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United States v. Ackies

United States Court of Appeals, First Circuit

March 13, 2019

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]

          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.

          Before Lynch, Selya, and Boudin, Circuit Judges.

          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 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 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 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 107-41154th 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 107-41154th Street. Pappas observed a Nissan 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 107-41154th 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, 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 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).

         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]

         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 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.

         Apart from Carpenter, Ackies attempts to argue from the definition of a "tracking device" in ยง ...


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