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United States v. Azor

United States Court of Appeals, First Circuit

January 26, 2018

PIERRE AZOR, Defendant, Appellant.


          Robert C. Andrews, for appellant.

          Julia M. Lipez, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, and Margaret D. McGaughey, Assistant United States Attorney, Appellate Chief, were on brief, for appellee.

          Before Torruella, Selya, and Kayatta, Circuit Judges.


         Appellant Pierre Azor ("Appellant") appeals the district court's denials of his motions for suppression and severance, and claims that his sentence of thirty-six months of imprisonment is substantively unreasonable. After review, we find that the district court properly denied his motion to suppress and did not abuse its discretion in denying his motion to sever. Additionally, Appellant's sentence is substantively reasonable. Seeing no reason to vacate Appellant's conviction or sentence on the grounds that he has presented, we affirm.

         I. BACKGROUND

         A. Factual Background

         1. Intercepted Phone Calls

         In March 2014, pursuant to a wiretap order authorized by the United States District Court for the District of Maine, United States Drug Enforcement Agency Task Force agents (the "Agents") intercepted phone calls and electronic communications in connection with a suspected drug trafficking conspiracy based out of Lewiston, Maine. See 18 U.S.C. §§ 2510-2522. From March 19 to March 21, 2014, Agents intercepted several phone conversations between Romelly Dastinot ("Dastinot") and an unidentified person known only as "Cash." During these conversations, Dastinot and Cash discussed a plan in which Cash would take a bus to Boston, Massachusetts, and purchase approximately one thousand "blues, " which the Agents knew to mean thirty-milligram pills of Oxycodone. The pair planned to split the pills so that each had an inventory of five hundred to sell. Cash also commented that he could possibly sell "brown" (heroin) or "white stuff" (cocaine), but preferred dealing with Oxycodone.

         On March 21, 2014, the Agents intercepted another call between Dastinot and Cash in which they discussed Cash's travel plans. Cash informed Dastinot that he would take the 1:50 p.m. bus from Lewiston to Boston, but would return instead to Portland, Maine, so that he would not appear at the Lewiston bus station twice in one day. In another call intercepted on the same day, the Agents heard Cash refuse to go to an apartment on Knox Street (in Lewiston) to collect money from Dastinot because Cash believed that the area was "too hot, " and that possessing such a large amount of money would be suspicious and risky. Instead, the two confederates agreed that Dastinot, accompanied by an "elderly, " would take Cash to the Lewiston bus station.

         After hearing this conversation, the Agents contacted Maine State Police Trooper Tom Pappas ("Pappas"), who was assigned to the High Intensity Drug Trafficking Area program through the Drug Enforcement Agency. The Agents informed Pappas what they had heard over the wiretap and requested that he conduct surveillance at the Lewiston bus station to watch for Cash. Pappas made his way to the top of a parking garage near the bus stop, where he could see the 1:50 p.m. Greyhound bus parked on the street. Pappas saw a red truck behind the bus that he recognized as belonging to Carrie Buntrock ("Buntrock"), a woman Pappas knew to be connected to Dastinot and whose age was in the early sixties. Pappas saw a man whom he did not recognize exit the vehicle and enter the Boston-bound bus. Pappas noticed that the man was wearing a blue jacket and black hat. Pappas watched as the bus departed the bus station without the man getting off of it.

         Pappas relayed his observations to the Agents monitoring the wiretap, who informed him that the man who boarded the bus could be returning from Boston that same day with a load of drugs. Around 10:05 p.m. that same night, the Agents intercepted a call between Dastinot and Pierre Dubois ("Dubois"), a man who was primarily located in Boston. Dubois told Dastinot that he had dropped off a man at South Station, a bus and train terminal in Boston. The Agents informed Pappas of this call, and that the suspect could be on a bus destined for Portland. After reviewing the schedule to see when the bus from Boston was scheduled to arrive in Portland, Pappas drove to the Portland bus station to conduct surveillance. He observed a bus arrive at the station and, although he was not able to see the passengers disembarking from the bus itself, he was able to see the passengers as they left the bus terminal. As he watched, Pappas saw the same man whom he had seen in Lewiston exit the bus terminal and get into a taxi. The man was wearing the same clothing that Pappas observed him wearing earlier that day.

         Pappas followed the taxi as it drove from the bus station, onto I-295, and then northbound on I-95 towards Lewiston. Because Pappas was not wearing a uniform and was driving an unmarked cruiser, he asked Maine State Police Trooper Robert Cejka ("Cejka, " or, collectively with Pappas and others, the "Officers"), who was in uniform and was driving a marked police cruiser, for assistance. Pappas had previously explained the developing situation to Cejka, and had asked him to remain stationed along the Maine Turnpike in case the man headed northbound from Portland towards Lewiston. As he followed the taxi, Pappas relayed the taxi's location to Cejka. Once the taxi passed the location where Cejka was parked, Cejka followed the vehicle for over ten miles, waiting for it to commit a traffic violation.

         2. The Stop

         Shortly after midnight on March 22, 2014, Cejka observed the taxi going 41 m.p.h. as it approached the Gray-New Gloucester toll booth, where the speed limit drops from 65 or 70 m.p.h. to 35 m.p.h. After the taxi drove through the toll booth, Cejka pulled the taxi over. By this time, Cejka was aware that Pappas had called Maine State Police Trooper Jerome Carr ("Carr"), a certified dog handler, to help with the investigation. Pappas had asked Carr to be ready to bring his drug-sniffing dog, Zarro, to help investigate the suspected drug smuggling. Cejka informed the driver that he had pulled the taxi over for exceeding the speed limit. After requesting and receiving a driver's license from the passenger, later identified as Appellant, Cejka discovered that the license had been suspended. Appellant, who acknowledged being aware of the license suspension, told Cejka that he had spent the night in Portland and was now going to Lewiston.

         Carr arrived at the scene approximately twenty minutes later. Zarro sniffed intently along the car doors until he reached the passenger-side front door, where Appellant was seated. Zarro lifted himself up to the windowsill of the open passenger-side window, put his nose directly on Appellant's jacket sleeve, and then immediately sat down. According to both Carr and Cejka, drug dogs are trained to sit when they detect the presence of narcotics. Carr ordered the two occupants out of the taxi and asked Cejka to pat-frisk Appellant. The pat-frisk revealed a bus ticket showing that Appellant had gone from Boston to Portland only a few hours earlier. Appellant was not able to explain why he had lied about his trip. Zarro continued to search the vehicle, leading to Carr's discovery of a baseball-sized plastic bag underneath the passenger seat. The bag was filled with 1, 075 blue pills, later identified as Oxycodone. Cejka arrested Appellant and booked him in the Cumberland County Jail, where Appellant confessed that the driver's license was not his, and that his real name was Pierre Azor.

         3. After the Stop

         Two days later, while Appellant was no longer in custody, law enforcement intercepted another call between Cash -- whom they now identified as Appellant -- and Dastinot in which Appellant thanked Dastinot for "bailing him out, " and told Dastinot that Appellant would repay him. In another call on March 31, 2014, Appellant inquired whether Dastinot had "Molly, " and the two discussed drug sales and prices for "the blues." During the following month, Appellant and Dastinot continued to set up sales of drugs over the telephone, with Appellant often asking Dastinot for "blues." On May 22, 2014, Agents executed an arrest warrant at ...

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