United States v. Arias, 021717 FED1, 15-1946

Court:United States Courts of Appeals, Court of Appeals for the First Circuit
Attorney:Paul 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...
Judge Panel:Before Lynch, Lipez, and Barron, Circuit Judges.
Opinion Judge:BARRON, CIRCUIT JUDGE.
Party Name:UNITED STATES OF AMERICA, Appellee, v. SENNY ARIAS, Defendant, Appellee.
Case Date:February 17, 2017
Docket Nº:15-1946
 
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UNITED STATES OF AMERICA, Appellee,

v.

SENNY ARIAS, Defendant, Appellee.

No. 15-1946

United States Court of Appeals, First Circuit

February 17, 2017

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. F. Dennis Saylor, IV, U.S. District Judge]

          Paul 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.

          Before Lynch, Lipez, and Barron, Circuit Judges.

          BARRON, CIRCUIT JUDGE.

         Senny 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.

         I.

         The 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.1 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.

         On July 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.

         A 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.

         Arias 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, Arias.

         On July 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.

         Detective 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 Marshals Service.

         On 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.

         The 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.

         Arias 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 began.

         II.

         Arias 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.

         A.

         We 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).2 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.

         A 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.

         Arias 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 thereby using Rodriguez to tie the Murano to "Sarnie's" suspected drug trafficking.

         Arias contends Detective Gecoya made this false statement with ...

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