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
...