United States v. Ackies , 918 F.3d 190 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1478
UNITED STATES,
Appellee,
v.
CAREY ACKIES, a/k/a Boyd,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lynch, Selya, and Boudin,
Circuit Judges.
Jonathan I. Edelstein, with whom Edelstein & Grossman was on
brief, for appellant.
Renée M. Bunker, Assistant United States Attorney, Appellate
Chief, with whom Halsey B. Frank, United States Attorney, was on
brief, for appellee.
March 13, 2019
LYNCH, Circuit Judge. A jury found Carey Ackies guilty
of two counts of conspiracy to possess and possession with intent
to distribute heroin and cocaine base. Though Ackies resided in
New York, he distributed the drugs through his network up to Maine,
where many of the key facts take place. He was sentenced to 230
months' imprisonment.
His appeal challenges: denials of motions to suppress
two warrants obtained by law enforcement and evidence obtained
from his warrantless arrest, evidence rulings at his trial, and
his sentence.
In affirming, we reject his arguments that there was
error in the issuance of precise location information warrants
("PLI warrants") by a magistrate judge in Maine on a finding of
probable cause, which allowed monitoring of the locations of
Ackies's two cell phones. We hold that the PLI warrants were
properly issued under the Stored Communications Act (SCA), 18
U.S.C. §§ 2701 et seq. Our holding on this issue is like those
of the Seventh and Third Circuits. United States v. Berkos, 543
F.3d 392, 396-98 (7th Cir. 2008); United States v. Bansal, 663
F.3d 634, 662 (3d Cir. 2011).
We reject the argument that the cell phones were tracking
devices under 18 U.S.C. § 3117, and that the PLI warrants violated
Rule 41(b) of the Federal Rules of Criminal Procedure. We also
hold, in accord with our decision in United States v. Levin, 874
- 2 -
F.3d 316 (1st Cir. 2017), and the views of four other circuits,
that the good-faith exception to suppression could apply in any
event. We also approve the use of rebuttal testimony from a
Pretrial Services Officer to impeach a witness.
I.
To set up the background for the legal issues, we
summarize the investigation and procedural history briefly in this
section. Additional facts and statutory background are provided
later where necessary. Law enforcement began investigating Ackies
in the fall of 2015, beginning with information from a cooperating
witness who became a cooperating defendant ("CD1") concerning his
drug trafficking with a man he knew then as "Boyd" (determined at
trial to be Ackies). In January 2016, the government applied for
and received PLI warrants from a magistrate judge in Maine pursuant
to a provision of the SCA, 18 U.S.C. § 2703, and Fed. R. Crim. P.
41 ("Rule 41") for two cell phones, Target Telephone 1 ("TT1") and
Target Telephone 2 ("TT2"). This led to other confirming
information. Ackies was arrested in January 2016 and charged in
February 2016 with violations of 21 U.S.C. §§ 846 and 841(a)(1),
conspiracy to possess and possession with intent to distribute
heroin and cocaine base.
A. Suppression Motions after the Investigation and Arrest
Ackies filed six pretrial motions in March 2017, in part
to suppress evidence obtained from the issuance of the two PLI
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warrants and pursuant to his warrantless arrest. He alleged that
both warrants were void and that one lacked probable cause.
At a two-day evidentiary hearing, the court credited the
testimony of Maine State Police Sergeant Thomas Pappas, who
testified that in the fall of 2015, he received information from
CD1 (then under indictment for drug trafficking offenses), that
CD1 had been dealing and transporting cocaine base, oxycodone, and
heroin obtained from a source CD1 knew as "Boyd" in New York City.
CD1 provided a cell phone number (TT1) that belonged to "Boyd,"
and identified "Boyd's" vehicles. CD1 told Pappas that he had
exchanged drugs for cash at a bus terminal in Portland, Maine and
had met "Boyd" on several occasions.
Pappas then obtained a warrant for TT1 under 18 U.S.C.
§ 2703(c)(1)(A) and Rule 41 based on his affidavit recounting this
information. The January 15, 2016, PLI warrant directed AT&T to
provide "specific latitude and longitude or other precise location
information" for TT1 for thirty days; AT&T did so. The information
showed that TT1 was in a building on 154th Street in Jamaica, New
York on January 17 and 18, 2016.1 Also on January 18, Pappas
intercepted incoming calls and text messages on CD1's phone from
1 At the evidentiary hearing, Schamia Taylor -- Ackies's
former romantic partner -- testified that she was living in the
154th Street apartment but Ackies was not, and that she had told
officers that Ackies did not live there. Ackies testified that
he had told officers he had no authority to consent to a search of
that apartment.
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a number that would later be surveilled as TT2. Pappas recognized
"the same voice of the incoming caller [as on TT1] telling [CD1]
to get ready and that he would be there at 8:00." Pappas confirmed
that a bus from Boston was due in Portland at 8:00 a.m. and told
CD1 to meet agents there. CD1 recognized one of bus passengers
as "Mike," a "runner" for and associate of "Boyd's" whom CD1 had
met. Agents arrested "Mike" (who became Cooperating Defendant 2,
"CD2") and seized about 100 grams of cocaine base and forty grams
of heroin from him.
CD2 then cooperated with Pappas, including by providing
information about "Boyd's" residence and vehicles. After Pappas
passed this information to Drug Enforcement Administration (DEA)
agents in New York, the agents established surveillance near 107-
41 154th Street and identified Ackies, a potential suspect (though
they did not see Ackies enter or leave this address). The DEA
agents sent a booking photograph of Ackies to Pappas, and he showed
the picture to CD1 and CD2. CD2 identified Ackies, the individual
in the photo, as CD2's source for the heroin and cocaine base.
CD1 "said that picture looked meaner than . . . Boyd in person"
but did not say that the picture was not of the person he knew as
"Boyd."
On January 19, 2016, Pappas and other agents conducted
surveillance at 107-41 154th Street. Pappas observed a Nissan
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Quest van that was registered to "Tyree Ackies." CD2 had told
Pappas that Ackies owned a Nissan Quest.
On January 20, 2016, DEA Task Force Officer Brian Nappi
obtained a PLI warrant for TT2 under SCA § 2703(c)(1)(A) and Rule
41. Nappi's application stated that CD1 had notified "Boyd" on
January 19 that CD1 would be driving to New York the next day.
The precise location information obtained for TT2 placed TT2's
location in the same area as the 154th Street location where TT1
had been located earlier. Precise location information from the
evening of January 20 showed TT2 "moving down Liberty Avenue," and
government agents followed its location to a parking lot, observed
the Nissan Quest van, and arrested Ackies. Ackies was questioned
after his arrest and, according to Pappas, stated that he lived at
107-41 154th Street, Jamaica, New York with Taylor, their children,
and his nephew.
B. Denial of Motions to Suppress
In an order issued on July 26, 2017, the district court
denied the three now-appealed motions to suppress, finding:
(1) There was adequate probable cause for the PLI warrant
for TT1, even though "the bulk of the information supporting
probable cause came from an informant, CD1, who had at times
misled the Government," and even without probable cause, the
good-faith exception to the exclusionary rule discussed in
United States v. Leon, 468 U.S. 897, 899 (1984), would apply,
United States v. Ackies, No. 2:16-CR-20-GZS, 2017 WL 3184178,
at *7-*8 (D. Me. July 26, 2017);
(2) The two PLI warrants were properly issued under 18 U.S.C.
§ 2703 rather than the "tracking device" provision at § 3117,
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and assuming arguendo a violation of Rule 41(b)'s geographic
limitations had occurred, the good-faith exception applied,
id. at *8-*14;
(3) Ackies's warrantless arrest was supported by probable
cause, id. at *14.
The case proceeded to trial, and conviction.
C. Trial
Trial began on November 27, 2017, and lasted four days.
Much of the testimony was similar to that at the suppression
hearings, though the prosecution expanded on several aspects,
including explaining the role of Ackies's nephew (Christopher
Sampson) and an unnamed "fat guy" involved in the drug
distribution. In short, the prosecution presented a case that:
"Boyd" was Ackies and Ackies was a speaker on recorded phone calls
with CD1 and was the person who had met and directed CD1, CD2, and
others in drug trafficking and distribution; and Ackies lived at
the 154th Street apartment where surveillance had led to his
arrest. At trial, both CD1 and CD2 testified and identified Ackies
in court and both identified a voice on the calls as belonging to
Ackies.2
The defense argued that Ackies was not "Boyd" and so was
not the person on TT1 communicating with CD1, nor the person who
had met and directed CD1 and CD2, and that he did not live at the
2 Both CD1 and CD2 testified pursuant to cooperation and
plea agreements with the government.
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154th Street apartment. Schamia Taylor and Celia Lopez, the
mother of one of Ackies's children, testified on his behalf.
Taylor testified, as at the suppression hearing, that she was
living in the 154th Street apartment but Ackies was not; Lopez
testified that she had a romantic relationship with Ackies, he
lived with her from 2015 to the date of his arrest, and she had
never seen him enter Taylor's residence.
At trial, the district court allowed the jury to have
transcripts of several recorded calls as demonstrative aids and,
based on the identification testimony, allowed to stand the
identification in these transcripts of a speaker as "Ackies."
Ackies objected to the use of his name in the transcripts. After
the close of the defense's case, the government was allowed to
provide rebuttal testimony by a Pretrial Services Officer
regarding statements made by Taylor to him. Ackies challenged
this. The district court allowed the testimony as proper
rebuttal. The jury found Ackies guilty as charged on both counts.
D. Sentencing
We describe only the facts from sentencing pertinent to
this appeal. The revised presentence investigation report ("PSR")
stated a Base Offense Level ("BOL") of thirty due to a drug
quantity of 2155.97 kilograms of marijuana equivalency and, among
other enhancements, a four-level "aggravating role" enhancement
pursuant to U.S.S.G. § 3B1.1(a).
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Ackies objected to portions of the PSR, including the
drug quantity calculation and the "aggravating role" enhancement.
The district court determined that the PSR's estimate of drug
quantity and its "aggravating role" enhancement should be
accepted. The district court then imposed concurrent sentences
of 230 months' imprisonment on each count, down from the guideline
sentencing range of 292 to 365 months' imprisonment. This appeal
followed.
II.
A. Challenge to the Denial of Three Suppression Motions
In reviewing the denial of a suppression motion, we
assess the district court's factfinding for clear error, and review
legal questions (such as probable cause and reasonable suspicion)
de novo. See, e.g., United States v. Gates, 709 F.3d 58, 61-62
(1st Cir. 2013). We "may affirm [the] suppression rulings on any
basis apparent in the record." United States v. Arnott, 758 F.3d
40, 43 (1st Cir. 2014).3
3 We do not consider the government's argument that Ackies
lacks what it terms "standing" to challenge the PLI warrant for
TT1 (because he denied ownership of the phone and so lacked a
reasonable expectation of privacy in its location); the government
concedes that it did not raise this argument to the district court.
See, e.g., United States v. Almonte-Báez, 857 F.3d 27, 33 n.5 (1st
Cir. 2017) ("If any principle is settled in this circuit, it is
that, absent the most extraordinary circumstances, legal theories
not raised squarely in the lower court cannot be broached for the
first time on appeal." (quoting Teamsters, Chauffeurs,
Warehousemen & Helpers Union v. Superline Transp. Co., 953 F.2d
17, 21 (1st Cir. 1992))).
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1. Issuance of the PLI Warrants
Ackies argues that the PLI warrants for TT1 and TT2 were
"jurisdictionally void on two grounds": that a cell phone used to
track a person's movements is a "tracking device" under 18 U.S.C.
§ 3117 (the section addressing the issuance of warrants and orders
for the installations of mobile tracking devices), and that
geographic, jurisdictional limitations in Rule 41(b) barred the
Maine magistrate judge from issuing the PLI warrants for phones
located outside Maine. He also argues that the warrant for TT1
was not supported by probable cause. These arguments fail.
a. Applicability of the Stored Communications Act
The two PLI warrants here were issued pursuant to
provisions in the SCA, specifically 18 U.S.C. §§ 2703(a) and
2703(c)(1)(A), and Rule 41. Ackies argues that this was improper
under Carpenter v. United States, 138 S. Ct. 2206 (2018). He
incorrectly reads Carpenter and argues it holds that "a cell phone
constitutes a 'tracking device' . . . when it is used to obtain
precise location information regarding a suspect." So, he argues,
such a warrant must be issued under 18 U.S.C. § 3117 ("Mobile
tracking devices") to be valid.
In Carpenter, the Supreme Court held that "acquisition
of . . . cell-site records . . . was a search under [the Fourth]
Amendment," Carpenter, 138 S. Ct. at 2223, and that "[w]hether the
Government employs its own surveillance technology . . . or
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leverages the technology of a wireless carrier, . . . an individual
maintains a legitimate expectation of privacy in the record of his
physical movements." Id. at 2217. The government does not argue
otherwise here. Carpenter mentions the term "tracking device"
only once -- referring to a traditional GPS tracking device
installed on a vehicle. Id. at 2215. Section 3117, concerning
tracking devices, is never mentioned in the opinion. See
generally id. The Supreme Court's general analogy of historical
"cell phone location information" to "GPS monitoring" is not a
holding that a cell phone is a "tracking device" under an
unmentioned statute. Id. at 2215-16.4
Further, Ackies is wrong in attacking the district
court's determination regarding warrants by citing to Carpenter's
statement that "an order issued under § 2703(d) of the Act is not
a permissible mechanism for accessing historical cell-site
records." Id. at 2221 (emphasis added). Section 2703 treats
warrants and orders differently. See 18 U.S.C. § 2703. Here, the
warrants were issued under § 2703.
4 Section 3117 allows a court to "authorize the use of
that [tracking] device within the jurisdiction of the court, and
outside that jurisdiction if the device is installed in that
jurisdiction." 18 U.S.C. § 3117(a). Section 2703 requires a
court seeking information from a "provider of electronic
communication service or remote computing service" to "obtain[] a
warrant issued using the procedures described in the Federal Rules
of Criminal Procedure . . . by a court of competent jurisdiction."
Id. § 2703(c)(1).
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Apart from Carpenter, Ackies attempts to argue from the
definition of a "tracking device" in § 3117, which provides:
(a) In General. - If a court is empowered to
issue a warrant or other order for the
installation of a mobile tracking device, such
order may authorize the use of that device
within the jurisdiction of the court, and
outside that jurisdiction if the device is
installed in that jurisdiction.
(b) Definition. - As used in this section,
the term "tracking device" means an electronic
or mechanical device which permits the
tracking of the movement of a person or
object.
18 U.S.C. § 3117. Ackies argues that a cell phone used for
obtaining precise location information is "an electronic or
mechanical device which permits the tracking of the movement of a
person or object" under § 3117.5 Id. § 3117(b).
But under the text of § 3117, a cell phone used for
obtaining precise location information does not fit within the
definition of a "tracking device." Section 3117(a) refers to the
"installation of a mobile tracking device." Id. § 3117(a)
(emphasis added). By their plain meanings, "installation" and
5 Ackies also argues that software was involved in the
execution of the PLI warrants, and since software "must be
installed . . . , a reference to 'installation' does not limit the
reach of Section 3117 to hardware." This argument ignores the
term "device" in the definition; software is not a "device" under
its plain meaning. See Webster's Third New International
Dictionary 618 (1993) (defining "device," in one usage, as "a piece
of equipment or a mechanism designed to serve a special purpose or
perform a special function").
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"device" refer to the physical placement of some hardware or
equipment (such as the GPS device installed on a car mentioned in
Carpenter). See, e.g., In re Application of the U.S. for an Order
for Authorization to obtain Location Data Concerning an AT & T
Cellular Tel., 102 F. Supp. 3d 884, 892 (N.D. Miss. 2015)
(determining that "the 'installation' language in the Tracking
Device Statute constitutes a real reason for not utilizing that
statute for requests for prospective cell phone location data");
In re Smartphone Geolocation Data Application, 977 F. Supp. 2d
129, 150 (E.D.N.Y. 2013) ("[G]athering geolocation information
about a cellular telephone does not convert the phone into a
'tracking device' for the purpose of [§ 3117].").6 A reading of
§ 3117(b) which includes cell phones as "tracking device[s]"
ignores the relevant textual context in § 3117(a).7
6 Some district courts have broadly read "tracking device"
to include a cell phone. See, e.g., In re Application of U.S. for
an Order Authorizing Disclosure of Location Info. of a Specified
Wireless Tel., 849 F. Supp. 2d 526, 537 (D. Md. 2011); In re
Application for Pen Register & Trap/Trace Device with Cell Site
Location Auth., 396 F. Supp. 2d 747, 754 (S.D. Tex. 2005); In re
Application of the U.S. for an Order (1) Authorizing the Use of a
Pen Register & a Trap & Trace Device, 396 F. Supp. 2d 294, 311
(E.D.N.Y. 2005). These cases are not persuasive.
7 Several circuits have assumed, without holding, that the
SCA properly applies to information gathered about the "real-time
location of [a] mobile device." United States v. McHenry, 849
F.3d 699, 702 n.2 (8th Cir. 2017); see also United States v. Banks,
884 F.3d 998, 1010 (10th Cir. 2018) (noting that an order under
the SCA "required T-Mobile to disclose . . . real-time [cell-site
location information] and to determine, in real time, the location
of [a] cell phone"). Another circuit has rejected the
determination that cell-site location information "by definition
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Further, as the district court correctly stated, use of
§ 3117 does not work when considering cell phone location data,
because "it could be exceedingly difficult in situations involving
PLI to determine where 'installation' is to occur," and the
government "may be seeking data concerning a cell phone whose
present location is unknown." Ackies, 2017 WL 3184178, at *11.
Our understanding of a "tracking device" is also
supported by Rule 41, addressing searches and seizures, and the
relevant Advisory Committee Notes. 8 Rule 41(e)(2)(c), titled
"Warrant for a Tracking Device," requires in part that such a
warrant "command the officer to: (i) complete any installation
authorized by the warrant within a specified time no longer than
10 days; [and] (ii) perform any installation authorized by the
warrant during the daytime." Fed. R. Crim. P. 41(e)(2)(c)
(emphasis added). 9 The Advisory Committee Notes for the 2006
Amendments to the Rules state that a "magistrate judge's authority
should be considered information from a tracking device." In re
Application of U.S. for an Order Directing a Provider of Elec.
Commc'n Serv. to Disclose Records to Gov't, 620 F.3d 304, 313 (3d
Cir. 2010).
8 "In the absence of a clear legislative mandate, the
Advisory Committee Notes provide a reliable source of insight into
the meaning of a rule." United States v. Vonn, 535 U.S. 55, 64
n.6 (2002).
9 As to Ackies's software argument, supra, the "daytime"
requirement would make no sense for software installation rather
than the installation of a physical device.
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under [the tracking device warrant] rule includes the authority to
permit . . . installation of the tracking device, and maintenance
and removal of the device." Advisory Committee's Notes on 2006
Amendments to Fed. R. Crim. P. 41 (emphasis added). There is no
"maintenance" or "removal" of a "device" when gathering precise
location information from a cell phone.
In addition, the 2006 Advisory Committee Notes
differentiate § 3117 from the SCA, stating that the "[u]se of a
tracking device is to be distinguished from other continuous
monitoring or observations that are governed by statutory
provisions or caselaw. See Title III, Omnibus Crime Control and
Safe Streets Act of 1968, as amended by Title I of the 1986
Electronic Communications Privacy Act [ECPA]." Id. The SCA is
part of the ECPA. See, e.g., United States v. Graham, 824 F.3d
421, 437 (4th Cir. 2016) (en banc), abrogated on other grounds by
Carpenter, 138 S. Ct. 2206.
The SCA was a proper basis for the PLI warrants issued
here. Section 2703 of the SCA, in part, provides that:
A governmental entity may require the
disclosure by a provider of electronic
communication service of the contents of a
wire or electronic communication . . . only
pursuant to a warrant issued using the
procedures described in the Federal Rules of
Criminal Procedure . . . by a court of
competent jurisdiction.
18 U.S.C. § 2703(a). Section 2703(c)(1)(A) provides that:
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A governmental entity may require a provider
of electronic communication service or remote
computing service to disclose a record or
other information pertaining to a subscriber
to or customer of such service (not including
the contents of communications) only when the
governmental entity --
(A) obtains a warrant issued using the
procedures described in the Federal Rules
of Criminal Procedure (or, in the case of
a State court, issued using State warrant
procedures . . . ) by a court of competent
jurisdiction[.]
Id. § 2703(c)(1)(A). "[A] 'court of competent jurisdiction'
includes any district court of the United States (including a
magistrate judge of such a court) that . . . has jurisdiction over
the offense being investigated." Id. § 2711(3)(A)(i). The
government properly requested warrants for TT1 and TT2 from a
"court of competent jurisdiction," since the magistrate judge in
the District of Maine had jurisdiction over the drug trafficking
offenses being investigated. The government requested precise
location information from the "provider of electronic
communication service" and this precise location information
"pertain[ed] to a subscriber to or customer of such service."
Under § 2703, at least some of the Federal Rules of Criminal
Procedure applied to these warrants: the Rules describing
"procedures" for the issuance of a warrant.
So the next logical question is whether the geographic
limitations in Rule 41(b) apply to warrants under the SCA.
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b. Application of Fed. R. Crim. P. 41(b)
Neither party disputes that at least a portion of Rule
41 must apply to a warrant issued under the SCA. Ackies argues
that, because a warrant under § 2703 must be "issued using the
procedures described in the Federal Rules of Criminal Procedure,"
id. § 2703(a), Rule 41(b) applies and bars the issuance of a
warrant for New York subscribers' phones by a Maine magistrate
judge. Ackies describes Rule 41(b) as jurisdictional.
The government counters that Rule 41(b) does not apply
to warrants under § 2703. As in place in January 2016, when the
warrants were issued, Rule 41(b) stated in relevant part:
(b) Authority to Issue a Warrant. At the
request of a federal law enforcement officer
or an attorney for the government:
(1) a magistrate judge with authority in
the district -- or if none is reasonably
available, a judge of a state court of
record in the district -- has authority
to issue a warrant to search for and
seize a person or property located within
the district . . . .
Fed. R. Crim. P. 41(b)(1) (2015). Then-Rule 41(b) provided
several exceptions to this limitation, none of which are relevant
here.10 See id. 41(b)(2)-(5) (2015).
10 An amendment on April 28, 2016, effective December 1,
2016, changed the caption of this subsection to "Venue for a
Warrant Application" and added an exception directly addressing
"remote access to search electronic storage media and to seize or
copy electronically stored information." Fed. R. Crim. P.
41(b)(6).
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Rule 41(b) did not then and does not now apply to PLI
warrants issued under SCA § 2703. The text of § 2703 compels this
result. "[W]hen the statute's language is plain, the sole
function of the courts -- at least where the disposition required
by the text is not absurd -- is to enforce it according to its
terms." Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004) (quoting
Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 530
U.S. 1, 6 (2000)); see also Jam v. Int'l Fin. Corp., No. 17-1011,
2019 WL 938524 (S. Ct. Feb. 27, 2019), slip op. at 6 ("[A]bsent a
clearly expressed legislative intention to the contrary . . . the
legislative purpose is expressed by the ordinary meaning of the
words used." (quoting Am. Tobacco Co. v. Patterson, 456 U.S. 63,
68 (1982))). Section 2703 only requires "using the procedures
described in the Federal Rules of Criminal Procedure," not more.
18 U.S.C. § 2703(a) (emphasis added).
On this point, we agree with the Seventh Circuit that
Rule 41(b) "discusses the circumstances as to when a court may
issue a warrant, not the procedures to be used for issuing the
warrant," Berkos, 543 F.3d at 398, and the Third Circuit's adoption
of that view in Bansal. 663 F.3d at 662 (citing Berkos and
rejecting the contention that Rule 41(b) "trumps § 2703(a)").
Further, we agree with the Seventh Circuit that
Section 2703(a) refers only to the specific
provisions of the Rules of Criminal Procedure
. . . that detail the procedures for obtaining
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and issuing warrants. The word "procedure"
is defined as "a specific method or course of
action," Black's Law Dictionary, 1241 (8th ed.
2004), or "a particular way of accomplishing
something or acting." Merriam Webster's
Collegiate Dictionary, 990 (11th ed. 2003).
The common definition of "procedure" supports
the conclusion that § 2703(a) incorporates
only those provisions of Rule 41 that address
the "specific method" or "particular way" to
issue a warrant.
Berkos, 543 F.3d at 398. Rule 41(b), again, does not address the
specific method or particular way of issuing a warrant; it
discusses venue and authority.11
Even were the text of the statute ambiguous (that is,
even if "procedures described in the Federal Rules of Criminal
Procedure," 18 U.S.C. § 2703(a), could refer to all of Rule 41 and
not just its procedural portions), our holding that Rule 41(b)
does not apply to § 2703 warrants is supported by statutory
structure, legislative history, and congressional intent. As to
structure, § 2703(a) contains its own geographic, jurisdictional
11 Section 2703(d), which addresses requirements for court
orders under the SCA, does not mention the Federal Rules of
Criminal Procedure; it mentions only issuance by "a court of
competent jurisdiction." 18 U.S.C. § 2703(d). If Rule 41(b) were
applied to warrants issued under the SCA, that would mean that law
enforcement would face a greater challenge in getting a warrant
under a probable cause standard than in getting a court order based
only on a showing that "specific and articulable facts" are
"relevant and material to an ongoing criminal investigation." Id.
As the district court aptly stated, this would be "an absurd result
that could well discourage the Government from seeking warrants as
opposed to court orders." Ackies, 2017 WL 3184178, at *12.
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limitation: requiring issuance by "a court of competent
jurisdiction," meaning, in part, one that has "jurisdiction over
the offense." Id. § 2711. In addition, Rule 41(a) expressly
states, in describing Rule 41's "[s]cope," that "[t]his rule does
not modify any statute regulating search or seizure." Fed. R.
Crim. P. 41(a)(1). Applying Rule 41(b) to a warrant issued under
the SCA would "modify" § 2703(a)'s geographic, jurisdictional
limitation.
As to the relevant legislative history and Congressional
intent, Congress was clear that it intends to allow federal courts
to permit searches under § 2703 beyond the courts' usual geographic
jurisdictions. See, e.g., Hubbard v. MySpace, Inc., 788 F. Supp.
2d 319, 325 (S.D.N.Y. 2011). Section 2703(a) was amended in 2001
by the Uniting and Strengthening America by Providing Appropriate
Tools to Intercept and Obstruct Terrorism Act of 2001 ("USA PATRIOT
Act"). Pub. L. No. 107–56, § 220, 115 Stat. 272 (2001). Section
220 of the USA PATRIOT Act added to § 2703(a) the phrase, "by a
court with jurisdiction over the offense under investigation."
Id. The House Report explains this change:
[Section] 2703(a) requires a search warrant to
compel service providers to disclose unopened
e-mails . . . . Currently, Federal Rules of
Criminal Procedure 41 requires that the
"warrant" be obtained "within the district"
where the property is located. An
investigator, for example, located in Boston
who is investigating a suspected terrorist in
that city, might have to seek a suspect's
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electronic e-mail from an Internet service
provide (ISP) account located in California.
The investigator would then need to coordinate
with agents, prosecutors and judges in the
district in California where the ISP is
located to obtain a warrant to search . . . .
[The Act] amends § 2703 to authorize the court
with jurisdiction over the investigation to
issue the warrant directly.
H.R. Rep. No. 107–236, pt. 1, at 57 (2001). The House Report
demonstrates the amendment's focus on clarifying (and, in some
cases, expanding) the geographic scope of § 2703.
The district court correctly denied Ackies's motion to
suppress evidence obtained from these warrants. Even assuming
arguendo that the PLI warrants violated Rule 41(b), the good-faith
exception from Leon, 468 U.S. 897, applies. We have determined
so in the analogous context of a network investigative technique
(NIT) warrant issued in violation of Rule 41(b), and that reasoning
applies to SCA warrants here. Levin, 874 F.3d at 324. This view
is in accord with recent cases from the Third, Eighth, Ninth, and
Tenth Circuits, where these circuits have held that a Rule 41(b)
violation does not prevent the application of the good-faith
exception. See United States v. Henderson, 906 F.3d 1109, 1117
(9th Cir. 2018) ("Even though the Rule 41 violation was a
fundamental, constitutional error, suppression of evidence
obtained in violation of the Fourth Amendment is still not
appropriate if, as it asserts, the government acted in good
faith."); United States v. Werdene, 883 F.3d 204, 216 (3d Cir.
- 21 -
2018) (holding that "the good-faith exception applies to warrants
that are void ab initio"), cert. denied, 139 S. Ct. 260 (2018);
United States v. Workman, 863 F.3d 1313, 1318 (10th Cir. 2017)
(holding that "the Leon exception applies even if the magistrate
judge had exceeded [the Rule 41(b)] geographic constraints in
issuing the warrant"), cert. denied, 138 S. Ct. 1546 (2018); United
States v. Horton, 863 F.3d 1041, 1051 (8th Cir. 2017) (holding
that "the Leon exception may apply to a warrant [that is] void ab
initio" because of a Rule 41(b) violation), cert. denied, 138 S.
Ct. 1440 (2018). The same reasoning from Levin applies to a PLI
warrant issued in violation of Rule 41(b). We expressly extend
Levin to PLI warrants under the SCA. We affirm the district
court's holding on this point.
Considering the good-faith exception and the facts of
this case, the executing officers acted "in objectively reasonable
reliance" on the warrants. Leon, 468 U.S. at 922. There is no
evidence that reliance on the warrants would amount to bad faith.
See Levin, 874 F.3d at 322.
2. Probable Cause for a PLI Warrant of Target Telephone 1
Ackies argues that the denial of his motion to suppress
the PLI warrant for TT1 was error because of a lack of probable
cause. Ackies argues that the information relied upon by Sergeant
Pappas for the PLI warrant came "almost entirely from" CD1, who
was "simply not reliable" in important ways. Ackies further
- 22 -
argues that corroborating evidence, such as the finding of the TT1
phone number on CD1's phone and Pappas's "training and experience,"
do not suffice to provide probable cause.
There was ample probable cause even without any
deference to the magistrate judges' determination.12 For probable
cause for a warrant, based on the totality of the circumstances,
Maryland v. Pringle, 540 U.S. 366, 372 n.2 (2003), "[t]he facts
presented to the magistrate need only 'warrant a man of reasonable
caution' to believe that evidence of a crime will be found," United
States v. Dixon, 787 F.3d 55, 59 (1st Cir. 2015) (quoting United
States v. Feliz, 182 F.3d 82, 86 (1st Cir. 1999)).
In United States v. White, we
identified a non-exhaustive list of factors to
examine in deciding on an informant's
reliability: (1) the probable veracity and
basis of knowledge of the informant; (2)
whether an informant's statements reflect
first-hand knowledge; (3) whether some or all
of the informant's factual statements were
corroborated wherever reasonable and
practicable; and (4) whether a law enforcement
officer assessed, from his professional
standpoint, experience, and expertise, the
probable significance of the informant's
information.
804 F.3d 132, 137 (1st Cir. 2015) (internal quotation marks
omitted). 13 CD1 had extensive personal experience with drug
12 "In a doubtful or marginal case, the court defers to the
issuing magistrate's determination of probable cause." United
States v. Barnard, 299 F.3d 90, 93 (1st Cir. 2002).
13 Though Pappas's affidavit in support of a warrant did
- 23 -
dealing, including "multiple felony drug trafficking convictions."
CD1 had "provided information and cooperation in unrelated drug
trafficking investigations which ha[d] led to the seizure of
evidence . . . and multiple arrests or convictions." In addition,
CD1's statements reflected first-hand knowledge. CD1 provided
phone numbers for "Boyd." He then provided text message exchanges
between his phone and TT1, as well as another number for "Boyd."
Pappas asserted that at least one such message (stating "1/1") was
drug-related. Another text message from "Boyd" gave an address
("139-01 grand central pkwy jam ny 11435"), which CD1 said was the
location of a motel where he met with "Boyd." In the presence of
Pappas, CD1 called "Boyd" and had a brief exchange. Taken
together, these text messages and phone call at least partially
corroborated CD1's verbal account to Pappas. 14 And Pappas
"reasonably assessed, based on his training and experience, that
the communications between CD1 and the user of TT1 concerned drug
not rely fully on CD1's testimony, it provided sufficient
information about CD1 to satisfy the standard for such a warrant:
"Where . . . the basis for the magistrate's probable cause finding
was information provided by an unnamed informant, the affidavit
must provide some information from which the magistrate can assess
the informant's credibility." United States v. Greenburg, 410
F.3d 63, 67 (1st Cir. 2005).
14 The text messages and phone conversation between CD1 and
"Boyd" were coded or vague. Pappas later testified on cross-
examination that the text messages detailed in the affidavit did
"add up" in his understanding, although he "partially" relied upon
CD1 for corroboration of what the messages meant.
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trafficking."15 CD1 also told Pappas about a possible drug deal
of 400 grams of heroin and 400 grams of heroin base. That CD1,
like many people, was not truthful on all occasions with Pappas
amounts to nothing.
3. Probable Cause for Ackies's Warrantless Arrest
Ackies argues that the fruits of his warrantless arrest
in New York should have been suppressed because, in his view, the
arrest was "undertaken without probable cause." Ackies
acknowledges that the police had substantial information at the
time of his arrest, including "the information available at the
time of the TT1 warrant . . . [,] additional recorded phone calls
and the seizure of drugs from [CD2] at the Portland bus terminal."
Ackies argues that the police also had "information that was
inconsistent with [Ackies] being 'Boyd,'" and so "no reasonable
officer would have cause to believe in good faith that Ackies was
'Boyd.'"
This argument fails. For an arrest, "[p]robable cause
exists if, at the time of the arrest, the collective knowledge of
the officers involved was 'sufficient to warrant a prudent person
15 Ackies is correct that "'training and experience' is not
a mantra that an officer can intone in order to transform any
innocuous conversation into instant probable cause," but is wrong
that the conversations between CD1 and "Boyd" were not "nearly
distinctive enough . . . to give probable cause that [there] was
drug code" in the conversation.
- 25 -
in believing that the defendant had committed or was committing an
offense.'" United States v. Link, 238 F.3d 106, 109 (1st Cir.
2001) (quoting United States v. Bizier, 111 F.3d 214, 217 (1st
Cir. 1997)). The government had information included in the TT1
warrant application as well as the user of TT2's corroboration of
a family relationship between CD2 and Ackies (confirming part of
CD2's account to Pappas) and the fact that "real-time location
information from TT2 . . . placed [Ackies] and the phone at the
same location on January 22, 2016." It does not defeat probable
cause that government agents intermittently surveilled the
targeted residence at 107-41 154th Street for about three days but
did not see Ackies enter or exit.
The district court correctly held that the "lacunae in
the information connecting [Ackies] to drug trafficking do[es] not
negate the large amount of information pointing to a fair
probability that he was engaged in that activity." Ackies, 2017
WL 3184178, at *14. A reasonable officer clearly could have had
cause to believe that Ackies was "Boyd" and that Ackies was engaged
in drug trafficking. There was probable cause for the warrantless
arrest.
B. Rulings at Trial
1. Allowance of Call Transcripts as Demonstrative Aids
Our standard of review for evidentiary rulings is, in
general, deferential and for abuse of discretion. See, e.g.,
- 26 -
United States v. Burgos-Montes, 786 F.3d 92, 114 (1st Cir. 2015).
Ackies argues that "absent a stipulation as to [his] identity, his
name should have been removed from the transcripts [of recorded
calls] before they were shown to the jury," and failure to do so
was "prejudicial, incurable error requiring a new trial."
Here, the district court's allowance of the transcripts
was within its discretion.16 At the first use, the district court
instructed the jury in part that "the transcript is being given to
assist you in listening to the call[s]. It's the tape recording
and not the transcript that is the evidence in this case." When
other transcripts of recorded calls were used as demonstrative
aids, the district court reminded the jury to follow the "same
instruction."
As in Government of Virgin Islands v. Martinez, 847 F.2d
125 (3d Cir. 1988), the "government . . . introduced sufficient
evidence to justify the use of the designation [that is, the name]
16 Ackies is correct that some circuits have preferred that
transcripts be "stipulated to be accurate" when used as an "aid in
listening." United States v. Bryant, 480 F.2d 785, 791 (2d Cir.
1973); see also United States v. Smith, 537 F.2d 862, 863 (6th
Cir. 1976) (per curiam) (agreeing with the Second Circuit but
finding such an error harmless). It is not clear, however, that
a "stipulation as to the accuracy of the transcript" refers to the
names listed (as opposed to the contents of the conversation
itself). See Bryant, 480 F.2d at 791.
In our view, a transcript is not allowed in error simply
because the designations of parties on the transcript have not
been stipulated to; the district court has discretion, and the
proper approach will depend on the facts of the particular case.
- 27 -
in the transcript." Id. at 129 (citing United States v. Rengifo,
789 F.2d 975, 983-84 (1st Cir. 1986)). CD2 identified Ackies's
voice on the calls, and CD2 had met Ackies multiple times. CD1
also identified Ackies's voice in the calls, and CD1 had met Ackies
multiple times, talked to him on the phone, and spent hours with
him in New York. Pappas recognized the voice on the call ("My
opinion was that the person that I listened to on each individual
phone call was in fact Mr. Ackies"). That was enough. Ackies was
free to, and did argue to the jury, that the designation of his
name was incorrect and that he was not "Boyd."
2. Government's Rebuttal Testimony
"Appellate courts traditionally afford trial courts a
wide berth in respect to regulating the scope of rebuttal
testimony. We review challenges to such rulings for abuse of
discretion." United States v. Sebaggala, 256 F.3d 59, 66 (1st
Cir. 2001) (citations omitted). The district court allowed
rebuttal testimony from a Pretrial Services Officer impeaching a
defense witness. Ackies argues that the district court abused its
discretion in doing so.
Taylor testified for the defense that that she had banned
Ackies from entering her apartment for about a year before his
arrest in January 2016, that she did not allow Ackies to stay
there, and that Ackies was not on the lease at her apartment. The
prosecution sought to rebut this testimony by calling Pretrial
- 28 -
Services Officer Andrew Abbott. When Ackies objected, the
district court responded:
You put on evidence . . . that this wasn't
[Ackies's] address and that he was never let
in there and [Taylor] never allowed him to get
permission to go in . . . . And then she's
also testified there was no gun there and
there w[ere] no drugs there, . . . it couldn't
possibly have been there. So that's rebuttal
. . . . I'm going to allow it.
Abbott then testified that, in a bail recommendation interview,
Ackies had said that he lived at "107-41 154th Street, Apartment
2, Queens, New York" since September 2011 with Taylor and their
seven children, and Ackies had provided a phone number for Taylor,
which Abbott called and spoke with a person who identified herself
as Taylor, who "confirmed that [Ackies] did in fact live at that
address."
Considering factors drawn from United States v. Clotida,
892 F.2d 1098, 1107 (1st Cir. 1989), Ackies argues that, as a
result of the rebuttal testimony, he faced "surprise" and
"detriment."
Generally, "the order in which the parties present their
evidence is totally within the discretion of the trial court."
Id. "In determining whether the trial court has abused its
discretion . . . , three factors must be considered: '(1) surprise
to the defendant, (2) defendant's opportunity to meet the proof,
and (3) detriment to the defendant because of the order in which
- 29 -
the evidence was introduced.'" Id. (quoting United States v.
Luschen, 614 F.2d 1164, 1170 (8th Cir. 1980)). Abbott's evidence
had been "provided earlier" to Ackies, so there was no surprise,
and there was an opportunity to meet it, and there is no
explanation of any detriment.
Confidential information obtained from Pretrial Services
is "not admissible on the issue of guilt in a judicial criminal
proceeding." 18 U.S.C. § 3153(c)(3). We adopt the position, as
have several other circuits, that such information may be used for
impeachment purposes. E.g. United States v. Griffith, 385 F.3d
124, 126 (2d Cir. 2004); United States v. Stevens, 935 F.2d 1380,
1393-97 (3d Cir. 1991); United States v. Wilson, 930 F.2d 616,
618-19 (8th Cir. 1991). This understanding follows from the best
reading of the statute. Section 3153(c)(3) applies only to "the
issue of guilt" and does not state, for example, that information
from pretrial services can never be used in a criminal trial for
another purpose.
C. Sentencing Determinations
"[W]e review the sentencing court's 'interpretation and
application of the sentencing guidelines de novo,' the court's
'factfinding for clear error,' and its 'judgment calls for abuse
of discretion.'" United States v. Ortiz-Carrasco, 863 F.3d 1, 3
(1st Cir. 2017) (quoting United States v. Ruiz-Huertas, 792 F.3d
223, 226 (1st Cir. 2015)). "[T]he government bears the burden of
- 30 -
proving sentence-enhancing factors by a preponderance of the
evidence." United States v. Cates, 897 F.3d 349, 354 (1st Cir.
2018) (quoting United States v. Nuñez, 852 F.3d 141, 144 (1st Cir.
2017)).
Ackies challenges the adoption of two sentencing
enhancements as procedurally unreasonable, one as to drug quantity
and one as to the number of people involved in the criminal
conspiracy.
1. Drug Quantity
The district court correctly found ample support for the
PSR's estimate of the drug quantity involved of 2155.97 kilograms
of converted drug weight (also referred to as marijuana
equivalency) from 395.4 grams of cocaine base, 342.0 grams of
heroin, and 60 grams of oxycodone. Section 2D1.1 of the Sentencing
Guidelines provides for a BOL of thirty where the quantity is "[a]t
least 1,000 KG but less than 3,000 KG of Converted Drug Weight."
U.S.S.G. § 2D1.1. The parties agreed at the sentencing hearing
that reducing the drug quantity calculation by half would not
change the BOL (that is, the amount would still be over a thousand
kilograms of converted drug weight and so still result in a BOL of
thirty).
Ackies argues for an amount far less than half of the
PSR's calculation: either "a total marijuana equivalency of
436.5033 kilograms" and a corresponding BOL of twenty-six or a
- 31 -
more general reduction to a BOL of twenty-eight because, in his
view, the evidence "preclude[s] any reliable finding that the
marijuana equivalency was 1000 grams or more." Specifically,
Ackies argues that there is no evidence concerning the "purity or
dosage" of the oxycodone pills and that the five-trip estimate
coupled with CD1's sixty-gram-per-trip estimate was "not
reliable." Ackies says it is unreliable given the amount of heroin
seized from CD2, testimony about the untrustworthiness of CD1's
estimates of drug quantity, and CD1's self-interest in providing
large estimates.
"[T]he sentencing court is not required to make drug
quantity findings with exactitude but may rest its findings upon
a 'reasoned estimate' of the amount of drugs a defendant has been
responsible for over time." United States v. Doe, 741 F.3d 217,
236 (1st Cir. 2013) (internal alterations omitted) (quoting United
States v. Bernier, 660 F.3d 543, 546 (1st Cir. 2011)). "When
choosing between a number of plausible estimates of drug quantity
. . . a court must err on the side of caution." United States v.
Sklar, 920 F.2d 107, 113 (1st Cir. 1990) (alteration in original)
(quoting United States v. Walton, 908 F.2d 1289, 1301 (6th Cir.
1990)). Here, the district court's determination was reasonable.
First, the district court reasonably could credit CD1's
and CD2's accounts, regardless of whether the train and bus tickets
admitted into evidence corresponded exactly with five trips. At
- 32 -
"the intersection between credibility and drug quantity
determinations . . . , a sentencing court's discretion to make
informed choices is wide." United States v. Platte, 577 F.3d 387,
393 n.4 (1st Cir. 2009). And the five-trip estimate did not
consider any prior trips made by CD2 before Ackies and CD1 met in
April 2015. As to Ackies's assertion that the seizure of 39.9
grams of heroin from CD2 means that CD1's estimate of sixty grams
or more per trip was incorrect, Ackies stated in a recorded call
that he planned to send 400 grams (CD1: "At least they didn't catch
him with 400"; Ackies: "Yeah, [be]cause that's what I was going to
send you"). This conversation reasonably supported CD1's
credibility.
Second, as to the drug quantity in each oxycodone pill,
from the $25 cost per pill, it was reasonable to infer that the
pills contained greater than ten milligrams each (or, indeed, the
thirty milligrams estimated by the PSR). See, e.g., Drug
Enforcement Administration, "Oxycodone, Trade Names: Tylox,
Percodan, OxyContin," March 2014, available at
http://www.deadiversion.usdoj.gov/drug_chem_info/oxycodone/oxyco
done.pdf ("According to reports from DEA field offices, oxycodone
products sell at an average price of $1 per milligram.").17
17 This 2014 publication by the DEA is not in the record,
but demonstrates that an inference of thirty milligrams per pill
was reasonable based on the price per pill.
- 33 -
The district court's "drug quantity finding was
supported by a sensible (though not inevitable) view of the record
and rested on permissible (though not inevitable) approximations."
Platte, 577 F.3d at 394.
2. Number of People Involved in the Conspiracy
"We review role-in-the-offense determinations, steeped
in the facts of the case, for clear error." United States v.
Martínez-Medina, 279 F.3d 105, 123 (1st Cir. 2002).
As did the PSR, the district court determined that
Ackies's conspiracy involved at least five participants and that
Ackies was an "organizer or leader," and so applied the
"aggravating role" enhancement under U.S.S.G. § 3B1.1(a) ("If the
defendant was an organizer or leader of a criminal activity that
involved five or more participants or was otherwise extensive,
increase by 4 levels."). The PSR counted six: Ackies, CD1, CD2,
two couriers, and the person who introduced CD1 to Ackies; the
prosecution's sentencing memorandum counted "at least" seven:
Ackies, CD1, CD2, the two couriers (named in the memorandum as
Ackies's nephew and the "overweight male"), and two other unnamed
people as well.18
18 The government's sentencing memorandum does not count
the person who introduced CD1 to Ackies; its brief to this court
does.
- 34 -
Ackies challenges this enhancement only on the grounds
that there were not five participants. He argues that CD1 cannot
be counted because CD1 was a mere customer rather than a member of
the conspiracy. In Ackies's view, this brings the number down to
four.
The government produced evidence that Ackies controlled
and directed CD1 in multiple ways, including where to meet and how
much and what type(s) of drugs would be delivered ("It was pretty
much whatever [Ackies] wanted"). Ackies also allowed CD1 to pay
for the drugs by credit. CD1 did not describe himself, in his
testimony, as a mere customer; instead, he described meeting drug
couriers, purchasing large quantities of drugs, and his own drug
sales.19
As stated in United States v. Ortiz-Islas, the defendant
"had more than a mere buyer-seller relationship with" another
person because the defendant "was engaging in selling wholesale
quantities obviously purchased for further sale, and . . . was
even willing to front cocaine to [the other person], an act of
trust that assumed an ongoing enterprise with a standing
objective." 829 F.3d 19, 25 (1st Cir. 2016).20
19CD1 testified that, though the amounts and types of drugs
delivered varied, he typically received "60 to 200 grams or more"
of cocaine base per delivery, and "60 grams to . . . a couple
hundred grams" of heroin per delivery, and "around 1,000 pills [of
Oxycodone]" per delivery.
20 Because of these facts, Ackies's citation to United
- 35 -
Sufficient evidence supported counting at least Ackies,
CD1, CD2, Ackies's nephew, and the unnamed "overweight male"/"fat
guy" as part of the conspiracy, which is "five or more
participants." We do not consider the government's alternative
argument that, even if CD1 does not count as a member of the
conspiracy, there are still five participants due to Ackies's
references to "my peoples" in a phone call and to "my other people"
on a different call.
III.
Affirmed.
States v. Howell, 527 F.3d 646 (7th Cir. 2008), is inapposite.
There, the question, in part, was whether the "aggravating role"
enhancement should be applied to a defendant who was a mere
"dealer" and exercised essentially no control over a particular
buyer who sometimes re-sold the drugs. 527 F.3d at 650. (The
enhancement ultimately applied in that case due to the defendant's
management of a third person).
Ackies's citation to United States v. Fuller, 897 F.2d
1217 (1st Cir. 1990), similarly is inapposite. In Fuller, this
court stated that the "aggravating role" enhancement "does not
apply to a defendant who merely organizes or supervises criminal
activity that is executed without the aid of others." Id. at
1220. Ackies clearly had the aid of others.
Finally, his citation to United States v. Brown, 944
F.2d 1377 (7th Cir. 1991), does not help him, because Brown
considered whether the defendant's "status as a distributor,
standing alone" was sufficient for applying the enhancement. Id.
at 1381. The government did not rely only on Ackies's status as
a drug distributor in arguing for this sentencing enhancement.
- 36 -