Opinion
3:20-CR-00108
11-02-2023
UNITED STATES OF AMERICA, Plaintiff v. ANTHONY QUAMAINE BROWN, Defendant
FOR THE GOVERNMENT: MICHELLE OLSHEFSKI, ESQ. Assistant United States Attorney FOR THE DEFENDANT: JOSEPH M. BLAZOSEK, ESQ,
FOR THE GOVERNMENT: MICHELLE OLSHEFSKI, ESQ. Assistant United States Attorney
FOR THE DEFENDANT: JOSEPH M. BLAZOSEK, ESQ,
TRANSCRIPT OF PROCEEDINGS - EVIDENTIARY HEARING BEFORE THE HONORABLE MALACHY E. MANNION FRIDAY, SEPTEMBER 22, 2023 SCRANTON, PENNSYLVANIA
Proceedings recorded by machine shorthand, transcript produced by computer-aided transcription.
SUZANNE A HALKO, RMR, CRR CERTIFIED REALTIME REPORTER 235 N. WASHINGTON AVENUE SCRANTON, PENNSYLVANIA 18503
WITNESS INDEX
FOR THE GOVERNMENT DIRECT CROSS REDIRECT RECROSS Shane Yelland 9 33 -- -- FOR THE DEFENDANT Lori Possinger 69 72 75
EXHIBIT INDEX
| FOR THE GOVERNMENT | IDENTIFIED | ADMITTED |
| Exhibit No. 1 | 11 | 32 |
| Exhibit No. 2 | 13 | 32 |
| Exhibit No. 3 | 15 | 32 |
| Exhibit No. 4 | 21 | 32 |
| Exhibit No. 5 | 23 | 32 |
| Exhibit No. 6 | 28 | 32 |
| Exhibit No. 7 | 19 | 32 |
THE COURT: Good afternoon.
This is the United States versus Anthony Brown.
Mr. Brown, the criminal number in your case is 3:CR-20-108.
We're here for a hearing based upon a remand from the circuit court based on an argument for suppression of the wiretap you had made, indicating that because a subsequent search warrant had indicated in there that the wiretap for which you were intercepted commenced on March 28th, 2020, when, in fact, it was signed and approved on April 7th, 2020. That meant that the tap and the information received had been received prior to it being legally authorized.
The government, on the other hand, has argued, and we agreed at the district court level, that their statement that it was a typographical error was sufficient for purposes of not requiring a hearing.
You then entered a plea of guilty waiving your right to appeal, except a conditional plea related to the issue about the wiretap itself.
The circuit reviewed the case and filed their opinion on May 1st of this year remanding it to the Court for a hearing to determine this apparent factual dispute between what was contained in a subsequent affidavit, as compared to the actual date that the wiretap was authorized.
In the meantime, there were a pile of motions that Mr. Blazosek filed on your behalf. I think that I've ruled on the vast majority of those motions.
I've left open the motion to withdraw your plea pending a determination in this hearing whether or not the wiretap itself need be suppressed because it was illegal wiretapping prior to its authorization, or whether or not it should be denied based upon the fact there was no illegal wiretapping that occurred prior to April 7th of 2020.
I believe most recently, I think either yesterday or today, there was another motion filed related to your priors. That's not a motion I'm going to -- certainly, it has nothing to do with this hearing.
Secondly, you have already been sentenced, and depending on the results of this hearing, nothing will change in that regard. This is not a reopening of your case. You have pled guilty. You have a conditional waiver of appeal related to a particular and specific issue. The circuit has remanded it to us for a further evidentiary hearing on that very specific, unique alone, lonely issue.
With respect to whether or not you have any other type of argument concerning that, I would assume that in your waiver to appeal, you had waived that in terms of a direct appeal. It's potentially that you could bring it up at some future time in a 2255, but it doesn't strike me that anything about that is relevant to the proceedings here, nor the fact that the remand is limited to the question of whether or not that March 28th, 2020 date was, in fact, an accurate date or whether there was, in fact, wiretapping going on prior to the Court's order or, in the alternative, it was a typographical error for which there was no violation of the wiretap laws. So that's what we're going to restrict our testimony to.
Mr. Blazosek, you had requested an expert witness who was going to tell us about StingRays and other things that apparently the government has the ability to use. Nothing in there indicated to me that the witness was going to testify that they had any evidence that any of that occurred, except for the fact that the government has facilities to be able to wiretap somebody. So that would be nothing more than speculation.
We are aware of the fact that they have devices that allow them to wiretap. That's not the question. The question is whether or not in this instance, March 28th or April 7th, was the right date and whether that was a typographical error.
Secondly, with respect to the witness from Florida, I have preliminarily agreed to allow her testimony. I'm not sure what she can add to whether or not it was a typographical error on behalf of the agent. If there is something that she can add with respect to that, then I will certainly listen to it. If it turns out it's not related to that, we will end that testimony very quickly.
So everybody has an idea of what the parameters of today's hearing is, it's a very limited hearing based on the circuit's belief that there is a factual issue as to whether the wiretap began when authorized on April 7th or whether it began before that on March 28th prior to its authorization.
That being said, is the government ready to proceed? MS. OLSHEFSKI: Yes, Your Honor.
One preliminary note based upon what you just indicated is that the United States has turned over a redacted document that was related to CW 2 in the event that becomes an issue.
We have a 302, an interview of Lori Possinger, that has not been turned over yet. The reason being is because I was going to ask for an offer of proof after the government's witness testified because the government doesn't believe that she should be allowed to testify based upon an offer of proof, and the offer of proof that was presented to the Court is inaccurate. So I have it here. It has not been turned over yet.
THE COURT: Well, first, I assume you are not calling her as a witness?
MS. OLSHEFSKI: I am not, Your Honor.
THE COURT: I'm not sure that it's Jencks material, or to the extent it would be, if you're not calling her as a witness, but to the extent that there is -- let's cross that bridge when we get to that stage as opposed to now.
MR. BLAZOSEK: Judge, if I may be heard, and I'm not here to create a difficult
THE COURT: You don't have to make any excuses for being a defense counsel vehemently representing your client, and so just state what your argument is.
MR. BLAZOSEK: Thank you, Judge.
My only reason to want to speak at this time is the characterization of a purported expert would be to address what the government raised in its arguments both before this Court and before the appellate division.
I'm quoting from Page 29 in the government's brief, and it says in effect that Brown's argument that the FBI intercepted wire and electronic communications over Thompson's target phone prior to the Court's April 7th, 2020 order is premised on physical, technical, and legal impossibilities.
The whole purpose of an expert on the subject of a StingRay, on subject matter that prepared to show us in the government's own electronic surveillance manual would clearly dispute whether it's physically possible. It certainly disputes that it's technically possible.
So, to that degree, I feel that it was relevant. I understand the Court's position, but I want to state for the record that the proffer we made was not to be able to say that this expert could, in fact, dispute a timeline of whether surveillance began on March 28th, as set forth in the master affidavit, or whether it occurred on or after April 7th, but merely to show that it is; one, physically possible and; two, technically possible.
THE COURT: Let me say that I will take judicial notice of the fact that both of those are correct. I don't think there is any doubt that we know that. So that wasn't a question.
My guess is the semantics that were used there were somewhat of an exaggeration. I think it was, at least by my reading of that, was the intent to argue that the government would be unable to do that because without a signed warrant from a judge given to AT&T that they would not physically go ahead and wiretap the person.
So I think that maybe the language that was used was just coming from two different perspectives. I don't think that it's, honestly, inconsistent with each other at all. I get what's being said.
MR. BLAZOSEK: Again, I get it too, but if it were limited to a legal impossibility, I wouldn't be having this conversation.
THE COURT: But I can hear the argument it's a physical impossibility. From their perspective, the process is, we get a court order and go to AT&T. We don't tap the phone. AT&T taps the phone. So if AT&T doesn't have an order before April 7th, then the government is unable to get a wiretap on that phone.
I understand you are talking about a completely different device. I mean, there are microphones that can hear through walls and all kind of other things, but that is not the allegation that we are concerned with here.
We're concerned with the allegation of whether or not a wiretap order was signed and whether AT&T did, in fact, have that order and effectuate it on or after April 7th, or whether or not that was occurring before that on March 28th.
So, Ms. Olshefski.
MS. OLSHEFSKI: Your Honor, the government calls FBI Task Force Officer Shane Yelland.
SHANE YELLAND, called as a witness, having been duly sworn or affirmed according to law, testified as follows:
MS. OLSHEFSKI: Your Honor, the government has Exhibits 1 through 7. I provided a copy to the Court, I provided a copy to defense counsel, and the witness has a copy in front of him.
DIRECT EXAMINATION
BY MS. OLSHEFSKI:
Q. Good afternoon, Agent Yelland.
A. Good afternoon.
Q. Can you please introduce yourself to the Court?
A. My name is Shane Yelland. I'm a task force officer with the FBI. I'm a Wilkes-Barre City detective for the past 18 and a half years. I have been with the task force for about eight years now.
Q. Agent Yelland, were you involved in this case, in the prosecution of Anthony Brown?
A. Yes.
Q. And were you in -- can you tell us whether or not in the prosecution of this case, you were -- there were Title 3 wiretaps involved?
A. Yes.
Q. What was your role in obtaining Title 3 wiretapping, the authorization to intercept communications?
A. I was the case agent and the affiant of the wiretap.
Q. Were you the affiant on all of the wiretaps in this case?
A. Yes.
Q. Can you tell us whether or not there came a time when you sought court authorization to intercept communications on a cellular device belonging to Robert Thompson?
A. Yes.
Q. And can you tell us whether or not Robert Thompson was a co-defendant of Anthony Brown?
A. Yes, he was.
Q. Just briefly tell us what caused you to seek authorization to intercept Robert Thompson's cellular texts and wire communications.
A. We were on a wiretap of Tysheen Gott, and during the interceptions of Tysheen Gott's communications, we were able to identify what we believed to be a source of supply for Tysheen Gott, and that was Robert Thompson.
So we started the investigation into the source of supply and eventually got up on a wiretap of Robert Thompson's phone. Q. Agent Yelland, in front of you is Government's Exhibit No. 1 for this hearing.
Can you take a look at that and identify it, please?
A. Yes.
Q. What is it?
A. This is the affidavit in support of an application authorizing to intercept a wire for electronic communications for telephone number 862-867-9840, Robert Thompson's cellular phone one.
Q. And that information that you just recited, that's included in the caption?
A. Yes.
Q. And is there a time stamp to the right of that document indicating that it was filed with the clerk here in Scranton?
A. Yes. There's a date of April 7th, 2020.
Q. Can you please go to the last page of that affidavit?
A. Yes.
Q. Now, when you have an affidavit -- what was the purpose of this affidavit?
A. To seek Court authorization to install a wiretap on Robert Thompson's cellular phone.
Q. Do you see your name on the last page, which is Page 140?
A. Yes.
Q. Do you see a signature?
A. Yes.
Q. Whose signature is that?
A. That's my signature.
Q. Did you swear out this affidavit?
A. Yes.
Q. Were you under oath when you did it?
A. Yes.
Q. Where did this take place and before which judge?
A. Judge Malachy Mannion's office.
Q. Do you see a signature below yours?
A. Yes.
Q. And whose signature is that?
A. That's Judge Mannion.
Q. Is there a date indicating where you came before the judge and swore out the contents of this affidavit?
A. Yes.
Q. What is that date?
A. April 7th, 2020.
Q. Did you sign this affidavit in the presence of Judge Mannion?
A. Yes.
Q. Now, are you familiar -- you are familiar with the process involved with obtaining Court authorization to intercept wire and electronic communications, correct?
A. Yes.
Q. Does that also require an application presented by the government?
A. Yes.
Q. In front of you is Government's Exhibit 2. Do you see that?
A. Yes.
Q. What is that?
A. That is the application to intercept call number 862-867-9840, Robert Thompson's cell phone one.
Q. Do you see a time stamp to the right of that caption indicating when this application was actually filed with the clerk in Scranton?
A. Yes.
Q. What is that date?
A. April 7th, 2020.
Q. And on Page 25, do you see the signature of the assistant U.S. attorney?
A. Yes.
Q. And that would be myself, correct?
A. Correct.
Q. And do you recall working in conjunction with myself as the assigned AUSA in facilitating this paperwork?
A. Yes, I do.
Q. Now, are you also familiar with what happens with these documents before you even approach Judge Mannion for authorization?
A. Yes.
Q. What is your understanding of what is required?
A. It has to go down to DOJ main and a Deputy United States
Attorney has to sign off on it.
Q. And do you play any role in that process?
A. After we author the affidavit, it goes down there, and I'm not sure what happens when it's down there.
Q. But you know that something has to happen from DOJ main?
A. Yes. They have to approve it and issue a letter authorizing, stating that they approved it.
Q. Do you see the final pages of Government's Exhibit 2, do you see documents attached to the application indicating that the process that you just described, having been sent to the Department of Justice and having been signed off by a deputy attorney general, do you see those documents representing that that was in fact done?
A. Yes.
Q. So if you go to the last page, the last few pages of Government's Exhibit 2, do you see a date when the -- when a deputy assistant attorney general signed off on this application?
A. April 7th, 2020.
Q. Now, when these documents return, and in the process of preparing paperwork, are you familiar that an order for the Court to sign has to be prepared?
A. Yes.
Q. In front of you is Government's Exhibit 3. Do you see that?
A. Yes.
Q. Do you recognize that?
A. Yes.
Q. What is it?
A. This is the order authorizing the interception of the wire and electronic communications of call number 862-867-9840, Robert Thompson's cell phone one.
Q. All of that is in the caption, correct?
A. Yes.
Q. And to right of that caption, do you see the time stamp for that order as having been filed in Scranton?
A. Yes.
Q. What is that date?
A. April 7th, 2020.
Q. Go to the last page, please.
On Page 18, do you see a signature of a United States District Court Judge?
A. Yes.
Q. Is that also Judge Mannion?
A. Yes.
Q. And did Judge Mannion date that order when he authorized it?
A. Yes; April 7th, 2020.
Q. Are you also familiar that before Judge Mannion issued this order, that he has, in fact, in front of him the affidavit?
A. Yes.
Q. Are you aware of whether or not he has an application in front of him?
A. Yes.
Q. And then the order, correct?
A. Yes. Correct.
Q. Can you tell the Judge whether or not any time prior to April 7th, 2020, and the Judge authorizing this order, you or any member of your team started to intercept any communications over the cellular device utilized by Robert Thompson?
A. No.
Q. And based upon what you know and your training and experience in that Title 3 intercept, were you specifically able to do that?
A. No.
Q. Were you lawfully able to do that?
A. No.
Q. And after the Judge signs this order, did there come a time when you, as the FBI lead agent on this case, gets a copy of that order?
A. Yes.
Q. What did you do then when you received a copy?
A. After Judge Mannion signed it, it goes down to the Philadelphia tech squad, the FBI tech squad who reviews it, makes sure all the signatures and everything is proper, and they then send it to AT&T, the service provider, at that point.
Then, once it gets to the service provider, they review it and make sure everything is in order, and then the switch is flicked and we start to get interceptions.
Q. And the FBI tech squad, do you have anything to do with that?
A. Just communications via phone, but nothing else.
Q. And until that process plays out as you just described it, are you physically and/or lawfully allowed to intercept communications pursuant to this Title 3 wiretap on Robert Thompson's phone?
A. No.
Q. So as that process is playing out, what are you and your team doing here in Scranton?
A. Just waiting.
Q. And the monitoring of these communications after that switch is flipped, as you indicated, where does that take place?
A. Inside the FBI office, there's a dedicated wire room.
Q. And is that a wire room -- is that a room that is monitored 24 hours a day?
A. No. We set the parameters of how long we're going to have monitors there.
Q. And when you receive a court order to do this, is there a limitation of the length of time in which you can intercept these communications?
A. Yes; 30 days.
Q. I want to direct your attention now to May of 2020.
Did you take part or did you testify in seeking an indictment in this case?
A. Yes.
Q. And did you testify?
A. Yes.
Q. Was an indictment returned?
A. Yes.
Q. And what was the date of the initial indictment in this case?
A. May 28th, 2020.
Q. Where was the grand jury located that issued that indictment?
A. Williamsport, Pennsylvania.
Q. And when that indictment was returned on May 28th of 2020, was the Defendant, Anthony Brown, included in that indictment? A. Yes, he was.
Q. In front of you, I believe, is the last exhibit. It's Exhibit No. 7. Do you recognize that?
A. Yes.
Q. What is that?
A. This is the copy of the indictment.
Q. And you see Anthony Quamaine Brown, correct?
A. Yes.
Q. And the time stamp on the right-hand side for that indictment?
A. May 28th, 2020.
Q. So, as of May 28th, 2020, is it fair to say that you had identified Anthony as Anthony Brown?
A. Yes.
Q. Explain to the Judge in summary fashion how the investigation led to that identification.
A. Yes.
As we monitored the wiretap, we started to get telephone numbers that were coming over. The subscriber information was obtained. We would also have surveillance. We would also do interviews. We have a full-time analyst whose job is to identify phone numbers and put people, you know, the owners of the phone numbers to that person, and so that's how we were able to do it.
Q. After you secured that indictment, did you and your team make plans to effectuate the arrest of those individuals identified in that indictment?
A. Yes.
Q. Did you have a planned date for those arrests?
A. Yes.
Q. What was the date?
A. The planned date was June 2nd, 2020.
Q. Can you tell us whether or not in addition to planning their arrest, you also planned for search warrants?
A. Yes.
Q. Can you tell us whether or not if you planned for search warrants that required an additional affidavit?
A. Yes, it did.
Q. Did you participate in any way in that affidavit in support of search warrants?
A. Yes, I did.
Q. In what way?
A. I was the affiant in the search warrant affidavit.
Q. Can you tell us whether or not or what you were -- was there just one location that you were intending to search or otherwise?
A. No, there was several, and vehicles.
Q. Did you have more than one affidavit?
A. We had an addendum that was filed June 2nd, also.
Q. In front of you is Government's Exhibit 4. Do you recognize that?
A. Yes.
Q. What is that?
A. This is the copy of the master affidavit of probable cause in support of the search and seizure warrants.
Q. So it's titled master. Was that affidavit intended to support the search of all the locations?
A. Yes.
Q. And what was the addendum for?
A. An additional residence of Tysheen Gott that was identified just prior to the search warrants being executed.
Q. And that affidavit, that master affidavit, did you have to swear that out in front of a Judge?
A. Yes.
Q. And did you do that?
A. Yes, I did.
Q. Which Judge were you in front of when you swore out that affidavit?
A. United States Magistrate Judge Mehalchick.
Q. And did you -- do you see your signature on that affidavit?
A. Yes, I do. It's on Page 101.
Q. Where were you when you placed your signature on that affidavit?
A. Her chambers.
Q. Do you also see Judge Mehalchick's signature on that affidavit?
A. Yes, I do.
Q. When Judge Mehalchick, Magistrate Judge Mehalchick signed that affidavit, did she date it?
A. Yes.
Q. What is the date?
A. May 29th, 2020.
Q. You mentioned the monitoring room. Do you know what a whiteboard is?
A. Yes.
Q. And in the FBI office downstairs, do you have a whiteboard?
A. Yes.
Q. Can you tell us whether or not you utilized a whiteboard during the Title 3 interceptions in this case?
A. Yes, we did.
Q. And how do you utilize a whiteboard?
A. We would utilize it to communicate with all the investigators involved in the investigation. We would put notes and/or keep track of some time limits.
Q. And in front of you, Agent Yelland, is an exhibit that is marked as Government's Exhibit No. 5.
Do you see this?
A. Yes.
Q. What is that?
A. This is a picture of the whiteboard -- one of the whiteboards that was in the wire room.
Q. On the right-hand side of that photograph, there seems to be a table with names and dates.
Do you see that?
A. Yes.
Q. Explain to the Judge, please, what that information included on that table means?
A. Yes. So this would be up in the right-hand side, the start date for Tysheen Gott's target phone one, when we started the interception, when we stopped the interception, if there was an extension, and when it was sealed.
Then it would be target phone two, when we started, stopped, if there was an extension, and when it was sealed.
Then it was Thompson's target phone one, and when it started, stopped, and if we got an extension and when that was sealed.
Then there is two other dates there. That's for our 15-day reporting, reports that are due. That was the dates that they were due.
Q. What is the purpose of having this in the wire room?
A. Just so everybody is aware of the start date, the stop date, and the 15-day reporting report dates.
Q. And then to the left of this Government's Exhibit 5, I see addresses and I see the word vehicle. What's the purpose of that?
A. That is where we established probable cause to obtain search warrants for the vehicles and addresses.
Q. You indicated you were the affiant on the search warrant.
You wrote the search warrant affidavit, correct?
A. Correct.
Q. Did you utilize this board at any time as you were drafting your affidavit of probable cause?
A. Yes.
Q. Why did you do that?
A. To make sure that the dates were correct.
Q. Agent Yelland, did you refer to this board correctly or incorrectly?
A. Incorrectly.
Q. Explain to the Judge why you say incorrectly.
A. The table goes down, and I inadvertently read the first date as 3/28 and I was reading across. It was a typographical error.
MR. BLAZOSEK: Objection, Your Honor. He could say whatever he did. He's drawing a conclusion that it's a typographical error.
THE COURT: He's telling us that he made a typographical error. He can certainly tell us what he did.
MR. BLAZOSEK: He's saying that he put a date down that he claims he misread this chart.
THE COURT: Right.
MR. BLAZOSEK: That's not typographical.
THE COURT: Your objection is overruled. It's a fair statement. Go ahead.
BY MS. OLSHEFSKI:
Q. Agent Yelland, I want to direct your attention to Page 19 of this affidavit, Paragraph 21.
Do you see that?
A. Yes.
Q. Can you please identify the caption for that paragraph?
A. Yes. Intercept of electronic communications over Robert Thompson's target phone one.
Q. Read the first sentence of that paragraph, please.
A. On April 7th, 2020, United States District Judge Mannion, Middle District of Pennsylvania, signed an order 3-30-MC159 authorizing the interception of wire and electronic communications on a cellular device utilized by Robert Thompson, a/k/a Jeffrey Parker, for a period of 30 days. Cellular telephone number, assigned telephone number 862-867-9840, Thompson's target phone one.
Q. Can you please read the second sentence?
A. Yes. Interception of wire and electronic communications over Thompson's target phone one commenced on March 28th, 2020, and was set to terminate on May 6th, 2020.
However, on May 6th, 2020, the Court granted a 30-day extension to continue the interception of wire and electronic communications over Robert Thompson's target phone one set to terminate on June 4th, 2020.
Q. Now, what, if any, error do you perceive in that second sentence?
A. The March 28th date.
MR. BLAZOSEK: Your Honor, I'm objecting.
THE COURT: It's overruled. Your objection is noted. MR. BLAZOSEK: Thank you.
BY MS. OLSHEFSKI:
Q. That error you are admitting that was made, was that made by you?
A. Yes.
Q. And is it for reasons that you just described on how you incorrectly read this board?
A. Yes.
Q. Where it says, set to terminate May 6th of 2020, is that an accurate date?
A. Yes.
Q. Did you at any time, Agent Yelland, or did any member of your team commence interception of Robert Thompson's cellular device as identified in these affidavits prior to April 7th of 2020?
A. No.
Q. I want to direct your attention to Page 23, Paragraph 26. Do you see that?
A. Page 23, Paragraph 26, yes.
Q. What is that paragraph captioned?
A. Indictments.
Q. Can you tell the Judge in any way in Paragraph 26 about the indictments?
A. Yes.
Q. And what do you tell the Judge?
A. The fact that the defendants were indicted on May 28th by a federal grand jury seated in Williamsport.
Q. I want to direct your attention to Page 55 of that affidavit.
A. Yes.
Q. And it actually picks up in the middle of Paragraph 30, correct?
It's a rather lengthy paragraph
A. Yes.
Q. -- that begins on Page 50?
A. Yes.
Q. But I want to direct your attention to Page 55.
A. Yes.
Q. Do you see the sentence that begins four lines down, on April 4th?
A. Yes.
Q. Can you read that, please, that one sentence?
A. Yes. On April 4th, 2020, a cooperating witness, herein referred to as CW 2, was interviewed regarding his/her knowledge of Anthony Brown.
Q. So April 4th, 2020, would you agree that that precedes April 7th of 2020?
A. Yes.
Q. Why did you use the name Anthony Brown instead of just Anthony?
A. Because during the investigation, we identified Anthony as Anthony Brown.
Q. Again, by the writing of this -- by the time you wrote this affidavit, Anthony Brown was indicted, correct?
A. Correct.
Q. I want to direct your attention to the last exhibit that I believe is in front of you, which is Exhibit 6.
Do you see that?
A. Yes.
Q. What is that?
A. This is a declaration of Michael T. Bushman. He is the special agent down in Philadelphia as the tech agent.
Q. When this error was brought to your attention, or this hearing was scheduled, in anticipation of this hearing, can you tell us whether or not you communicated with Agent Bushman?
A. Yes.
MR. BLAZOSEK: Your Honor, I don't want to interrupt, but I want to note an objection unless Mr. Bushman is going to testify.
THE COURT: This is a hearing that under the Federal Rules of Evidence hearsay evidence is admissible at hearings. It is overruled. You can go ahead.
BY MS. OLSHEFSKI:
Q. Why is it that you communicated with Agent Bushman?
A. To make sure he rechecked all the information and that there was no communications that were intercepted prior to April 7th on Robert Thompson's cellular phone one.
Q. And this is the Agent Bushman that you referred to is in the tech -- part of the tech unit of the FBI in Philadelphia? A. Yes, that's correct.
Q. This declaration of Michael Bushman that is in front of you, can you turn to the second page, please?
A. Yes.
Q. Does the second page bear the signature above a name that is printed Michael T. Bushman?
A. Yes.
Q. Can you tell us whether or not this document was notarized by a notary public?
A. Yes, it was.
Q. And what is the date of this signature and notary confirming that Michael Bushman is the person who signed and authored this document?
A. The date is June 5th, 2023.
MS. OLSHEFSKI: Your Honor, with the permission of this Court, I'm going to ask that the declaration be read?
THE COURT: Okay. You can do that.
BY MS. OLSHEFSKI:
Q. I will ask you to read this, please.
A. I, Michael T. Bushman, hereby declare and state as follows: I am a special agent with the Federal Bureau of Investigation and have been since September 2002.
As part of my duties with the FBI, I assist with the implementation of various electronic surveillance techniques, including full content interception of wire and electronic communications, pen register, trap and trace devices, and the acquisition of cell site location information.
In furtherance of these duties, I frequently serve court orders and search warrants related to electronic surveillance and serve as a system administrator regarding the provisioning of FBI systems which allow for collection and review of such data by investigative personnel.
Additionally, I create and manage user accounts which allow for the review of the aforementioned information delivered by telecommunication providers.
I am familiar with FBI case 267D-PH-2999492 and target phone 862-6 -- I'm sorry -- 867-9840, target phone.
A review of the records -- a review of records indicate that on April 7th, 2020, I served AT&T with an order authorizing the interception of communications of the target telephone, the order authorizing the interception of wire and electronic communications for a 30-day period, as well as the installation of pen register, trap and trace for a 60-day period.
The order was signed by United States District Court Judge Malachy Mannion -- E. Mannion in the Middle District of Pennsylvania on April 7th, 2020, and was assigned Docket No. 3-20-MC-159.
On May 31st, 2023, I reviewed the collection system which presents the results of full content audio and SMS interception to investigative personnel. I confirmed the system was set to begin interception of target phone on April 7th, 2020, at 1:39 and 17 seconds p.m., Eastern Standard Time, and the system was set to terminate the interception on May 6th, 2020, at 11:59, 59 seconds p.m.
At the conclusion of the 30-day period, I further verified that the full content interceptions of the target phone pursuant to the order signed on April 7th, 2020, were collected within the parameters of the start and stop dates previously noted.
I declare under penalty of perjury, pursuant to United States Code 28, Section 1746, that the foregoing is true and correct to the best of my knowledge.
Q. Agent Yelland, on the first page of that, when Agent Bushman refers to the target telephone number, is that consistent with the target telephone number that is on Judge Mannion's order that is Government's Exhibit 3?
A. Yes.
Q. And the date that Agent Bushman swears to under oath was the initiation, April 7th, 2020. Is that consistent with the date the Judge authorized the interception?
A. Yes.
Q. Can you tell us whether or not, again, any interception occurred of Robert Thompson's cellular device as is described here prior to April 7th, 2020?
A. No.
MS. OLSHEFSKI: Nothing further, Judge.
I do move for admission of Government's Exhibits 1 through 7.
THE COURT: Any objection to the exhibits?
MR. BLAZOSEK: Other than as noted, Your Honor.
THE COURT: Okay.
(At this time, Government's Exhibit Nos. 1 through 7 were admitted into evidence.)
CROSS EXAMINATION
BY MR. BLAZOSEK:
Q. Agent Yelland, I want to just touch on some of the things that Attorney Olshefski asked you, and I may expand a little as we talk, but one of the things I want to do is get some basic information that is consistent with what you've already talked about.
Your title is lead agent, is that correct, or is it a different title?
A. Case agent, lead agent would be fine.
Q. I have seen on some documents lead investigator?
A. Yes, that would be fine.
Q. How does that differ from the duties of other people who may be involved in the investigation that is being carried out that led to this indictment?
A. They get to go home and not answer their phone all the time. As lead investigator, you're working all the time. Anything that comes in, you are notified of. You have to make sure -- you're like the supervisor. You have pretty much everything -- you have to know everything that's going on and organize it as best as possible.
Q. So not only information that you personally might obtain, but information that other investigators would obtain would be funneled through you, is that accurate?
A. Correct.
Q. And when you perform the duties that involve some of the documents Attorney Olshefski asked you about; applications for wire interception, applications for search warrants, what process do you follow when it comes to preparation of those documents?
A. How do I write them?
Q. Just, what process do you follow?
A. The affidavit starts from the beginning of the investigation and is just constantly typed until we work hand-in-hand with the United States Attorney's Office, and then that application needs to go down to DOJ for approval.
If there's any kind of revisions required, it comes back, and we further investigate those revisions until it eventually gets approved by a Deputy United States Attorney.
Q. And the initial information that goes into that document, is it you that inputs it?
A. I author it, yes.
Q. Okay. Do you check with anybody else for accuracy of what you input before it goes to a level above you?
A. Yes.
Q. Who do you check with?
A. My co-workers.
Q. Did you check with your co-workers on the master search affidavit that's been referred to as Government's Exhibit 4?
A. Yes.
Q. You would agree with me that in that master search affidavit -- I just want to be precise, and so if you will just bear with me for a minute -- I'm quoting on Page 22, if you have it in front of you.
A. Yes.
Q. It is, I believe, Paragraph 25. Do you have it there?
A. I do.
Q. It says, since the February 28th, 2020 initiation of electronic intercepts of various individuals over Tysheen Gott's and Robert Thompson's cellular devices, you go on to say that it is your belief throughout this investigation, you mention people, including various individuals, including
Mr. Brown, that they have used the following coded language, et cetera.
So you're saying that you had access since February 28th, 2020, to Robert Thompson's cellular device, is that correct?
A. No.
Q. But you put that down in the affidavit?
A. Correct.
Q. Can you tell me how that date got to be put there?
A. Yes. That was the first interception date of Tysheen Gott's phone.
Q. But you didn't say that. You said over Tysheen Gott's and Robert Thompson's cellular devices. You didn't limit it. You put Gott and Thompson.
A. Correct.
Q. Well, did you, in fact, have access to Robert Thompson's cellular devices since February 28th, 2020?
A. No.
Q. But you put it in your affidavit?
A. Since February 28th, 2020, we initiated the Tysheen Gott's wire affidavit -- wire interception.
Through that, since that date, until this was approved, we have identified all the listed names that are in there, and the coded language was also utilized by both on both interceptions. Q. Agent, I understand that, but I also believe, and I don't want to be argumentative with you, but you didn't say just Tysheen Gott. You said over Tysheen Gott's and Robert Thompson's cellular devices, and you used the date since February 28th, 2020.
Is that accurate or not accurate as you sit here today? A. It is accurate, because we started to intercept Tysheen Gott's phone on February 28th and then --Q. Did you also intercept -A. -- then we started intercepting Robert Thompson's phone after that, April 7th, 2020, and then during the both interceptions, we identified the defendants and the coded language that was referred to.
Q. But you would agree with me that that's not what you wrote here?
A. That's exactly what I wrote here.
Q. We will let what you wrote stand.
Let's talk about Page 19 of the master affidavit. If you would, Agent, look on -- you were asked, I believe, earlier about the ending paragraph, which is 21.
Do you have it in front of you?
A. Yes.
Q. You agree that you had placed in that affidavit that Thompson's target phone commenced on March 28th, 2020.
Did you put that in the affidavit?
A. Yes.
Q. Was it right or wrong?
A. It's wrong.
Q. When did you first learn that it was wrong?
A. Your motion.
Q. So up until then, even though it has gone through every step that you have described, you're telling us that you never noticed this before?
A. That's correct.
Q. And when you talk about the board, you're the one who created the board or someone else?
A. I don't remember if I created the board or not.
Q. Well, is that the only thing you would have looked at to prepare the insertion of dates in these applications?
A. Yes.
Q. Nothing else?
A. I don't remember looking at anything else other than this board.
Q. You would agree with me that the significance of getting accurate dates is crucial to further your investigation and for accuracy of whether or not you have lawfully conducted the steps that you claim to have taken leading to filing an application and asking for further direction from a Court?
A. That's correct.
Q. And yet you never looked until that motion was filed, that's your testimony?
A. No. I never caught that mistake.
Q. Does someone proofread the document before it leaves your level of involvement?
A. Yes.
Q. Who?
A. Other agents. Again, it goes to the United States Attorney's Office, the Judge, yes.
Q. But none of them caught it, is that your testimony?
A. No, nobody caught it.
Q. As we're here today, you have done nothing to correct this, have you?
MS. OLSHEFSKI: Objection, Your Honor. That makes no sense. It's a done deal.
MR. BLAZOSEK: It's an incorrect document, I would submit, Your Honor. It should be amended. It hasn't been.
THE COURT: Well, it's a closed issue. You brought it up on your appeal issue. The document is what the document is.
MR. BLAZOSEK: We understand that, but he's now testifying there are instances where it was inaccurate.
THE COURT: Well
MR. BLAZOSEK: I will leave it as rhetorical, Judge, if that's okay with you?
THE COURT: All right.
BY MR. BLAZOSEK:
Q. Let me ask you, if I can, Agent, when did you first identify Anthony Brown as -- and I will use three phrases. You tell me which one fits -- a suspect, a person of interest, a target?
A. Target during the course of the investigation.
Q. Can you be more precise?
A. No.
Q. Well, as I read some of the documentation involving the entire conspiracy, I'm understanding that the investigation could go back as far as 2010 or 2012.
Are you telling me it could have been back that early?
A. No.
Q. How did you narrow it down?
A. It was during the investigation on Robert Thompson's cellular phone one, April 7th, 2020.
Q. What would be the date that you had any ability to say that he shows up as the target or someone who you would regard as possibly a person to be indicted?
A. I don't know the date.
Q. You don't have any idea?
A. No.
Q. Well, could it have been March of 2020?
A. I don't know the date.
Q. Okay. When you had the opportunity to get information from what was identified as CW 2, you made reference to the interview, and I believe -- if I may, I just have to leaf through some of these documents -- the reference at that time was noted again in the master search affidavit.
At that time, you narrated what I understand is the interview itself as it pertained to someone named Lori and some other individuals.
Can you share with me at that point how did that become part of your investigation that you had interviewed confidential witness two on April 4th?
A. I did not interview confidential witness two, other investigators did.
Q. Do you know how they came to interview them on that date? A. My understanding is confidential witness number two was a confidential witness for another investigator that is assigned to the task force.
Just like we do all the time is, you speak to your confidential witnesses about illegal activity. During the interview, the confidential witness started to explain some information on Lori Possinger and possible criminal activity where Lori was -- where the confidential witness was explaining how Lori was now with a new person who they suspected as a during dealer named Anthony.
Q. So let's extend my earlier line of questions to you.
Was Anthony Brown a target, a suspect, a person of interest on April 4th?
A. For me?
Q. For your investigation.
A. For this investigation? No. Maybe for the other investigator's investigation who was interviewing CW 2, but not me.
Q. Well, this is part of the whole issue here is you couldn't tell us when Anthony Brown fit that description of a target, whatever language we're going to use, a suspect, but now you're saying for maybe other investigators.
You don't know that, do you?
A. I cannot tell you the specific date that Anthony Brown became a target of this investigation. I can tell you it was after April 7th, 2020, when we started to intercept Robert Thompson's cellular phone one.
Whether or not other investigators throughout the country were investigating Anthony Brown, I'm not aware. Q. That wasn't my question.
My question was; your own investigation, you have the title of being the lead investigator, and as the lead investigator, all the information comes to you, and you use that when you report on the progress of your investigation on who might be included in further follow up, but yet you can't tell us when Anthony Brown became a target, is that your testimony?
A. The answer is after April 7th, 2020.
Q. You didn't say that in your narration, did you, about that interview that occurred with CW 2, is that correct?
A. I'm not sure.
Q. Did you use the name Anthony Brown in there?
A. Yes.
Q. So at that point you're using the name Anthony Brown and you put it in.
Did you put it in just out of convenience, if you didn't know who Anthony was on April 4th? Now you're writing it as if you do know.
A. So, on April 4th, the investigator spoke with CW 2 about an Anthony.
At some period during my investigation, after April 7th, 2020, we were informed about this interview, and the facts and circumstances about the interview were corroborated by our own observations and the wire interceptions.
So, therefore, we were able to positively identify the Anthony that was referred to back on that interview with other investigators as being Anthony Brown.
Q. But that's not what you said in your affidavit, is it?
You used Anthony Brown on April 4th in connection with Lori Possinger, didn't you?
A. Yes, because that was the information we have learned through this investigation.
Q. But as you're here today, you can't say when Anthony Brown became a target
MS. OLSHEFSKI: Objection, Your Honor, asked and answered three times.
THE COURT: Yes. I'm having a hard time figuring out the relevance of that as to whether or not the wiretap was legally signed and initiated on April 7th.
So I'm trying to give you room, but we're getting a little bit far afield. Your objection is sustained.
MR. BLAZOSEK: Understood, Your Honor. I think it bears on the whole issue of how the government came to involve my client in what led to his indictment.
I appreciate the latitude, but I think it's relevant and, if I may, I would like to just touch on a little different aspect if I can?
BY MR. BLAZOSEK:
Q. Lori Possinger, was she ever a target?
A. She was a witness.
Q. But was she ever a target, that was my question?
A. Of this investigation?
Q. Yes.
A. No.
Q. And yet the pretext, as I understand -- and I use that word as part of what was deemed significant for CW 2 -- was to tell you about Lori Possinger, is that correct?
A. Again, CW 2 told the investigator about Lori Possinger. That information became relevant during after April 7th, 2020, and that information was included into the master affidavit to link the addresses that we were to positively identify Anthony Brown in.
Q. Let me ask you, what bearing would Lori Possinger have with, quote, Anthony to become part of your investigation if she wasn't a target, if Anthony wasn't someone that you were pursuing as a target, and that, again, is on April 4th, prior to any wiretap beginning on April 7th?
A. I'm not sure how to answer the question.
Again, CW 2 was interviewed on
THE COURT: I'm having a hard time following. I'm not seeing the relevance. It appears to me that the testimony is before April 7th, they knew somebody named Anthony. After April 7th, they were able to show Anthony was Anthony Brown. In an affidavit that was filed on May 29th, a long time after that, they put in the name Anthony Brown which they knew at the time they did that affidavit on May 29th.
So I'm not finding anything about that that doesn't make very logical sense in terms of the investigation, and I'm not seeing anything about it that's telling me whether or not on April 7th, or prior to April 7th, there was a wiretap, and that's where I want us to try to go back and focus. BY MR. BLAZOSEK:
Q. Well, did you subsequently have an interview with Lori Possinger, and if not you personally, did any investigator under your supervision interview her after April 4th, 2020? A. Yes.
Q. And in that interview, did you conduct it?
A. Yes.
Q. Do you have notes of it?
A. I'm not sure if I have the notes, or if Agent Whitehead was with me, he may have notes.
Q. Did you bring them to court?
A. The interview notes?
Q. Yes.
A. No.
Q. Is there a reason why not?
MS. OLSHEFSKI: Objection, Your Honor.
THE COURT: The first reason is, it doesn't appear to be relevant to the issue that's before us here.
MR. BLAZOSEK: Judge, the whole
THE COURT: I get your argument and you're not getting my rulings.
The bottom line is, this is about whether or not when he put in on the May 29th master affidavit, when he put in the date March 28th, whether that's, in fact, because interceptions began on March 28th, as opposed to April 7th. That's the only issue we have here.
So far all of the evidence that is presented indicates that the affidavit was presented to the Court, it was signed, it was sent to Philadelphia, and the turn on occurred at a very specific time on April 7th, and that there was a typographical error, because looking at the whiteboard, he was reading horizontally, as opposed to vertically. That's the issue here.
Lori Possinger, whatever her name is, is irrelevant to this case as far as I can see to the issue in question. This is not an overall hearing. It's not something where we have to reopen the case.
It's about whether the date in there was a typo or not a typo, whether it was a mistake or not a mistake, whether or not the wiretap began before or after as required April 7th. Let's focus on that. If there is any more questions about that, then ask them.
Whether he interviewed Lori Possinger before or after April 4th is completely irrelevant to whether the Court signed an affidavit, they submitted it, and it turned on, on April 7th.
MR. BLAZOSEK: Judge, if I may be heard? The relevance is set forth in what I regarded as a proffer for Lori Possinger. If she indicates that they told her that they had heard her conversation with Robert Thompson before April 7th, that would be evidentiary of somebody intercepting calls before April 7th.
THE COURT: Well, I don't think there is any doubt of the fact that apparently on April 28th they had Tysheen Gott on the phone line, the phone line that ultimately led to Robert Thompson, right?
Again, on March 18th, continuing until April 16th, they had the second wiretap on Tysheen Gott. Those wiretaps, you've heard, led in some way to Robert Thompson, right?
So the fact that whatever she believes or, you know, I don't know, was she privy to the FBI? Was she in the wire room?
MR. BLAZOSEK: She could only report what the FBI told her, and if her testimony is they told her they heard it, then the inference is somebody had to either be lying or, in fact, they heard it and they didn't have the authority, except through some mechanism involving Thompson because they had Thompson's phone.
THE COURT: All right. I get your argument. You can certainly make that legal argument as you wish. I'm just not finding that that -- I find you're getting off track here as to the issue that's in the case.
It's about one particular Title 3 that occurred on April 7th, according to the documentation, and that there was a rendition of that in a paragraph a month and a half later that had the incorrect date. That's all we're here for.
MR. BROWN: Your Honor, may I please address the Court?
THE COURT: No, you may not.
MR. BLAZOSEK: You can talk to me.
THE COURT: Mr. Blazosek, are there any other questions you have related to that, that's going to be my question when you're finished talking to Mr. Brown?
MR. BLAZOSEK: Thank you.
I will, for the sake of clarity, ask what Mr. Brown has asked me is whether he can have further clarity on the scope of the hearing?
THE COURT: I think I made that very clear when we started and it's on the record.
Do you have any other questions of the witness?
MR. BLAZOSEK: Thank you, Your Honor.
BY MR. BLAZOSEK:
Q. Let me pose one thing that again touches upon the format that you follow.
You put in your affidavit -- I believe it was April 7th -that there were reasons that you needed to obtain Thompson's wire surveillance and that you couldn't locate him.
Do you recall putting that in?
A. On the initial application to intercept his -- the need for interception?
Q. Yes.
A. I'm sure that's in there, yes.
Q. Well, can you tell me again -- again, I'm mindful of the scope of the hearing, but you also had indicated that you followed Mr. Thompson to Sand Street and you knew that that Sand Street residence in Pittston had his name as an owner and you could surveil that, but you didn't say that in the affidavit that you filed with the Court.
MS. OLSHEFSKI: Objection, Your Honor.
THE COURT: Sustained.
BY MR. BLAZOSEK:
Q. One other matter that I may touch on, if I may?
When you prepared the application to extend in May, you had a recitation. I believe it was a chart of progress made in this investigation that involved surveillance of various defendants.
Do you have that application in front of you, Agent?
A. The extension?
Q. Yes.
A. I do not. No, I do not.
MS. OLSHEFSKI: Objection, Your Honor.
What is the relevance of the extension of Robert Thompson's phone?
THE COURT: I'm not sure. Go ahead and ask, if you would, the question.
BY MR. BLAZOSEK:
Q. I've looked at that, Agent Yelland, and the presentation that you gave has -- I will show it to you so that it's clear.
MS. OLSHEFSKI: Your Honor, I'm going to object to this.
THE COURT: I haven't heard a question yet. Let me hear the question.
BY MR. BLAZOSEK:
Q. Agent, have you had an opportunity to look at that?
A. Yes.
Q. Does it refresh your memory if that was in your application for extension of wiretap?
A. Yes.
Q. Would you agree with me that you list a number of individuals but you don't list Anthony Brown?
A. I would agree with you.
MS. OLSHEFSKI: Could we have some clarity, Your Honor? Is this the extension of Robert Thompson or Tysheen Gott?
MR. BLAZOSEK: No. Extension of Robert Thompson, May 14th, but it may be incorrect of what the date is -- May 6th. BY MR. BLAZOSEK: Q. You prepared that, Agent, correct?
A. Yes.
Q. You didn't mention Anthony Brown, correct?
A. Correct.
Q. Is there a reason you didn't put him in?
A. The only reason that would be is because we didn't positively identify him utilizing the cell phone number that we believed he had.
Q. But I can refer you in the master affidavit that on Pages 55 through
MS. OLSHEFSKI: Your Honor, I'm going to object because this is beyond the scope.
THE COURT: Yes. I don't see how it relates to whether or not on April 7th we have a valid intercept order that was processed to begin that day. So I will sustain that objection.
BY MR. BLAZOSEK:
Q. Let me ask you, Agent, as you're here today -- we will try to be brief -- you say you spoke with Lori Possinger, but you didn't bring any documentation?
MS. OLSHEFSKI: Objection, Your Honor. This has been asked and answered.
MR. BLAZOSEK: I'm just trying to summarize the ending of my cross examination.
MR. BROWN: Your Honor, please, if I may, Your Honor, can I address the Court respectfully?
THE COURT: Let your counsel speak. Go ahead, Mr. Blazosek.
BY MR. BLAZOSEK:
Q. You can't narrow down a date that Anthony Brown became a target or a subject, is that correct?
A. That is correct, but your first statement is not correct.
Q. And my first statement was you didn't bring the document of your
A. Your original question was, did I bring my notes?
Q. Yes.
A. I did not bring my notes, but the 302 is here.
Q. Well, may I see the 302?
MS. OLSHEFSKI: Objection, Your Honor.
That's an FBI 302 which has no relevance to the scope of this hearing.
As you indicated, there has to be a proffer that she could offer that would indicate that interception began before April 7th of 2020.
MR. BLAZOSEK: I would submit there is no way I can know unless I see his notes or 302 so I don't mischaracterize it.
MS. OLSHEFSKI: Your Honor, she is not in the affidavit. She is not any part of this, other than CW 2, as I turned over, indicated that Lori Possinger was -- CW 2 said Lori Possinger is hanging out with a drug dealer and his name is Anthony, April 4th, 2020, and that's it.
This agent did not interview her. That became known to him, as he testified, after April 7th, 2020. That's the only relevance Lori Possinger has to this investigation, and he doesn't get to go rifling through FBI 302s to explore possibilities and speculation. This agent identified Lori Possinger as a witness that was interviewed not before April 7th of 2020. This is not relevant.
MR. BLAZOSEK: I would submit that for me and for the Court to make that determination, we need to know what was in the 302. I can't prove a case with records that she has, he has, and I don't.
MS. OLSHEFSKI: There is no proffer.
MR. BLAZOSEK: The proffer is what I said earlier, that her representation is they heard her conversation. According to her, she was told that with Robert Thompson, and that conversation would have occurred before confidential witness two was interviewed on April 4th.
THE COURT: Let me see the 302.
MS. OLSHEFSKI: I would note for the record, Your Honor, this 302 is dated October 14th of 2020 in preparation for this trial.
THE COURT: I've reviewed the 302 that was prepared in camera, three pages in length. I don't see it has any relevance to any of the questions that were asked.
MR. BLAZOSEK: So, for the record, I will not be shown that document?
THE COURT: That's correct. It was viewed in camera to see whether or not -- it's a government 302 related to a narcotics investigation. There's nothing about it relevant to the issue before the Court.
MR. BLAZOSEK: Your Honor, if I may ask -- I know it's a little bit out of the ordinary -- Mr. Brown has given me seven pages typed of questions that he is this afternoon indicating that he would like me to incorporate.
I would ask for a brief recess so that I can address with him whether there is duplication or whether there is some area that I have not touched upon that is relevant to this witness.
THE COURT: All right. We will take a 10-minute break.
MR. BLAZOSEK: Thank you, Judge.
(At this time, a 10-minute recess was taken.)
THE COURT: All right.
MR. BLAZOSEK: Your Honor, I appreciate the opportunity to have the time with Mr. Brown. I attempted to go over some of the questions. However, it's my understanding that he wishes to proceed pro se, and I would ask that he be allowed to address the Court on that issue.
THE COURT: Go ahead, Mr. Brown.
MR. BROWN: Your Honor, I have prepared several questions that I feel that is inside the scope of this hearing.
Coming into this hearing, it was my understanding that this hearing was based on the motion to suppress, the evidentiary hearing for a motion to suppress.
I was not aware that it was -- I was not aware that I couldn't argue things pertaining to that motion to suppress. There's certain things that you denied on that motion, Your Honor.
THE COURT: Did you read the Third Circuit's opinion?
MR. BROWN: I did.
THE COURT: Let's do this, Mr. Brown, and see if we can save some time. I will hear your questions, and then I will tell you whether they can be asked. Start with the first question.
MR. BROWN: That has already been addressed, Your Honor.
THE COURT: Please don't repeat anything that has been addressed, but then ask your question.
MR. BROWN: The first question I would like to know is that Agent Yelland did not conduct the interview with CW 2, but it was yet in the master affidavit of probable cause.
My question is, how come I'm not allowed to cross-examine the agent, task force officers who conducted this interview, because it has yet to be proven where they discovered my name from on this date, and I feel that is very relevant to whether or not interception occurred on April 7th.
THE COURT: That issue has already been brought up by Mr. Blazosek in how he has presented his questions. In fact, there was a lot of questioning about when the date, when your name was, who it was they got it from, and so we heard questions about that.
What else?
MR. BROWN: My witness, Possinger
THE COURT: I'm going to let Possinger testify as to if you tell me she is going to testify that an agent told her they intercepted Mr. Brown prior to April 7th, you can certainly ask her that question or questions around it, some agent told her that they had intercepted. I will allow that.
I'm not going to get into, though, a lot of extraneous or other matters.
Go ahead, Mr. Brown. What else?
MR. BROWN: I would like to know if Agent Yelland is certified to conduct wiretaps.
THE COURT: Okay. That's irrelevant. That's not one of the issues in question. Next question.
As I said, you know, the Third Circuit -- Mr. Brown, let me be very clear. This is a very limited -- this isn't a wide open -- you haven't gotten your plea back. We're not back to square one. We're not doing suppression hearings. It is about the issue they identified, and that is the statement as to whether or not the wiretap began prior to April 7th, and more specifically, exactly on March 28th, that period of time. That's what this is going into.
Go ahead. What else?
MR. BROWN: In the government's brief in opposition to my appeal, Ms. Olshefski, she states that interception of wire and electronic communications prior to the district court authorization of April 7th, 2020 order would have been a physical and technical impossibility. I wanted to know if he agrees with that statement.
THE COURT: Well, we have already had Mr. Blazosek ask that very same question. I think it's just a different -it's a matter of semantics on both sides, but he's asked that question.
What is your next question?
MR. BROWN: But I have here that that shows there are circumstances where the government can intercept.
THE COURT: He already asked that question. That question has been asked. What's next?
MR. BROWN: While conducting the interception of wire and electronic communications over a person's cell phone, is it possible for you to listen in on a call without recording it?
THE COURT: You can answer that question.
THE WITNESS: No.
MR. BROWN: It's not possible for you to do that?
THE WITNESS: No.
MR. BROWN: Is there any other device that can be used to intercept a person's cell phone conversation?
MS. OLSHEFSKI: Objection, Your Honor.
THE COURT: We already talked about that there certainly could be microphones that can listen, but that's not the issue.
The issue is whether or not a legal wiretap which was entered on April 7th was up and running prior to that time on or after March 28th.
MR. BROWN: I would like to know in the affidavit to continue interceptions of Robert Thompson's phone
THE COURT: The continued interceptions?
MR. BROWN: The continued interceptions over his phone, dated May 6th, on Page 71 and on Page 72, it's noted that the government has toll records of incoming and outgoing calls to and from Mr. Thompson's target phone one. The date that started is April 7th, 2020, and it goes through May 3rd, 2020.
On these toll records, Your Honor, there is no indication that the phone that the government said that I utilized, the number is not listed on the record as incoming or outgoing calls from April 7th to May 3rd.
Yet, in the master affidavit of probable cause, the government asserts that they intercepted calls between me and Robert Thompson April 8th, April 9th, April 10th, and April 11th.
I would like to know why there is no record of incoming or outgoing calls or text messages on the toll records.
THE COURT: Tell me how that would affect whether or not on or after April 7th there was, in fact, a legal wiretap.
MR. BROWN: I have reason to believe, being that there is no record of it, that those dates are incorrect.
THE COURT: All right. You can answer the question, if you can.
THE WITNESS: I would need
THE COURT: Ask the question again.
MR. BROWN: On Page 71 and Page 72 on the affidavit of continued interceptions over Robert Thompson's phone, it's listed, communications to or from Thompson's target phone one, telephone number 862-867-9840, dated April 7th, 2020 through May 3rd, 2020. The people that are listed as to being in communication with Thompson's target phone one on those dates are Tysheen Gott, Jean Almonor, Tariek Mitchell, and Juliette Grayson.
There is no indication that the number that the government asserts that I utilized and was in contact with Robert Thompson's phone is not listed as of record, is not listed as of record of incoming or outgoing calls to or from his phone. I would like to know what that is.
THE WITNESS: So what he's referring to, Your Honor, is the chart, and the chart that is listed in this affidavit are the people that we positively identified the phone number to the person.
So, in this occasion, I positively identified Tysheen Gott's phone number, Jean Almonor's phone number, Tariek Mitchell's phone number, and Juliette Grayson. Therefore, we gave the Court how many times it was on the toll records, the toll analysis.
The phone number that Mr. Brown was utilizing, we did not positively identify his identity and tie that to his number. Therefore, there are other toll records with unknown or suspected people that we have, but we can't put them in here until we positively identify their identity as using that phone.
THE COURT: You have your answer. Next.
MR. BROWN: Well, in the master affidavit of probable cause of search and seizure, you assert that you intercepted calls between me and Robert Thompson on April 8th, April 9th, April 10th, and April 11th.
So my question is, how can you assert that in that affidavit but it doesn't show here in this affidavit on the records?
I have -- this is a document, Appeal No. 22-1172, and this is pertaining to Ms. Olshefski. Page 7 and Page 8, she said, indeed Robert Thompson, a/k/a, Jeffrey Parker was identified as one of Gott's suppliers on March 26th, 2020. Subsequent communications led to the District Court's April 7th, 2020 order authorizing wire and electronic communications over Thompson's target phone one.
While monitoring Thompson's target phone one, agents intercepted calls between Thompson and Joseph Wilkins (phonetic). The continued interception of communication over Thompson's target phone one led to the identification of Anthony Brown and Amanda McPhillips.
So she is stating that the continued interception over Thompson's phone is how you identified me, but yet you cannot provide a specific date of when I was identified.
THE COURT: He's already answered that question by saying he cannot.
What is your next question?
MR. BROWN: This affidavit of probable cause, this affidavit for continued wiretaps over Thompson's target phone one, this was dated May 6th.
At this time, was I identified in this investigation?
MS. OLSHEFSKI: Your Honor, I think he would have to refresh his recollection by seeing the affidavit for the extension.
THE COURT: I'm still having a hard time figuring why this is truly relevant to anything.
Can you answer whether or not by May 6th you did or did not know, not just that there was an Anthony or that there was somebody who was using that phone who was involved in drugs, but it was this Anthony Brown? There's different levels of identification throughout an investigation. It isn't like you either do or don't know everything about the person.
Do you have an answer? Do you know whether you knew by May, the request for the extension, May 6th I think it was?
THE WITNESS: Your Honor, if Anthony Brown is not in the chart, he was not positively identified.
THE COURT: What other questions do you have, Mr. Brown?
MR. BROWN: In the affidavit in support of application of authorization to intercept wire and electronic communication of Robert Thompson's target phone one, dated April 7th, 2020, did you state because investigators only recently know Robert Thompson, investigators have not yet to determine where Robert Thompson resides in order to initiate physical surveillance?
THE COURT: I think that was already asked by your counsel as well. That's been asked and answered. Your counsel asked that question. What's your next question?
MR. BROWN: I don't remember that.
THE COURT: Then you can speak with him about that. What is your next question?
MR. BROWN: Is there an abundance of information in the affidavit in support of application for authorization to intercept wire and electronic communications for Robert Thompson's target phone one, dated April 7th, 2020, and May 6th, 2020, and the master affidavit of probable cause for search warrants demonstrating a very thorough investigation which began in December of 2018 pertaining to Robert Thompson?
THE COURT: I'm sorry. What's the question.
MR. BROWN: The question is, is there an abundance of information dating back in those specific documents that speaks about a very thorough investigation pertaining to Robert Thompson that dates back to December of 2018?
THE COURT: Well, I think the documents speak for themselves. So you can make whatever legal argument you wish with respect to that.
MR. BROWN: You said the documents --
THE COURT: They say what they say.
MR. BROWN: But it doesn't say that, that's why I'm asking him my question.
THE COURT: Again, the documents tell us what it is, whether it's described as such or not. The documents say what they say. Next question.
MR. BROWN: Okay. Just bear with me, please, because the reason for me asking that question, Your Honor, because this Court has denied my motion to suppress.
In that denial, this Court states on the necessity part, part two of my suppression motion, states that Brown states that no investigative procedures were quite well enough to accomplish every purpose lawfully open to agents and more success was possible if the government will have investigated Thompson longer than 11 days before applying for a wiretap of the cell phone.
As discussed, on April 7th, 2020, this Court authorized and issued a wiretap on Thompson's target phone one. However, the record simply does not support Brown's allegation that Thompson was only investigated for 11 days before the application was submitted for wiretap of his cell phone. See 320-MC-159, which is the wiretap application.
Then you also said, see document 22-320-MC-312, which I believe to be the master affidavit of probable cause, and then you go on to say, in fact, the affidavit of probable cause for authorization to intercept wire and electronic communications regarding Thompson's target phone one contained an abundance of information demonstrating a very thorough investigation which began in December of 2018, was completed prior to applying for the wiretap.
THE COURT: Well, I mean, you can't ask him questions about what I thought when I reviewed the documentation, Number 1 .
Number 2, when you appealed to the Third Circuit, they had an opportunity to review whatever arguments you had concerning the wiretap. The only thing we're here for is the question of whether there is a typographical error or whether or not there was interception prior to April 7th. That's ultimately the only issue that they found to be resolved here. That's the only issue we're going to resolve here.
Next question, please.
MR. BROWN: Agent Yelland, I have to refer back to this interview with CW 2. CW 2 described me as a Latino male with tattoos on both of my arms, and yet I don't have a tattoo on my body.
THE COURT: Tell me how that relates to April 7th, whether there's a legitimate wiretap?
MR. BROWN: Because there is no indication how the government obtained my name before April 7th.
THE COURT: The objection is sustained. Next question.
Do you have any other questions that relate to whether the wiretap was properly issued to begin on April 7th?
MR. BROWN: Your Honor, I really don't see how my questions are not relevant.
THE COURT: I understand that, and that's because you're not a lawyer.
When Mr. Blazosek was asking questions that relate to the issues, and tried to go a little bit far afield, but he knew where he was going with this.
This is not an open hearing on everything you would like to know about whatever happened. This is a hearing that I have said now a dozen times is very circumspect related to a particular issue and nothing more. That's all it's related to.
Are there any other questions about April 7th or March 28th, 2020?
MR. BROWN: No, Your Honor.
THE COURT: Mr. Blazosek, do you have any additional questions?
MR. BLAZOSEK: Just very briefly, Judge.
THE COURT: It better be very briefly after we spent all this time going through stuff that is not relevant to our issue. Go ahead.
MR. BLAZOSEK: I understand. Thank you, Judge.
BY MR. BLAZOSEK:
Q. Agent Yelland, I'm going to show you a document that we'll mark for
MS. OLSHEFSKI: Objection, Your Honor. What is that document?
MR. BLAZOSEK: I haven't got there. You're objecting. All I said was a document.
THE COURT: Tell us what it is.
MR. BLAZOSEK: I was starting to.
We will mark for identification as Defendant's 1, titled electronic surveillance manual, procedures and case law forms issued by the United States Government Department of Justice, and in the foreword, it talks about how various electronic surveillance is to occur and what approaches law enforcement may take.
That's a public document that is a government document that I didn't author, but the Department of Justice authored.
MS. OLSHEFSKI: How is that relevant?
THE COURT: What does that have to do with whether or not -
MR. BLAZOSEK: I think I have a right to ask
THE COURT: You don't have a right to ask questions that are unrelated to the issue before the Court.
How does that relate to whether or not it was properly issued on April 7th and began after that date?
MR. BLAZOSEK: All I want to do, Your Honor, is submit to the record on Page 40 of that document that it talks about cell site simulators, TriggerFish, can electronically force a cellular phone to register mobile ID numbers, et cetera, et cetera. It does not indicate that a search warrant -- I'm sorry -- a wiretap application is necessary for that document to necessarily work.
Now, whether the government wants to get a warrant and application, it is physically possible to obtain cell phone information, which is what this whole hearing is about.
THE COURT: The objection is sustained.
Are there any other questions?
MR. BLAZOSEK: No, Your Honor. Thank you.
THE COURT: Ms. Olshefski, any redirect?
MS. OLSHEFSKI: No, Your Honor.
THE COURT: You may step down.
Do you have any other witnesses?
MS. OLSHEFSKI: No, Your Honor.
THE COURT: Do you wish to call the witness, Ms. -MR. BLAZOSEK: I do, Your Honor.
THE COURT: Remember that the testimony that she's got has got to relate to the issue in question.
MR. BLAZOSEK: Understood, Judge.
LORI POSSINGER, called as a witness appearing remotely by video, having been duly sworn or affirmed according to law, testified as follows:
DIRECT EXAMINATION
BY MR. BLAZOSEK:
Q. Lori, it's Attorney Joe Blazosek. Can you hear me?
A. I can. Not perfectly, but I can.
Q. I will try to stay as close to this mic so that hopefully you and I will have a clear signal, okay?
A. Yes.
Q. Would you please indicate for the Court where you're residing?
A. In Fort Myers, Florida.
Q. And prior to living in Fort Myers, Florida, did you ever live in Pennsylvania?
A. Yes; Stroudsburg.
Q. About what time frame did you live in Stroudsburg, Pennsylvania?
A. From the time I was born until last July.
Q. In 2020, did you live in Stroudsburg, Pennsylvania?
A. Yes.
Q. Did you know an individual at that time named Anthony Brown?
A. Yes.
Q. I'm going to ask you, can you see on the corner of your screen someone that is sitting in a tan shirt, and I am the person in a suit? Do you see the two of us?
A. Yes.
Q. Can you tell me if you can identify the person that is sitting with the tan shirt on?
A. Anthony Brown.
Q. Did you know Anthony in 2020?
A. I did.
Q. Was there a time when you and he purchased a car?
A. Yes.
Q. Do you remember about what general time frame that was?
A. Maybe 2019.
Q. Did you own the car in 2020?
A. Yes.
Q. Was there ever a time in 2020 where you learned someone was using that vehicle other than Anthony Brown?
A. Yes.
Q. Could you tell the Court briefly what happened after you found that out?
A. I got a call that someone else was driving the car by the name of Red. I was immediately furious, and so I asked if the person that told me that could get me his phone number.
Q. Did you use that phone number to call him?
A. Yes, I did.
Q. Did you have a phone conversation with him?
A. Yes, I did.
Q. Without going into all of the details, was it a pleasant conversation or was it something else?
A. It was definitely something else.
Q. And after you had that conversation with this individual, do you know about what time of the year or month you had that conversation with him?
A. It was the very beginning of April, I would say the 1st, like April the 1st, 2020.
Q. Was there ever a time when anyone came to see you that identified themselves as federal agents?
A. Yes.
Q. Can you tell us if you recall what conversation you had with them as it might relate to your phone conversation with Red?
A. They asked me if I knew him. They showed me a picture of him. I said that I knew of him and that I actually had a very bad phone conversation with him because he had the truck. They said, oh, we know. We heard it.
Q. Did they tell you how they heard it?
A. Because they had the phone -- they had a wire on the phone.
Q. Did they tell you that or do you just believe that?
A. They told me that.
Q. And do you know about when they came to see you?
A. I don't recall.
Q. But you recall how many people came to see you?
A. There was two gentlemen.
Q. Do you recall where you met them?
A. At my house.
Q. Did you have direct conversation with them right then and there?
A. Yes, I did.
Q. Did you ever have any more conversations with them at a later time?
A. That was the last visit that I saw them. If I can recall, that's the last time because it was about the vehicle that they came.
MR. BLAZOSEK: That's all I have, Your Honor.
THE COURT: Cross.
CROSS EXAMINATION
BY MS. OLSHEFSKI:
Q. Ms. Possinger, this is Michelle Olshefski from the U.S. Attorney's Office. Can you hear me?
A. Yes, I can.
Q. So you have a specific recollection of a phone call with a person you identified as -- you knew as Red and identified as Robert Thompson as having occurred on April 1st, 2020, correct?
A. Yes, I had a phone conversation with him.
Q. But you have a specific recollection that it occurred on April 1st, 2020, is that accurate?
A. Yes.
Q. So how is it that you have that specific recollection three years later that this phone call occurred on April 1st, 2020?
A. That was during the pandemic and so we were all in the house. We weren't able to really go anywhere. I remember because it was April Fools' Day.
Q. But you don't recall the date when law enforcement officers came to visit you, is that correct?
A. I do not recall that date that they came. I know it was after April. It could have been maybe within a month, I would say.
Q. So just so we're clear, we're talking about FBI agents coming to your house?
A. Yes, ma'am.
Q. Are you saying that FBI agents came to your house and interviewed you about a month after April 1st of 2020?
A. Yes. I believe they came two times, but the time that I'm speaking of they came about the truck.
Q. So when you tried to get your vehicle back, that was local law enforcement, correct? That was Scranton PD, correct?
A. Could you repeat the question?
Q. When you tried to get your vehicle back from Anthony Brown, it had been damaged, correct?
A. Yes, ma'am.
MR. BLAZOSEK: Object, Your Honor. We are assuming things that is outside of the scope of the direct.
THE COURT: No. It's cross.
BY MS. OLSHEFSKI:
Q. So, Ms. Possinger, you reported that damage to the Scranton Police, correct?
A. Yes.
Q. And then it was Scranton Police Officers who responded to that damage, correct?
A. That, I'm not sure of, because when I called the Scranton Police, they said it was a pandemic and they could not come out to meet me at the vehicle.
Q. And then when the FBI came to see you, that was in October of 2020, correct, because that was after -- go ahead.
A. I can't recall.
Q. You can't recall that?
A. I can't recall the date.
Q. But you do recall that it was after Anthony Brown had been arrested, right?
A. Correct.
Q. And you spoke to the FBI about his indictment, right?
A. Correct.
Q. And you indicated that you were surprised that he had been arrested, right?
A. Correct.
Q. And you knew at that time that he was associating with a woman named Amanda McPhillips, right?
A. Allegedly.
Q. And is it your testimony -- is it your testimony that when the agents came to see you and interview you, they told you that they were listening to Anthony Brown's phone?
A. They didn't specify whose phone they were listening to.
Q. They didn't specify?
A. No.
Q. Did the agents tell you when they were listening or listening to anybody's phone?
A. They just said that on the wiretap.
Q. Did they tell you when they were on a wiretap?
A. No.
MS. OLSHEFSKI: Nothing further, Judge.
THE COURT: Redirect.
REDIRECT EXAMINATION
BY MR. BLAZOSEK:
Q. Lori, just to be clear, did they tell you that they heard your conversation with the person identified as Red?
A. Yes.
Q. And do you know if that conversation would have happened before April 7th?
A. Yes.
MR. BLAZOSEK: No further questions.
THE COURT: Anything further?
MS. OLSHEFSKI: Nothing further, Judge.
THE COURT: Thank you very much.
Any other witnesses, Mr. Blazosek?
MR. BLAZOSEK: May I just have one moment?
THE COURT: Yes.
MR. BLAZOSEK: Your Honor, I have a brief video that talks about how a cell phone can be intercepted. If the Court wishes to see it, I'm prepared to play it.
THE COURT: No. I'm aware of how that all works. Thank you.
Any other witnesses?
MR. BLAZOSEK: No.
THE COURT: Any rebuttal?
MS. OLSHEFSKI: No, Your Honor.
THE COURT: Thank you all very much.
(At this time, the proceedings in the above-captioned matter adjourned.)
CERTIFICATE
I, SUZANNE A. HALKO, Official Court Reporter for the United States District Court for the Middle District of Pennsylvania, appointed pursuant to the provisions of Title 28, United States Code, Section 753, do hereby certify that the foregoing is a true and correct transcript of the within-mentioned proceedings had in the above-mentioned and numbered cause on the date or dates hereinbefore set forth; and I do further certify that the foregoing transcript has been prepared by me or under my supervision.
SUZANNE A. HALKO, RMR,CRR Official Court Reporter
REPORTED BY:
SUZANNE A. HALKO, RMR,CRR Official Court Reporter United States District Court Middle District of Pennsylvania Scranton, Pennsylvania 18501
(The foregoing certificate of this transcript does not apply to any reproduction of the same by any means unless under the direct control and/or supervision of the certifying reporter.)