United States v. Merritt ( 2019 )

United States Court of Appeals
For the First Circuit
Nos. 18-2208
18-2257
UNITED STATES OF AMERICA,
Appellee,
v.
CUWAN MERRITT; MICHAEL ARTIS,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Lynch, Selya, and Barron,
Circuit Judges.
Amy L. Fairfield, with whom Fairfield & Associates, P.A. was
on brief, for appellant Merritt.
Gail M. Latouf for appellant Artis.
Paul T. Crane, Attorney, U.S. Department of Justice, Criminal
Division, Appellate Section, with whom Brian A. Benczkowski,
Assistant Attorney General, Matthew S. Miner, Deputy Assistant
Attorney General, Halsey B. Frank, United States Attorney, and
Julia M. Lipez, Assistant United States Attorney, were on brief,
for appellee.
December 19, 2019
LYNCH, Circuit Judge. Defendants Cuwan Merritt and
Michael Artis were each convicted of possession with intent to
distribute cocaine base. They appeal the district court's denial
of their motions to suppress drugs found on each of them. The
court denied the motion on the basis that the police had probable
cause to stop an automobile in which the defendants were known to
be traveling with two confidential informants near Lewiston,
Maine. Merritt also challenges the district court's ruling
admitting co-conspirator statements under Federal Rules of
Evidence 801(d)(2)(E) and 403, and United States v. Petrozziello,
548 F.2d 20 (1st Cir. 1977).
We affirm the denial of the motions to suppress, the
admission of the evidence against Merritt, and their convictions.
I.
A. Facts
We draw the facts relevant to the present appeal
primarily from the district court's supportable findings in its
ruling following an evidentiary hearing on the motions to suppress.
Our review is "consistent with record support, with the addition
of undisputed facts drawn from the suppression hearing." United
States v. Hernandez-Mieses, 931 F.3d 134, 137 (1st Cir. 2019)
(citing United States v. Dancy, 640 F.3d 455, 458 (1st Cir. 2011)).
We add facts relevant only to Merritt's evidentiary challenge in
our discussion of that claim.
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On May 12, 2017, Drug Enforcement Administration ("DEA")
Task Force Agent David Madore received a phone call from Gary
Hesketh, a confidential informant, who was in Maine. Agent Madore
had worked with Hesketh since February 2017, and Hesketh had
provided reliable information that resulted in drug arrests and
convictions. Hesketh had a criminal history involving illegal
drug possession, among other things. Agent Madore paid Hesketh
for his help, but only after determining that Hesketh's information
aided a particular police investigation.
In that call, Hesketh told Agent Madore that a crack
dealer had called his cell phone from out of state and wanted a
ride at 7:30 p.m. from Boston's South Station to Lewiston, Maine,
to bring a load of crack. Hesketh said he was not sure who the
caller was, but thought it might be Mayo, a black male whom Hesketh
had met once. Hesketh said that when he had loaned his phone to
his cousin, who had a drug addiction, Mayo had called the cell
phone, trying to reach Hesketh's cousin. Agent Madore had seen
Mayo through prior surveillance and was aware that Mayo was a drug
dealer who lived out of state but sold drugs in Lewiston.
Hesketh told Agent Madore that, before settling on
needing a ride from Boston, the caller had first told Hesketh that
he might need a ride from New York or New Hampshire, depending on
"how far they could get," but certainly from out of state. Hesketh
believed that these comments indicated that the phone call and
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requested ride were related to drugs. Hesketh also told Agent
Madore that the caller told Hesketh that he would "be hooked up"
in exchange for the ride, which Hesketh and Agent Madore reasonably
understood to mean that the caller would give Hesketh drugs.
After more communications between Hesketh and Agent
Madore by phone, by text, and in person, and more phone calls
between Hesketh and the person who had called him, Hesketh agreed
to pick the caller up in Boston that same evening. Because Hesketh
did not have a driver's license, Agent Madore arranged for Heidi
Lemieux, another confidential informant, to drive Hesketh to South
Station to pick up the caller and then return to Lewiston. Hesketh
provided his ex-wife's car for the trip.
Hesketh and Lemieux left for Boston at 5:30 or 6:00 p.m.
Agent Madore was concerned for their safety and asked Hesketh to
relay information to Agent Madore by phone or text.
When they arrived at South Station, Hesketh called Agent
Madore to say that the caller had informed him that he was running
late. Agent Madore told Hesketh that he and Lemieux could choose
either to wait or to return to Maine without the caller, and they
waited.
After 10 p.m., Hesketh informed Agent Madore that two
black men had arrived, and that neither was Mayo. Hesketh conveyed
some of this information during a phone call from a gas station in
Massachusetts where the four stopped after leaving South Station
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and some of it by text. At Agent Madore's request, Hesketh texted
him as they reached New Hampshire, Maine, and various mile markers
in Maine, and Agent Madore responded that law enforcement would be
on the highway waiting for their automobile.
Agent Madore had arranged for a traffic stop at Exit 75
of the Maine Turnpike, the exit the automobile would take en route
to Lewiston. After midnight, police pulled over the automobile as
it exited the highway there. Officers forcibly removed the two
black male passengers from the automobile's back seat and patted
them down for weapons.
A state trooper with a drug-detecting dog, who had been
awaiting the automobile, had the two men, who turned out to be
defendants Merritt and Artis, stand next to another officer and
then had the dog sniff each of the three. The trooper walked the
dog around Merritt and Artis and then manually directed the dog
from the feet to the torso on each. The dog alerted on Merritt's
front pocket area and Artis's crotch area, but did not alert on
the officer. The dog then also sniffed Hesketh, Lemieux, and the
automobile's interior, and did not alert.
Officers then searched the two men and found a bag of
crack cocaine in Artis's pants, but did not find drugs on Merritt.
Both were arrested. During a more thorough search at the
Androscoggin County Jail, corrections officers found a plastic
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baggie, later shown to contain crack cocaine, partially hanging
out of Merritt's rectum.
B. Legal Proceedings
Merritt and Artis were both indicted for possession with
intent to distribute cocaine base, and both moved to suppress the
drugs found on them. The district court held an evidentiary
hearing, at which Agent Madore, Hesketh, and Lemieux testified.
The district court orally denied the motions, holding that Agent
Madore had reasonable suspicion sufficient to justify a stop of
the vehicle and its occupants under Terry v. Ohio, 392 U.S. 1
(1968).
Artis's attorney filed a motion for clarification of the
district court's suppression ruling on the issue of whether the
vehicle stop and dog sniff were Terry stops, supportable by
reasonable suspicion, or instead constituted a de facto arrest,
which would require probable cause.1
After the district court accepted supplemental briefing
on that question, it issued a written decision and order to replace
its earlier bench ruling. The court found Agent Madore credible
and noted that Hesketh "did not contradict Agent Madore's
testimony" and that, "to the degree there was any inconsistency,
1 Artis's attorney died after the district court's initial
ruling on the motions to suppress. His new attorney filed the
motion for clarification.
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. . . it was based on [Hesketh's] uncertainty about what he
expressed to Agent Madore at the time in question, as opposed to
what he was thinking in his own mind."
The district court concluded that the police had
probable cause to arrest Merritt and Artis for drug trafficking
before the police stopped the car on the exit from the highway.2
As a result, it held, the officers' actions were constitutionally
sound whether the stop and search required reasonable suspicion or
probable cause.
Artis pled guilty, preserving his right to appeal the
suppression ruling.
Merritt proceeded to trial. Before trial, he filed a
motion in limine to exclude statements made by Merritt, Artis, and
Hesketh, arguing that the statements were hearsay and that they
were unduly prejudicial. The district court denied that motion.
At trial, Merritt objected to the admission of Hesketh's testimony.
The district court overruled the objection and admitted the
testimony provisionally under United States v. Ciampaglia, 628
F.2d 632, 638 (1st Cir. 1980). At the close of evidence, Merritt
renewed the objection, which the court again denied.
2 Although the government had also argued that the police
had probable cause to arrest Merritt and Artis for conspiracy,
which the defendants denied, the district court did not address
that argument.
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These appeals followed the conviction and the imposition
of sentences.
II.
In reviewing the denial of a motion to suppress, we
review the district court's findings of fact for clear error and
its conclusions of law, including its ultimate constitutional
determinations, de novo. See United States v. Flores, 888 F.3d
537, 543 (1st Cir. 2018). "[W]e will uphold a denial of a
suppression motion as long as 'any reasonable view of the evidence
supports the decision.'" United States v. Clark, 685 F.3d 72, 75
(1st Cir. 2012) (quoting United States v. Woodbury, 511 F.3d 93,
96-97 (1st Cir. 2007)).
The defendants argue that their initial seizure at Exit
75 near Lewiston, including their forced removal from the car and
the intrusive dog sniff, amounted to a de facto arrest, supportable
only by probable cause. The defendants do not dispute that the
seizure and search were permissible if the officers had probable
cause to arrest. The prosecution argues that the officers did
have probable cause to arrest Merritt and Artis before the
automobile stop.
"[E]very arrest, and every seizure having the essential
attributes of a formal arrest, is unreasonable unless it is
supported by probable cause." Michigan v. Summers, 452 U.S. 692,
700 (1981). "[P]robable cause exists when an officer, acting upon
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apparently trustworthy information, reasonably can conclude that
a crime has been or is about to be committed and that the suspect
is implicated in its commission." Morelli v. Webster, 552 F.3d
12, 21 (1st Cir. 2009). Probable cause "requires only a
probability or substantial chance of criminal activity, not an
actual showing of such activity," Illinois v. Gates, 462 U.S. 213,
243 n.13 (1983), and "is a fluid concept . . . not readily, or
even usefully, reduced to a neat set of legal rules," id. at 232.
It "is not a high bar." Kaley v. United States, 571 U.S. 320, 338
(2014).
Defendants stress that probable cause must be assessed
on the basis of the totality of the circumstances, relying on
Maryland v. Pringle, 540 U.S. 366, 372 n.2 (2003). From this they
argue that the totality of the circumstances shows less than
probable cause. Their primary argument is that there was no
investigation or corroboration of a traditional informant tip that
a crime was being or was about to be committed. They say that
Agent Madore should have investigated more or attempted to
corroborate what they call a "specious tip."
Defendants then make a second argument that there was no
probable cause to believe there was a conspiracy. As to that,
they argue that Lemieux's testimony reveals that she never heard
either defendant mention drugs during the drive from Boston to
Lewiston. They argue there was no evidence of a conspiracy between
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the two defendants. Nor, they argue, was there any evidence
connecting the two defendants to Mayo. The latter argument is
irrelevant. We will assume arguendo that evidence of the crime of
conspiracy, as opposed to the crime of possession with intent to
distribute, was relevant to the probable cause determination. As
we explain, the defendants have failed to show why the district
court erred in finding the evidence as to probable cause for each
sufficient.
"To determine whether an officer had probable cause for
an arrest, 'we examine the events leading up to the arrest, and
then decide whether these historical facts, viewed from the
standpoint of an objectively reasonable police officer, amount to
probable cause.'" District of Columbia v. Wesby, 138 S. Ct. 577,
586 (2018) (quoting Pringle, 540 U.S. at 371). "The existence of
probable cause must be determined in light of the information known
to the police at the time of the arrest." United States v. Diallo,
29 F.3d 23, 25 (1st Cir. 1994) (citing Maryland v. Garrison, 480
U.S. 79, 85 (1987)). We analyze whether the information available
to Agent Madore before the vehicle stop supports a finding of
probable cause.
As the district court found, Agent Madore received a tip
from a reliable informant who himself had past drug involvement
and who was paid only for good information. The informant told
Agent Madore that a crack dealer wanted transportation from Boston
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to Lewiston to sell crack and that the dealer would provide crack
in exchange for the ride. Agent Madore then sent Hesketh and
another informant to Boston to provide the ride, and Hesketh
informed him that the caller had been delayed and of Hesketh's
electing to wait until the caller's arrival. Two people showed up
at the delayed time and place described and got in the car. The
four drove north toward Lewiston while Hesketh kept Agent Madore
updated on their progress.
The district court reasoned that "[i]t would be common
sense to believe that someone who turned up for a ride at South
Station after calling to ask for a ride from South Station to
Lewiston to sell drugs and promising drugs to the person providing
the transportation was in fact carrying drugs with him." It added
that "[t]he presence of two males rather than one does not alter
that conclusion," noting that "[n]o innocent explanation is
apparent for a companion when one male had asked for a ride to
Lewiston to sell crack and offered crack in exchange." Nothing
known to Agent Madore at the time of the vehicle stop suggested
that the two were differently situated with respect to the tipped
drug trafficking purpose of their trip.
The defendants argue that Hesketh's information was not
corroborated by the events that followed because Merritt and Artis,
not Mayo, showed up at South Station. But this does not alter the
fact that, whoever called Hesketh and offered drugs in exchange
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for a ride from Boston to Lewiston, it was Merritt and Artis who
showed up at South Station. And, as the district court noted,
Hesketh had told Agent Madore from the beginning that he was not
sure the caller was Mayo. "[P]robable cause does not require
officers to rule out a suspect's innocent explanation for
suspicious facts," id., and "probable cause determinations hinge
not on discrete pieces of standalone evidence, but on the totality
of circumstances," United States v. Anzalone, 923 F.3d 1, 5 (1st
Cir. 2019), cert. denied, 140 S. Ct. 295 (2019). The fact that
Agent Madore learned no new material information after Hesketh's
call to Agent Madore from the gas station is irrelevant. Hesketh,
a reliable informant with previous drug involvement and a financial
incentive to provide good information, was offered drugs in
exchange for the transportation to Lewiston. The defendants have
waived any argument that, because the information that Hesketh
provided to law enforcement about the phone call did not indicate
that two people were seeking a ride, officers had probable cause
to believe, at most, that one of the passengers was engaged in
drug trafficking, but not both.3
3 Defendants made this argument for the first time at oral
argument. Our review of the record in the district court
establishes that no such argument was made there. We asked for
and received from defense counsel further briefing on whether they
raised this argument to the district court, and it is clear that
they did not. The argument was also made in neither the
defendants' opening briefs nor their reply briefs. Arguments not
advanced before the district court or in a party's briefs and then
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Because the defendants have failed to show that Agent
Madore did not have probable cause to arrest Merritt and Artis,
the defendants' further contentions that their removal from the
car and the subsequent dog sniff were unconstitutional are moot.
See United States v. Robinson, 414 U.S. 218, 235 (1973). The
district court's denial of the motion to suppress was not error.
III.
Merritt also argues that the district court improperly
admitted certain out-of-court statements under Rule 801(d)(2)(E)
and/or that those statements should have been excluded under Rule
403. The challenged statements were in Hesketh's testimony. The
statements include those reportedly made by the person who called
Hesketh to arrange the pickup at South Station; those informing
Hesketh of the delayed arrival at South Station while Hesketh and
Lemieux waited; and statements Merritt and/or Artis made before
getting into the car and while they traveled from Boston to
Lewiston, including that Merritt and Artis wanted a place to stay
in Lewiston to break down drugs.4 After admitting the statements
provisionally over Merritt's objection, the district court again
raised for the first time at oral argument are "doubly waived."
United States v. Leoner-Aguirre, 939 F.3d 310, 319 (1st Cir. 2019).
4 To the extent that any of the statements at issue were
in fact made by Merritt, they were admissible under Federal Rule
of Evidence 801(d)(2)(A) as a statement made by an opposing party.
Hesketh was not certain whether the statements he remembered from
the return trip to Lewiston were made by Merritt or Artis.
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denied Merritt's renewed motion to exclude the statements at the
close of evidence.
To admit evidence of out-of-court statements made by a
defendant's co-conspirator, "the district court must determine by
a preponderance of the evidence that the declarant and the
defendant were members of the same conspiracy and that the
statement was made in furtherance of the conspiracy." United
States v. Paz-Alvarez, 799 F.3d 12, 29 (1st Cir. 2015).5
"To preserve a challenge to a district court's
Petrozziello ruling, a defendant must object on hearsay grounds
when his or her coconspirator's statement is provisionally
admitted and must renew the objection at the close of evidence."
United States v. Ciresi, 697 F.3d 19, 25–26 (1st Cir. 2012). We
then review preserved challenges to the Rule 801(d)(2)(E)
objection, which the parties agree the challenge in this case is,
either for clear error or abuse of discretion. See United States
v. Arias, 848 F.3d 504, 516 (1st Cir. 2017) (declining to decide
between the two standards). We need not decide which standard
5 The indictment need not include a conspiracy charge (as
this indictment did not) to render co-conspirator statements
admissible; "[r]ather, the out-of-court statements of one 'partner
in crime' will be admissible against a confederate when made in
furtherance of a joint criminal venture and when there is
sufficient evidence independent of these statements to indicate
the existence of such a venture." United States v. Washington,
434 F.3d 7, 13 (1st Cir. 2006) (quoting Ottomano v. United States,
468 F.2d 269, 273 (1st Cir. 1972)).
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applies because, under either, this challenge fails. Review of
Merritt's preserved Rule 403 objection is for abuse of discretion,
"afford[ing] the district court 'especially wide latitude.'"
United States v. Mehanna, 735 F.3d 32, 59 (1st Cir. 2013) (quoting
United States v. Candelaria–Silva, 162 F.3d 698, 705 (1st Cir.
1998)).
The district court's conclusion that each of the
statements was admissible under Rule 801(d)(2)(E) was not clearly
erroneous or an abuse of discretion. The person who initially
called Hesketh arranged the transportation that Merritt and Artis
then utilized, offering drugs in exchange. Hesketh's
conversations with that person determined the pickup location and
time and led directly to the resulting drug trafficking.
Similarly, the person with whom Hesketh communicated by phone while
waiting near South Station helped arrange Hesketh's meeting with
Merritt and Artis, telling Hesketh and Lemieux that there would be
a late arrival.6 The person on the phone doing the arranging,
whoever that was, made each statement in furtherance of a criminal
conspiracy.
Similarly, Merritt and Artis were plausibly co-
conspirators: they traveled together to the South Station bus
6 As the government notes, some of the challenged
statements were not offered for the truth of the matter stated and
are not hearsay at all.
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terminal, each with large amounts of cocaine hidden on their
bodies, larger amounts than for personal use. There, they together
met Hesketh and the two of them walked around the car together,
"ma[king] sure all the lights were working" and that the car "was
clean." During the trip to Maine, "they were both very adamant on
[the driver] going exactly the speed limit." And they asked
Hesketh whether he had a place they could go where they could "post
up for a while and break down the drugs." The district court's
conclusion that Artis was Merritt's co-conspirator was not clear
error or an abuse of discretion.7
Merritt's Rule 403 argument also fails. The district
court did not abuse its discretion when it found that the
statements Merritt sought to exclude were "highly material . . .
in terms of what took place." Nothing about the statements is
7 Merritt advances two other meritless arguments. He
first argues that there can be no conspiracy between a defendant
and a government agent -- here, Hesketh. But the district court
did not find that Merritt conspired with Hesketh, and, as to
statements by a co-conspirator, "[i]t is immaterial that the person
to whom the statement is made is a government informant . . . as
long as the statement itself was made in furtherance of the common
scheme." Ciresi, 697 F.3d at 28. He secondly argues that the
district court's Petrozziello ruling was inconsistent with its
later ruling at his sentencing that it would not aggregate the
drug quantities possessed by Merritt and Artis for the purpose of
calculating Merritt's guidelines sentence. But the district court
at sentencing was applying the standard set forth in United States
Sentencing Guidelines § 1B1.3(a)(1)(B), which differs by its terms
from the Rule 801(d)(2)(E) standard. That the rulings differed
does not render the district court's Petrozziello ruling clearly
erroneous or an abuse of discretion.
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unfairly prejudicial, and Merritt was able to attempt to minimize
the effect of the statements.
IV.
Because the defendants have failed to show that the
police lacked probable cause to arrest Merritt and Artis before
the vehicle stop, we affirm the district court's denial of the
motions to suppress. We also reject Merritt's challenges to the
evidence admitted at his trial.
Affirmed.
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