United States v. Green

• Decision Date: 31 October 2012
• Docket Number: No. 11–2157.,11–2157.
• Citation: 698 F.3d 48
• Parties: UNITED STATES of America, Appellee, v. Justin GREEN, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

698 F.3d 48

UNITED STATES of America, Appellee,

v.Justin GREEN, Defendant, Appellant.

No. 11–2157.

United States Court of Appeals,First Circuit.

Heard Oct. 3, 2012.

Decided Oct. 31, 2012.

Fred Haddad for appellant.

Linda M. Ricci, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief for appellee.

Before HOWARD, STAHL, and LIPEZ, Circuit Judges.

STAHL, Circuit Judge.

A jury convicted defendant-appellant Justin Green of participating in an oxycodone distribution conspiracy, and he received a sentence of 210 months. On appeal, he raises several challenges to his conviction and sentence, the most important of which is that the district court erred in refusing to suppress evidence that Drug Enforcement Administration (DEA) agents obtained from Green's cellular telephone, without a warrant, two weeks after they seized the phone. We find that any error was harmless and therefore leave for another day the question of whether the agents' activity was lawful under the Fourth Amendment. Because Green's other claims also lack merit, we affirm.

I. Facts & Background

Given that this appeal follows a conviction, we recount the facts in the light most favorable to the verdict. United States v. Poulin, 631 F.3d 17, 18 (1st Cir.2011).

In the fall of 2008, the DEA began investigating a suspected oxycodone trafficking operation in and around Fall River, Massachusetts. With the help of a cooperating witness, the DEA identified Gilberto Aguiar as one of the participants and received court authorization to intercept calls and text messages on Aguiar's cell phone, as well as on the phones of Aguiar's suspected supplier, Dimas Almeida, and Almeida's suspected supplier, Aaron Tripp. The DEA agents intercepted calls between Tripp and a man named Mark Carrolton, which revealed that Tripp was planning to travel to Florida to buy several hundred thousand dollars' worth of pills. Carrolton arranged for an individual named “J” or “Justin” (later identified as the defendant, Justin Green) to supply Tripp with 30,000 30–milligram oxycodone pills and 2,500 80–milligram pills. Carrolton also arranged for a second supplier named “Twin” to provide Tripp with 500 80–milligram oxycodone pills.

Tripp's trip to Florida was delayed for a week or so, and on May 1, 2009, Carrolton received a text message from Green stating the following: “I cant [sic] hold these for any longer. My people are backed up and jumping down my throat. Im [sic] going to have [sic] get rid of them to someone else if he isnt [sic] @erious [sic].” Carrolton forwarded that message to Tripp, warning Tripp that he could not “buy much more time” and telling him to read the forwarded message from “J.” During a conversation with Tripp that same day, Carrolton confirmed that Tripp was bringing enough cash (at least $300,000 or $350,000) to Florida for the transaction and, at the end of the conversation, told Tripp that he was “going to call Justin right now.” Carrolton then immediately placed six calls to Green's cell phone number.

On May 5, 2009, on his way down to Florida, Tripp was pulled over by local law enforcement officers in South Carolina, who seized $396,000 in cash from Tripp as part of a search of his vehicle. Later that day, the DEA agents intercepted a call from Tripp to Carrolton, in which Tripp reported what had happened and told Carrolton to “ditch” his phone. Carrolton responded that he would “call ‘J’ ” and talk to Tripp later. Carrolton then made three attempts to reach Green's cell phone number. Carrolton also sent a text message to the same number that night.

On May 6, 2009, the DEA agents persuaded Tripp to cooperate with them. At the agents' direction, Tripp placed several (recorded) calls to Carrolton and told Carrolton that he would return to Massachusetts for more money and then meet Carrolton and Green in Florida to complete the transaction as planned.

On May 7, 2009, at approximately 7:30 p.m., Tripp once again called Carrolton, to finalize the plans for the drug deal. Shortly thereafter, Carrolton and Green arrived at a Holiday Inn Express in Fort Lauderdale, where the DEA agents had arranged for Tripp to rent a room. When Carrolton and Green (who arrived separately) knocked on Tripp's hotel room door, the DEA agents opened the door and identified themselves. Green ran down the hallway, but the agents stopped him and arrested him. The agents also arrested Carrolton.

At the time of the arrests, the DEA agents seized a cell phone, backpack, and two bags of pills from Carrolton (containing 748 30–milligram oxycodone pills and 442 80–milligram oxycodone pills). Carrolton later testified at trial that “Twin” had supplied some of those pills and that the rest were from Green. The agents also seized two cell phones from Green: a black MetroPCS Samsung phone and a Blackberry device.

Two weeks after Green's arrest, on May 21, 2009, DEA Special Agent Carl Rideout, by then back in Massachusetts, removed the back outside casing and battery from each of Green's cell phones and retrieved the International Mobile Subscriber Identity (IMSI) number from each.¹ Agent Rideout did not have a warrant. According to the government, the “DEA agents used the IMSI numbers to obtain toll and subscriber information (including the telephone numbers) for the cellular telephones. Agents learned, among other things, that the telephone number associated with Green's MetroPCS black Samsung cellular telephone was (954) 245–2759.”

In June 2009, Green, Carrolton, Tripp, and others were charged with conspiring to possess with intent to distribute and to distribute oxycodone, a Schedule II controlled substance, in violation of 21 U.S.C. § 846. On March 31, 2010, Green filed a motion to suppress the cell phones and all evidence obtained from them, and on October 15, 2010, the district court heard oral argument on that motion. Shortly thereafter, on November 1, 2010, Agent Rideout obtained consent from Carrolton to activate Carrolton's cell phone (seized from him at the scene) and retrieve Green's number from the phone's electronic address book, listed under the name “JSTN.” That number matched the one that the DEA had obtained using Green's IMSI number. That same day, the government filed a supplemental response to Green's motion to suppress, arguing that the “inevitable discovery” doctrine applied, see Nix v. Williams, 467 U.S. 431, 446–47, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), because the DEA would have obtained Green's phone number through the consensual search of Carrolton's phone and then, using that number, would have subpoenaed Green's toll records. ² On January 11, 2011, the district court denied Green's motion to suppress, finding that the retrieval of his IMSI number did not constitute a “search” within the meaning of the Fourth Amendment. See United States v. Green, No. 09–10183–GAO, 2011 WL 86681, at *3–4 (D.Mass. Jan. 11, 2011).

At trial, Carrolton and Tripp testified against Green, as did a man named William Conda, who had obtained oxycodone from Green in the past and who introduced Green to Carrolton. After a four-day trial, the jury convicted Green. The district court imposed a below-guideline sentence of 210 months in prison and three years of supervised release. This appeal followed.

II. Analysis

Green raises four claims on appeal. First, he argues that the district court should have granted his motion to suppress, because the DEA agents' retrieval of his IMSI number from his cell phone constituted a Fourth Amendment search. Second, he contends that the district court violated Federal Rules of Evidence 403 and 404(b) by admitting the testimony of William Conda, because Conda discussed Green's prior bad acts that fell outside the time period of the charged conspiracy. Third, Green challenges the sufficiency of the evidence against him. Fourth, he urges us to find clear error in the district court's drug quantity calculation. We address each claim in turn.

A. The motion to suppress

In the typical case in which a defendant challenges the denial of a motion to suppress, we review the district court's factual findings for clear error and its legal conclusions de novo. United States v. Symonevich, 688 F.3d 12, 18 (1st Cir.2012). Here, however, we need not delve into the district court's decision, because we find that there was ample evidence to convict Green even without the information that the DEA agents obtained from his cell phone after his arrest.³

The two cell phones seized from Green at the time of his arrest were a black MetroPCS Samsung phone and a BlackBerry device. Two weeks later, after returning to Massachusetts, Agent Rideout opened the back of each phone, removed the battery, and obtained each phone's IMSI number. The IMSI number of the Samsung phone was visible on the phone after the battery was removed, and the IMSI number of the Blackberry phone was on a card inserted into a slot where the battery had been. Because the government does not appear to have introduced any evidence at trial that it acquired using the Blackberry's IMSI number, we focus on the retrieval of the IMSI number from the Samsung device. The DEA agents used that IMSI number to determine that (954) 245–2759 was the phone number associated with the phone, to obtain Green's toll records from MetroPCS, and to obtain what the government has described as other “subscriber information.” The government's brief does not make clear what that other subscriber information included, nor has either party provided us with the trial exhibit that might answer that question. When asked, at oral argument, exactly what information can be gleaned about a subscriber using his IMSI number, neither party was able to provide an answer.

The question Green raises—whether the DEA agents' retrieval of his IMSI number constituted a search within the meaning of the Fourth Amendment ⁴—is not, in our view, an easy one. It implicates an important and developing area of...