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United States v. Belanger

United States Court of Appeals, First Circuit

May 9, 2018

UNITED STATES OF AMERICA, Appellee,
v.
ROGER BELANGER, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. Jon D. Levy, U.S. District Judge]

          Joseph B. Simons for appellant.

          Renée M. Bunker, Assistant United States Attorney, with whom Halsey B. Frank, United States Attorney, was on brief, for appellee.

          Before Howard, Chief Judge, Lynch and Thompson, Circuit Judges.

          THOMPSON, CIRCUIT JUDGE.

         In today's story of why it's generally not a good idea to orchestrate and then participate in an illegal narcotics distribution ring, meet Roger Belanger of Corinna, Maine. Belanger was indicted on one count of conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine and an unspecified amount of oxycodone, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A), as well as a separate count of using and maintaining a drug-involved premises in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2. After a five-day trial in the District of Maine, a jury of Belanger's peers found him guilty on both counts and he was subsequently sentenced to eleven years imprisonment. Belanger now comes to us presenting a host of supposed problems he says occurred during the proceedings below. Having taken a look at Belanger's claims of error, we cannot agree and affirm.

         A. Getting Our Factual Bearings

         The conspiracy with which Belanger was involved included at least fifteen or so individual coconspirators and occurred over a timespan of nearly thirteen years. Thus, to keep things clear, our recitation of what exactly happened in this case does not tarry on the minutiae of each and every interaction Belanger had with his coconspirators. Instead, we endeavor to lay out in this section a description of how things generally transpired during the course of the conspiracy and opt to fill in, as needed, any further specificities called for by our analysis later in the opinion. We note that our recitation of the factual background is, of course, done in the light most complimentary to the jury verdict. United States v. Negron-Sóstre, 790 F.3d 295, 307 (1st Cir. 2015).

         1. The Conspiracy

         As charged in the indictment, and as supported by testimony at trial, Belanger's drug conspiracy ring was operational at least as early as 2002. At that time, Belanger owned and operated an automotive mechanic and towing company called Gudroe's. While Gudroe's appears to have functioned as a legitimate business in some respects (i.e., car work was performed by its employees for paying customers), it was also utilized by Belanger as a drug distribution center for the conspiracy. Indeed, some of the employees at Gudroe's were, themselves, coconspirators in the drug ring. John Williams, an employee at Gudroe's, for example, testified that while working there, Belanger would send him on drug runs to Rhode Island where they had a contact who served as the source of the cocaine that was ultimately distributed up in Maine. This contact, who was named "Miguel, " would provide the illegal drugs to the designated drug runner and the drug runner would then hide the narcotics in his or her car for transportation back to Maine. The means of hiding the drugs differed--in some cases the drug runner would simply put the drugs in the trunk of the car, while on other occasions the drugs would be hidden intricately within the vehicle (such as in the gas tank of the car or within hidden panels in the car's interior). The drug runner would then drive back to Gudroe's, where the drugs would be retrieved from the vehicle and given to Belanger (and other coconspirators) to be sold and/or used recreationally. Belanger would, himself, sometimes transport the drugs from Rhode Island, as well.

         One of Belanger's subordinates in the drug ring during this time was his daughter, Kelli Mujo. While Mujo initially worked well under Belanger, things seemed to change in 2003. Testimony at trial revealed that Mujo felt duped upon learning that some of the cars she transported from Rhode Island contained a rather high quantity of cocaine. Indeed, upon personally witnessing what a coconspirator described as a "bible-size" amount of cocaine being unloaded from one vehicle, Mujo complained that she was not getting paid enough to transport such a high drug volume. Moreover, Mujo began to gripe about the fact that, in her view, Belanger spent more time in his room getting high than he did fostering the narcotics business. In response, and behind Belanger's back, Mujo contacted David Snow (Belanger's primary business partner) and began directly supplying him with cocaine, as well. In doing so, however, Mujo still acquired this cocaine from the same contact in Rhode Island utilized by Belanger, Miguel.

         Nonetheless, Belanger did not stop his drug transportation and distribution business when Mujo began directly supplying Snow. There was testimony from Williams (who also served as a drug dealer), for example, that between 2003 and October 2004, Williams still acquired most of his cocaine from Belanger, Snow, and two other individuals. There was also evidence presented that despite Mujo going behind Belanger's back to work directly with Snow, Belanger and Mujo continued to work together in providing drugs to their joint customers. Joey Burton, a drug addict who bought narcotics from Belanger, testified that during the course of his purchasing cocaine from Belanger in 2003 and 2004 he met Mujo, who would sometimes be present for the transactions. If Belanger was unavailable to distribute his cocaine, he would "pick it up" from Mujo and in some instances he independently purchased the drugs from Mujo.

         Sometime later, in 2005, Belanger and his wife moved from Maine to California. Various accounts were given at trial as to why Belanger made the cross-country trek. One coconspirator testified that Belanger justified the move as necessary to "straighten out his life . . . before him or his wife died [from drug overdoses]." That is, "he and his wife were both having some pretty serious problems, and he just wanted to start a new life." Another coconspirator had a different story, however, recounting for the jurors at trial that Belanger had told him the California move was necessary because "it was getting too hot." According to this account, "[t]he cops was [sic] looking in too close to the drug business."

         Regardless of Belanger's true motive for moving to the Golden State, it is undisputed that shortly before he did so, Miguel, the cocaine source in Rhode Island, was arrested. Coconspirator Russell Beckwith testified that immediately following Miguel's arrest, Mujo also ceased participating in the drug business "for a short time." The hiatus, however, was fleeting. Mujo, according to Beckwith, told him soon thereafter that "Miguel hooked her up with one of his boys" and that the drug distribution activities continued. Indeed, there was testimony at trial that in Belanger's absence, Mujo and Mark Tasker assumed the leadership role previously held by Belanger. The testimony revealed that they became the primary facilitators of trips down to Rhode Island to retrieve drugs for distribution in Maine.

         In approximately 2009, Belanger returned from California to Maine and jumped back into the drug business with both Mujo and the same general group of coconspirators he had worked with before moving.[1] Michael Thompson--a coconspirator (and Mark Tasker's nephew)--told the jury that upon Belanger's return to Maine, Thompson, who had previously purchased drugs from Belanger pre-2005, once again found Belanger to be a reliable drug source. According to Thompson, he had personally witnessed his Uncle Mark obtain drugs from Belanger after Belanger returned to Maine. Greg Tasker, Mark Tasker's son, testified that around 2011 or 2012 he began to purchase cocaine and oxycodone from Belanger and Mujo. He recounted that while he often purchased the drugs from Mujo at her house, there were instances where he purchased the drugs directly from her at Belanger's trailer in Corinna (which Belanger purchased after coming back from California). Greg also noted that it was his impression that when Belanger sold him drugs, Belanger was generally getting them from Mujo. In other words, while Belanger was the primary leader of the drug ring before he left for California, he took a backseat role to Mujo once he returned.[2]

         At some point following Belanger's return, the Drug Enforcement Administration ("DEA") obtained successive wiretaps on Tasker's, Belanger's, and Mujo's cellular devices. In doing so, the DEA was able to record numerous conversations discussing the selling, transportation, and hiding of drugs. During these phone calls, the coconspirators did not use the actual names of the drugs they were discussing. This is not shocking. Indeed, it was revealed through testimony at trial that the drugs sold in the conspiracy were rarely (if ever) referred to by their mainstream names. Numerous individuals explained that alternative, identifying lingo was used instead. A drug abuser and dealer, Whitney Chadbourne, for example, testified that 30-milligram oxycodone pills were referred to as "blueberries" or "muffins." Similarly, Williams told the jury that he would never use the terms "cocaine" or "oxycodone." Instead, if he wanted cocaine he would ask for "tires" and if he wanted oxycodone he would ask for "blueberries." He also explained that the term "oranges" was used to refer to suboxone[3] and that "uptown" was another term used to refer to cocaine.[4] Greg Tasker told the jury that he had heard the term "wheels" used in the drug business to refer to "pills" and that he had personally heard both his father, Mark, and Belanger use that term in the past. And Ross Morrison, another drug addict and dealer in the conspiracy, told the jury that oxycodone was referred to using the code word "blueberry."

         Special Agent Paul Buchanan, a 16-year veteran of the DEA who was involved in the investigation of this case, testified to this, as well. Indeed, Buchanan was tasked at trial with providing his layman's interpretation of recordings and transcripts of some of the intercepted calls. He corroborated other witnesses by explaining that it was common for drug dealers to use coded words when referring to drugs (i.e., using the term "blueberries" in reference to oxycodone pills). In addition, he explained to the jury the process the DEA case agents went through to obtain the wiretaps on Belanger's and his coconspirators' phones, as well as his involvement in wiretap investigations generally. And he testified as to common drug terminology and gave his personal impression of what had transpired during some of the phone calls. Side note: Special Agent Buchanan's testimony is of particular importance because, as will be seen in our analysis, Belanger has lodged numerous evidentiary challenges to the admissibility of his testimony about these calls. While the precise nature of the contested calls need not be fleshed out at this juncture, the reader shouldn't fret. We will get into the nitty gritty of Belanger's wiretap qualms momentarily.

         Anyway, back to the conspiracy's operations. In November of 2014, things came to a head for Belanger, Mujo, and the rest of the coconspirators. On November 8, 2014, Belanger's unregistered car was pulled over and police dispatched drug dogs around the vehicle. While nothing was found, Belanger subsequently telephoned Mujo and told her he "put everything in hiding, " presumably in reference to drugs, which was picked up by the wiretap. On November 12, 2014, Belanger called Mujo to tell her to "hide [her] stuff" because he had gotten word that cops were "all over" a coconspirator's property. On November 21, 2014, Mujo was pulled over while driving on a Maine highway. She called her son to let him know that a drug dog had "hit on the car" and that "the DEA showed paperwork that they're searching Poppie's [i.e., Belanger's] house and searching my house." And, in fact, that same day warrants were executed on both Belanger's and Mujo's homes in Corinna and Wellington, Maine, respectively. Electronic scales commonly used to measure drug amounts, as well as $6, 783 in cash, were found at Belanger's residence, though no drugs were ever actually found (in this raid or subsequently). That said, Belanger later summoned Williams and two other unidentified men to accompany him to Mujo's after the search because he "thought the [DEA] missed the drugs."

         Based on much of this evidence, Belanger was indicted on April 16, 2015, and subsequently arrested on April 21, 2015.

         2. Significant Happenings at Trial

         Mujo and Belanger were ultimately tried together. Throughout the proceedings, debate raged over whether Belanger had withdrawn from the conspiracy when he left for California in 2005. This mattered because, according to Belanger, if he did in fact withdraw in 2005, then there were arguably two separate conspiracies--one from 2002 to 2005 and a separate, discrete conspiracy from the time he returned from California in around 2009 until the raid on his house in 2014. Belanger maintained that separating his actions into two distinct conspiracies would necessarily trigger statute of limitations problems for the Government, whereby any drug activity taking place in 2002, 2003, 2004, or 2005 would be ineligible to be counted toward the five-kilogram drug quantity floor required under 21 U.S.C. § 841(b)(1)(A).

         Unsurprisingly, the Government disagreed with Belanger's two-conspiracies assessment and his withdrawal-from-the-drug-ring contention. Indeed, it explained to the jury in closing argument that regardless of whether Belanger was away in California for three to five years, his absence from Maine did not, in and of itself, result in a withdrawal from the conspiracy. Using a rather playful analogy, the Government articulated the following:

[Y]ou need to think of the conspiracy like a train, a train, choo-choo. It starts in 2002, and it travels from Rhode Island to Maine. It travels from 2002 all the way up to 2014. And as the train travels along, people get on, people get on that conspiracy train. They get on the train by willfully joining the understanding. And once they're on that train and they have that understanding, they're in the conspiracy. The only way that you can get off that train once you're on it --well, there's two ways, you can die . . . or you can derail the [t]rain. Derail the train. And the way you derail the train is you frustrate efforts of the conspiracy. You go to the other conspirators, every single one of them and say, I'm out, I'm done, I'm finished, I'm through, I don't want anything else to do with drugs. You go to the cops. You go to Special Agent Buchanan and say . . . I want to help you catch the people that I have been dealing with for the past, you know, 10 years, even my daughter. That's what you do. You derail the train. You cannot get off of that train, you cannot get rid of that understanding unless you either die or derail the train.

         According to the Government, Belanger neither died nor "derailed the train" and so he never effectively left the conspiracy.

         Belanger nonetheless requested at the charge conference that the court issue the following multiple conspiracy jury instruction: "if you find that a conspiracy existed before or as of Mr. Belanger's departure for California in 2005, then a separate conspiracy existed beginning after Mr. Belanger's departure for California in 2005." After considering Belanger's request, the court denied the proposed instruction, reasoning,

[t]he trial evidence established that one conspiracy operated continuously from at least 2002 to sometime in November of 2014, and that Belanger was active in the conspiracy at times and inactive at other times. . . . Accordingly, there's no factual basis for a finding that there was more than one conspiracy.

         The judge then instructed the jury. He made clear that "[t]he lawyers may have referred to some of the governing rules of law in their arguments. If any differences appear to you between what the attorneys said and what I say in these instructions, my instructions control." He then noted that,

to find the defendant guilty of conspiracy, you must be convinced that the Government has proven each of the following things beyond a reasonable doubt, first, that the agreement specified in the indictment existed between at least two people to distribute and possess with the intent to distribute cocaine and oxycodone; and second, that the defendant willfully joined in that agreement.

         The judge made sure to point out that "[e]ven if a defendant was not part of the agreement at the very start, the defendant can be found guilty of the conspiracy if the Government proved that he . . . willfully joined the agreement later."

         At the end of the jury charge, Belanger objected to the absence of his multiple conspiracy instruction. Additionally he objected to the lack of "an instruction about withdrawal." Although Belanger conceded he never proposed a withdrawal instruction prior to that point, both the Government and the judge were amenable to a withdrawal instruction being given. Indeed, the prosecutor stated, "Your Honor, I did not [previously] understand that [Belanger's counsel] had made this request [for a withdrawal instruction] . . . but he certainly argued [withdrawal] to the jury. I responded. . . . I don't have an objection to the Court giving that instruction."

         Moments before sending the jury off for deliberations, the district judge provided Belanger's requested withdrawal instruction. He articulated the following:

Members of the jury, during the course of closing arguments, you heard reference at times to this idea of withdrawal from a conspiracy. And I want to give you an additional instruction for you to consider in connection with your consideration of Count I in this case, the conspiracy count as it applies to . . . Mr. Belanger. So I am going to instruct you now on what withdrawal from the conspiracy is. To withdraw from a conspiracy, a conspirator must act affirmatively either to defeat or disavow the purposes of the conspiracy either by making a full confession to authorities or by communicating to his coconspirators that he has abandoned the enterprise and its goals.

         And with that, the judge sent the jury on its way to the jury room to hash it out and arrive upon a verdict.

         3. Sentencing

         As we know, the jury found Belanger guilty on both charged counts. Following his conviction, the Probation Office for the District of Maine was tasked with preparing a presentence investigation report ("PSR"). Based on evidence presented at trial, probation calculated Belanger's guidelines base offense level to be 32. Because Belanger maintained his house and garage for purposes of distributing narcotics, a two-level increase on the base level was imposed pursuant to U.S.S.G. § 2D.1.1(b)(12). Another four-point increase was added under U.S.S.G. § 3B1.1(a) because Belanger was determined to be a leader or organizer of a criminal activity that involved five or more persons. Thus, Belanger's total offense level ("TOL") was found to be 38. Despite ten previous convictions, Belanger was determined to have zero criminal history category ("CHC") points and so he was given a CHC of I. With a TOL of 38 and a CHC of I, Belanger's guidelines sentencing range was calculated to be 235-293 months imprisonment.[5]

         Belanger objected to the PSR for two reasons. First, he argued that probation's reliance on the testimony of two specific witnesses in calculating the quantity of drugs he distributed (and thus his base offense level) was misplaced. Specifically, he maintained that the two "problem" witnesses gave inconsistent testimony and so could not be relied upon.[6] Second, Belanger objected to the four-point leader or organizer enhancement to his total offense level, arguing that his pre-2005 criminal activity was part of a second, distinct conspiracy and thus his behavior in that conspiracy was irrelevant to sentencing. Concomitantly, he argued that his behavior upon his return to Maine did not rise to the level of leader or organizer such that an enhancement was warranted.

         The district court overruled both objections. As to the reliability of the witnesses, the court explained that the witnesses had been "subject to cross-examination, . . . credibility was tested, and I am comfortable relying upon that testimony and concluding by a preponderance of the evidence the drug quantity to which . . . [the] trial ...


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