United States v. Encarnacion

• Decision Date: 18 February 2022
• Docket Number: No. 21-1165,21-1165
• Citation: 26 F.4th 490
• Parties: UNITED STATES of America, Appellee, v. Droel Jared ENCARNACION, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

26 F.4th 490

UNITED STATES of America, Appellee,

v.Droel Jared ENCARNACION, Defendant, Appellant.

No. 21-1165

United States Court of Appeals, First Circuit.

February 18, 2022

Murat Erkan, with whom Erkan & Associates was on brief, for appellant.

Karen L. Eisenstadt, Assistant United States Attorney, with whom Nathaniel R. Mendell, Acting United States Attorney, was on brief, for appellee.

Before Lynch and Selya, Circuit Judges, and McConnell,^* District Judge.

SELYA, Circuit Judge.

Defendant-appellant Droel Jared Encarnacion challenges his convictions for certain drug-trafficking offenses. In support, he questions the propriety of the wiretap that led to his apprehension, the district court's handling of the juror-selection process, and two of the court's evidentiary rulings. Concluding, as we do, that the defendant is tilling barren soil, we affirm.

I

We begin by rehearsing the facts and travel of the case. On August 2, 2018, Michael Patterson, a local police officer delegated to work as part of a Drug Enforcement Administration (DEA) task force, sought and received authorization from the district court to intercept wire and electronic communications associated with identified telephone numbers linked to suspected drug-traffickers, including Robin Martinez Suazo (Suazo). Suazo was no stranger to the DEA: he had come to its attention during an earlier drug-trafficking probe.

Before seeking this wiretap authorization, the government had conducted its investigation through the use of a variety of techniques. It had come to believe that Suazo regularly sought to import narcotics into Massachusetts. It had, however, made only limited progress in discovering the wider parameters of his drug-trafficking activities and the structure of his network.

The wiretap on Suazo's telephone quickly bore fruit.¹ On five separate dates in August and September of 2018, the DEA intercepted calls between Suazo and a man subsequently identified as the defendant. During the first four calls, the pair discussed prices, quantities, and varieties of narcotics, frequently using guarded terms and references (e.g., "blue ones," "white"), but sometimes being more explicit. In one such call, Suazo sketched a scenario in which a third party would purchase drugs in Utah (a "border zone" where prices were low) and resell them for more money in the Boston market. That paradigm was echoed in the last of the intercepted calls: the defendant, who was in Salt Lake City, told Suazo that he had rescheduled his flight because "the guy who was going to give me the thing is going to give it to me today." He added that "I have the money on me to buy the thing and I even have the suitcases and all my things here, to buy it, send it and go straight to the airport." In the course of that call, Suazo reminded the defendant of the lucrative prices for which the drugs could be resold in the Boston area. Because prices were subject to fluctuation, there was some urgency to the deal: in Suazo's words, "We have to put a couple pesos in our pocket, man, quickly."

A few hours after this call ended, the defendant boarded a red-eye flight to Boston. When he arrived early the next morning, he rented a car and drove to a house at 645 Fellsway West in Medford, Massachusetts. He entered the house and — later that morning — a Federal Express package was delivered. On the same day, the defendant drove to East Boston and picked up Suazo. While the two men were driving, DEA agents stopped their vehicle. The unopened Federal Express package was on the floor in the front seat. The shipping label indicated that it had been shipped by "Droel Encarnacion" in Utah to "Elisida Figueroa" at the Fellsway West address.² When opened, the package was found to contain 427.3 grams (slightly less than a half kilo) of cocaine. Suazo and the defendant were arrested on the spot.

On November 7, 2018, a federal grand jury sitting in the District of Massachusetts returned an indictment that, as relevant here, charged the defendant with conspiracy to possess cocaine with intent to distribute, see 21 U.S.C. § 846, and possession of cocaine with like intent, see id. § 841(a)(1). During pretrial proceedings, the defendant moved to suppress the fruits of the wiretap. The district court denied his motion and, in due season, a three-day jury trial ensued. The jury found the defendant guilty on both of the charged counts, and the district court thereafter sentenced him. This timely appeal followed.

II

On appeal, the defendant advances four claims of error. We deal with those claims sequentially.

A

The defendant argues that the wiretap should not have been authorized and that, therefore, the district court erred in denying his motion to suppress. To put this argument in perspective, some background is useful.

Through the enactment of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III), 18 U.S.C. §§ 2510 - 2522, "Congress authorized wiretapping as needed to allow effective investigation of criminal activities while at the same time ensuring meaningful judicial supervision and requiring specific procedures to safeguard privacy rights." United States v. Gordon, 871 F.3d 35, 43 (1st Cir. 2017). To that end, Title III sets out specific showings that must be made to obtain judicial authorization for a wiretap. See 18 U.S.C. § 2518(3).

At the outset, the government must adduce facts showing probable cause to believe that a particular defendant is linked to a particular crime. See id. § 2518(3)(a). It must then adduce facts sufficient to support "probable cause for belief that particular communications concerning that offense" are likely to be obtained through the desired wiretap. Id. § 2518(3)(b). Next, the government must show that either the individual or the offense is sufficiently connected to the means of communication that it seeks to surveil. See id. § 2518(3)(d). Finally, the government must make a showing of necessity, that is, a showing that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." Id. § 2518(3)(c).

In this instance, the defendant premised his motion to suppress on two theories. He alleged, first, that the wiretap application was insufficient because the facts supporting the initial probable-cause showing were stale and unreliable. Second, he alleged that the wiretap application was insufficient because the government had not made an adequate showing of necessity.

The district court found neither theory persuasive, and the defendant now reprises them on appeal. Our standard of review is familiar. When reviewing a district court's denial of a motion to suppress wiretap evidence, we assay its factual findings for clear error and its legal conclusions de novo. Gordon, 871 F.3d at 43. In conducting this tamisage, we must determine whether the application was at least "minimally adequate" to support the authorization of the wiretap. Id. (quoting United States v. Santana, 342 F.3d 60, 65 (1st Cir. 2003) ).

We start with the defendant's challenge to the adequacy of the probable-cause showing. It is common ground that information in an affidavit supporting a wiretap application must be timely, not stale. See, e.g., United States v. Schaefer, 87 F.3d 562, 568 (1st Cir. 1996). Information is stale if, for example, "it established probable cause at some point in the past but does not support probable cause at the time of the warrant's issuance." United States v. McLellan, 792 F.3d 200, 210 (1st Cir. 2015).

Just as different kinds of produce will retain their freshness for varying periods, the timeliness of probable cause is context-dependent and will vary both with the nature of the information itself and with the nature of the suspected offense. See United States v. Morales-Aldahondo, 524 F.3d 115, 119 (1st Cir. 2008). Thus, "[w]hen evaluating a claim of staleness, we do not measure the timeliness of information simply by counting the number of days that have elapsed." Id. "Instead, we must assess the nature of the information, the nature and characteristics of the suspected criminal activity, and the likely endurance of the information." Id. Facts regarding an amorphous drug-trafficking enterprise, in which large-scale transactions may take weeks or months to mature, normally will have a longer shelf life. See Schaefer, 87 F.3d at 568 (observing that longer-running nature of drug-trafficking conspiracies makes it more likely that "a datum from the seemingly distant past will be relevant to a current investigation"); United States v. Nocella, 849 F.2d 33, 40 (1st Cir. 1988) (noting that "drug trafficking, if unchecked, is apt to persist over relatively long periods of time" so that the shelf life of facts supporting probable cause may be longer). This shelf life sometimes may be extended when the application describes an ongoing pattern of conduct in the drug-trafficking arena, see Nocella, 849 F.2d at 40, because the probable cause determination will not hinge on discrete pieces of standalone evidence but, rather, on the totality of the circumstances, see United States v. Anzalone, 923 F.3d 1, 5 (1st Cir. 2019) (citing District of Columbia v. Wesby, ––– U.S. ––––, 138 S. Ct. 577, 588, 199 L.Ed.2d 453 (2018) ).

In this case, the information supporting probable cause in the wiretap application included the following:

• Early in 2017, an alias ("Jevito") used by Suazo was mentioned on intercepted calls during a six-month wiretap of an international drug-trafficking organization regarding shipments of drugs from Mexico to the United States; and a telephone number used by Suazo was identified as participating in multiple coded conversations about importing drugs from Mexico into the United States.

• On August 8, 2016, a source of information (SOI-1) identified "Jevito" as a high-level cocaine dealer in Massachusetts.³ SOI-1 indicated that "Jevito" was his/her supplier for bulk cocaine and provided a

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