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United States v. Coombs

United States Court of Appeals, First Circuit

May 19, 2017

UNITED STATES OF AMERICA, Appellee,
v.
CHRISTOPHER COOMBS, Defendant, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. George Z. Singal, U.S. District Judge]

          James S. Hewes for appellant.

          Renée M. Bunker, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.

          Before Lynch, Selya and Kayatta, Circuit Judges.

          SELYA, Circuit Judge.

         Defendant-appellant Christopher Coombs strives to persuade us that the district court erred both in denying his multiple motions to suppress incriminating evidence and in fashioning his sentence. We are not convinced and, therefore, affirm.

         I. BACKGROUND

         We rehearse the facts as supportably found by the district court following an omnibus hearing on the appellant's several motions to suppress. See United States v. Gamache, 792 F.3d 194, 196 (1st Cir. 2015); United States v. Paneto, 661 F.3d 709, 711-12 (1st Cir. 2011).

         In the wake of his 2009 conviction on drug-trafficking charges, the appellant was sentenced to a fifteen-month term of immurement to be followed by a five-year term of supervised release. He served his prison sentence but, during his final six months under supervision, he again found himself on the wrong side of the law.

         In October of 2014, Customs and Border Protection (CBP) agents intercepted a package at John F. Kennedy International Airport in New York. An air waybill - a document completed by the sender that includes the package's origin, destination, and a description of its contents - accompanied the package. The air waybill indicated that the package was from "Marry" in Shanghai and was to be delivered at the appellant's residence in Westbrook, Maine. The contents were described as "[p]olycarbonate."

         Inspection of the contents revealed an amber-colored crystal (a rock-like substance). The agents conducted a chemical field test and received a reading that was positive for methylenedioxymethamphetamine (MDMA), commonly known as ecstasy. A second analysis, conducted in Portland, Maine, at a Department of Homeland Security (DHS) facility, detected alpha-pyrrolidinopentiophenone (alpha-PVP), a type of synthetic cathinone. Synthetic cathinones are colloquially known as bath salts.[1]

         On October 31, DHS agents and local police, in conjunction with the U.S. Postal Service, executed a controlled delivery of the package (with the contents safely removed) to the appellant at his Westbrook address.

         While the controlled delivery was underway, the officers sought an anticipatory search warrant for the appellant's residence. In support of probable cause, they represented, inter alia, that the substance in the package had tested positive for MDMA and alpha-PVP. A state magistrate issued the search warrant, with the caveat that it should be executed only if the appellant took the parcel inside his home.

         As matters turned out, the appellant accepted the parcel while standing outside the building, and the officers promptly took him to the ground. He was arrested on the spot and never brought the package into his home. The officers described the appellant's manner at the time of the detention as "nerved up" but cooperative. By the time that news of the warrant arrived at the scene, the appellant already had consented to a search of his residence and had signed a form to that effect.

         Following the appellant's arrest, officers transported him to the police station and read him his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 478-79 (1966). The appellant stated that he had ordered the package and some other shipments from China on behalf of a third party. When packages arrived, the appellant would deliver them to the requesting individual and would be paid for his trouble. The intercepted parcel, he said, represented the largest order that he had placed. When asked if alpha-PVP "sounded familiar, " he responded in the affirmative.

         During a search of the appellant's residence, officers seized a computer, a tablet, and five cell phones. Thereafter, the appellant - still in custody - exchanged telephone calls with his wife. A standard recording at the beginning of each call warned him that the conversations would be recorded and monitored. When his wife noted that the authorities had taken his electronic gear, he asked her to delete receipts from two e-mail accounts and supplied her with the passwords. In a subsequent conversation, the appellant sought to confirm that his wife had not only deleted the receipts but also had emptied the trash folders to "make sure they were deleted securely."

         In due course, the government sought and received warrants authorizing the search of the five cell phones found at the appellant's residence and the two e-mail accounts that he had mentioned to his wife. The search of the e-mails disclosed several exchanges between the appellant and overseas pharmaceutical companies, in which the appellant, in his own words, solicited "apvp (or similar products)." In addition, he made inquiries as to pricing and quantities and placed several orders.

         Subsequent to the issuance of the last of the warrants, the seized amber-colored crystal was subjected to more sophisticated laboratory testing. This testing was conducted at a Drug Enforcement Administration (DEA) laboratory. It revealed, for the first time, that the substance was alpha-pyrrolidinohexanophenone (alpha-PHP) rather than alpha-PVP. Although these substances were (and are) both regulated as controlled substances - illegal bath salts - the two have different chemical compositions.

         At the time of the appellant's offensive conduct, alpha-PVP was regulated pursuant to the Attorney General's authority to designate controlled substances temporarily, as needed, in order to "avoid imminent hazards to public safety."[2] 21 U.S.C. § 811(h); see Schedules of Controlled Substances: Temporary Placement of 10 Synthetic Cathinones Into Schedule I, 79 Fed. Reg. 12, 938, 12, 938 (Mar. 7, 2014). On the other hand, alpha-PHP was (and is) regulated as a controlled substance analogue, meaning that it is "substantially similar" to a controlled substance, 21 U.S.C. § 802(32)(A), and thus may be regulated as such if intended for human consumption, see id. § 813; see also McFadden v. United States, 135 S.Ct. 2298, 2302 (2015) (explicating relevant statutory scheme).

         On January 15, 2015, a federal grand jury sitting in the District of Maine handed up a two-count indictment against the appellant. Count one charged possession with intent to distribute alpha-PHP, a schedule I controlled substance analogue. See 21 U.S.C. §§ 802(32)(A), 813, 841(a)(1). Count two, which focused on the appellant's instructions to his wife to delete certain emails, charged obstruction of justice. See 18 U.S.C. § 1512(b)(2)(B).

         The appellant maintained his innocence and filed five separate motions to suppress. Following an omnibus hearing, the district court - ruling in an electronic order - deemed the first suppression motion moot[3] and denied the four remaining motions. The appellant thereafter entered a conditional guilty plea to counts one and two, see Fed. R. Crim. P. 11(a)(2), reserving the right to appeal the denial of his quartet of motions to suppress.

         Without objection, the district court calculated the appellant's guideline sentencing range as fifty-seven to seventy-one months. The court then sentenced the appellant to a concurrent five-year incarcerative term on each count of conviction, to be followed by five years of supervision. At the same time, the court dealt with the appellant's admitted violation of his earlier supervised release and imposed a 366-day incarcerative sentence for that violation. The court decreed that the revocation-of- supervised-release sentence would run consecutively to the concurrent sentences imposed with respect to the offenses of conviction.

         The appellant moved to modify the judgment. Pertinently, he sought to reduce his new term of supervision from five years to three years. The court granted this entreaty in part, reducing the supervised release term for count two to three years (the statutory maximum for that count, see 18 U.S.C. §§ 3559(a)(3), 3583(b)(2)). This timely appeal followed.

         II. ...


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