United States v. Roman, 18-1914

• Decision Date: 05 November 2019
• Docket Number: No. 18-1914,18-1914
• Parties: UNITED STATES of America, Appellant, v. Jamil ROMAN, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

942 F.3d 43

UNITED STATES of America, Appellant,

v.Jamil ROMAN, Defendant, Appellee.

No. 18-1914

United States Court of Appeals, First Circuit.

November 5, 2019

Randall E. Kromm, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellant.

Ashley P. Allen, Boston, MA, with whom Patricia A. DeJuneas, Boston, MA, was on brief, for appellee.

Before Lynch, Stahl, and Lipez, Circuit Judges.

STAHL, Circuit Judge.

This appeal arises out of an order suppressing evidence obtained from a search of Defendant-Appellee Jamil Roman's residence. The district court found that the warrant affidavit, reformed after a Franks hearing, did not establish probable cause to search either Roman's business or his home. Here, the government appeals the district court's order with respect to the search of Roman's residence only, contending the court erred in its probable cause determination. After careful review, we affirm.

I. Factual Background

We recite the facts "as the trial court found them, consistent with record support." United States v. Andrade, 551 F.3d 103, 106 (1st Cir. 2008) (citation omitted).

A. The Confidential Informant

In January 2014, federal agents seized three kilograms of cocaine from an individual known as "Confidential Human Source 1" ("CS"), who was under surveillance for suspected involvement in narcotics trafficking. CS subsequently agreed to cooperate with law enforcement as a confidential informant. At the local FBI office, CS provided a statement about his involvement in the narcotics operation to federal agents and law enforcement officers, including DEA Task Force member Robert Alberti, who transcribed CS's statement. CS stated that the cocaine agents had seized "came from Javier Gonzalez" and that Gonzalez had "had [Roman] drop the kilos off" at CS's business at 712 Boston Road in Springfield, Massachusetts. CS initialed the written statement paragraph by paragraph and confirmed its accuracy.

Approximately a week after CS's statement was taken, DEA Special Agent Scott Smith joined the investigation. Smith, who was not present when CS's statement was taken, was not informed of the existence of the statement, nor did any DEA reports on the record reference it.

B. The Affidavit

After approximately two months of surveilling the Gonzalez organization, Smith drafted an affidavit supporting search warrant applications for seven locations purportedly connected to the enterprise.¹ These included Roman's Holyoke, Massachusetts, business, TWC, as well as a residence located in Chicopee, Massachusetts, which agents believed to be Roman's home. A single affidavit was used to support all seven warrant applications.

The affidavit set forth the following information that between January and March 2014, the DEA had conducted an investigation that included in its scope a series of meetings between CS, Gonzalez, and, on occasion, Roman, some of which were recorded. At a January meeting between Gonzalez, Roman, and CS, held the day after CS told Gonzalez that the cocaine agents seized had been stolen, Gonzalez and Roman discussed the "robbery" of the drugs. During this meeting, as CS reported to law enforcement, Roman showed CS a firearm when discussing CS's safety during drug transactions. At a March meeting between CS and Roman, Roman discussed with CS the quality of the "traps" in certain vehicles and stated the "trapped vehicles" were in the garage of Cano Used Tire.² Roman also stated at this meeting that he suspected law enforcement was nearby and he would "shut down for a while and cool off" if he thought he was being surveilled. Three days later, at another meeting with Gonzalez, CS, and Roman, Roman stated they were " ‘dry’," which Agent Smith explained meant "they [did] not currently have a supply of drug[s]." According to the affidavit, Gonzalez told CS during the same conversation that CS needed to "repay his drug debt" and "should bring the money to either him (Gonzalez) or Roman as soon as possible." The affidavit also differed from CS's transcribed statement in that it alleged the drug transaction between Roman and CS had taken place at Roman's Holyoke business rather than at CS's business in Springfield.

The affidavit alleged further that Gonzalez had transported fifty to sixty kilograms of cocaine from Texas to Massachusetts "approximately every three months over the past 7-8 years" and had on recent trips "been obtaining approximately 20 kilograms of heroin." It stated that CS had identified Roman as a "close criminal associate of Gonzalez" who "overs[aw] distribution of the narcotics for" him, as well as that CS had "relayed that ... he would obtain kilogram quantities of cocaine" at TWC. The affidavit also alleged that Roman was "a known cocaine trafficker," though it did not identify the source of this information. Smith stated further in the affidavit that, based on his training and experience, drug traffickers commonly store drugs or drug-related inventory, proceeds, and records at their residences.

In the affidavit, the government identified three reasons it had probable cause to search the Chicopee property: (1) law enforcement believed it was Roman's primary residence; (2) Roman had initiated a utility service at this address in October 2013; and (3) "[o]n numerous occasions ..., agents ha[d] observed Roman driving a blue colored Acura SUV," which was "registered to Tanya Roman, believed to be [Roman's] wife," and which had been "seen at th[e] residence as recently as on March 16, 2014." The affidavit also sought to establish probable cause to search Cano Used Tire, stating that agents had seen Roman "park his vehicle on the side walk of Cano Used Tire and carry a weighted bag into the business," then drive his vehicle into the garage and leave "a few minutes later."

Based on the warrant affidavit, on March 21, 2014, the magistrate judge authorized the warrants, which were executed four days later on TWC and the Chicopee residence. Roman was arrested at TWC and his person was searched incident to the arrest.

II. Procedural Background

A. The Franks Hearing

On March 24, 2016, a grand jury indicted Roman on one count of conspiracy to distribute and possess with intent to distribute cocaine and heroin in violation of 21 U.S.C. § 846 and one count of distribution and possession with intent to distribute cocaine in violation of 21 U.S.C. § 841. On May 10, 2017, Roman moved to suppress the fruits of the searches of TWC, his person, and his residence. See United States v. Roman, No. 16-30020-MGM-2, 2017 WL 4517963, at *1 (D. Mass. Oct. 10, 2017) (" Roman I"). Roman also requested a hearing under Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), on the grounds that the government intentionally or recklessly misrepresented the location of the drug transaction in the affidavit as being at TWC when it had in fact taken place at CS's Springfield business, as set forth in CS's written statement. Roman I, 2017 WL 4517963, at *2. The court granted a Franks hearing as to the alleged misrepresentations. Id. at *3-4.

Following the Franks hearing, the district court granted Roman's motion to suppress fruits obtained from the search of TWC. See United States v. Roman, 311 F. Supp. 3d 427, 441 (D. Mass. 2018) (" Roman II"). The court found that the affidavit contained material misrepresentations and omissions made with reckless disregard for the truth and without which a finding of probable cause would not have been made. Id. Specifically, the court found that CS's statement that he had received the drugs at his Springfield business—not at TWC—was accurate and, further, that the statement in the affidavit that CS "would obtain kilogram quantities of cocaine" at TWC was false.³ Id. at 435-36. The court also found that the statement in the affidavit that Roman was "a known cocaine trafficker" was "conclusory" and lacked evidentiary support. Id. at 440-41.

Regarding recklessness, the district court found that a series of "easily preventable errors" demonstrated agents had acted with reckless disregard for the truth. Id. at 437. These included in particular the failure of officials to retain, place in the case file, or inform Agent Smith of the existence or content of CS's written statement, or to reference it in DEA reports.⁴ Id. The district court focused on the testimony of Smith, Alberti, and another agent, John McGrath, and had the opportunity to evaluate their credibility. Id. at 432. When questioned about the source of the statement that CS would obtain kilogram quantities of cocaine from TWC, Smith could not identify the source of the information, but thought it came from CS, McGrath, or Alberti, while McGrath and Alberti gave "inconsistent testimony" regarding its source. Id. As such, the court found that Smith's affidavit misstated his own personal knowledge. Id.

The court also found that several "less egregious errors," while "not determinative, support[ed] an inference" of reckless disregard for the truth. Id. at 437. These included a finding that Smith had "falsely quoted [Roman] as using the word ‘dry’ " in one recorded meeting, when Roman had actually stated "[t]here is nothing around brother, nothing." Id. at 433, 437. These also included agents' failure to notice and follow up on an FBI report in the case file referencing CS's written statement. Id. at 437.

Accordingly, the district court removed statements that CS "would obtain kilogram quantities of cocaine" at TWC and that Roman was "a known cocaine trafficker" from the reformed affidavit "for lack of evidentiary support." United States v. Roman, 327 F. Supp. 3d 312, 325 (D. Mass. 2018) (" Roman III"). It also reformed the affidavit by altering statements indicating the drug transaction occurred at TWC to properly state it instead took place at CS's business address. See id. It found that the reformed affidavit failed to establish probable cause to search TWC. Roman II, 311 F....