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United States v. Rose

United States Court of Appeals, First Circuit

September 18, 2015

RUSSELL C. ROSE; KELVIN FRYE, Defendants, Appellees.


Rosemary Curran Scapicchio for appellant Kelvin Frye. Jamesa J. Drake and Drake Law, LLC, for appellant Russell C. Rose

Kirby A. Heller, Attorney, Appellate Section, Criminal Division, U.S. Department of Justice, with whom Carmen M. Ortiz, United States Attorney, James E. Arnold and David J. D'Addio, Assistant United States Attorneys, District of Massachusetts, Leslie R. Caldwell, Assistant Attorney General, and David A. O'Neil, Acting Deputy Assistant Attorney General, Criminal Division, were on brief, for appellee.

Before Howard, Chief Judge, Torruella and Kayatta, Circuit Judges.


Russell Rose and Kelvin Frye appeal convictions stemming from their respective roles in a Cape Cod based drug-distribution conspiracy. Their claims challenge several aspects of the proceedings below. Finding no reversible error, we affirm.


We begin with a brief overview of the case, saving a detailed recitation of the facts for the applicable analytical section below. We present the facts in an objective manner. See United States v. Burgos-Montes, 786 F.3d 92, 99 (1st Cir. 2015).

The government charged Rose, Frye, and fourteen others with conspiring to distribute, and to possess with intent to distribute, cocaine and heroin. See 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(B). The conspiracy was alleged to have lasted from approximately March 2008 until November 2010, and Rose and Frye were purportedly leaders in it.

The government's investigation into Rose and Frye picked up steam in mid-2010, and the two were ultimately arrested, indicted, and tried. At trial, the government relied on the testimony of the case agent (Agent Timothy Quinn), recordings of wiretapped phone calls between the co-conspirators, and testimony from co-conspirators Delrico Graham and Stefan Pina. The prosecution also introduced physical evidence, including contraband discovered at Rose's residence.

A jury ultimately convicted both Rose and Frye on the drug-conspiracy charge, and the judge sentenced each of them to twenty-five years in prison. This timely appeal followed.


After carefully considering each of the defendants' contentions and extensively reviewing the record, we find four arguments to be worthy of discussion; the remainder lack arguable merit. We therefore limit our focus to: (1) the defendants' complaints respecting the government's wiretapping of their phones; (2) Rose and Frye's arguments concerning Agent Quinn's testimony; (3) Rose's challenge to the search of his home; and (4) both defendants' sentencing challenges grounded on Alleyne v. United States, 133 S.Ct. 2151 (2013).

A. Wiretaps

At trial, the government relied heavily on the tapes of intercepted phone calls between the co-conspirators. Both defendants argue that the phone wiretaps that produced the tapes were unnecessary and were therefore improperly authorized.

1. Background

Nearly two years into the government's investigation, agents requested permission to intercept calls to or from the telephones of Frye and Michael Andrews (another co-conspirator). To support that request, Agent Quinn submitted an 89-page affidavit that detailed the alleged criminal activities of Frye and Andrews, the sources of information that led to that background knowledge, and details of the investigation itself. The affidavit specifically enumerated the prior, unsuccessful use of various other investigative methods, including: physical surveillance; review of prison tapes; use of confidential informants; use of pen registers, trap and trace devices, and toll records; execution of search warrants; use of grand jury subpoenas; interviews; intelligence from undercover agents; and examinations of discarded trash. Agent Quinn also explained why the government believed that there was probable cause for intercepting the calls.

Agent Quinn eventually filed six additional, analogous requests targeting phones belonging to Frye, Graham, and Rose. Although each affidavit was extensive in its own right, each also incorporated the facts from the previously submitted requests. As in the initial application, Agent Quinn meticulously described the prior investigative techniques and then explained why the phone intercepts were necessary. Based on these descriptions, the warrant judge (Saris, C.J., D. Mass.), authorized each wiretap.

Prior to trial, the defendants moved to suppress the wiretaps, see 18 U.S.C. § 2518(1)(c), and the court denied the motion. At trial, recordings of several of the calls were played, with a significant number capturing these defendants (along with other co-conspirators) discussing, albeit in code, their plans to purchase or sell drugs.

2. Discussion

Our inquiry is guided by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2522, which governs the rules for federal telephone wiretaps. The law requires an officer to obtain judicial preclearance before instituting a wiretap by filing "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." Id. at § 2518(1)(c). This aptly-named "necessity" prong requires the government to have "made a reasonable, good faith effort to run the gamut of normal investigative procedures before resorting to means so intrusive as electronic interception of telephone calls." United States v. Cartagena, 593 F.3d 104, 109 (1st Cir. 2010) (internal quotation marks and citation omitted).

When a defendant challenges on appeal a court's "necessity" determination, we ask whether "the facts set forth in the application were minimally adequate to support the determination that was made." United States v. Yeje-Cabrera, 430 F.3d 1, 7 (1st Cir. 2005) (internal quotation marks and citation omitted). Likewise, when a defendant asserts that the requesting officer omitted critical information from the affidavit that would have otherwise altered the court's necessity analysis, we only consider "whether, had the omitted information been included, there would still have been a 'minimally adequate' basis for determining that the wiretap was necessary." Burgos-Montes, 786 F.3d at 103.

Rose and Frye begin with a broad attack on Agent Quinn's affidavit. They argue that Quinn withheld critical information from the judge when applying for the wiretaps, namely, that the government had placed a GPS tracking device on Frye's car.

Although Agent Quinn theorized about the possible, future use of a GPS-tracking device, he was far from Goldfinch-ian in the level of detail he provided about his actual, past reliance on it. Nonetheless, he did adequately explain why the telephone intercepts would have still been necessary even if the officers were to utilize a tracker in the future. That explanation clarified why a GPS-tracking device was inferior to a telephone intercept and why the GPS-device was insufficient for this investigation. For instance, Quinn wrote that "there is a significant risk that any GPS device[] would be discovered, " and that such devices "provide no information about who (if anyone) [an individual] is meeting with, why he [or she] traveled to a particular location, and what happened once he [or she] was there." More specifically, Agent Quinn, aware from a wiretapped call that an individual had previously informed Frye to check his car for a "tracker, " noted that "Frye (or at least one of his associates) is well aware of this law enforcement technique."

Agent Quinn's reasoning equally explains why the wiretaps were necessary, even given the government's actual use of the GPS device. Indeed, if Agent Quinn had written his statements in the past tense, rather than as a hypothetical, the judge's necessity inquiry would have remained exactly the same. If anything, the failure to put more information about the GPS tracker actually undersold the probable cause that existed to support the application. We ultimately "find no reason to conclude that the inclusion of [more information respecting past ...

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