APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MAINE [Hon. D. Brock Hornby, U.S. District Judge]
Fairfield, with whom Fairfield & Associates, P.A. was on
brief, for appellant Merritt.
M. Latouf for appellant Artis.
T. Crane, Attorney, U.S. Department of Justice, Criminal
Division, Appellate Section, with whom Brian A. Benczkowski,
Assistant Attorney General, Matthew S. Miner, Deputy
Assistant Attorney General, Halsey B. Frank, United States
Attorney, and Julia M. Lipez, Assistant United States
Attorney, were on brief, for appellee.
Lynch, Selya, and Barron, Circuit Judges.
Cuwan Merritt and Michael Artis were each convicted of
possession with intent to distribute cocaine base. They
appeal the district court's denial of their motions to
suppress drugs found on each of them. The court denied the
motion on the basis that the police had probable cause to
stop an automobile in which the defendants were known to be
traveling with two confidential informants near Lewiston,
Maine. Merritt also challenges the district court's
ruling admitting co-conspirator statements under Federal
Rules of Evidence 801(d)(2)(E) and 403, and United States
v. Petrozziello, 548 F.2d 20 (1st Cir. 1977).
affirm the denial of the motions to suppress, the admission
of the evidence against Merritt, and their convictions.
the facts relevant to the present appeal primarily from the
district court's supportable findings in its ruling
following an evidentiary hearing on the motions to suppress.
Our review is "consistent with record support, with the
addition of undisputed facts drawn from the suppression
hearing." United States v. Hernandez-Mieses,
931 F.3d 134, 137 (1st Cir. 2019) (citing United States
v. Dancy, 640 F.3d 455, 458 (1st Cir. 2011)). We add
facts relevant only to Merritt's evidentiary challenge in
our discussion of that claim.
12, 2017, Drug Enforcement Administration ("DEA")
Task Force Agent David Madore received a phone call from Gary
Hesketh, a confidential informant, who was in Maine. Agent
Madore had worked with Hesketh since February 2017, and
Hesketh had provided reliable information that resulted in
drug arrests and convictions. Hesketh had a criminal history
involving illegal drug possession, among other things. Agent
Madore paid Hesketh for his help, but only after determining
that Hesketh's information aided a particular police
call, Hesketh told Agent Madore that a crack dealer had
called his cell phone from out of state and wanted a ride at
7:30 p.m. from Boston's South Station to Lewiston, Maine,
to bring a load of crack. Hesketh said he was not sure who
the caller was, but thought it might be Mayo, a black male
whom Hesketh had met once. Hesketh said that when he had
loaned his phone to his cousin, who had a drug addiction,
Mayo had called the cell phone, trying to reach Hesketh's
cousin. Agent Madore had seen Mayo through prior surveillance
and was aware that Mayo was a drug dealer who lived out of
state but sold drugs in Lewiston.
told Agent Madore that, before settling on needing a ride
from Boston, the caller had first told Hesketh that he might
need a ride from New York or New Hampshire, depending on
"how far they could get," but certainly from out of
state. Hesketh believed that these comments indicated that
the phone call and requested ride were related to drugs.
Hesketh also told Agent Madore that the caller told Hesketh
that he would "be hooked up" in exchange for the
ride, which Hesketh and Agent Madore reasonably understood to
mean that the caller would give Hesketh drugs.
more communications between Hesketh and Agent Madore by
phone, by text, and in person, and more phone calls between
Hesketh and the person who had called him, Hesketh agreed to
pick the caller up in Boston that same evening. Because
Hesketh did not have a driver's license, Agent Madore
arranged for Heidi Lemieux, another confidential informant,
to drive Hesketh to South Station to pick up the caller and
then return to Lewiston. Hesketh provided his ex-wife's
car for the trip.
and Lemieux left for Boston at 5:30 or 6:00 p.m. Agent Madore
was concerned for their safety and asked Hesketh to relay
information to Agent Madore by phone or text.
they arrived at South Station, Hesketh called Agent Madore to
say that the caller had informed him that he was running
late. Agent Madore told Hesketh that he and Lemieux could
choose either to ...