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United States v. Gonzalez-Arias

United States Court of Appeals, First Circuit

December 20, 2019

UNITED STATES OF AMERICA, Appellee,
v.
JUAN ELIAS GONZALEZ-ARIAS, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Leo T. Sorokin, U.S. District Judge]

          Robert C. Andrews for appellant.

          Cynthia A. Young, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.

          Before Torruella, Thompson, and Kayatta, Circuit Judges.

          THOMPSON, CIRCUIT JUDGE.

         Until the Drug Enforcement Administration (the DEA) blew the lid off it, Juan Elias Gonzalez-Arias ran a thriving drug business out of his apartment - 264 East Haverhill Street, Unit 18, Lawrence, Massachusetts. From those modest digs, he ordered kilograms of heroin from foreign sources, processed it, and dealt it to buyers around Massachusetts. But in July 2015, federal agents swarmed the apartment, search warrant in hand, and arrested him. Inside, they found a stolen gun, $30, 088 in cash, and over a kilo of heroin, along with other narcotics and tools of the trade (including drug ledgers, scales, and a hydraulic kilo press). Gonzalez-Arias was indicted and pled guilty to drug trafficking charges, including conspiracy to distribute one kilogram or more of heroin, which carried a ten-year mandatory minimum.[1] The district judge sentenced him to 136 months in prison.

         On appeal, Gonzalez-Arias offers several arguments - that the judge should have suppressed the evidence from his apartment, let him withdraw his guilty plea, appointed him a new lawyer for sentencing, and set a lower guideline sentencing range. We'll tackle each claim in turn - and all told, spotting no reversible error, we affirm.

         MOTION TO SUPPRESS

         Background

         In June 2016, when he (finally) settled on a lawyer (private attorney Scott Gleason), [2] Gonzalez-Arias's first order of business was to move to suppress the cache of evidence seized from his apartment. In greenlighting the search, the U.S. magistrate judge relied on an affidavit signed by DEA Special Agent Garth Hamelin. In it, Hamelin recounted a year-long investigation (involving wiretaps, video surveillance, and undercover drug buys) and he explained why his team had reason to believe they'd find evidence of a crime in Gonzalez-Arias's flat. In pressing a suppression motion, Gonzalez-Arias claimed that the facts in the affidavit didn't show probable cause for the search, so (as he told it), the magistrate judge shouldn't have issued the warrant, which triggered an unconstitutional search of his apartment. The judge disagreed and denied the motion to suppress. Gonzalez-Arias appeals that ruling to us, making the same Fourth Amendment claim.

         Law

         Under the Fourth Amendment, a search warrant may not issue without probable cause: a "nontechnical conception" that relies on "common-sense conclusions about human behavior" and "the factual and practical considerations of everyday life on which reasonable and prudent" people act. Illinois v. Gates, 462 U.S. 213, 231 (1983) (citations omitted). Given all the facts alleged in the DEA's warrant application, there must have been a "fair probability" - in other words, a "reasonable likelihood" - that the agency would find "evidence of a crime" in Gonzalez-Arias's apartment. United States v. Clark, 685 F.3d 72, 76 (1st Cir. 2012) (quoting Gates, 462 U.S. at 238); see also United States v. Roman, 942 F.3d 43, 51 (1st Cir. 2019) ("The inquiry is not whether 'the owner of the property is suspected of crime' but rather whether 'there is reasonable cause to believe that the specific things to be searched for and seized are located on the property to which entry is sought.'" (quoting Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978))).

         In reviewing a district court's decision to deny a motion to suppress, we review its legal conclusions afresh ("de novo"), and its fact findings for clear error. United States v. Ribeiro, 397 F.3d 43, 48 (1st Cir. 2005). That said, we (like the district court) must give "considerable deference to reasonable inferences the issuing magistrate may have drawn" from the facts set out in the affidavit supporting the DEA's application for the search warrant, reversing only if the affidavit contained no "substantial basis for concluding that probable cause existed." United States v. Zayas-Diaz, 95 F.3d 105, 111 (1st Cir. 1996) (cleaned up); accord Gates, 462 U.S. at 238-39. And we're not stuck with the district court's reasons for denying the motion to suppress; we'll affirm if "any reasonable view of the evidence supports the decision." Clark, 685 F.3d at 75.

         Application

         Gonzalez-Arias doesn't dispute there was probable cause to believe he was part of a drug distribution conspiracy. Nor could he. DEA agents watched (through pole-mounted cameras and a GPS tracker on Gonzalez-Arias's car) and listened (via wiretaps) for over a year as he sold heroin to undercover agents and criminal associates and talked shop over the phone. Agents heard him quarterback drug deals and hand-offs, negotiate prices with buyers and debts to suppliers, and solicit multi-kilo hauls of drugs from foreign sources. And based on that surveillance, Agent Hamelin's affidavit colored Gonzalez-Arias a seasoned, high-volume drug trafficker. For example, in the fall of 2014, he twice sold $2, 100 worth of heroin (30 grams per sale) to the undercover agent - and that was just a preview. During the second sale, he urged the agent to buy even more - "at least 100 [grams] per week" (emphasis added) - and suggested he'd sell up to "two kilos" of heroin for $70 per gram. And in March 2015, a cohort ordered just that amount (two kilos) from Gonzalez-Arias and came to his apartment to pick it up. Just two months later - in his biggest move - Gonzalez-Arias told his associate to order at least ten kilos from a Mexican supplier, picked up the first one-kilo shipment himself, borrowed $20, 000 to pay for the drugs, [3] then told the associate not to worry about where they would be stored because he (Gonzalez-Arias) would "welcome the women" (code for "kilograms of drugs," wrote Agent Hamelin).

         And so, admitting there was "evidence that [he] was engaged in the drug trade" (and getting an A for understatement), Gonzalez-Arias takes aim at what we've called the "nexus" element of the probable cause standard, see United States v. Feliz, 182 F.3d 82, 86 (1st Cir. 1999) (splitting the analysis into two parts: "probable cause to believe that (1) a crime has been committed - the 'commission' element, and (2) [that] enumerated evidence of the offense will be found at the place to be searched - the so-called 'nexus' element"), urging that "there was no direct evidence" that he used the apartment at 264 East Haverhill Street to peddle drugs "in the time period leading up to the search."

         This sally stumbles out the gate. A magistrate "interpreting a search warrant affidavit in the proper 'commonsense and realistic fashion'" may find "probable cause to believe that criminal objects" are in "a suspect's residence" even if there's no "direct evidence": that is, even if agents or their informants never spotted the illicit objects at the scene. Id. at 88 (quoting United States v. Ventresca, 380 U.S. 102, 108 (1965)). Rather, she may glean the link from circumstantial evidence, including the "type of crime" suspected and "normal inferences" about "where a criminal would hide [the] evidence" sought, combined with more "specific observations" (like bustle in and out before and after drug deals) identifying the residence as a probable hub or haven for criminal transactions. Roman, 942 F.3d at 51-52 (quoting Feliz, 182 F.3d at 88 and Ribeiro, 397 F.3d at 50-51). And such evidence abounded here.

         For starters, common sense and experience teach that a big-time drug-mover like Gonzalez-Arias needs somewhere to keep his drug money, books, and spoils. See Feliz, 182 F.3d at 87-88 (finding it "reasonable" to think - based on "common sense, buttressed by [an] affiant's opinion as a law enforcement officer" - that a "long-time," multi-kilo-level "drug trafficker" would need to keep detailed accounts, customer lists, and money in a "safe yet accessible place" like his home). And here, Agent Hamelin (who had thirteen years of DEA experience) wrote in his affidavit that traffickers like Gonzalez-Arias need to keep records (e.g., balance sheets listing the considerable money he owed foreign drug sources), proceeds from sales (like cash and jewelry), paraphernalia (think scales, sifters, packaging, and heat-sealing devices), and weapons in "secure locations . . . for ready access" and to hide them from police. Though such "generalized observations" are rarely enough to justify searching someone's home, Roman, 942 F.3d at 52 (quoting Ribeiro, 397 F.3d at 50), they're still factors a judge can weigh in the balance, United States v. Rivera, 825 F.3d 59, 64-65 (1st Cir. 2016).

         Against that backdrop, Gonzalez-Arias's calls and movements strongly suggested that 264 East Haverhill Street was the hub of his drug operation and, therefore, a natural place to store his drugs, records, and tools. For example,

• For the first controlled buy, he left the apartment complex nine minutes before he handed the undercover agent 30 grams of heroin at the Loop Mall in nearby Methuen, making it unlikely he stopped along the way.
• On March 27, 2015, the morning after discussing the two-kilo deal with Gonzalez-Arias, a co-conspirator pulled up to Gonzalez-Arias's building, told him to "[o]pen up," and left with a green bag.
• A few weeks later, Gonzalez-Arias told another cohort (who'd asked, "Is that ready?") that he was "making" two batches of heroin to fill an order, and that he was "coming," minutes before he emerged from the apartment building and drove to a rendezvous in a nearby parking lot.
• Lastly, about a month before the warrant issued, Gonzalez-Arias called his associate from that same East Haverhill Street building and arranged to pick up the first kilo of the ten-kilo Mexican shipment.

         We've "repeatedly" found probable cause to search a defendant's home when agents spotted him "leaving the home immediately prior to selling drugs" elsewhere. United States v. Barnes, 492 F.3d 33, 37 (1st Cir. 2007). And in Rivera, even when the defendant stopped at a stash house before moving on to the deal, we found probable cause to search his apartment because he was "a long-time, high-volume drug dealer" and used the place "as a communications point to further his drug crimes" (he made calls from there to set up the deals). 825 F.3d at 64. As in Rivera and Barnes, that Gonzalez-Arias made his illicit business calls and processed the drugs at the East Haverhill Street building, often minutes before he handed them off to buyers and associates, suggested that he kept the ingredients, processing tools, and records there, along with the weapons to protect them.

         Hoping to slice the baloney just thin enough, Gonzalez-Arias argues that even if the drug dealing traced back to 264 East Haverhill Street (a three-story, multi-unit building), there was "only the most tenuous evidence linking [him] to the apartment that was searched" (unit 18) "rather than just some unit" in that building. Moreover (he adds), by the time agents applied for the warrant in July 2015, "the evidence of controlled buys had grown stale, with the most recent" one "happening over 7 months" earlier.

         But neither claim cuts it. Four months before they asked for the warrant, agents overheard Gonzalez-Arias order a food delivery to 264 East Haverhill Street and tell the delivery person to buzz apartment 18. Maybe he was eating with a neighbor. But there was at least a "fair probability" that Gonzalez-Arias was ordering food from the same unit he used to stage his drug deals. Remember, the government need not make a beyond-a-reasonable-doubt or even a more-likely-than-not showing to establish probable cause for a search. See Rivera, 825 F.3d at 63; Feliz, 182 F.3d at 87.

         As for the staleness issue, we've long recognized that drug trafficking operations on this scale take time to develop - they "often germinate over a protracted period of time" - so "information that might otherwise appear stale may remain fresh and timely during the course of the operation's progression." United States v. Tiem Trinh, 665 F.3d 1, 14 (1st Cir. 2011) (citing United States v. Schaefer, 87 F.3d 562, 568 (1st Cir. 1996)). Well-networked, well-sourced, and well-settled drug peddlers like Gonzalez-Arias aren't likely to close up shop (and toss all the goods, papers, and tools in it) just a month after ordering ten kilos of product. Gonzalez-Arias's drug calls and related trips from his home base right up to the month before the warrant issued were fresh evidence that the illicit items remained in the flat. See Feliz, 182 F.3d at 87 (where two controlled buys three months before warrant issued weren't stale, given that defendant's drug operation was "continuous and ongoing").[4]

         For those reasons, the district court did not err when it denied the motion to suppress.

         GUILTY PLEA

         Background

         After the judge refused to suppress the trove of evidence found in Gonzalez-Arias's apartment, his attorney (still Gleason) began plea talks with the government. By January 2017, the lawyers had drafted a plea agreement, and the judge scheduled a "Rule 11" (read: guilty plea) hearing. But when the time came (at the hearing on Thursday, January 5, 2017) Gonzalez-Arias was not prepared to sign it. Gleason relayed that his client "wishe[d] to plea, but he believe[d] that the weight of the drug that's involved in this case" was "one to three kilos," and not "as high as 3.9 kilos," as the government argued. The drug weight claim, Gleason said, was Gonzalez-Arias's "sole contention." "But he would be willing to plea" if the government agreed the drug weight was 1-3 kilos.[5] So the judge proposed to postpone the hearing until the following Monday to let the parties think it over.

         But before the hearing ended, Gonzalez-Arias (through Gleason) told the judge "that he ha[d] not seen the evidence, and he want[ed] more time to be able to review [it]." Well (he clarified), the government gave all the evidence to his lawyer, and he'd seen most of the paper (like the reports from the lab testing the drugs, the drug ledgers recovered from his apartment, and the police reports). But he hadn't seen those caught-on-camera moments - the surveillance video of his two hand-to-hand drug deals with the undercover agent, or of him and his co- defendant coming and going when the deals went down (captured on the camera mounted on the telephone poll outside his apartment). These were still being "processed" by the jail. Plus, he hadn't heard the audio recordings of the intercepted phone calls or read the transcripts of them. So the judge told Gleason to bring that evidence to the jail so Gonzalez-Arias could watch and listen. Gleason pledged to do so that weekend.

         But he didn't follow through. At the hearing that Monday, Gleason reported that he'd been "unable to get [the evidence] put together for Sunday," when he'd visited the jail, so Gonzalez-Arias still hadn't reviewed the tapes. Gleason added that he had, however, talked the government down to 1-3 kilos of drug weight, sweetening the plea agreement. At first, Gonzalez-Arias still wasn't having it. When Gleason finished giving the judge updates, Gonzalez-Arias passed him a letter and asked Gleason to read it to the judge. In it, Gonzalez-Arias protested that his prior lawyer had advised him he was only on the hook for 850 grams (putting him below the one-kilo trigger for the ten-year mandatory minimum). When Gleason finished reading the letter aloud, he corrected his client: in fact (he reminded), agents found two stashes of heroin (around 600 grams in a coffee bag and 680 grams in plastic zip-lock bags) in Gonzalez-Arias's apartment. And he'd shown Gonzalez-Arias the lab reports that showed those weights. To confirm, he pulled both reports from his briefcase and showed them to Gonzalez-Arias in court. Meanwhile, the government told the judge (and the defense) that it would withdraw the plea deal and "seek[] to prove in excess of three kilograms of heroin against the defendant" unless he pled that day. With the drug reports in front of him, and the government's plea offer about to lapse, Gonzalez-Arias relented; he told the judge that he wished to plead guilty.

         Once Gonzalez-Arias made his choice, the judge moved on; he described the charges, their elements, the possible penalties (including the ten-year minimum and twenty-year maximum under the plea agreement), Gonzalez-Arias's trial rights (which he'd give up by pleading guilty), the plea agreement, and the sentencing process. And he told Gonzalez-Arias he could not "withdraw [his] plea of guilty" if he got "a sentence that [was] longer than [he] expect[ed]." Gonzalez-Arias said he understood. The government then summarized the evidence against him, telling the story of the "long investigation," using "telephone intercepts, pole camera surveillance, and physical surveillance," that caught Gonzalez-Arias "discussing" and "entering" multiple drug deals. Gonzalez-Arias admitted that was true. He was "pleading guilty because [he was] in fact guilty," he agreed. And he did so "freely and voluntarily." By the way, he was "fully satisfied" with Gleason's work.

         A few months later, Gonzalez-Arias changed his tune. In a March 24, 2017 letter to the judge, he wrote that he was dissatisfied with Gleason's work and asked to have his first lawyer (William Fick) back.[6] While that request was pending (on March 27, 2017), all the evidence in the case (including the tapes) arrived at the jail, and Gonzalez-Arias had watched and listened to it within a week.

         The judge held a prompt (March 29, 2017) hearing to discuss the request for new counsel. After talking with his client, Gleason elaborated that Gonzalez-Arias thought that Gleason "ha[d]n't been able to do anything for him" and "that the ten-year minimum mandatory [was] something that he could have gotten himself." The judge told him he couldn't appoint Fick, who was now in private practice, but (finding Gonzalez-Arias indigent) he agreed to appoint another lawyer from the federal public defender's office, Timothy Watkins.

         Seven more months passed. In the interim, Watkins changed jobs, and a third public defender, Scott Lauer, took over as lead counsel with a research and writing attorney, Samia Hossain, as co-counsel.

         About two weeks before his scheduled sentencing, Gonzalez-Arias (through Lauer and Hossain) moved to withdraw his guilty plea. He argued that his plea hadn't been knowing or intelligent because he hadn't seen or heard the surveillance tapes when he pled. And without them, he couldn't "reconcile the varying accounts he had received" from his lawyers "regarding the drug weight." Moreover (he said), the plea hadn't been voluntary. The government had threatened to take the deal off the table if he didn't plead guilty by the end of the day. And given the government's impatience, Gleason had urged him to cop. Pressured from both sides, Gonzalez-Arias "felt compelled" to plead guilty without hearing or seeing the recordings. What's more, he added, Gleason's failure to share the evidence "even after repeated instructions from th[e] [c]ourt," and his failure to "press the government" for more time to do it, constituted ineffective assistance of counsel.

         After a hearing, the judge denied the motion. First, he found that "no one threatened" or "coerced" Gonzalez-Arias to plead guilty. He'd admitted as much under oath, and the government had the right to time-limit its plea offer. Second, after "a careful and lengthy colloquy," Gonzalez-Arias had sworn he understood the charges, their elements, his trial rights, the plea agreement, the ten-year minimum and twenty-year maximum, and the other consequences of his conviction. In fact, "[h]e focused like a laser on the drug weight," showing he "underst[ood] that greater-than-one kilogram meant at least ten years in jail." He'd also understood the evidence. He'd heard and agreed to the government's summary of it. And "the mere fact, if it [was] a fact, that he did not personally review all of [that] evidence" beforehand did "not undermine" the plea. Even after he reviewed all of the discovery with his new counsel, "[n]owhere in his [motion to withdraw] d[id] he identify anything specific in the discovery . . . that [was] causing him to want to withdraw his plea." Based on all that, the judge found that there was "no fair and just basis under Rule 11 [to allow Gonzalez-Arias] to withdraw the plea."

         Gonzalez-Arias now appeals that decision, which we review for abuse of discretion. See United States v. Pellerito, 878 F.2d 1535, 1538 (1st Cir. 1989).

         Law

         A defendant has no "absolute right" to take back his guilty plea before sentencing. United States v. Caramadre, 807 F.3d 359, 366 (1st Cir. 2015). Instead, he must persuade the trial court that there's a "fair and just reason for requesting the withdrawal." Id. (quoting Fed. R. Crim. P. 11(d)(2)(B)). This depends on several factors. Most critically - since a guilty plea waives a slew of rights (to remain silent, to have a jury trial, and to confront accusers) - it must be voluntary, knowing, and intelligent. See United States v. McDonald, 121 F.3d 7, 11 (1st Cir. 1997); see also Boykin v. Alabama, 395 U.S. 238, 243 n.5 (1969). These "core concerns of [Federal Rule of Criminal Procedure] 11" are "the most important factors to consider" on a motion for plea withdrawal. United States v. Isom, 580 F.3d 43, 52 (1st Cir. 2009); see also United States v. Allard, 926 F.2d 1237, 1244 (1st Cir. 1991) (explaining that the Rule 11 procedure aims to ensure that the defendant understands the charge and the consequences of the plea). The other factors are the defendant's reasons for withdrawal; the timing of the request; whether he credibly claims innocence; and whether unwinding the plea would be unfair to the government. United States v. Gates, 709 F.3d 58, 68-69 (1st Cir. 2013). The judge may also factor in whether there was a "plea agreement" that "gained something for the defendant." United States v. Aker, 181 F.3d 167, 170 (1st Cir. 1999).

         A ...


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