Date: 01-26-2018

Case Style:

Case Number: 15-2056

Judge: Torruella

Court: United States Court of Appeals for the First Circuit on appeal from the District of Maine (Cumberland County)

Plaintiff's Attorney: Julia M. Lipez, Thomas E. Delahanty, II and Margaret D. McGaughey

Defendant's Attorney: Rob Andrews

Description: Appellant Pierre Azor
("Appellant") appeals the district court's denials of his motions
for suppression and severance, and claims that his sentence of
thirty-six months of imprisonment is substantively unreasonable.
After review, we find that the district court properly denied his
motion to suppress and did not abuse its discretion in denying his
motion to sever. Additionally, Appellant's sentence is
substantively reasonable. Seeing no reason to vacate Appellant's
conviction or sentence on the grounds that he has presented, we
affirm.
I. BACKGROUND
A. Factual Background
1. Intercepted Phone Calls
In March 2014, pursuant to a wiretap order authorized by
the United States District Court for the District of Maine, United
States Drug Enforcement Agency Task Force agents (the "Agents")
intercepted phone calls and electronic communications in
connection with a suspected drug trafficking conspiracy based out
of Lewiston, Maine. See 18 U.S.C. §§ 2510-2522. From March 19
to March 21, 2014, Agents intercepted several phone conversations
between Romelly Dastinot ("Dastinot") and an unidentified person
known only as "Cash." During these conversations, Dastinot and
Cash discussed a plan in which Cash would take a bus to Boston,
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Massachusetts, and purchase approximately one thousand "blues,"
which the Agents knew to mean thirty-milligram pills of Oxycodone.
The pair planned to split the pills so that each had an inventory
of five hundred to sell. Cash also commented that he could
possibly sell "brown" (heroin) or "white stuff" (cocaine), but
preferred dealing with Oxycodone.
On March 21, 2014, the Agents intercepted another call
between Dastinot and Cash in which they discussed Cash's travel
plans. Cash informed Dastinot that he would take the 1:50 p.m.
bus from Lewiston to Boston, but would return instead to Portland,
Maine, so that he would not appear at the Lewiston bus station
twice in one day. In another call intercepted on the same day,
the Agents heard Cash refuse to go to an apartment on Knox Street
(in Lewiston) to collect money from Dastinot because Cash believed
that the area was "too hot," and that possessing such a large
amount of money would be suspicious and risky. Instead, the two
confederates agreed that Dastinot, accompanied by an "elderly,"
would take Cash to the Lewiston bus station.
After hearing this conversation, the Agents contacted
Maine State Police Trooper Tom Pappas ("Pappas"), who was assigned
to the High Intensity Drug Trafficking Area program through the
Drug Enforcement Agency. The Agents informed Pappas what they had
heard over the wiretap and requested that he conduct surveillance
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at the Lewiston bus station to watch for Cash. Pappas made his
way to the top of a parking garage near the bus stop, where he
could see the 1:50 p.m. Greyhound bus parked on the street. Pappas
saw a red truck behind the bus that he recognized as belonging to
Carrie Buntrock ("Buntrock"), a woman Pappas knew to be connected
to Dastinot and whose age was in the early sixties. Pappas saw a
man whom he did not recognize exit the vehicle and enter the
Boston-bound bus. Pappas noticed that the man was wearing a blue
jacket and black hat. Pappas watched as the bus departed the bus
station without the man getting off of it.
Pappas relayed his observations to the Agents monitoring
the wiretap, who informed him that the man who boarded the bus
could be returning from Boston that same day with a load of drugs.
Around 10:05 p.m. that same night, the Agents intercepted a call
between Dastinot and Pierre Dubois ("Dubois"), a man who was
primarily located in Boston. Dubois told Dastinot that he had
dropped off a man at South Station, a bus and train terminal in
Boston. The Agents informed Pappas of this call, and that the
suspect could be on a bus destined for Portland. After reviewing
the schedule to see when the bus from Boston was scheduled to
arrive in Portland, Pappas drove to the Portland bus station to
conduct surveillance. He observed a bus arrive at the station
and, although he was not able to see the passengers disembarking
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from the bus itself, he was able to see the passengers as they
left the bus terminal. As he watched, Pappas saw the same man
whom he had seen in Lewiston exit the bus terminal and get into a
taxi. The man was wearing the same clothing that Pappas observed
him wearing earlier that day.
Pappas followed the taxi as it drove from the bus
station, onto I-295, and then northbound on I-95 towards Lewiston.
Because Pappas was not wearing a uniform and was driving an
unmarked cruiser, he asked Maine State Police Trooper Robert Cejka
("Cejka," or, collectively with Pappas and others, the
"Officers"), who was in uniform and was driving a marked police
cruiser, for assistance. Pappas had previously explained the
developing situation to Cejka, and had asked him to remain
stationed along the Maine Turnpike in case the man headed
northbound from Portland towards Lewiston. As he followed the
taxi, Pappas relayed the taxi's location to Cejka. Once the taxi
passed the location where Cejka was parked, Cejka followed the
vehicle for over ten miles, waiting for it to commit a traffic
violation.
2. The Stop
Shortly after midnight on March 22, 2014, Cejka observed
the taxi going 41 m.p.h. as it approached the Gray-New Gloucester
toll booth, where the speed limit drops from 65 or 70 m.p.h. to 35
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m.p.h. After the taxi drove through the toll booth, Cejka pulled
the taxi over. By this time, Cejka was aware that Pappas had
called Maine State Police Trooper Jerome Carr ("Carr"), a certified
dog handler, to help with the investigation. Pappas had asked
Carr to be ready to bring his drug-sniffing dog, Zarro, to help
investigate the suspected drug smuggling. Cejka informed the
driver that he had pulled the taxi over for exceeding the speed
limit. After requesting and receiving a driver's license from the
passenger, later identified as Appellant, Cejka discovered that
the license had been suspended. Appellant, who acknowledged being
aware of the license suspension, told Cejka that he had spent the
night in Portland and was now going to Lewiston.
Carr arrived at the scene approximately twenty minutes
later. Zarro sniffed intently along the car doors until he reached
the passenger-side front door, where Appellant was seated. Zarro
lifted himself up to the windowsill of the open passenger-side
window, put his nose directly on Appellant's jacket sleeve, and
then immediately sat down. According to both Carr and Cejka, drug
dogs are trained to sit when they detect the presence of narcotics.
Carr ordered the two occupants out of the taxi and asked Cejka to
pat-frisk Appellant. The pat-frisk revealed a bus ticket showing
that Appellant had gone from Boston to Portland only a few hours
earlier. Appellant was not able to explain why he had lied about
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his trip. Zarro continued to search the vehicle, leading to Carr's
discovery of a baseball-sized plastic bag underneath the passenger
seat. The bag was filled with 1,075 blue pills, later identified
as Oxycodone. Cejka arrested Appellant and booked him in the
Cumberland County Jail, where Appellant confessed that the
driver's license was not his, and that his real name was Pierre
Azor.
3. After the Stop
Two days later, while Appellant was no longer in custody,
law enforcement intercepted another call between Cash -- whom they
now identified as Appellant -- and Dastinot in which Appellant
thanked Dastinot for "bailing him out," and told Dastinot that
Appellant would repay him. In another call on March 31, 2014,
Appellant inquired whether Dastinot had "Molly," and the two
discussed drug sales and prices for "the blues." During the
following month, Appellant and Dastinot continued to set up sales
of drugs over the telephone, with Appellant often asking Dastinot
for "blues." On May 22, 2014, Agents executed an arrest warrant
at Appellant's residence and seized drugs, a cell phone with the
phone number matching Cash's, a heavily used scale, and
approximately $4,000.
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B. Procedural History
In a nine-count second superseding indictment, the
government charged twelve defendants, including Appellant,
Dastinot, Dmitry Gordon, and Buntrock, with crimes related to the
distribution of drugs in Lewiston between early 2012 and May 2014.
Appellant was charged only in Count Five of the second superseding
indictment, for possession with intent to distribute a substance
containing Oxycodone, and aiding and abetting the same, in
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Count One
charged Dastinot and four others with conspiracy to distribute and
possess with intent to distribute mixtures containing heroin,
cocaine base, and Oxycodone, in violation of 21 U.S.C. §§ 841(a)
(1), 846. Appellant was not named in this conspiracy charge.
Appellant filed a motion to suppress the evidence seized
as a result of the stop and search of the taxi. In addition,
Appellant filed a motion to sever and for relief from prejudicial
joinder. After hearings, the district court denied both motions
on March 23, 2015. On April 17, 2015, Appellant pled guilty while
reserving his right to appeal the denial of both motions.
Appellant's presentence investigation report ("PSR") contained a
guidelines sentencing range of forty-one to fifty-one months. At
the sentencing hearing, during which both Appellant and his
girlfriend gave statements, the district court adopted the
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guidelines range of the PSR, but concluded that a downward variance
was warranted. The sentencing judge sentenced him to a term of
imprisonment of thirty-six months, followed by thirty-six months
of supervised release. The district court told Appellant that it
considered his and his girlfriend's statements, the seriousness of
the offense, his history and characteristics, and "the need to
avoid . . . unwarranted disparities in sentencing between different
defendants," and concluded that a downward variance was warranted.
Judgment was entered on September 10, 2015. Appellant filed this
timely appeal.
II. ANALYSIS
A. Motion to Suppress
In his suppression motion and at the subsequent hearing,
Appellant argued that the stop in this case was pretextual, and
that the police possessed neither reasonable suspicion nor
probable cause to stop and search the taxi. Appellant reasoned
that the information that the police obtained prior to the stop
was insufficient to corroborate the information from the wiretap
and other sources, and that the police needed additional evidence
of Cash's identity before they could determine that the man that
they saw getting on to the bus was the same person that was on the
telephone calls. The district court found that the information
obtained via the wiretap, along with the personal observations of
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Pappas, amounted to probable cause to stop and search both
Appellant and the taxi. Further, the district court found that
the existence of probable cause to search was solidified by the
information that the police obtained as a result of the stop,
including the alert by the drug-sniffing dog.
On appeal, Appellant asks this court to find that the
district court's conclusion that the Officers had probable cause
to search the taxi was incorrect. Specifically, Appellant argues
that, at the time of the search, law enforcement's observations
were insufficient to corroborate the information gathered over the
wiretap, and therefore did not establish probable cause to stop
and search. The only corroboration that law enforcement had,
according to Appellant, was Pappas's observations of a man getting
out of a red truck belonging to someone who Pappas recognized as
part of an investigation, boarding a bus in Lewiston, and later
getting into a taxi in Portland that headed towards Lewiston. In
Appellant's view, the information from the wiretap was left largely
uncorroborated, and nothing about the information obtained by law
enforcement allowed them to identify the man on the bus as Cash.
When reviewing the district court's ruling on a motion
to suppress, we review its findings of fact for clear error and
its legal conclusions de novo. United States v. Ponzo, 853 F.3d
558, 572 (1st Cir. 2017). Additionally, we review its application
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of the law to the facts de novo. United States v. Dent, 867 F.3d
37, 40 (1st Cir. 2017). Appellant does not direct our attention
to any facts that he believes are clearly erroneous, nor do we
discern any after our review of the transcript.
A search of a vehicle does not violate the Fourth
Amendment's protections against unreasonable search and seizure
"if based on facts that would justify the issuance of a warrant,
even though a warrant has not actually been obtained." United
States v. Ross, 456 U.S. 798, 809 (1982). "Probable cause is a
fluid concept -- turning on the assessment of probabilities in
particular factual contexts." United States v. Martínez-Molina,
64 F.3d 719, 726 (1st Cir. 1995) (alteration omitted) (quoting
Illinois v. Gates, 462 U.S. 213, 232 (1983)). Police have probable
cause to search "where the known facts and circumstances are
sufficient to warrant a man of reasonable prudence in the belief
that contraband or evidence of a crime will be found." Ornelas
v. United States, 517 U.S. 690, 696 (1996).
We apply the "collective knowledge" principle when
reviewing the existence of probable cause. That is, we look to
the collective information known to the law enforcement officers
participating in the investigation rather than isolate the
information known by the individual arresting officer. See
Illinois v. Andreas, 463 U.S. 765, 772 n.5 (1983) ("[W]here law
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enforcement authorities are cooperating in an investigation, as
here, the knowledge of one is presumed shared by all." (emphasis
added)); United States v. Fiasconaro, 315 F.3d 28, 36 (1st Cir.
2002) (same). In the instant case, we agree with the district
court that the collective knowledge of law enforcement officers
involved in the investigation, viewed objectively, established
probable cause to stop the taxi, search Appellant's person, and
search the vehicle.
Armed with knowledge of the sex and likely race1 of the
suspect, the purpose of the trip, and a detailed and unique
itinerary, law enforcement sought to corroborate this information.
The intercepted phone calls revealed that Cash would be leaving
Lewiston on a bus bound for Boston at approximately 1:50 p.m.
Cash would return later that same night on a bus to Portland.
Before going to the bus station in Lewiston, Cash would meet
Dastinot, who would be accompanied by an "elderly," and would give
Cash a ride to the bus station. At the bus station, Pappas
witnessed Appellant, a black male, exit Buntrock's truck.
Buntrock is a woman in her sixties2 known to be associated with
1 While not necessarily determinative of his race, Cash and
Dastinot spoke to each other in Haitian Creole. It was thus
reasonable for the Officers to infer that Cash was likely of
Haitian descent.
2 This Court makes no suggestion as to the age at which one may
be considered "elderly." However, it was reasonable for the
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Dastinot. Pappas then witnessed the man get on to the Greyhound
bus headed to Boston just prior to the 1:50 p.m. departure, and
watched the bus depart without the man getting off. This
corroborated almost all of the information pertaining to Cash's
departure.
Later that same night, around 10:05 p.m., the Agents
intercepted another call between Dastinot and Dubois, who was
located in Boston, during which Dubois told Dastinot that he took
the man to South Station, corroborating the information gleaned
from the wiretap that Cash would be returning the same night.
Given this information, Pappas reviewed the schedule of buses
arriving in Portland from Boston that night and waited at the bus
terminal. Sure enough, Pappas witnessed the same man, wearing the
same clothes, exit the Portland bus terminal soon after the bus
from Boston was scheduled to arrive. Appellant's presence in both
of the exact places where Cash stated that he would be, especially
in light of the nature of the intercepted itinerary, provided
further corroboration that this man was indeed the same man as on
the telephone. The wiretap information was further corroborated
when Pappas witnessed Appellant get into a taxi, and then followed
Officers to infer that, in this situation, Buntrock was the
"elderly" to whom they heard Dastinot refer.
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that taxi as it headed for Lewiston, a trip that even Appellant
admits was unusual.
Appellant urges this Court to find that the district
court was "too quick to find corroboration for purposes of probable
cause," and that, "[w]hile it may have been possible to corroborate
the information intercepted from the wiretap, [law enforcement]
simply did not do the investigative work necessary." We are
unpersuaded. Rather, as noted above, the record shows that law
enforcement corroborated much of the information pertaining to
Cash's identity and itinerary that it gathered from the wiretap.
Given this level of corroboration, we find that law enforcement
had probable cause to stop and search Appellant and any vehicle in
which he was travelling.
Equally unavailing is Appellant's contention that the
timing of the stop, and the behavior of the Officers, indicate
that probable cause to search did not exist. Appellant contends
that Pappas did not act as if he had probable cause when he did
not detain Appellant at the Portland bus station, and did not
instruct Cejka to detain Appellant. On a similar note, Appellant
remarks that Cejka also did not act as if he had probable cause
because he did not immediately arrest Appellant, but instead waited
to arrest him until after Zarro arrived. Our case law makes clear
that law enforcement is not required to arrest a suspect
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immediately upon development of probable cause. United States v.
Winchenbach, 197 F.3d 548, 554 (1st Cir. 1999). Rather, "when
probable cause exists, the timing of an arrest is a matter that
the Constitution almost invariably leaves to police discretion."
Id. The officer's decision to obtain additional information to
bolster his probable cause determination after this legally
justified stop does not negate the probable cause that already
existed. See id. Pappas explained during the suppression hearing
that he did not immediately stop the taxi because he was working
in an unmarked capacity, and did not want to compromise the wiretap
and ongoing investigation. And, contrary to Appellant's assertion
that Pappas did not instruct Cejka to detain Appellant, Cejka's
testimony shows that Pappas did ask him to conduct a traffic stop
of the taxi. While the true purpose of the stop may have been to
further investigate a suspected drug offense, the officer's
reliance on a traffic offense to make the stop is irrelevant as
there was plenty of cause to conclude that a crime was in process.
See United States v. White, 804 F.3d 132, 138 (1st Cir. 2015)
("But, ultimately, neither the pretextual traffic stop nor the
canine sniff search undermine the basic finding that, at the time
that these events transpired, officers had adequate probable cause
to stop [the defendant's] vehicle and to search it for evidence of
drug dealing activity.").
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As the stop and subsequent search of the taxi were both
supported by probable cause, we affirm the district court's denial
of Appellant's motion to suppress.
B. Joinder and Motion to Sever
Appellant's appeal of the district court's denial of his
"motion to challenge joinder under Federal Rule of Criminal
Procedure 8 and request for relief from prejudicial joinder under
Federal Rule of Criminal Procedure 14" suffers the same fate. As
he did below, Appellant argues that: 1) the government did not
have a basis to join him in a single indictment with the other
defendants, and 2) he was "entitled to severance" based on the
prejudicial spillover effect of the overwhelming evidence against
the other defendants. The district court concluded that Count
Five was properly joined in a single indictment with Count One
because the evidence linked Appellant to at least two other
defendants, and that Appellant had not demonstrated that the
prejudice he faced was likely to create a miscarriage of justice.
We agree.
This Court reviews the joinder issue de novo and the
denial of a motion to sever for an abuse of discretion. Ponzo,
853 F.3d at 568. The distinction is as follows: Rule 8 of the
Federal Rules of Criminal Procedure governs joinder of offenses or
defendants, and is primarily an issue of law warranting de novo
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review; however, Rule 14, which governs relief from prejudicial
joinder, involves the application of a guiding standard to a set
of facts, rendering a higher degree of deference appropriate.
United States v. Meléndez, 301 F.3d 27, 35 (1st Cir. 2002). We
address each in turn.
1. Joinder
Rule 8(b) provides that
The indictment . . . may charge 2 or more defendants
if they are alleged to have participated in the same
act or transaction, or in the same series of acts or
transactions, constituting an offense or offenses.
The defendants may be charged in one or more counts
together or separately. All defendants need not be
charged in each count.
Fed. R. Crim. P. 8(b). The government can indict jointly based
on "what it reasonably anticipates being able to prove against the
defendants" at the time of indictment. United States v. Natanel,
938 F.2d 302, 306 (1st Cir. 1991). "In the ordinary case, a
rational basis for joinder of multiple counts should be discernible
from the face of the indictment." Id. Without a sufficient
connection between the defendants charged with the crimes in an
indictment, joinder is improper.
A strong preference exists for trying defendants
together when defendants have been properly joined. Zafiro v.
United States, 506 U.S. 534, 537 (1993). Joinder is warranted
under Rule 8(b) "as long as there is some common activity binding
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the objecting defendant with all the other indictees and that
common activity encompasses all the charged offenses." Natanel,
938 F.2d at 307. The burden of persuasion in a claim of misjoinder
rests with the defendant. Id. at 306; United States v. Luna, 585
F.2d 1, 4 (1st Cir. 1978). We will vacate a conviction only if
we find both misjoinder and actual prejudice. Ponzo, 853 F.3d at
568.
Appellant asserts that the intercepted telephone calls
do not reveal a connection between him and any of the other
defendants besides Dastinot. We are mindful that "mere similarity
of acts . . . cannot justify joinder." Natanel, 938 F.2d at 307.
In order for joinder to be proper, there must be some common
"mucilage" or activity between an objecting defendant and the other
indictees, such as participation in a common drug distribution
scheme. Id.; see also United States v. Porter, 821 F.2d 968, 972
(4th Cir. 1987). Joinder is proper, however, even when the
objecting defendant is only connected to one part of that scheme.
See Natanel, 938 F.2d at 307; see also Porter, 821 F.2d at 971.
Here, the Government correctly notes that the
allegations of Appellant's drug dealings were not confined in the
manner that Appellant contends. As described above, law
enforcement had learned and corroborated information through
intercepted telephone calls that Appellant was assisted during his
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voyage to Boston by Dubois, who pled guilty to Count One. Further,
Pappas witnessed Appellant getting out of co-defendant Buntrock's
truck at the Lewiston bus station just prior to getting on the bus
to Boston. In addition, during the intercepted telephone calls,
Appellant and Dastinot discussed the drug sales of "Jimmy," a
reference to co-defendant Dmitry Gordon. This evidence clearly
establishes Appellant's connections to individuals other than
Dastinot involved in this distribution conspiracy. While Appellant
claims that he had no role in the conspiracy to distribute cocaine
and heroin, the wiretap revealed Appellant speaking to Dastinot
about the possibility of obtaining these drugs alleged in Count
One, including "brown" (heroin) and "white stuff" (cocaine).
For support, Appellant points to the government's
decision not to charge him in the conspiracy count, claiming that
this highlights the lack of evidence to support joinder. But, the
government's decision not to charge Appellant as a co-conspirator
in Count One does not evidence misjoinder. While a conspiracy
charge may provide the required link to render joinder proper, a
particular defendant need not be charged with all crimes alleged
in an indictment for the criminal matters to be properly joined.
Natanel, 938 F.2d at 307; accord Pacelli v. United States, 588
F.2d 360, 367 (2d Cir. 1978) (holding that joinder is proper when
evidence exists of conspiratorial activity, even if the conspiracy
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is not charged in the indictment); United States v. Scott, 413
F.2d 932, 934-35 (7th Cir. 1969) ("[I]t is not necessary under
Rule 8(b) that all the defendants need to be charged in the same
count nor need the evidence [to] show that each defendant
participated in the same act or transaction."). Given that the
government alleged a sufficient connection between Appellant and
several of the co-defendants, as well as between Appellant and the
drugs charged in the conspiracy, we find that the district court
correctly concluded that Appellant was properly joined.
2. Severance
Even when a case is properly joined, Rule 14 allows a
court to sever counts or defendants for separate trials if that
joinder would prejudice a defendant. Fed. R. Crim. P. 14. When
joinder is proper, as it was here, a defendant must make a "'strong
showing of prejudice' likely to result from a joint trial." Luna,
585 F.2d at 4 (quoting Sagansky v. United States, 358 F.2d 195,
199 (1st Cir. 1963)); see also United States v. Richardson, 515
F.3d 74, 81 (1st Cir. 2008) ("We must affirm the district court's
denial of a motion to sever unless the defendant makes a strong,
and convincing, showing of prejudice." (internal citations
omitted)).
"Garden variety prejudice, however, will not, in and of
itself, warrant severance." Richardson, 515 F.3d at 81. A
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district court should only order severance "if there is a serious
risk that a joint trial would compromise a specific trial right of
one of the defendants, or prevent the jury from making a reliable
judgment about guilt or innocence." Zafiro, 506 U.S. at 539.
"Even where large amounts of testimony are irrelevant to one
defendant, or where one defendant's involvement in an overall
agreement is far less than the involvement of others, we have been
reluctant to secondguess severance denials." United States v.
Boylan, 898 F.2d 230, 246 (1st Cir. 1990). Our review is highly
deferential, affording discretion to the trial court and only
reversing for an abuse of that discretion. Luna, 585 F.2d at 4-
5.
As we have long noted, some level of prejudice is
inherent in trying two or more defendants together. King v. United
States, 355 F.2d 700, 704 (1st Cir. 1966). But, where the evidence
against a defendant might show a defendant's association with his
co-defendants even if he were tried alone, the argument for
prejudice becomes much weaker. Id. The "spillover effect,"
whereby evidence against co-defendants may inspire a "transference
of guilt from one [defendant] to another," rarely constitutes
sufficient prejudice to warrant severance. Kotteakos v. United
States, 328 U.S. 750, 774 (1946). But see United States v. Baker,
98 F.3d 330, 335 (8th Cir. 1996) (finding the risk of prejudice of
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a joint trial "too high" in light of an extremely serious and
sensational crime).
As the district court acknowledged, there can be no doubt
that here, given the number of defendants and charges, the risk of
prejudice from the spillover effect clearly existed. However,
this risk exists in every case involving co-defendants, and
Appellant has failed to show that the district court abused its
discretion in finding that this case lacked a heightened level of
prejudice. It is up to a defendant to show "prejudice so pervasive
that a miscarriage of justice looms." United States v. Trainor,
477 F.3d 24, 36 (1st Cir. 2007) (citation omitted). The district
court found that adequate safeguards, such as clear limiting
instructions to the jury, could successfully limit the spillover
effect, and Appellant has failed to explain why these safeguards
do not suffice. We discern no error in the district court's
conclusion that Appellant has failed to make the required showing.
C. Substantive Reasonableness
Finally, we address Appellant's claim that the sentence
imposed by the district court was substantively unreasonable.
Appellant received a sentence of imprisonment for thirty-six
months, below the guidelines sentencing range of forty-one to
fifty-one months, but argues that this sentence was significantly
longer than those of other co-defendants with similar criminal
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records who served in the same role within the criminal enterprise.
A reasonable sentence, which he argues would be eighteen months'
imprisonment, would have rectified this disparity.
When sentencing a criminal defendant, the district court
must consider a number of factors in order to "impose a sentence
[that is] sufficient, but not greater than necessary . . . ." 18
U.S.C. § 3553(a). These considerations include, inter alia, the
nature and circumstances of the crime, the history and
characteristics of the defendant, the sentencing guidelines, and
the need to avoid unwarranted sentencing disparities among
similarly situated defendants. Id. Reasonableness "is not a
static concept" as there exists a wide range of appropriately
reasonable sentences. United States v. Ubiles-Rosario, 867 F.3d
277, 294 (1st Cir. 2017). As a sentence that falls within the
guidelines range is presumed reasonable, Appellant faces an uphill
battle to convince the Court that his below-guidelines sentence
was substantively unreasonable. See United States v. Angiolillo,
864 F.3d 30, 35 (1st Cir. 2017) (citing Rita v. United States, 551
U.S. 338, 347 (2007)); see also United States v. Coombs, 857 F.3d
439, 452 (1st Cir. 2017).
When an objection to substantive reasonableness was not
raised below, as in the case before us, our standard of review is
unsettled. Coombs, 857 F.3d at 451. But, even under the more
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favorable standard of review to Appellant -- review for an abuse
of discretion, as opposed to plain error -- Appellant's claim
fails. See id. A sentence is substantively reasonable if,
couched in the § 3553 sentencing factors, it is supported by "a
plausible sentencing rationale and a defensible result." United
States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008). Both the
court's rationale and the result support the reasonableness of the
district court's downwardly-variant sentence in this case.
The record reflects that the sentencing judge carefully
and meticulously considered each of the sentencing factors in
crafting the appropriate sentence for Appellant, with a particular
emphasis on preventing unwarranted sentencing disparities. In
concluding that the guidelines range called for a prison sentence
greater than necessary, the court highlighted Appellant's age,
family, abusive upbringing, lack of prior opportunity to obtain
substance abuse treatment and vocational skills training, and
behavior between arraignment and sentencing. These factors, the
court concluded, suggested that, with the proper direction,
Appellant is capable of being rehabilitated. Weighing against
Appellant, as the court noted, was that his prior conviction, for
which he served a two-year term of imprisonment, did not provide
adequate incentive for him to change his behavior. The court
found it quite compelling that Appellant returned to dealing drugs
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for financial support upon release following his initial arrest in
this case. Articulating its intention to impress upon Appellant
that his behavior will no longer be tolerated, and to allow him to
obtain educational, vocational, and other correctional treatment,
the sentencing judge found the thirty-six month sentence to be
sufficient but not greater than necessary. The rationale that an
increasingly harsh sentence is appropriate to deter further
misdoings, while leaving available the opportunity for
rehabilitation, is clearly a plausible one. See Martin, 520 F.3d
at 96.
Further, the district court's careful balancing of the
sentencing factors surely achieved a defensible result. Not only
did the district court's consideration of the sentencing factors
result in a below-guidelines sentence, it also explicitly
accounted for the avoidance of unwarranted disparities. While
explaining the sentence to be imposed, the sentencing judge
explicitly addressed Appellant's argument:
I take very seriously the argument that was made with
respect to avoiding unwarranted disparities with
respect to sentence, particularly as pertains to other
defendants that are part of the indictment to which
Mr. Azor is subject in this case. And suffice it to
say that I have given careful consideration to that
and have of course sought to try and individualize
the sentence in this case, taking into account among
other things the prior conviction record and also the
individual circumstances of each defendant.
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While Appellant may not have liked the result of the court's
balancing, "[t]hat it did not weigh the factors as the appellant
would have liked does not undermine the plausibility of this
rationale." Coombs, 857 F.3d at 452. The district court achieved
a defensible and fair result well within the universe of reasonable
sentences for Appellant.

Outcome: Finding no discernible error in the district court's
denial of Appellant's motion to suppress and motion to sever, and
finding Appellant's sentence to be substantively reasonable, the
judgment and sentence of the district court are affirmed.

Affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: