State of Maine v. Pedro J. Rosario , 2022 ME 46 ( 2022 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2022 ME 46Docket: Aro-21-291
Argued: May 10, 2022
Decided: August 25, 2022
Panel: STANFILL, C.J., and MEAD, JABAR, HORTON, CONNORS, and LAWRENCE, JJ., and
HUMPHREY, A.R.J.*
STATE OF MAINE
v.
PEDRO J. ROSARIO
STANFILL, C.J.
[¶1] Pedro J. Rosario appeals from a judgment of conviction of
aggravated trafficking of scheduled drugs (Class A), 17-A M.R.S.
§ 1105-A(1)(M) (2022), entered by the trial court (Aroostook County,
Stewart, J.) after a jury trial. Rosario argues that the court erred in denying his
motion to suppress and also erred with respect to enforcement of the court’s
sequestration order, the jury instructions, and the sentence. We affirm.
*Justice Humphrey sat at oral argument and participated in the initial conference while he was
an Associate Justice and, as directed and assigned by the Chief Justice, is now participating in this
appeal as an Active Retired Justice.
2
I. BACKGROUND
[¶2] Rosario was indicted for aggravated trafficking in fentanyl powder
in a quantity of six grams or more. See id. On October 30, 2020, Rosario moved
to suppress evidence obtained on December 18, 2019, including incriminating
statements he made, after the stop of a gray Kia Sorento in which Rosario was
a passenger.
[¶3] At the suppression hearing on January 11, 2021, three Maine Drug
Enforcement Agency (MDEA) Agents and two Maine State Police Officers
testified. As detailed below, law enforcement testified about monitored
telephone calls between Rosario and a confidential informant (CI) setting up a
drug transaction for December 18, 2019, in Houlton. The court admitted Maine
State Police Trooper Hunter Cotton’s video recording of the traffic stop of the
Kia and emails from T-Mobile containing GPS data for a cell phone. In a written
decision following the hearing, the court denied Rosario’s motion to suppress.
Rosario moved for additional and amended findings and an amended order,
and the court denied his motion.
[¶4] The court held a jury trial on June 1-3, 2021. The State offered
testimony from the relevant MDEA Agents, a drug chemist, and
Kelvin Mosquea-Guillen. The evidence showed that while law enforcement was
3
still with the Kia at the side of the road, law enforcement also stopped a gray
Toyota driven by Mosquea-Guillen; the illegal drugs were found in the Toyota.
[¶5] Two packages were seized from Mosquea-Guillen’s vehicle, though
only one package, weighing approximately 111 grams and containing fentanyl
powder, was admitted into evidence.1 Mosquea-Guillen testified that Rosario
had paid him to rent a car for Rosario and to drive his own vehicle to Houlton
to pick up a person who would give Mosquea-Guillen money. The Kia in which
Rosario was riding was searched and, although no contraband was seized from
it, the search uncovered cell phones and a rental contract that the State used to
connect Rosario to Mosquea-Guillen. Rosario did not testify and called no
witnesses. The jury found Rosario guilty.
[¶6] The court held a sentencing hearing on August 27, 2021, and
sentenced Rosario to twenty-five years in prison, with ten years suspended and
a four-year probationary period, and ordered him to pay a $25,000 fine.
[¶7] Rosario timely appealed from the judgment.2
1 The second package allegedly contained over 900 grams of a similar powder but was not offered
or admitted into evidence.
2 The Sentence Review Panel denied Rosario’s application for leave to appeal from the sentence.
See 15 M.R.S. §§ 2151, 2152 (2022); M.R. App. P. 20(a)(1), (f).
4
II. DISCUSSION
A. Motion to Suppress
[¶8] The court found the following facts, all of which are supported by
competent evidence in the suppression record and which we view in the light
most favorable to the suppression court’s order. See State v. Cunneen, 2019 ME
44, ¶¶ 2, 13, 205 A.3d 885.
[¶9] In September 2019, a CI working with the MDEA told Agent William
Campbell that a person, with a last name of Messon, had asked the CI if the CI
wanted to conduct drug deals. Campbell had previously worked with the CI and
found the CI reliable, and he told the CI to contact Messon. The CI and Messon
had multiple calls, which the MDEA recorded, discussing the sale and pricing of
illegal drugs. During one call, Messon said his brother would contact the CI, but
Messon did not provide his brother’s name. The CI received a call minutes later
and spoke with a man, who identified himself as “Peter,” about a drug
transaction.
[¶10] Campbell investigated Messon and came to believe that “Peter”
was Pedro Rosario.3 Campbell researched background information on Rosario
and obtained Rosario’s photograph.
Campbell testified that “Peter” translated to Spanish is “Pedro.” The court found that Campbell
3
learned that Messon’s brother was Pedro Rosario. Because the actual records that Campbell
5
[¶11] The CI and Peter had additional calls, which the MDEA monitored
and recorded, about drug transactions. In December 2019, the CI and Peter
agreed to meet, but the transaction was cancelled because Peter was unable to
find a driver. Peter later found a driver, and Peter and the CI agreed to meet in
Houlton on December 18, 2019, where Peter would sell drugs to the CI.
[¶12] On December 17, 2019, Campbell obtained a search warrant for
GPS location data of the cell phone number Peter was using. It was MDEA Agent
Forrest Dudley’s role to receive the GPS location data from T-Mobile and
monitor the phone’s location.4 On December 18, 2019, the agents and officers
met, reviewed investigation details, and circulated Rosario’s photograph, which
was seen by Trooper Cotton and MDEA Agent John Gaddis.
[¶13] Around 9:00 a.m. on December 18, 2019, Peter told the CI that he
was on his way north in a gray Toyota. Campbell suspected that the vehicle had
consulted were not supplied to Rosario, the court excluded testimony about what Campbell
discovered to lead to his belief that Peter was Pedro Rosario.
4 We note that the admitted emails from T-Mobile show that the number had a 508 area code.
Cf. State v. Athayde, 2022 ME 41, ¶ 29, 277 A.3d 387 (explaining that because neither party contested
the authenticity or accuracy of the admitted video recording, we may “listen to and view the
recording[]” in its “entirety as we review the court’s findings and conclusions”). We take judicial
notice that this area code is from southeastern Massachusetts. See M.R. Evid. 201(b), (d); State v.
Reeves, 2022 ME 10, ¶ 31 n.7, 268 A.3d 281 (taking judicial notice of pandemic management orders
and the number of COVID-19 cases as “matters of public record”); State v. Petersen, 268 A.2d 482, 483
(Me. 1970); see also Orsi v. Sheik Falah Bin Zayed Bin Sultan Al-Nahyan, No. 11-10451-DPW, 2012 U.S.
Dist. LEXIS 136798, at *20-21 n.6 (D. Mass. Sept. 25, 2012) (taking judicial notice of the part of New
York associated with a phone number’s area code). The suppression record does not reveal the name
associated with the cell phone account.
6
out-of-state license plates. Over the next few hours Dudley shared with the
agents and officers the location information from the emails showing the phone
traveling north.5 An email from T-Mobile at 1:47 p.m. indicated that the phone
was in Houlton near the spot where Peter and the CI had agreed to meet. Peter
then called the CI and called off the transaction because he thought he saw law
enforcement near the meeting location; thereafter the emails showed the
phone traveling south on I-95. The interval between emails was shortened to
less than five minutes.
[¶14] Minutes before 2:30 p.m., an email showed the phone was near the
Island Falls exit; the data was accurate to within twenty-five meters. This
location was south of Maine State Police Sergeant Chadwick Fuller, who headed
south on I-95. Fuller caught up to a gray Kia sport utility vehicle, with
Massachusetts license plates, that was behind a white vehicle.6
[¶15] Cotton was parked at an I-95 crossover and saw two vehicles pass
him, followed by Fuller’s vehicle. Cotton proceeded south behind Fuller to
5 The GPS location data was received every fifteen minutes initially and then every five minutes
once the vehicle got closer to the meeting destination. At each interval, T-Mobile would email the
latitude and longitude data for the phone’s location, unless the phone was off or there was no
reception, in which case the email said “ABSENT SUBSCRIBER.”
6We viewed Cotton’s video recording of the traffic stop and determined the color of the vehicles.
See Athayde, 2022 ME 41, ¶ 29, 277 A.3d 387.
7
assist and told the other officers that he identified Rosario in the gray vehicle
when it passed him. Based on the GPS location data and the Kia’s out-of-state
license plates, Fuller initiated a “felony stop” of the Kia. He did not see the Kia’s
occupants before the stop.
[¶16] The traffic volume on I-95 was very light at the time of the stop at
2:32 p.m. When Fuller activated his lights, the Kia stopped in the breakdown
lane; the white vehicle ahead of the Kia continued south. Fuller yelled for the
driver to exit the vehicle, and the driver complied and was immediately
handcuffed. The passenger opened the door but appeared confused. At that
point, Gaddis, who had arrived on the scene, ordered in Spanish for the
passenger to exit the vehicle. Gaddis recognized the passenger as Rosario.7
Rosario complied with Gaddis’s instructions and was immediately handcuffed.
[¶17] Based on its findings, the court concluded that when the officers
stopped the Kia, they had a reasonable articulable suspicion, and indeed
probable cause, to believe that it contained the person who had agreed to travel
and sell drugs to the CI in Houlton and that criminal conduct had taken place or
was occurring. The court further concluded that probable cause existed to
7 Gaddis testified that he “[i]mmediately” recognized Rosario when he was instructing Rosario to
exit the vehicle, based on the photograph he had seen that day.
8
arrest Rosario because a prudent and cautious person would believe that the
Kia contained the phone; that the person who used the phone agreed to travel
to Houlton to sell drugs; and that Pedro Rosario was the Peter who agreed to
sell drugs. The court thus denied Rosario’s motion to suppress.
[¶18] Rosario concedes that law enforcement had “reasonable
articulable suspicion” for the stop. He argues that law enforcement lacked
probable cause, however, and that he was under de facto arrest when he was
ordered from the vehicle, allegedly at gunpoint, after the driver was handcuffed
but before Gaddis recognized Rosario. The State contends competent evidence
supports the court’s findings that, prior to the stop, law enforcement had
probable cause to believe that the phone and Peter were in the vehicle and that
Peter had engaged in a conspiracy to traffick illegal drugs. The State further
argues that the agents and officers had a legitimate concern for their safety and
took reasonable steps under the circumstances.
[¶19] We review for clear error the court’s factual findings on a motion
to suppress and review de novo the court’s ultimate determination regarding
suppression. State v. Lagasse, 2016 ME 158, ¶ 11, 149 A.3d 1153 (stating that
we will uphold the “denial of a motion to suppress if any reasonable view of the
evidence supports” the decision (quotation marks omitted)).
9
[¶20] Law enforcement is “authorized to make warrantless arrests
under certain circumstances, including when an officer has probable cause to
believe that a person has committed any Class A, Class B, or Class C crime.”
Id. ¶ 13; 17-A M.R.S. § 15(1)(A)(2) (2022). There is probable cause when the
“facts and circumstances within the knowledge of the officers and of which they
have reasonably trustworthy information would warrant a prudent and
cautious person to believe that the arrestee did commit or is committing the
felonious offense.” Lagasse, 2016 ME 158, ¶ 13, 149 A.3d 1153 (quotation
marks omitted). Probable cause is an objective test and “includes the collective
information known to the police and is not limited to the personal knowledge
of the arresting officer.” Id. ¶ 14 (stating that the standard “has a very low
threshold” (quotation marks omitted)); see also State v. Martin, 2015 ME 91,
¶ 10, 120 A.3d 113 (explaining that probable cause requires “more than mere
suspicion” but “can be satisfied on less than” the proof required
for “preponderance of the evidence” (quotation marks omitted)).
[¶21] Here, there was probable cause, prior to the stop, to stop the Kia
and arrest its occupants. The MDEA monitored multiple calls, between a known
and reliable CI and Peter, discussing drug transactions, including a transaction
arranged for December 18 in Houlton. Pursuant to a search warrant, law
10
enforcement received emails containing GPS data for the cell phone number
used by Peter showing that the phone was traveling north after Peter informed
the CI that he was on his way north, that the phone was near the meeting
location, and that the phone was traveling south after Peter called off the
transaction. The GPS data, accurate to within twenty-five meters, showed that
the phone was near the Island Falls exit, which was just south of Fuller, who
caught up to a gray Kia with Massachusetts license plates. The traffic volume
on I-95 was light, and prior to the stop Cotton saw the Kia and told the other
officers that he identified Rosario in the vehicle,8 based on a photograph of
Rosario that he had been shown at the briefing.
[¶22] The facts and circumstances meet the “very low threshold” of
probable cause. Lagasse, 2016 ME 158, ¶¶ 4-5, 13-14, 18, 149 A.3d 1153(quotation marks omitted); see Martin, 2015 ME 91, ¶¶ 2-4, 11, 14, 120 A.3d
113 (stating that the court’s finding, that the police’s investigation “provided a
clear basis for probable cause to believe that there would be contraband in the
vehicle” or on the person inside, was “well supported by the record,” where
8Although both sides agreed at the hearing that Cotton’s actions did not contribute to Fuller’s
decision to effectuate the stop, probable cause includes the police’s collective knowledge and is not
limited to the arresting officer’s personal knowledge. See State v. Lagasse, 2016 ME 158, ¶ 14,
149 A.3d 1153.
11
police had a warrant and tracked the number of a person who was denoted to
a CI as a drug deliveryman (quotation marks omitted)); State v. Journet, 2018
ME 114, ¶¶ 18-22, 191 A.3d 1181 (determining there was probable cause
where a CI, found at a residence where there were drugs, showed officers text
messages indicating a drug deal, and the defendant arrived close to when the
drug supplier was anticipated to arrive, driving a car that matched the CI’s
description).
[¶23] Although there was a white vehicle ahead of the Kia, Rosario did
not move for further findings regarding this other vehicle.9 We therefore
assume that the court found the facts necessary to determine that the Kia was
more likely than the other vehicle to contain the phone that law enforcement
was tracking. See State v. Sasso, 2016 ME 95, ¶¶ 18-19 & n.4, 143 A.3d 124;
M.R.U. Crim. P. 41A(d); cf. Sulikowski v. Sulikowski, 2019 ME 143, ¶¶ 8, 21-22,
216 A.3d 893. This finding is supported by the record evidence, including
Cotton’s identification of Rosario in the gray Kia, the fact that the gray Kia had
Massachusetts license plates and that the cell phone number being tracked had
a Massachusetts area code, and the spacing of the two vehicles as reflected in
9 Rosario’s motion for additional and amended findings only pertained to Campbell’s
investigation and the photograph of Rosario.
12
the video. See State v. Athayde, 2022 ME 41, ¶ 29, 277 A.3d 387. Law
enforcement had probable cause to arrest the Kia’s occupants, and the court
thus did not err in denying Rosario’s motion to suppress. See State v. Flint, 2011
ME 20, ¶ 9, 12 A.3d 54 (concluding that it was not necessary to determine
whether the officers “exceeded the bounds of a permissible investigatory stop
because there was probable cause to arrest” the defendant).10
B. Sequestration Instruction
[¶24] Prior to a mid-morning break during Campbell’s testimony on the
first day of trial, Rosario’s counsel requested “that the witness be sequestered
and not discuss his testimony until it’s finished.” The court granted the request
and instructed that “during this recess” Campbell “remain sequestered as other
witnesses are” and not discuss his testimony with the State’s attorney until
Campbell finished his testimony. After Campbell and Peter Johnson, the
supervisor of the MDEA’s Aroostook County office, testified, both attorneys
10We need not look to the events after the stop because probable cause already existed to stop
and arrest the vehicle’s occupants. However, there was additional probable cause to arrest Rosario
after he exited the vehicle and Gaddis “[i]mmediately” recognized him from the photograph Gaddis
had seen that day at the briefing. Further, although the officers had previously handcuffed the driver
and were yelling, the fact that law enforcement required Rosario to exit the vehicle was not
unreasonable because “an officer may always require the occupants of a lawfully stopped vehicle to
exit the vehicle without violating the Fourth Amendment.” State v. Donatelli, 2010 ME 43, ¶¶ 6, 14-18,
995 A.2d 238 (determining that a stop involving four police vehicles and five officers was not a de
facto arrest because, among other reasons, investigative stops are dangerous, the defendant “was not
traveling alone and was suspected of transporting illegal drugs,” and the officers did not block the
defendant’s car).
13
indicated they had no more questions for either witness. When the court later
asked at side bar if chain of custody was at issue in the case, Rosario’s attorney
said yes. The State then said that it may need to recall either Campbell or
Johnson, and Rosario did not object.
[¶25] The next day, the State recalled Campbell and Johnson to testify
about the chain of custody. Rosario objected, arguing that Campbell was
subject to sequestration and saw Johnson’s testimony; that the State did not
preserve the right to recall the witnesses; that counsel limited his
cross-examination based on the testimony as presented; and that Rosario
would be prejudiced because the jury had already heard chain-of-custody
testimony. The court overruled the objection, reasoning that the State had not
rested and that the sequestration instruction was not violated because the new
testimony would not correct prior testimony but reflect the witnesses’
“particularized or discrete function in the chain of custody.”11
[¶26] Rosario argues the court erred in determining that there was no
violation of the court’s sequestration order and therefore abused its discretion
11 Rosario’s counsel later objected again, adding that the “agents spoke before testifying today
specifically about the chain of custody.” Johnson testified that although he had spoken about the
chain of custody with Campbell and the State’s attorney, he did not discuss or rehearse his testimony
with Campbell.
14
in imposing no sanction and allowing Campbell and Johnson to be recalled. We
disagree.
[¶27] “[T]he sequestration of witnesses is wholly discretionary.” State v.
Pickering, 491 A.2d 560, 563 (Me. 1985) (explaining that the main goal is to
prevent a witness from hearing testimony “so as to be able to conform his own
testimony to that given by the other” (quotation marks omitted)); see M.R. Evid.
615. We review for clear error a court’s determination whether a sequestration
order was violated. See State v. Bennett, 416 A.2d 720, 726-27 (Me. 1980).
Violation of a sequestration order does not mean a witness is automatically
disqualified; rather, it is within the court’s discretion “whether such a witness
can testify.” Pickering, 491 A.2d at 563.
[¶28] Here, the court did not err because there was no violation of the
court’s limited sequestration instruction given during a break in Campbell’s
testimony. Rosario requested only “that the witness be sequestered and not
discuss his testimony until it’s finished.” The court instructed “that during this
recess” Campbell remain “sequestered from” and “not discuss [his] testimony
with” the State’s attorney. There was no request for or order sequestering all
witnesses. The phrase “as other witnesses are” was used in relation to
Campbell’s sequestration, and the court sequestered Campbell from the State’s
15
attorney during the break in his testimony. The instruction also did not apply
to the time after Campbell completed his testimony on the first day or sequester
Campbell from other witnesses.12 See State v. Jackson, 1997 ME 174, ¶¶ 1, 5-6,
697 A.2d 1328 (determining that a witness’s discussion, prior to her testimony,
with a witness from another defendant’s trial relating to the same incident was
permissible absent “any request for more stringent restrictions”). Indeed,
given that Campbell was designated as the State’s primary representative, he
was authorized to remain throughout the trial. See M.R. Evid. 615(b) (stating
that the court is not authorized to exclude “[a]n officer or employee of a
party . . . after being designated as the party’s representative by its attorney”).13
C. Jury Instructions
[¶29] Rosario argues that the court erred in instructing the jury
regarding possession and in failing to give an instruction on specific unanimity.
At trial, Rosario failed to object to the possession instruction and failed to
In addition, because the instruction’s terms were directed to Campbell and did not explicitly
12
apply to any other witnesses, there was no violation of the sequestration instruction by Johnson.
13Even if the sequestration instruction had been violated, the court did not abuse its discretion
in allowing Campbell and Johnson to be recalled. See State v. Cruz, 594 A.2d 1082, 1085 (Me. 1991).
Rosario does not point to specific prejudice that resulted from Campbell hearing Johnson’s testimony
or from the discussions that Rosario’s counsel contends violated the order, see id.; Rosario’s counsel
had the chance to ask about those discussions; and the testimony primarily related to each witness’s
own actions or the MDEA’s general processes.
16
request a specific unanimity instruction, and we therefore review for obvious
error. See State v. Lajoie, 2017 ME 8, ¶ 13, 154 A.3d 132. For obvious error to
exist there must be (1) an error, “(2) that is plain, (3) that affects substantial
rights, and, if so, (4) that . . . seriously affects the integrity, fairness, or public
reputation of judicial proceedings.” Id. To determine whether there is an error,
“we evaluate the instructions in their entirety” and consider their total effect,
“the potential for juror misunderstanding, and whether the instructions
informed the jury correctly and fairly in all necessary respects of the governing
law.” Id. ¶ 14 (quotation marks omitted).
1. Possession Instruction
[¶30] The court instructed the jury that “[a] person possesses something
in the sense when they have custody over – custody or control over something
for a period sufficient to become aware of their possession and to terminate
that possession.”14 Rosario argues that the language “to terminate that
possession” is not supported by legal authority and allowed the jury “to convict
defendant even if they determined that the State had failed to disprove the
Rosario concedes that “[p]ossession of a sufficient amount of fentanyl powder is essentially all
14
the State must prove to establish trafficking” and that “aggravated trafficking may be established by
mere possession of just a few grams more.”
17
statutory defense” regarding Rosario terminating complicity as an accomplice
under 17-A M.R.S. § 57(5)(C) (2022).15
[¶31] The court did not commit obvious error. Rosario was charged with
aggravated trafficking in fentanyl powder in violation of 17-A M.R.S.
§ 1105-A(1)(M). At the time of the offense in 2019, “[t]raffick” was defined to
include “C. To sell, barter, trade, exchange or otherwise furnish for
consideration,” “D. To possess with the intent to do any act mentioned in
paragraph C,” or “F. To possess 2 grams or more of fentanyl powder or 90 or
more individual bags, folds, packages, envelopes or containers of any kind
containing fentanyl powder.” 17-A M.R.S. § 1101(17)(C)-(D), (F) (2018);
see also P.L. 2015, ch. 346, § 1 (effective Oct. 15, 2015); P.L. 2021, ch. 396, § 1
(effective Oct. 18, 2021).16 Thus, it was relevant whether Rosario possessed
fentanyl powder.
15 Title 17-A M.R.S. § 57(5)(C) (2022) states, “Unless otherwise expressly provided, a person is
not an accomplice in a crime committed by another person if . . . [t]he person terminates complicity
prior to the commission of the crime by: (1) Informing the person’s accomplice that the person has
abandoned the criminal activity; and (2) Leaving the scene of the prospective crime, if the person is
present thereat.”
16 A 2021 amendment to 17-A M.R.S. § 1101(17) removed paragraph F. See P.L. 2021, ch. 396, § 1
(effective Oct. 18, 2021) (codified at 17-A M.R.S. § 1101(17) (2022)). Both at the time of the offense
and now, the trafficking is “aggravated” if the person “violates section 1103” and “trafficks in fentanyl
powder in a quantity of 6 grams or more or 270 or more individual bags, folds, packages, envelopes
or containers.” 17-A M.R.S. § 1105-A(1)(M) (2022); see also 17-A M.R.S. §§ 1102(1)(I), 1103(1-A)(A)
(2022); P.L. 2017, ch. 460, § F-3 (effective July 9, 2018).
18
[¶32] Possession is involuntary, however, if a person “[w]as not aware
of the person’s control of the possession for a sufficient period to have been
able to terminate the person’s possession of the thing.” 17-A M.R.S.
§ 103-B(3)(B) (2022). The instruction regarding possession thus properly
reflected the statutory language and was not in error. See Alexander, Maine Jury
Instruction Manual §§ 6-41, 6-43 at 6-81, 6-84 (2022 ed. 2021). Rather than
instructing, as Rosario contends, “that evidence that he terminated his
possession was evidence of guilt,” the instruction relates to the time necessary
for voluntary possession to accrue and does not require a finding that Rosario
did or did not terminate possession. Further, the court separately instructed
the jury on the requirements of 17-A M.R.S. § 57(5)(C) regarding termination
of complicity.
2. Specific Unanimity Instruction
[¶33] Rosario contends that the court erred in failing to give a specific
unanimity instruction because the State argued that the crime was committed
at multiple points, there were multiple legal theories upon which the jurors
could determine Rosario was guilty, and the jurors “all had to agree on” a
“discrete instance.”
19
[¶34] A specific unanimity instruction explains to jurors that they are
required to unanimously agree that a single incident of the alleged crime
occurred that supports “a finding of guilt on a given count.” Hodgdon v. State,
2021 ME 22, ¶ 14 n.5, 249 A.3d 132. Thus, we have said that upon request “the
jury should be instructed” regarding specific unanimity “if the evidence offered
in support of one charge includes more than one incident of the charged
offense.” State v. Hanscom, 2016 ME 184, ¶¶ 10-12, 16, 152 A.3d 632(quotation marks omitted) (determining that the court committed prejudicial
error in failing to give a requested specific unanimity instruction where “the
State presented evidence that [the defendant] committed the same crime
against each victim on different occasions, and any one of those occasions could
have led to a guilty verdict on that particular charge”).
[¶35] The court did not commit obvious error in failing to give a specific
unanimity instruction. The evidence does not suggest that Rosario committed
multiple crimes on multiple occasions that could be the basis for a guilty
verdict, but rather relates to a single, continuous, incident on December 18,
2019, to support a single count. Cf. State v. Elliott, 2010 ME 3, ¶¶ 23, 25 n.11,
27, 987 A.2d 513.
20
D. Sentencing
[¶36] The day before the sentencing, Rosario submitted a sentencing
memorandum stating that he is not a United States citizen, that he is subject to
an immigration detainer, and that he will be deported following conclusion of
his sentence. Rosario argued that the appropriate sentence was fifteen years
with all but four years suspended. The State did not submit a written
sentencing memorandum. At the sentencing hearing on August 27, 2021, the
State argued for a sentence of twenty-five years and a $25,000 fine, pointing to
the seriousness of Rosario’s conduct given the amount of fentanyl he possessed
and arguing that there were aggravating factors including a prior conviction,
his commercial motive, the out-of-state nature of the drugs, and his age and
prior deportation. Following an explanation of its sentencing analysis, the
court sentenced Rosario to twenty-five years in prison, with ten years
suspended and a four-year probationary period, and ordered him to pay a
$25,000 fine.
[¶37] Rosario contends that the court violated his due process rights by
increasing the sentence based on factors that he was not notified about and that
were not supported by a preponderance of the evidence. Specifically, Rosario
argues that the court relied on the fact that he was “here illegally,” that he
21
possessed a second package of 900 grams of fentanyl that was not the basis for
the verdict, and that his motive was commercial. Rosario also contends that
there are no findings to support the fine and that to comport with the Eighth
Amendment “there must be some basis . . . to determine that the fine imposed
is not excessive.”
[¶38] Because the Sentence Review Panel denied Rosario’s application
for leave to appeal from the sentence, this is a direct appeal and we review
de novo “only the legality, and not the propriety, of the sentence.” State v.
Dobbins, 2019 ME 116, ¶ 51, 215 A.3d 769 (explaining that a direct appeal is
confined to “a claim that the sentence is illegal, imposed in an illegal manner, or
beyond the jurisdiction of the court, and the illegality appears plainly in the
record” (quotation marks omitted)). A court has “wide discretion” regarding
“the sources and types of information” it may rely on during sentencing, and is
not limited to those facts found at trial but rather is “limited only by the due
process requirement that such information [is] factually reliable and relevant.”
State v. Bennett, 2015 ME 46, ¶ 22, 114 A.3d 994 (quotation marks omitted).
[¶39] We conclude that there is no illegality in the sentence, for four
reasons. First, there is no requirement for a presentence investigation and
report or for the State to provide notice to Rosario of its arguments by filing a
22
sentencing memorandum. See M.R.U. Crim. P. 32(c)(1). Second, the court
explicitly declined to rely on the first two factors to which Rosario assigns error
in making its determination. The court stated that “at the time of these offenses,
[Rosario’s] immigration status was unknown,” and it did not impose the
sentence based on any alleged illegal status. The court also stated that “the trial
only focused on – and a conviction was based only upon the smaller quantity of
111 grams,” which the court deemed “a large amount,” “significantly above the
six grams to be a class A.” Thus, the court did not rely on the second package,
which allegedly contained over 900 grams of fentanyl powder, in addition to
the package weighing approximately 111 grams.
[¶40] Third, the evidence at trial supports the court’s statements that
there were multiple packages and that Rosario’s motive was commercial.
Cf. Bennett, 2015 ME 46, ¶ 26, 114 A.3d 994. Finally, Rosario’s counsel had the
chance to, and did, refute the State’s characterization of Rosario’s immigration
status, reference to the second package, and argument that Rosario was
commercially motivated. See id. ¶ 28.
[¶41] Regarding the fine, the court stated the basis for both the term of
imprisonment and the fine. Further, the fine is half of the maximum amount
authorized by statute, 17-A M.R.S. § 1704(1) (2022), and is not
23
unconstitutionally excessive, see Bennett, 2015 ME 46, ¶ 15, 114 A.3d 994(“[O]nly the most extreme punishment decided upon by the Legislature as
appropriate for an offense could so offend or shock the collective conscience of
the people of Maine as to be unconstitutionally disproportionate, or cruel and
unusual.” (quotation marks omitted)).
[¶42] In short, we conclude that there is no illegality in the sentence or
in the court’s procedure.
III. CONCLUSION
[¶43] Law enforcement had probable cause to stop the Kia and arrest its
occupants, and the court therefore did not err in denying Rosario’s motion to
suppress. Nor did the court err in determining that there was no violation of
its sequestration instruction, in instructing the jury, or in sentencing Rosario.
The entry is:
Judgment affirmed.
Rory A. McNamara, Esq. (orally), Drake Law LLC, York, for appellant Pedro J.
Rosario
Todd R. Collins, District Attorney, and Matthew A. Hunter, Asst. Dist. Atty.
(orally), 8th Prosecutorial District, Houlton, for appellee State of Maine
Aroostook County Unified Criminal Docket docket number CR-2019-30895
FOR CLERK REFERENCE ONLY