United States v. Green
2012 U.S. App. LEXIS 22421
| 1st Cir. | 2012Background
- DEA investigated Fall River oxycodone operation beginning fall 2008; identified Green as a supplier's contact via intercepts and witness cooperation
- DEA intercepted calls/texts on Aguiar, Almeida, and Tripp’s phones; Carrolton coordinated pills to Tripp
- May 5–7, 2009: Tripp travels to Florida for a large oxycodone deal; Green identified as source
- May 7, 2009: Green and Carrolton arrested in Fort Lauderdale; DEA seized Green’s two cell phones
- Two weeks later (May 21, 2009) DEA retrieved IMSI numbers from Green’s phones without a warrant; linked to phone number 954-245-2759
- Green later moved to suppress cell-phone-derived evidence; district court denied; Green convicted after four-day trial; below-Guidelines sentence of 210 months
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IMSI retrieval from Green’s phone was a Fourth Amendment search | Green asserts a Fourth Amendment search occurred | Government argues IMSI retrieval isn’t a search or harmless | Harmless error beyond a reasonable doubt; Fourth Amendment issue. left for another day |
| Admissibility of Conda’s testimony under Rule 404(b) | Cond a’s testimony about pre-2008 acts inadmissible | Testimony is admissible to explain background of conspiracy | Admissible; any error harmless under 404(b) and 403 |
| Sufficiency of evidence of Green’s participation in the conspiracy | Insufficient evidence to prove knowing, voluntary participation | Evidence shows Green’s central role and coordination with Tripp/Carrolton | Evidence sufficient; jury could find Green knowingly participated |
| Drug-quantity calculation for sentencing | PSR overstates Green’s quantity; should reflect fewer pills | Cooperating-witness testimony supported by record; no clear error | No clear error; district court’s quantity finding sustained |
Key Cases Cited
- United States v. Moran, 984 F.2d 1299 (1st Cir. 1993) (pattern of sales can support conspiracy premise)
- United States v. Díaz, 670 F.3d 332 (1st Cir. 2012) (knowledge of broader conspiracy essential; not require every detail)
- United States v. Escobar-de Jesus, 187 F.3d 148 (1st Cir. 1999) (background, formation, and development of illegal relationship)
- United States v. Meises, 645 F.3d 5 (1st Cir. 2011) (single witness can support conspiracy conviction)
- United States v. Villarman-Oviedo, 325 F.3d 1 (1st Cir. 2003) (Rule 404(b) applies to intrinsic evidence limited context)
- United States v. Bernier, 660 F.3d 543 (1st Cir. 2011) (no clear error in drug-quantity determination when based on witness testimony)
- United States v. Rivera-Calderón, 578 F.3d 78 (1st Cir. 2009) (reliance on cooperating-witness testimony permitted)
- United States v. Li, 206 F.3d 78 (1st Cir. 2000) (evidentiary weighing of probative value vs. unfair effect)
- United States v. Flores-Lopez, 670 F.3d 803 (7th Cir. 2012) (discussion of cell-phone privacy issues in related circuit)
- United States v. Sasso, 695 F.3d 25 (1st Cir. 2012) (harmless-error standard for constitutional issues)