688 F.3d 12 (1st Cir. 2012), 11-1236, United States v. Symonevich

Docket Nº:11-1236.
Citation:688 F.3d 12
Opinion Judge:LIPEZ, Circuit Judge.
Party Name:UNITED STATES of America, Appellee, v. Andrew SYMONEVICH, Defendant, Appellant.
Attorney:Robert S. Sinsheimer, with whom Lauren Thomas and Sinsheimer & Associates were on brief, for appellant. Mark T. Quinlivan, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
Judge Panel:Before SELYA, Circuit Judge, SOUTER,[*] Associate Justice, LIPEZ, Circuit Judge.
Case Date:July 31, 2012
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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688 F.3d 12 (1st Cir. 2012)

UNITED STATES of America, Appellee,


Andrew SYMONEVICH, Defendant, Appellant.

No. 11-1236.

United States Court of Appeals, First Circuit.

July 31, 2012

Heard Jan. 10, 2012.

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Robert S. Sinsheimer, with whom Lauren Thomas and Sinsheimer & Associates were on brief, for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before SELYA, Circuit Judge, SOUTER,[*] Associate Justice, LIPEZ, Circuit Judge.

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LIPEZ, Circuit Judge.

In February 2009, Andrew Symonevich was indicted on one count of conspiracy to distribute, and to possess with the intent to distribute, cocaine and heroin in violation of 21 U.S.C. §§ 841(a)(1), 846. He moved to suppress evidence recovered during the search of a car in which he was a passenger. The district court denied Symonevich's motion to suppress. After a four-day trial, the jury convicted Symonevich of the charged offense.

Symonevich now appeals the district court's denial of his motion to suppress and challenges the sufficiency of the evidence for his conviction. Alternatively, he demands a new trial because of the improper admission of certain testimony and charts and the inadequacy of the conspiracy instruction given to the jury.

We affirm.


We recount the facts of the case in the light most favorable to the verdict. United States v. Mubayyid, 658 F.3d 35, 41 (1st Cir.2011).

A. The Wiretap Investigation

As part of its ongoing investigation of drug trafficking by a group known as the Duran Gomez organization, the Drug Enforcement Agency (" DEA" ) obtained permission to wiretap six telephone numbers associated with the organization, referred to as target telephones, or " TT" numbers one through six. Calls from Symonevich were intercepted on three days in November 2008 on TT-2, a so-called " customer line."

On November 2, through a series of seven intercepted phone calls, Symonevich arranged to buy 30 grams of heroin at a McDonald's off Interstate 495 in Massachusetts. Four days later, on November 6, Symonevich arranged through a series of phone calls to buy 50 grams of heroin and one ounce of cocaine. During one of the intercepted calls, an individual known as " Tony" asked Symonevich what kind of car he was driving. Symonevich then asked an unidentified male, " What's this? What kind of car is this?" The unidentified male answered that they were in a green Subaru. " Tony" was later identified as Wilson Ariel-Soto, the alleged leader of the drug trafficking organization.

On November 12, agents intercepted a number of calls between Symonevich and Ariel-Soto, during which Symonevich arranged to purchase 30 grams of heroin. After Symonevich's first recorded call at 1:21 p.m., DEA agents sent unmarked surveillance units toward Interstate 495 to follow Symonevich. Massachusetts State Police Sergeant James Bazzinotti, who was assisting the DEA with surveillance during the investigation, observed a green Subaru and followed it. After surveillance units observed what DEA agents believed to be a meeting between Symonevich and Ariel-Soto's drug courier, agents planned to stop Symonevich. In the meantime, however, Bazzinotti stopped at a traffic light and lost sight of the Subaru, which he only saw again after it had been stopped.

B. The Vehicle Stop

Symonevich was arrested on November 12 after a traffic stop that commenced at approximately 4:18 p.m. and was apparently unrelated to the DEA investigation and Bazzinotti's surveillance. The arresting officer, Massachusetts State Trooper Sweeney, was patrolling and observed a broken side tail light on the green Subaru in which Symonevich was traveling. Sweeney pulled his police cruiser up behind the Subaru and initiated a stop by activating his blue lights. As he turned on his lights, Sweeney observed the passenger,

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Symonevich, " lean down as if placing or retrieving something from underneath his seat." Sweeney testified that this movement caused him concern for his safety. The Subaru slowly pulled into the breakdown lane and stopped. Sweeney approached the vehicle on the passenger's side where he observed Symonevich in the passenger seat looking " completely ashen faced" and " scared to death."

Sweeney asked Symonevich and the driver, later identified as Gerard Adair, where they were going. Adair first said that he had been visiting his grandmother. In response to further questioning, he stated that he had met a girl online and was going to meet up with her but could not find her. Sweeney asked Symonevich if he was related to Adair. Symonevich responded that he was just going for a ride with his friend. When Sweeney asked Adair for his license and registration, he observed that Adair's hand was shaking as he handed Sweeney his driver's license. Sweeney returned to his cruiser to run a record check and radioed for backup. Trooper Brian Sweet arrived shortly thereafter.

After informing Sweet of his observations, Sweeney went back to the Subaru and asked Symonevich to exit the vehicle. Symonevich complied. As Symonevich exited, Sweeney and Sweet smelled the stale odor of marijuana coming from Symonevich's clothing. Sweeney took Symonevich to the rear of the Subaru and asked him why he had reached under the seat as Sweeney pulled them over. After he first said that he was putting a piece of paper down, Symonevich revised his statement, saying that he had actually put a can of fix-a-flat under the seat. Sweeney asked Symonevich why he had the can. Symonevich responded that he had it " in case we get a flat." Sweeney told Symonevich that his answer gave him concern for his safety. Although Symonevich was not under arrest, Sweeney wanted him to sit in the back of the police cruiser while Sweeney spoke to Adair. Symonevich complied.

Sweeney approached Adair and asked what Symonevich had put under the seat. Adair said that he did not know. Sweeney asked if there were weapons in the car. Adair replied, " Not that I know of." Sweeney asked permission to search the car and Adair declined. Sweeney nevertheless searched the car because he wanted to be sure there was nothing under the seat that posed a safety threat. About three-quarters of the way through the stop, Sweeney got a radio call informing him that Symonevich was also the subject of an ongoing DEA investigation.

Sweeney looked under the passenger seat and found a can of tire puncture sealant. He picked it up and observed that the weight was not consistent with a can of tire sealant. Sweeney shook the can and felt something solid move around inside. He looked at the bottom of the can, saw that it was slightly separated from the can, unscrewed the bottom, and found a wad of paper towels and three bundles of brown substances that he believed to be packages of heroin.1 Sweeney placed Symonevich and Adair under arrest.2


Symonevich makes four arguments on appeal: (1) the district court erred in denying

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his motion to suppress on the basis that, as a passenger in the vehicle, he lacked standing to challenge the seized evidence; (2) the district court abused its discretion in admitting certain testimony and charts; (3) there was insufficient evidence to show that he joined the charged Duran Gomez conspiracy to distribute drugs; and (4) the district court failed to properly instruct the jury that intent to resell drugs is not necessarily sufficient to prove membership in a conspiracy to distribute drugs. We address each argument in turn.

A. Motion to Suppress

Where the denial of a motion to suppress has been challenged, we review the district court's findings of fact for clear error, United States v. Werra, 638 F.3d 326, 330 (1st Cir.2011), and " we review de novo the district court's conclusions of law, including its application of the law to the facts, its probable cause and reasonable suspicion determinations, and the district court's ultimate legal decision to grant or deny the motion to suppress," United States v. Camacho, 661 F.3d 718, 724 (1st Cir.2011).

After hearing argument on the standing issue, the district court orally denied Symonevich's motion to suppress, relying on Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978):

[I]f the drugs weren't taken on [Symonevich's] person but taken from the car, simply as a passenger, without more, without some kind of showing beyond the fact of being a passenger in a car and it having been found underneath his seat, that's not enough ... so the motion will be denied for lack of standing.

Symonevich argues that as a passenger in the Subaru, he had a reasonable expectation of privacy in items seized therefrom and, thus, had standing to challenge the lawfulness of a search.3 He argues that

the law simply cannot be so fine as to allow an individual to challenge a pat frisk of his person, but not allow him to challenge the seizure of property he had placed just beneath his seat seconds before the encounter.... [W]hen Mr. Symonevich was placing the can beneath his seat, he expected it would remain as private as if he placed it in his pocket.

In addition, Symonevich argues that the district court failed to adequately consider the duration of the trip between Maine and Massachusetts in determining whether he had a legitimate expectation of privacy in the vehicle. He also claims that he had a possessory interest in the can of tire sealant that afforded him a reasonable expectation of privacy in the space under the seat and thus standing to suppress the recovered evidence.

The government makes three...

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