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United States v. Santana-Dones

United States Court of Appeals, First Circuit

March 29, 2019

HUGO SANTANA-DONES, t/n Rafael Jose Ventura, a/k/a Raffi, a/k/a Rafael Ventura, a/k/a Hugo Santana, a/k/a Wilthron Flores, Defendant, Appellant. UNITED STATES OF AMERICA, Appellee,
ELVIS GENAO, a/k/a Cocolo, Defendant, Appellant. UNITED STATES OF AMERICA, Appellee,
FELIX MELENDEZ, a/k/a Felo, a/k/a Felito, Defendant, Appellant. UNITED STATES OF AMERICA, Appellee,
OSVALDO VASQUEZ, a/k/a Chu Chu, a/k/a Anthony Christopher, Defendant, Appellant.


          Karen A. Pickett and Pickett Law Offices, P.C. on brief for appellant Santana-Dones.

          Leslie W. O'Brien on brief for appellant Genao.

          Alan Jay Black on brief for appellant Melendez.

          Marie Theriault on brief for appellant Vasquez.

          Andrew E. Lelling, United States Attorney, and Alexia R. De Vincentis, Assistant United States Attorney, on brief for appellee.

          Before Lynch, Selya, and Boudin, Circuit Judges.


         For the 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.

         I. BACKGROUND.

         We 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.

         DEA 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.

         Matters 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.

         The 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.

         Starting 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.

         Less 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.

         In due 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.


         "When 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)).[1] 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 another ...

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