Tr. 38.) When Defendant ceased using the cellular phone while in custody, the Government terminated the wiretap. (Id.)

On October 13, 2004, United States District Court Judge James McGirr Kelly entered Order No. 04-2006, which authorized the interception of oral communications of Defendant and others, including Defendant's mother, sister and girlfriend, within the restricted visiting area of the Special Housing Unit ("SHU") at the Federal Detention Center ("FDC") in Philadelphia, Pennsylvania (the "SHU Visiting Room Title III Order"). (Def.'s Mot. Ex. C.) The Order was entered four days after the home of Eugene Coleman was firebombed. The application for this interception (the "SHU Visiting Room Title III Application") contains a thirty-two page, sworn affidavit of Special Agent Lewis (the "SHU Visiting Room Title III Affidavit"). (Id.) On December 2, 2004, United States District Court Judge Michael M. Baylson entered an extension order for the SHU Visiting Room Title III Order. (Id. at Ex. C(1).)

On October 16, 2004, Judge Baylson entered Order No. 04-2006-01, which authorized the interception of oral communications of Defendant and others within Defendant's prison cell and surrounding access spaces located within the SHU at the FDC (the "SHU Cell Block Title IIIOrder"). (Id. at Ex. D.) The application for this interception (the "SHU Cell Block Title III Application") contains a forty-three page, sworn affidavit of Special Agent Lewis (the "SHU Cell Block Title III Affidavit"). (Id.) On December 7, 2004, Judge Baylson entered an extension order for the SHU Cell Block Title III Order. (Id. at Ex. D(1).)

On February 18, 2005, Judge Baylson entered Order No. 04-2006-02, which authorized the interception of wire communications of Defendant and others, including co-conspirators and Defendant's family members, occurring on a telephone located at the FDC adjacent to Defendant's prison cell (the "Legal Line Title III Order"). (Gov't's Ex. 1 at 04-2006-2.)8 The telephone was designated by the FDC to be used by Defendant to make calls to his attorneys. (Gov't's Ex. 1 at 04-2006-02.) Unlike other outgoing calls at the FDC, "legal calls" are not monitored by FDC officials. (Id.) A wiretap order was sought on this landline telephone because it was believed that when Defendant made legal calls to his attorney, his attorney would forward or transfer the call to Defendant's family members, who would in turn forward the call to Defendant's criminal associates. (Id.) The application for this wiretap interception (the "Legal Line Title III Application") contains a seventy-five page, sworn affidavit of Special Agent Lewis (the "Legal Line Title III Affidavit"). (Id.)

On April 12, 2005, Judge Baylson entered Order No. 04-2006-03, which authorized the interception of wire communications of Defendant, Kidada Savage, their mother, Barbara Savage, and others, occurring on two cellular telephones: one belonging to Kidada Savage and one belonging Barbara Savage (the "Kidada Title III Order"). (Def.'s Mot. Ex. E.) The application for this interception (the "Kidada Title III Application") contains an eighty-eightpage, sworn affidavit of Special Agent Lewis (the "Kidada Title III Affidavit"). (Id.) On May 20, 2005, Judge Baylson entered an extension order on the Kidada Title III Order. (Id. at Ex. E (1).)

C. Procedural History

On February 21, 2012, Defendant filed a Motion to Suppress Intercepted Wire and Oral...

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