APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS Hon. Timothy S. Hillman, U.S.
A. Pickett and Pickett Law Offices, P.C. on brief for
W. O'Brien on brief for appellant Genao.
Jay Black on brief for appellant Melendez.
Theriault on brief for appellant Vasquez.
E. Lelling, United States Attorney, and Alexia R. De
Vincentis, Assistant United States Attorney, on brief for
Lynch, Selya, and Boudin, Circuit Judges.
most part, these consolidated appeals turn on a single issue:
whether the district court erred in concluding that the court
which issued the wiretap warrant could have found the facts
in the application to be at least minimally adequate to
support the issuance of the warrant. We resolve that issue
favorably to the government, conclude that the
defendants' unified challenge to the wiretap is
unavailing, determine that the separate claims of error
mounted by one of the defendants are meritless, and affirm
the judgments below.
rehearse here only those facts necessary to place these
appeals in perspective. In the summer of 2014, the Drug
Enforcement Administration (DEA), assisted by local law
enforcement officers, began investigating the
drug-trafficking activities of defendant-appellant Osvaldo
Vasquez and his cohorts, including defendants-appellants Hugo
Santana-Dones, Elvis Genao, and Felix Melendez. During the
next year, the investigators relied heavily on two
confidential sources, who were buyers, to gather evidence of
the defendants' drug-trafficking activities. All told,
these confidential sources carried out controlled purchases
of nearly 500 grams of heroin and heroin laced with fentanyl
and methamphetamine. They also arranged to purchase at least
one kilogram of cocaine.
agents supplemented the efforts of these confidential sources
through traditional investigative techniques such as physical
surveillance and the use of a pen register. In September of
2014, the agents obtained a warrant from a federal magistrate
judge, pursuant to 18 U.S.C. § 3117 and Federal Rule of
Criminal Procedure 41(e)(2)(C), authorizing the installation
of a GPS tracking device on a vehicle driven by Vasquez
during certain observed drug sales. The agents then went a
step further and, from April to July of 2015, made use of a
wiretap of Vasquez's cellular telephone, which had been
authorized and periodically renewed by a federal district
judge pursuant to 18 U.S.C. § 2518.
came to a head in August of 2015 when DEA agents, accompanied
by local officers, executed search warrants at six locations
linked to the defendants (five in Massachusetts and one in
Rhode Island). Arrest warrants had also been obtained and all
four defendants were arrested at that time. Large quantities
of heroin and cocaine, as well as drug paraphernalia and a
firearm, were recovered in the process.
next month, a federal grand jury sitting in the District of
Massachusetts handed up an indictment charging all four
defendants with conspiracy to distribute and to possess with
intent to distribute heroin and cocaine and distribution and
possession with intent to distribute heroin and/or cocaine.
See 21 U.S.C. §§ 841(a)(1), 846. Vasquez
alone was charged with possession of a firearm in furtherance
of a drug-trafficking crime. See 18 U.S.C. §
924(c). All the defendants initially maintained their
innocence and moved to suppress any and all evidence
garnered, directly or indirectly, through the use of the
wiretap. The defendants argued that the affidavit in support
of the application for the wiretap failed to satisfy the
statutory requirement that the government demonstrate
necessity. See 18 U.S.C. § 2518 (1)(c). The
government opposed the motion. Following a non-evidentiary
hearing, the district court took the matter under advisement
and, on October 11, 2016, found the showing of necessity
sufficient and denied the motion.
around this time, Vasquez experienced a number of changes in
his legal representation. Counsel 2A and 2B, appointed just
before Vasquez's arraignment, withdrew shortly after the
denial of the motion to suppress, citing a breakdown in the
attorney-client relationship. Vasquez's next attorney
(Counsel 3) represented him for less than a month before
withdrawing on December 5 due to a conflict. His successor
(Counsel 4) was appointed on December 8, 2016.
than one month later, Vasquez moved for a 90-day extension of
time to file additional motions to suppress. The government
opposed the motion, and the district court denied it on
January 24, 2017. The court subsequently rejected
Vasquez's motion for reconsideration.
course, the four defendants pleaded guilty to all the
charges, reserving the right to challenge the district
court's suppression-related rulings and to claim
ineffective assistance of counsel. See Fed. R. Crim.
P. 11(a)(2). After accepting the quartet of pleas, the
district court sentenced Santana-Dones to serve an 80-month
term of immurement; sentenced Genao to serve 37 months;
sentenced Melendez to serve 70 months; and sentenced Vasquez
(whom both the government and the court regarded as the ring
leader) to serve 125 months. These timely appeals followed,
and we consolidated them for briefing and oral arguments. On
appeal, all of the defendants pursue their challenges to the
suppression-related rulings but only Vasquez attempts to
pursue an ineffective assistance of counsel claim.
THE WIRETAP EVIDENCE.
assaying a district court's ruling on a motion to
suppress wiretap evidence, we review its factual findings for
clear error and its legal conclusions de novo."
United States v. Gordon, 871 F.3d 35, 43 (1st Cir.
2017). Applying this standard, the pivotal question is
whether "the facts set forth in the application were
minimally adequate to support the determination that was
made." United States v.Villarman-Oviedo, 325 F.3d 1, 9 (1st Cir. 2003)
(quoting United States v.Ashley, 876 F.2d
1069, 1074 (1st Cir. 1989)). The district
court answered this question in the affirmative and, to find
clear error, we "must form a strong, unyielding belief,
based on the whole of the record, that a mistake has been
made." United States v.Rodrigues, 850
F.3d 1, 6 (1st Cir. 2017) (quoting United States v.
Siciliano, 578 F.3d 61, 67 (1st Cir. 2009)). Put