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United States v. Gonsalves

United States Court of Appeals, First Circuit

June 7, 2017

UNITED STATES OF AMERICA, Appellee,
v.
JOSHUA GONSALVES; STANLEY GONSALVES, Defendants, Appellants.

         APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Patti B. Saris, Chief U.S. District Judge]

          Larry J. Ritchie for appellant Joshua Gonsalves.

          Joshua L. Gordon, with whom Law Office of Joshua L. Gordon was on brief, for appellant Stanley Gonsalves.

          Randall Ernest Kromm, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

          Before Lynch, Thompson, and Barron, Circuit Judges.

          THOMPSON, Circuit Judge.

         Brothers Stanley and Joshua Gonsalves (to keep the Gonsalveses straight, we call them Stanley and Joshua but mean no disrespect) were convicted on multiple counts stemming from their operation of an oxycodone-trafficking ring on Cape Cod. Both now challenge their convictions, and Stanley challenges his sentence. Finding none of the brothers' plaints have merit, we affirm.

         SETTING THE STAGE

         The Gonsalves brothers' trial spanned eighteen days and included testimony from thirty-four witnesses. We decline to recount it all now (and to explain the brothers' claims on appeal, we don't have to). But to put everything in its necessary context, here is the Cliff's-Notes version of what happened; we will detail the rest later, when we assess the brothers' respective arguments.[1]

         I. The Cast and Crew of the Conspiracy

         The story of the Gonsalves brothers' drug-trafficking conspiracy begins around the end of 2009, when Stanley (Joshua wasn't on board yet) started buying oxycodone pills in bulk from Florida resident John Willis. Stanley's objective: to get (and resell for profit) as many pills as possible. Here's how the operation worked: both Stanley and Willis paid runners who carried money down to Florida to buy oxycodone pills from Willis, Stanley's primary supplier. Willis (or other members of his Florida operation) hid the pills in vitamin bottles, doctored to look never-opened, then gave the bottles to the runners to carry back to Stanley in Massachusetts. Stanley (and members of his Massachusetts-based crew) counted the pills and packaged them into lots of 100. Stanley then sold those lots to lower-level drug dealers. At first, Stanley paid Willis $14 per thirty-milligram pill and sold them to dealers for $19 each. Over time, the wholesale and the resale prices went up to $17 and $21, respectively. Dealers sold the pills on the street for $30 a pop.

         Joshua joined his brother's conspiracy in 2010, shortly after he was released from jail on an unrelated charge. At first Joshua worked as a runner, but he eventually took over some of Stanley's responsibilities in the conspiracy, such as buying pills from suppliers. He sold some pills on his own, too.

         The runners for the Gonsalves brothers--all friends, family, girlfriends, and exes--made regular trips to Florida. At first, they flew. Then they switched to driving after one of the runners was busted in the airport on his way back to Massachusetts carrying a bottle of about 8, 000 pills. The runners each transported at least 1, 000 pills per trip, though some reported as many as 8, 000 or 9, 000 per trip, and one reported that she once carried almost 20, 000 pills. The brothers' operation "flooded" the Cape Cod market, bringing in an estimated 371, 327 pills in under three years (and that's an allegedly conservative estimate).

         II. Johnny Willis meets Johnny Law--and so do the Gonsalves Brothers

         Now, (presumably) unbeknownst to Stanley and Joshua, Willis was the subject of a multi-agency criminal investigation originally initiated by the FBI's Asian Organized Crime Task Force to target two other, Boston-area crime lords. (The Willis-specific branch of the investigation was known as "Operation White Devil.") While they were looking into the Willis operation, the FBI-led task force (that also included ATF and IRS[2] agents, Massachusetts State Police, plus some Boston police officers to boot) found out about Willis' top customers--the Gonsalves brothers. The FBI-led task force also learned that the Barnstable Police Department and a DEA-led Cape Cod Drug Task Force were already looking into the Gonsalveses' activities, so the task forces joined forces. Operation White Devil culminated in the May 2011 arrest of Willis and some of his henchmen, which turned off the Florida-to-Massachusetts pill faucet. Undeterred, the Gonsalves brothers regrouped and started selling oxycodone bought from new suppliers. But, the post-Willis era did not last long because by this point, law enforcement had new information from arrested Willis crew members, as well as from their own posse of confidential informants ("CIs"), clueing them in on more of the particulars of the Gonsalves brothers' illegal dealings.

         A tip from one informant, CI-1, led to the February 2012 arrest of Joshua and crew member Katelyn Shaw (Joshua's then-girlfriend) and the seizure of over twenty grand in cash, drug paraphernalia, and a good lot of oxycodone pills. About a month later, police seized another $75, 000 from another Gonsalves crew member (turned informant) which had been earmarked for an oxycodone resupply; and since that was "the end of the money, " the seizure brought the Gonsalveses' operation to a near-halt.

         On November 1, 2012, a grand jury indicted the brothers on a charge of Conspiracy to Possess with Intent to Distribute and Conspiracy to Distribute Oxycodone in violation of 21 U.S.C. § 846. A second superseding indictment, issued eighteen months later on May 8, 2014, further charged (1) Money Laundering Conspiracy in violation of 18 U.S.C. § 1956(h); (2) multiple counts of Concealment Money Laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i); (3) Possession of a Firearm in Furtherance of a Drug Trafficking Conspiracy in violation of 18 U.S.C. § 924(c); (4) Drug and Money Laundering Forfeiture allegations under 21 U.S.C. § 853 and 18 U.S.C. § 982(a)(1); and, against Stanley only, (5) Unlawful Monetary Transactions in violation of 18 U.S.C. § 1957.

         III. Court Proceedings

         In pretrial proceedings, Joshua moved to suppress all items seized during the February 2012 traffic stop. The district court denied the motion. For its part, the government moved in limine to admit evidence of the brothers' prior incarceration. That motion got denied, too. The Gonsalveses' trial finally got underway on September 8, 2014. Here are some of the highlights of the proceeding that animate the brothers' appellant challenges. During the trial, Joshua moved for a mistrial three times after government witnesses mentioned that he had done prison time--testimony which violated the trial court's pre-trial ruling excluding any mention of either brother's prior incarceration. Stanley made his own mistrial motion after the government referenced Stanley's stint in the slammer in closing arguments. All four motions were denied.

         Strategically, the brothers mounted a credibility defense throughout the trial and in their closing arguments. They contended that the government's witnesses could not be believed because some were addicted to drugs, some were "jilted" lovers who wanted revenge, and many had taken the stand in exchange for lesser sentences or deferred prosecution for their own roles in the conspiracy. Despite these credibility challenges, both brothers were found guilty on all of the charges except the § 924(c) count--Stanley was convicted of using a rifle in furtherance of the conspiracy but acquitted of using a pistol, and Joshua was acquitted as to both guns.

         Guilt determined, the proceedings entered phase two--forfeiture. Responding to additional instructions from the trial court, the jury found that two cars, a house, and the drug-deal cash seized from Joshua and Shaw were all subject to forfeiture. The jury also calculated that over five million dollars was "generated as proceeds of the [brothers'] oxycodone trafficking conspiracy"-- attributing 1.5 million to Joshua and the rest to Stanley.

         Following the trial's end, Joshua was first up for sentencing and received twenty years to serve. (He does not challenge his sentence here, so we do not get into the details.) Stanley was next up. His pre-sentence investigation report ("PSR") calculated a Guidelines sentencing range of life in prison, plus sixty months for his gun conviction under 18 U.S.C. § 924(c). The parties and the judge, in the end, agreed that life wasn't called for, so Stanley was sentenced to twenty-five years--twenty years for the drug-trafficking conspiracy, money laundering, and unlawful monetary transactions, plus five years for the gun charge. This appeal followed.

         DISCUSSION

         The brothers challenge the following aspects of their convictions and sentences: (1) Joshua argues that the district court should have suppressed the evidence seized the night of his February 2012 arrest, (2) both brothers challenge the district court's denial of their motions for mistrial, (3) Stanley contends that the government presented insufficient evidence against him to support his conviction, and (4) Stanley argues that the court incorrectly calculated his Guidelines sentencing range. We address each issue in turn.

         I. Warrantless Car Search

         Joshua contends that the district court erred in denying his motion to suppress all of the evidence seized the night of his February 2012 arrest (the drugs, the money, and the digital scale). We begin with the background information necessary to explain that night's events, presenting the facts in the light most favorable to the government. See Burgos-Montes, 786 F.3d at 99.

         a) Background

         As we briefly mentioned before, on February 27, 2012, police acted on a tip they received from CI-1. The informant who provided the information leading to the arrest of Joshua and Shaw and the seizure of illegal contraband claimed to be a regular enough oxycodone buyer that he or she knew when Joshua and Shaw's supply was running low--and when they planned to restock. CI-1 had proved his or her bona fides over time:[3]

• In October 2011, CI-1 told police that Gonsalves associate John Doe 1 had planned an off-Cape resupply run. Police observed John Doe 1 meet with John Doe 2 (whom CI-1 had also previously identified as a Gonsalves associate). Police followed the two men on their drive off the Cape and back, as predicted. CI-1 then confirmed the new supply had been delivered.
• In November 2011, CI-1 told police about another off-Cape trip to buy oxycodone from a supplier; after watching the two men identified by CI-1 drive off together, police pulled them over and seized $69, 000.
• In February 2012, CI-1 made a controlled buy from Joshua and Shaw.

         CI-1's hottest tip came on February 27, when CI-1 told police that Joshua and Shaw had put together enough money to buy more pills from an oxycodone supplier police referred to as "John Doe 4." Both CI-1 and a second CI had previously told police that John Doe 4 was Joshua's primary post-Willis oxycodone source. CI-1 said Joshua and Shaw would leave home around 4:30 that afternoon in Joshua's black Cadillac, drive to the "New Bedford area, " and return with about 2, 000 pills. Sure enough, Barnstable police spotted Joshua, Shaw, and a second woman (who turned out to be Shaw's friend Ariana Tavares) in the black Cadillac heading westbound (towards New Bedford) at 4:50. Police tailed them to a house in Acushnet, a town that shares a border with New Bedford. They watched the trio park next to a white Infiniti, exit the car, and enter the house where the Infiniti was parked. Police knew from pulling over that same white Infiniti one month prior that the car belonged to John Doe 4.

         When Joshua, Shaw, and Tavares left some two hours later, police tailed them to the highway, clocked Joshua driving sixty-five miles-per-hour in a fifty-five mile-per-hour zone, and pulled him over. When the officer who conducted the stop reported back to headquarters, he was instructed to ask Joshua for permission to search the car. But if Joshua refused, the officer was instructed to search the car anyway because the police had probable cause to believe "the occupants of the vehicle were in possession of oxycodone." Joshua did refuse, so police ordered him, Shaw, and Tavares out of the car. During a frisk of Joshua, police found a $6, 253 cash wad in his pocket. It was too dark outside to search the car, so police called for a drug-sniffing dog. Overhearing the talk about the arrival of a drug dog, Shaw pulled a bag of pills from her bra and threw them into the woods. Seeing the toss, police recovered the pills, precipitating the arrests of the three occupants. In a post-arrest search, police found another $16, 760 in a speaker box in the trunk, a digital scale in the console, and a second cache of pills in Shaw's bra.

         Joshua subsequently moved to suppress the evidence seized during the search, claiming that the stop and search violated his Fourth Amendment rights because at the time of the stop, police did not have reasonable suspicion to believe Joshua had committed a crime. The district court held a pre-trial hearing on Joshua's motion. Mark Butler, a Barnstable police detective then serving on the DEA's Cape Cod Drug Task Force and investigating the Gonsalves brothers, submitted an affidavit about the Gonsalves investigation and the traffic stop and he also testified at the hearing. Butler was not present at the stop and search, but he explained the state of law enforcement's Gonsalves investigation and his belief that police had probable cause to search Joshua's car at the time based on CI-1's information. After the hearing, the court denied Joshua's motion. The court found that CI-1's tip gave police reasonable suspicion that Joshua was involved in drug trafficking, and that reasonable suspicion justified the stop, Joshua's frisk, and detaining the car and its occupants until the ...


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