United States v. Stokes

• Decision Date: 13 July 2016
• Docket Number: No. 15-1602,15-1602
• Parties: United States of America, Appellee, v. Darren Stokes, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

829 F.3d 47

United States of America, Appellee

v.Darren Stokes, Defendant, Appellant.

No. 15-1602

United States Court of Appeals, First Circuit.

July 13, 2016

James B. Krasnoo, with whom Krasnoo, Klehm & Falkner LLP, Andover, MA, was on brief, for appellant.

Mark J. Balthazard, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, and Doreen M. Rachal, Assistant United States Attorney, were on brief, for appellee.

Before Torruella, Lynch, and Barron, Circuit Judges.

TORRUELLA, Circuit Judge.

From 2008 to 2012, defendant-appellant Darren Stokes sent fraudulent invoices to thousands of businesses. Each invoice appeared to be sent by a legitimate trade association and directed the business to send membership dues to one of three addresses in Massachusetts where, unbeknownst to the business, Stokes received mail. Postal inspectors intercepted mailings to these addresses. After criminal charges were leveled against Stokes in the United States District Court for the District of Massachusetts, he moved to suppress the mailings as the product of an unreasonable search under the Fourth Amendment. The district court denied the motion to suppress, and Stokes pled guilty to 8 counts of wire fraud under 18 U.S.C. § 1343 and 7 counts of mail fraud under 18 U.S.C. § 1341. During the sentencing, the district court determined that Stokes's scheme had an intended loss between $400,000 and $1,000,000 and 250 or more victims, findings that increased his sentencing range under the United States Sentencing Guidelines, and sentenced Stokes to 48 months' imprisonment. Stokes reserved the right to appeal the district court's denial of his motion to suppress and its sentencing determination; he appeals those decisions here. We affirm.

I.

“Because this appeal follows a guilty plea, we draw the relevant facts from the change-of-plea colloquy, the unchallenged portions of the presentence investigation report (PSI Report), and the transcript of the disposition hearing.” United States v. Mateo-Espejo , 426 F.3d 508, 509 (1st Cir. 2005). Where necessary, we supplement the facts with materials submitted to the district court for purposes of the motion to suppress. See United States v. Pacheco , 489 F.3d 40, 42 (1st Cir. 2007).

From 2008 to 2012, Stokes sent fraudulent invoices to businesses. The invoices purported to be from legitimate trade associations, including the American Dental Association (the “ADA”), the National Association of Manufacturers (the “NAM”), the American Trucking Association (the “ATA”), and the American Hospital Association (the “AHA”). Each invoice requested that the recipient send annual membership dues to the trade association at a Massachusetts address where Stokes received mail. Stokes was listed as neither a recipient nor a sender on any of these mailings.

Stokes identified target businesses by purchasing lists of business fax numbers and then hiring a company, Profax, to send invoices to those numbers. For example, in January 2012, Stokes used Profax to send invoices purporting to come from the ADA and requesting $575 in membership dues to more than 13,000 dental offices. That same month, Stokes had Profax send invoices bearing the NAM¹ acronym and requesting $575 in membership dues to 1,100 manufacturing businesses. He cashed the checks using United Check Cashing, a business where customers could cash checks instantly without needing to establish a bank account.

From 2008 onward, Stokes received cease and desist letters from various trade associations and faced two civil actions, as well as an administrative complaint from the United States Postal Inspection Service, for his involvement in this scheme. In 2012, postal inspectors seized 443 envelopes addressed to the ADA that were mailed to a P.O. Box in Brockton, Massachusetts, in response to Stokes's fraudulent invoices. The PSI assumed that each of these envelopes contained a check for $575. Postal inspectors withheld from delivery 32 envelopes assumed to contain checks for $575 addressed to the NAM at a Willard Street address in Quincy, Massachusetts, 10 envelopes assumed to contain checks for $585 addressed to the Automotive Parts Remanufacturers Association (the “APRA”) at a Blaine Street address in Brockton, and 14 envelopes assumed to contain checks for $685 addressed to the ATA at the same Blaine Street address. At oral argument, the Government explained that it had sought the consent of the senders to open 7 of these items and that those 7 opened envelopes² formed the basis of mail fraud counts. Although postal inspectors seized 8 envelopes personally addressed to Stokes at his P.O. Box, the Government avows that they were never opened.

Stokes was charged with 8 counts of wire fraud under 18 U.S.C. § 1343, based on calls that Stokes made to Profax in January and February 2012, and 7 counts of mail fraud under 18 U.S.C. § 1341. He sought to suppress the seized mail before the district court. The district court denied the motion in a written memorandum and order, explaining that “no mail addressed to Stokes personally ha[d] ever been opened” and that he lacked “standing to challenge the seizure of letters addressed to someone else altogether.” Stokes pled guilty, reserving the right to appeal the suppression issue.

At the sentencing hearing, the district court adopted the probation office's recommendation for a base offense level of 7, with a 14-level increase for an intended loss between $400,000 and $1,000,000,³ a 6-level increase for 250 or more victims, and a 2-level decrease for acceptance of responsibility. With a total offense level of 25 and a Criminal History Category of III, Stokes had a sentencing range of 70 to 87 months' imprisonment. Stokes received a below-guidelines sentence of 48 months' imprisonment and 3 years' supervised release.⁴

Stokes now appeals the denial of his motion to suppress and the district court's loss calculation.

II.

A. Unreasonable Search and Seizure

For suppression issues, “we review a district court's factual findings for clear error,” with “[t]he ultimate conclusion as to whether there is a Fourth Amendment violation” subject to de novo review. United States v. Weidul , 325 F.3d 50, 51 (1st Cir. 2003).

Stokes argues that the search and seizure of his mail constituted a violation of the Fourth Amendment as his mail was opened without a warrant and in violation of postal regulations, statutes, and a court order in a related civil case.⁵ The district court did not reach these issues as Stokes failed to make a threshold showing that he has a reasonable expectation of privacy in the searched mail. We too find that Stokes's inability to demonstrate a reasonable expectation of privacy in the items searched and seized is fatal to his claim.⁶

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. The “capacity to claim the protection of the Fourth Amendment depends ... upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy.” Rakas v. Illinois , 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Under what is known as the “standing” doctrine,⁷ the defendant carries the burden of making a threshold showing that he has “a reasonable expectation of privacy in the area searched and in relation to the items seized.” United States v. Aguirre , 839 F.2d 854, 856 (1st Cir. 1988). Only then can he “challenge the admissibility of evidence on fourth amendment grounds.” United States v. Gómez , 770 F.2d 251, 253 (1st Cir. 1985). “This burden must be carried at the time of the pretrial hearing and on the record compiled at that hearing.” Aguirre , 839 F.2d at 856.

Here, there are three general categories of claims regarding the searches and seizures: the search of the Brockton P.O. Box; the seizure of envelopes from the Brockton P.O. Box as well as those withheld from delivery at the Willard Street and Blaine Street addresses; and the 8 envelopes addressed directly to Stokes. We evaluate each category in turn.

1. The Search of the P.O. Box

Stokes asserts that the search of his P.O. Box was unreasonable under the Fourth Amendment. This court has yet to decide whether a defendant can hold a reasonable expectation of privacy in a rented mailbox in circumstances like those here. See United States v. Burnette , 375 F.3d 10, 17 (1st Cir. 2004), vacated on other grounds , 543 U.S. 1181, 125 S.Ct. 1406, 161 L.Ed.2d 176 (2005). Nevertheless, we explained that

the reasonableness of [the defendant's] asserted expectation of privacy may depend upon facts such as the layout of the mailroom and mailboxes, the [commercial mail receiving agency's (“CMRA”) ] procedures for mail delivery and storage, and the agreement between the CMRAs and their clients as to access by CMRA managers and third parties to mail inside the mailboxes.

Id. Stokes provided no information as to any of these factors before the district court or in his briefs to us. Stokes suggests that his having a key to the P.O. Box creates a reasonable expectation of privacy as it demonstrates his exclusive access to the box. At oral argument, however, he conceded that he did not have any information about the accessibility of the box to post office workers or any other details as to the layout of the mailroom. Nor has he “offered [a] legitimate explanation or excuse for his failure to present evidence” on this front. Gómez , 770 F.2d at 253. Accordingly, Stokes has failed to carry his burden of proving that he has a legitimate expectation of privacy in the Brockton P.O. Box.

2. The Seizure of Letters Not Addressed to Stokes

Next, Stokes asserts a privacy interest in the seizure of mail addressed to his P.O. Box, the Willard Street address, and the Blaine Street address. “Letters and other sealed packages are in the general class of effects in which the public at large has a legitimate...