UNITED STATES, Appellee, v. CAREY ACKIES, a/k/a Boyd, Defendant, Appellant.
No. 18-1478
United States Court of Appeals For the First Circuit
March 13, 2019
Hon. George Z. Singal, U.S. District Judge
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
Jonathan I. Edelstein, with whom Edelstein & Grossman was on brief, for appellant.
Renée M. Bunker, Assistant United States Attorney, Appellate Chief, with whom Halsey B. Frank, United States Attorney, was on brief, for appellee.
His appeal challenges: denials of motions to suppress two warrants obtained by law enforcement and evidence obtained from his warrantless arrest, evidence rulings at his trial, and his sentence.
In affirming, we reject his arguments that there was error in the issuance of precise location information warrants (“PLI warrants“) by a magistrate judge in Maine on a finding of probable cause, which allowed monitoring of the locations of Ackies‘s two cell phones. We hold that the PLI warrants were properly issued under the Stored Communications Act (SCA),
We reject the argument that the cell phones were tracking devices under
I.
To set up the background for the legal issues, we summarize the investigation and procedural history briefly in this section. Additional facts and statutory background are provided later where necessary. Law enforcement began investigating Ackies in the fall of 2015, beginning with information from a cooperating witness who became a cooperating defendant (“CD1“) concerning his drug trafficking with a man he knew then as “Boyd” (determined at trial to be Ackies). In January 2016, the government applied for and received PLI warrants from a magistrate judge in Maine pursuant to a provision of the SCA,
A. Suppression Motions after the Investigation and Arrest
Ackies filed six pretrial motions in March 2017, in part to suppress evidence obtained from the issuance of the two PLI warrants and pursuant to his warrantless arrest. He alleged that both warrants were void and that one lacked probable cause.
At a two-day evidentiary hearing, the court credited the testimony of Maine State Police Sergeant Thomas Pappas, who testified that in the fall of 2015, he received information from CD1 (then under indictment for drug trafficking offenses), that CD1 had been dealing and transporting cocaine base, oxycodone, and heroin obtained from a source CD1 knew as “Boyd” in New York City. CD1 provided a cell phone number (TT1) that belonged to “Boyd,” and identified “Boyd‘s” vehicles. CD1 told Pappas that he had exchanged drugs for cash at a bus terminal in Portland, Maine and had met “Boyd” on several occasions.
Pappas then obtained a warrant for TT1 under
On January 19, 2016, Pappas and other agents conducted surveillance at 107-41 154th Street. Pappas observed a Nissan Quest van that was registered to “Tyree Ackies.” CD2 had told Pappas that Ackies owned a Nissan Quest.
On January 20, 2016, DEA Task Force Officer Brian Nappi obtained a PLI warrant for TT2 under SCA
B. Denial of Motions to Suppress
In an order issued on July 26, 2017, the district court denied the three now-appealed motions to suppress, finding:
- There was adequate probable cause for the PLI warrant for TT1, even though “the bulk of the information supporting probable cause came from an informant, CD1, who had at times misled the Government,” and even without probable cause, the good-faith exception to the exclusionary rule discussed in United States v. Leon, 468 U.S. 897, 899 (1984), would apply, United States v. Ackies, No. 2:16-CR-20-GZS, 2017 WL 3184178, at *7-*8 (D. Me. July 26, 2017);
- The two PLI warrants were properly issued under
18 U.S.C. § 2703 rather than the “tracking device” provision at§ 3117 , and assuming arguendo a violation of Rule 41(b)‘s geographic limitations had occurred, the good-faith exception applied, id. at *8-*14; - Ackies‘s warrantless arrest was supported by probable cause, id. at *14.
The case proceeded to trial, and conviction.
C. Trial
Trial began on November 27, 2017, and lasted four days. Much of the testimony was similar to that at the suppression hearings, though the prosecution expanded on several aspects, including explaining the role of Ackies‘s nephew (Christopher Sampson) and an unnamed “fat guy” involved in the drug distribution. In short, the prosecution presented a case that: “Boyd” was Ackies and Ackies was a speaker on recorded phone calls with CD1 and was the person who had met and directed CD1, CD2, and others in drug trafficking and distribution; and Ackies lived at the 154th Street apartment where surveillance had led to his arrest. At trial, both CD1 and CD2 testified and identified Ackies in court and both identified a voice
The defense argued that Ackies was not “Boyd” and so was not the person on TT1 communicating with CD1, nor the person who had met and directed CD1 and CD2, and that he did not live at the 154th Street apartment. Schamia Taylor and Celia Lopez, the mother of one of Ackies‘s children, testified on his behalf. Taylor testified, as at the suppression hearing, that she was living in the 154th Street apartment but Ackies was not; Lopez testified that she had a romantic relationship with Ackies, he lived with her from 2015 to the date of his arrest, and she had never seen him enter Taylor‘s residence.
At trial, the district court allowed the jury to have transcripts of several recorded calls as demonstrative aids and, based on the identification testimony, allowed to stand the identification in these transcripts of a speaker as “Ackies.” Ackies objected to the use of his name in the transcripts. After the close of the defense‘s case, the government was allowed to provide rebuttal testimony by a Pretrial Services Officer regarding statements made by Taylor to him. Ackies challenged this. The district court allowed the testimony as proper rebuttal. The jury found Ackies guilty as charged on both counts.
D. Sentencing
We describe only the facts from sentencing pertinent to this appeal. The revised presentence investigation report (“PSR“) stated a Base Offense Level (“BOL“) of thirty due to a drug quantity of 2155.97 kilograms of marijuana equivalency and, among other enhancements, a four-level “aggravating role” enhancement pursuant to
Ackies objected to portions of the PSR, including the drug quantity calculation and the “aggravating role” enhancement. The district court determined that the PSR‘s estimate of drug quantity and its “aggravating role” enhancement should be accepted. The district court then imposed concurrent sentences of 230 months’ imprisonment on each count, down from the guideline sentencing range of 292 to 365 months’ imprisonment. This appeal followed.
II.
A. Challenge to the Denial of Three Suppression Motions
In reviewing the denial of a suppression motion, we assess the district court‘s factfinding for clear error, and review legal questions (such as probable cause and reasonable suspicion) de novo. See, e.g., United States v. Gates, 709 F.3d 58, 61-62 (1st Cir. 2013). We “may affirm [the] suppression rulings on any basis apparent in the record.” United States v. Arnott, 758 F.3d 40, 43 (1st Cir. 2014).3
1. Issuance of the PLI Warrants
Ackies argues that the PLI warrants for TT1 and TT2 were “jurisdictionally void on
a. Applicability of the Stored Communications Act
The two PLI warrants here were issued pursuant to provisions in the SCA, specifically
In Carpenter, the Supreme Court held that “acquisition of . . . cell-site records . . . was a search under [the Fourth] Amendment,” Carpenter, 138 S. Ct. at 2223, and that “[w]hether the Government employs its own surveillance technology . . . or leverages the technology of a wireless carrier, . . . an individual maintains a legitimate expectation of privacy in the record of his physical movements.” Id. at 2217. The government does not argue otherwise here. Carpenter mentions the term “tracking device” only once -- referring to a traditional GPS tracking device installed on a vehicle. Id. at 2215. Section 3117, concerning tracking devices, is never mentioned in the opinion. See generally id. The Supreme Court‘s general analogy of historical “cell phone location information” to “GPS monitoring” is not a holding that a cell phone is a “tracking device” under an unmentioned statute. Id. at 2215-16.4
Further, Ackies is wrong in attacking the district court‘s determination regarding warrants by citing to Carpenter‘s statement that “an order issued under
Apart from Carpenter, Ackies attempts to argue from the definition of a “tracking device” in
(a) In General. -- If a court is empowered to issue a warrant or other order for the installation of a mobile tracking device, such order may authorize the use of that device within the jurisdiction of the court, and outside that jurisdiction if the device is installed in that jurisdiction.
(b) Definition. -- As used in this section, the term “tracking device” means an electronic or mechanical device which permits the tracking of the movement of a person or object.
But under the text of
Further, as the district court correctly stated, use of
Our understanding of a “tracking device” is also supported by Rule 41, addressing searches and seizures, and the relevant Advisory Committee Notes.8 Rule 41(e)(2)(c), titled “Warrant for a Tracking Device,” requires in part that such a warrant
In addition, the 2006 Advisory Committee Notes differentiate
The SCA was a proper basis for the PLI warrants issued here.
A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication . . . only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure . . . by a court of competent jurisdiction.
A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity --
(A) obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures . . . ) by a court of competent jurisdiction[.]
So the next logical question is whether the geographic limitations in Rule 41(b) apply to warrants under the SCA.
Neither party disputes that at least a portion of Rule 41 must apply to a warrant issued under the SCA. Ackies argues that, because a warrant under
The government counters that Rule 41(b) does not apply to warrants under
(b) Authority to Issue a Warrant. At the request of a federal law enforcement officer or an attorney for the government:
(1) a magistrate judge with authority in the district -- or if none is reasonably available, a judge of a state court of record in the district -- has authority to issue a warrant to search for and seize a person or property located within the district . . . .
Rule 41(b) did not then and does not now apply to PLI warrants issued under SCA
On this point, we agree with the Seventh Circuit that Rule 41(b) “discusses the circumstances as to when a court may issue a warrant, not the procedures to be used for issuing the warrant,” Berkos, 543 F.3d at 398, and the Third Circuit‘s adoption of that view in Bansal. 663 F.3d at 662 (citing Berkos and rejecting the contention that Rule 41(b) “trumps
Section 2703(a) refers only to the specific provisions of the Rules of Criminal Procedure that detail the procedures for obtaining and issuing warrants. The word “procedure” is defined as “a specific method or course of action,” Black‘s Law Dictionary, 1241 (8th ed. 2004), or “a particular way of accomplishing something or acting.” Merriam Webster‘s Collegiate Dictionary, 990 (11th ed. 2003). The common definition of “procedure” supports the conclusion that § 2703(a) incorporates only those provisions of Rule 41 that address the
“specific method” or “particular way” to issue a warrant.
Berkos, 543 F.3d at 398. Rule 41(b), again, does not address the specific method or particular way of issuing a warrant; it discusses venue and authority.11
Even were the text of the statute ambiguous (that is, even if “procedures described in the Federal Rules of Criminal Procedure,”
As to the relevant legislative history and Congressional intent, Congress was clear that it intends to allow federal courts to permit searches under
electronic e-mail from an Internet service provide (ISP) account located in California. The investigator would then need to coordinate with agents, prosecutors and judges in the district in California where the ISP is located to obtain a warrant to search . . . [The Act] amends § 2703 to authorize the court with jurisdiction over the investigation to issue the warrant directly.[Section] 2703(a) requires a search warrant to compel service providers to disclose unopened e-mails . . . . Currently, Federal Rules of Criminal Procedure 41 requires that the “warrant” be obtained “within the district” where the property is located. An investigator, for example, located in Boston who is investigating a suspected terrorist in that city, might have to seek a suspect‘s
H.R. Rep. No. 107-236, pt. 1, at 57 (2001). The House Report demonstrates the amendment‘s focus on clarifying (and, in some cases, expanding) the geographic scope of
The district court correctly denied Ackies‘s motion to suppress evidence obtained from these warrants. Even assuming arguendo that the PLI warrants violated
Considering the good-faith exception and the facts of this case, the executing officers acted “in objectively reasonable reliance” on the warrants. Leon, 468 U.S. at 922. There is no evidence that reliance on the warrants would amount to bad faith. See Levin, 874 F.3d at 322.
2. Probable Cause for a PLI Warrant of Target Telephone 1
Ackies argues that the denial of his motion to suppress the PLI warrant for TT1 was error because of a lack of probable cause. Ackies argues that the information relied upon by Sergeant Pappas for the PLI warrant came “almost entirely from” CD1, who was “simply not reliable” in important ways. Ackies further argues that corroborating evidence, such as the finding of the TT1 phone number on CD1‘s phone and Pappas‘s “training and experience,” do not suffice to provide probable cause.
There was ample probable cause even without any deference to the magistrate judges’ determination.12 For probable cause for a warrant, based on the totality of the circumstances, Maryland v. Pringle, 540 U.S. 366, 372 n.2 (2003), “[t]he facts presented to the magistrate need only ‘warrant a man of reasonable caution’ to believe that evidence of a crime will be found,” United States v. Dixon, 787 F.3d 55, 59 (1st Cir. 2015) (quoting United States v. Feliz, 182 F.3d 82, 86 (1st Cir. 1999)).
In United States v. White, we identified a non-exhaustive list of factors to examine in deciding on an informant‘s reliability: (1) the probable veracity and basis of knowledge of the informant; (2) whether an informant‘s statements reflect first-hand knowledge; (3) whether some or all of the informant‘s factual
trafficking.”15 CD1 also told Pappas about a possible drug deal of 400 grams of heroin and 400 grams of heroin base. That CD1, like many people, was not truthful on all occasions with Pappas amounts to nothing.
3. Probable Cause for Ackies‘s Warrantless Arrest
Ackies argues that the fruits of his warrantless arrest in New York should have been suppressed because, in his view, the arrest was “undertaken without probable cause.” Ackies acknowledges that the police had substantial information at the time of his arrest, including “the information available at the time of the TT1 warrant . . . [,] additional recorded phone calls and the seizure of drugs from [CD2] at the Portland bus terminal.” Ackies argues that the police also had “information that was inconsistent with [Ackies] being ‘Boyd,‘” and so “no reasonable officer would have cause to believe in good faith that Ackies was ‘Boyd.‘”
This argument fails. For an arrest, “[p]robable cause exists if, at the time of the arrest, the collective knowledge of the officers involved was ‘sufficient to warrant a prudent person in believing that the defendant had committed or was committing an offense.‘” United States v. Link, 238 F.3d 106, 109 (1st Cir. 2001) (quoting United States v. Bizier, 111 F.3d 214, 217 (1st Cir. 1997)). The government had information included in the TT1 warrant application as well as the user of TT2‘s corroboration of a family relationship between CD2 and Ackies (confirming part of CD2‘s account to Pappas) and the fact that “real-time location information from TT2 . . . placed [Ackies] and the phone at the same location on January 22, 2016.” It does not defeat probable cause that government agents intermittently surveilled the targeted residence at 107-41 154th Street for about three days but did not see Ackies enter or exit.
The district court correctly held that the “lacunae in the information connecting [Ackies] to drug trafficking do[es] not negate the large amount of information pointing to a fair probability that he was engaged in that activity.” Ackies, 2017 WL 3184178, at *14. A reasonable officer clearly could have had cause to believe that Ackies was “Boyd” and that Ackies was engaged in drug trafficking. There was probable cause for the warrantless arrest.
B. Rulings at Trial
1. Allowance of Call Transcripts as Demonstrative Aids
Our standard of review for evidentiary rulings is, in general, deferential and for abuse of discretion. See, e.g., United States v. Burgos-Montes, 786 F.3d 92, 114 (1st Cir. 2015). Ackies argues that “absent a stipulation as to [his] identity, his name should have been removed from the transcripts [of recorded calls] before they were shown to the jury,” and failure to do so was “prejudicial, incurable error requiring a new trial.”
Here, the district court‘s allowance of the transcripts was within its discretion.16 At the first use, the district court instructed the jury in part that “the transcript is being given to assist you in listening to the call[s]. It‘s the tape recording and not the transcript that is the evidence in this case.” When other transcripts of recorded calls were used as demonstrative aids, the district court reminded the jury to follow the “same instruction.”
As in Government of Virgin Islands v. Martinez, 847 F.2d 125 (3d Cir. 1988), the “government . . . introduced sufficient evidence to justify the use of the designation [that is, the name] in the transcript.” Id. at 129 (citing United States v. Rengifo, 789 F.2d 975, 983-84 (1st Cir. 1986)). CD2 identified Ackies‘s voice on the calls, and CD2 had met Ackies multiple times. CD1 also identified Ackies‘s voice in the calls, and CD1 had met Ackies multiple times, talked to him on the phone, and spent hours with him in New York. Pappas recognized the voice on the call (“My opinion was that the person that I listened to on each individual phone call was in fact Mr. Ackies“). That was enough. Ackies was free to, and did argue to the jury, that the designation of his name was incorrect and that he was not “Boyd.”
“Appellate courts traditionally afford trial courts a wide berth in respect to regulating the scope of rebuttal testimony. We review challenges to such rulings for abuse of discretion.” United States v. Sebaggala, 256 F.3d 59, 66 (1st Cir. 2001) (citations omitted). The district court allowed rebuttal testimony from a Pretrial Services Officer impeaching a defense witness. Ackies argues that the district court abused its discretion in doing so.
Taylor testified for the defense that she had banned Ackies from entering her apartment for about a year before his arrest in January 2016, that she did not allow Ackies to stay there, and that Ackies was not on the lease at her apartment. The prosecution sought to rebut this testimony by calling Pretrial Services Officer Andrew Abbott. When Ackies objected, the district court responded:
You put on evidence . . . that this wasn‘t [Ackies‘s] address and that he was never let in there and [Taylor] never allowed him to get permission to go in . . . . And then she‘s also testified there was no gun there and there w[ere] no drugs there, . . . it couldn‘t possibly have been there. So that‘s rebuttal . . . . I‘m going to allow it.
Abbott then testified that, in a bail recommendation interview, Ackies had said that he lived at “107-41 154th Street, Apartment 2, Queens, New York” since September 2011 with Taylor and their seven children, and Ackies had provided a phone number for Taylor, which Abbott called and spoke with a person who identified herself as Taylor, who “confirmed that [Ackies] did in fact live at that address.”
Considering factors drawn from United States v. Clotida, 892 F.2d 1098, 1107 (1st Cir. 1989), Ackies argues that, as a result of the rebuttal testimony, he faced “surprise” and “detriment.”
Generally, “the order in which the parties present their evidence is totally within the discretion of the trial court.” Id. “In determining whether the trial court has abused its discretion . . . , three factors must be considered: (1) surprise to the defendant, (2) defendant‘s opportunity to meet the proof, and (3) detriment to the defendant because of the order in which the evidence was introduced.‘” Id. (quoting United States v. Luschen, 614 F.2d 1164, 1170 (8th Cir. 1980)). Abbott‘s evidence had been “provided earlier” to Ackies, so there was no surprise, and there was an opportunity to meet it, and there is no explanation of any detriment.
Confidential information obtained from Pretrial Services is “not admissible on the issue of guilt in a judicial criminal proceeding.”
C. Sentencing Determinations
“[W]e review the sentencing court‘s ‘interpretation and application of the sentencing guidelines de novo,’ the court‘s ‘factfinding for clear error,’ and its ‘judgment calls for abuse of discretion.‘” United States v. Ortiz-Carrasco, 863 F.3d 1, 3 (1st Cir. 2017) (quoting United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015)). “[T]he government bears the burden
Ackies challenges the adoption of two sentencing enhancements as procedurally unreasonable, one as to drug quantity and one as to the number of people involved in the criminal conspiracy.
1. Drug Quantity
The district court correctly found ample support for the PSR‘s estimate of the drug quantity involved of 2155.97 kilograms of converted drug weight (also referred to as marijuana equivalency) from 395.4 grams of cocaine base, 342.0 grams of heroin, and 60 grams of oxycodone.
Ackies argues for an amount far less than half of the PSR‘s calculation: either “a total marijuana equivalency of 436.5033 kilograms” and a corresponding BOL of twenty-six or a more general reduction to a BOL of twenty-eight because, in his view, the evidence “preclude[s] any reliable finding that the marijuana equivalency was 1000 grams or more.” Specifically, Ackies argues that there is no evidence concerning the “purity or dosage” of the oxycodone pills and that the five-trip estimate coupled with CD1‘s sixty-gram-per-trip estimate was “not reliable.” Ackies says it is unreliable given the amount of heroin seized from CD2, testimony about the untrustworthiness of CD1‘s estimates of drug quantity, and CD1‘s self-interest in providing large estimates.
“[T]he sentencing court is not required to make drug quantity findings with exactitude but may rest its findings upon a ‘reasoned estimate’ of the amount of drugs a defendant has been responsible for over time.” United States v. Doe, 741 F.3d 217, 236 (1st Cir. 2013) (internal alterations omitted) (quoting United States v. Bernier, 660 F.3d 543, 546 (1st Cir. 2011)). “When choosing between a number of plausible estimates of drug quantity . . . a court must err on the side of caution.” United States v. Sklar, 920 F.2d 107, 113 (1st Cir. 1990) (alteration in original) (quoting United States v. Walton, 908 F.2d 1289, 1301 (6th Cir. 1990)). Here, the district court‘s determination was reasonable.
First, the district court reasonably could credit CD1‘s and CD2‘s accounts, regardless of whether the train and bus tickets admitted into evidence corresponded exactly with five trips. At “the intersection between credibility and drug quantity determinations . . . , a sentencing court‘s discretion to make informed choices is wide.” United States v. Platte, 577 F.3d 387, 393 n.4 (1st Cir. 2009). And the five-trip estimate did not consider any prior trips made by CD2 before Ackies and CD1 met in April 2015. As to Ackies‘s assertion that the seizure of 39.9 grams of heroin from CD2 means that CD1‘s estimate of sixty grams or more per trip was incorrect, Ackies stated in a recorded call that he planned to send 400 grams (CD1: “At least they didn‘t catch him with 400“; Ackies: “Yeah, [be]cause that‘s what I was going to send you“). This conversation reasonably supported CD1‘s credibility.
Second, as to the drug quantity in each oxycodone pill, from the $25 cost per pill, it was reasonable to infer that the pills contained
The district court‘s “drug quantity finding was supported by a sensible (though not inevitable) view of the record and rested on permissible (though not inevitable) approximations.” Platte, 577 F.3d at 394.
2. Number of People Involved in the Conspiracy
“We review role-in-the-offense determinations, steeped in the facts of the case, for clear error.” United States v. Martínez-Medina, 279 F.3d 105, 123 (1st Cir. 2002).
As did the PSR, the district court determined that Ackies‘s conspiracy involved at least five participants and that Ackies was an “organizer or leader,” and so applied the “aggravating role” enhancement under
Ackies challenges this enhancement only on the grounds that there were not five participants. He argues that CD1 cannot be counted because CD1 was a mere customer rather than a member of the conspiracy. In Ackies‘s view, this brings the number down to four.
The government produced evidence that Ackies controlled and directed CD1 in multiple ways, including where to meet and how much and what type(s) of drugs would be delivered (“It was pretty much whatever [Ackies] wanted“). Ackies also allowed CD1 to pay for the drugs by credit. CD1 did not describe himself, in his testimony, as a mere customer; instead, he described meeting drug couriers, purchasing large quantities of drugs, and his own drug sales.19
As stated in United States v. Ortiz-Islas, the defendant “had more than a mere buyer-seller relationship with” another person because the defendant “was engaging in selling wholesale quantities obviously purchased for further sale, and . . . was even willing to front cocaine to [the other person], an act of trust that assumed an ongoing enterprise with a standing objective.” 829 F.3d 19, 25 (1st Cir. 2016).20
III.
Affirmed.