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United States v. Merritt

United States Court of Appeals, First Circuit

December 19, 2019

CUWAN MERRITT; MICHAEL ARTIS, Defendants, Appellants.


          Amy L. Fairfield, with whom Fairfield & Associates, P.A. was on brief, for appellant Merritt.

          Gail M. Latouf for appellant Artis.

          Paul 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.

          Before Lynch, Selya, and Barron, Circuit Judges.


         Defendants 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).

         We affirm the denial of the motions to suppress, the admission of the evidence against Merritt, and their convictions.


         A. Facts

         We draw 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.

         On May 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 investigation.

         In that 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.

         Hesketh 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.

         After 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.

         Hesketh 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.

         When 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 ...

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