FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. F. Dennis Saylor, IV, U.S. District
J. Garrity was on brief for appellant.
Demetra Lambros, Attorney, Appellate Section, Criminal
Division, United States Department of Justice, with whom
Leslie R. Caldwell, Assistant Attorney General, Sung-Hee Suh,
Deputy Assistant Attorney General, Carmen M. Ortiz, United
States Attorney, and Theodore B. Heinrich, Assistant United
States Attorney, were on brief, for appellee.
Lynch, Lipez, and Barron, Circuit Judges.
BARRON, CIRCUIT JUDGE.
Arias appeals his convictions and sentence for possession of
heroin with intent to distribute, in violation of 21 U.S.C.
§ 841(a)(1), and conspiracy to distribute heroin, in
violation of 21 U.S.C. § 846. We affirm.
charges brought against Arias stem from an investigation that
began in 2012 of Jason Melchionda. Melchionda was the
suspected head of a drug-trafficking organization operating
on Massachusetts' North Shore. Pursuant to a warrant, law
enforcement officers serving on a task force for the United
States Drug Enforcement Agency ("DEA") tapped the
phones of Melchionda and several of his associates. From
those conversations, the officers learned that someone named
"Sarnie" was supplying large quantities of heroin
to Melchionda. The officers thus began to surveil the
movements of Melchionda.
2, 2013, officers on the task force observed the person that
they believed to be "Sarnie" participate in a drug
transaction and then drive away in a Nissan Murano. The
Murano was titled to Luis Rodriguez. Based on this
information, Detective David Gecoya, a Saugus, Massachusetts
Police Department officer who had been deputized to the DEA
task force, sought a warrant to attach a Global Positioning
System ("GPS") tracker to the Murano. Gecoya stated
in the warrant affidavit -- wrongly, as it turned out -- that
"Sarnie" is an alias for Rodriguez.
little more than two weeks later, on July 11, 2013, Arias
appeared at the police station in Saugus. He was there to
bail out Bryan Gonzalez -- who is apparently known as
"Chicken Legs" -- after Gonzalez had been arrested
for driving the Murano without a license. Arias then left the
station and went to a towing company to retrieve the Murano.
provided a driver's license to the towing company, which
turned over a photocopy of that license to Detective Gecoya.
Detective Gecoya identified the person depicted in the
license as a person who had been surveilled during the course
of the investigation of Melchionda. Then, on July 23, 2013,
Detective Gecoya observed another drug transaction involving
"Sarnie" driving the Murano and identified the
participant as the same person depicted in the license that
Gecoya had been given by the towing company -- that is,
24, Detective Sean Moynihan, an officer with the Saugus
Police Department, pulled over the Murano at the request of
Detective Gecoya. Detective Moynihan identified the driver as
Arias. About two weeks later, on August 6, Officer Cabral,
another officer with the Saugus Police Department, made a
similar short stop of the Murano, also at Detective
Gecoya's direction. Officer Cabral identified the driver
as, once again, Arias.
Gecoya arrested Arias on August 15. At the time of his
arrest, Arias had 77 bags of heroin -- totaling 22.4 grams --
on his person. Additional heroin was recovered in Arias's
apartment. Later that day, Arias had an initial appearance
and was remanded to the authority of the United States
September 12, 2013, Arias was indicted on two federal
criminal counts: conspiracy to possess with intent to
distribute and to distribute heroin, in violation of 21
U.S.C. § 846; and possession with intent to distribute
heroin, in violation of 21 U.S.C. § 841(a)(1). The
indictment also contained an order of forfeiture of any
property used to facilitate the commission of the crimes,
under 21 U.S.C. § 853.
trial occurred in May of 2015. The jury convicted Arias on
both counts. At sentencing, the District Court concluded that
Arias was responsible for the possession and sale of over 400
grams of heroin, but less than 700 grams. On that basis, the
District Court determined Arias's base-offense level
under the United States Sentencing Guidelines to be 26. The
District Court also determined that Arias's criminal
history category was I. The District Court thus calculated
Arias's guidelines sentencing range to be 63 to 78
months' imprisonment. The District Court then sentenced
Arias to a term of imprisonment of 66 months.
now raises a number of challenges to his convictions based on
errors that he contends occurred both before and during the
trial. He also challenges his sentence. We consider each
claim of error in turn, starting with the ones that concern
the rulings that the District Court made before the trial
contends that the District Court erred in four respects prior
to the start of the trial, and that each of these erroneous
pre-trial rulings requires the reversal of his convictions.
He first argues that the District Court erred in denying his
motion for what is known as a Franks hearing, under
Franks v. Delaware, 438 U.S. 154 (1978), to
determine whether the affidavit that Detective Gecoya filed
in support of the warrant to place the GPS tracking device on
the Murano contained a false statement that he made in
reckless disregard of the truth. Arias next contends that the
District Court erred in denying a motion to suppress evidence
stemming from the two traffic stops of the Murano, while
Arias was driving it, because Arias contends that the
officers lacked the reasonable suspicion of criminal activity
that the Fourth Amendment requires in order for the stops to
have been lawful. Third, Arias contends that the District
Court erred by not granting his attorney leave to file a
suppression motion after the passing of the deadline that the
District Court had set for the filing of suppression motions.
Finally, Arias argues that the District Court erred by
refusing to grant his attorney's request, made shortly
before the trial began, for a continuance.
start with the first of the four pre-trial rulings that Arias
challenges: the District Court's denial of Arias's
motion for a Franks hearing to "test the
veracity of" Detective Gecoya's affidavit in
applying for the warrant to place the GPS tracker on the
Murano. United States v. Tanguay, 787 F.3d 44, 48
(1st Cir. 2015) (citing Franks, 438 U.S. at
155-56). If a defendant, by a preponderance of the
evidence, shows at a Franks hearing that an
affidavit in a warrant application contains false statements
or omissions, made intentionally or with reckless disregard
for the truth, and that a finding of probable cause would not
have been made without those false statements or omissions,
then the defendant is entitled to the suppression of evidence
obtained under that warrant. Id. at 49.
defendant is entitled to a Franks hearing, however,
only if he first makes a "substantial preliminary
showing" of the same two requirements that he must meet
at the hearing -- that "a false statement or omission in
the affidavit was made knowingly and intentionally or with
reckless disregard for the truth" and that the false
statement or omission was "necessary to the finding of
probable cause." United States v. McLellan, 792
F.3d 200, 208 (1st Cir. 2015) (quoting United States v.
Rigaud, 684 F.3d 169, 173 (1st Cir. 2012)). In
considering a district court's decision to deny a
Franks hearing, we review factual determinations for
clear error and the probable cause determination de novo.
Tanguay, 787 F.3d at 49-50. Applying these
standards, we find no error in the District Court's
determination that Arias did not make the necessary
preliminary showing as to the first requirement -- that the
false statement was made knowingly and intentionally or with
reckless disregard for the truth.
bases his challenge to the denial of his request for a
Franks hearing on the false statement in the
affidavit that identifies Rodriguez as "Sarnie, "
the driver of the Murano, a vehicle that was surveilled at
the scene of a drug transaction. In fact, "Sarnie"
was Arias and not Rodriguez, and the person driving the car
at that time was Bryan Gonzalez, otherwise known as
"Chicken Legs." The false statement thus had the
effect of equating -- wrongly -- Rodriguez and
"Sarnie" and ...