Académique Documents
Professionnel Documents
Culture Documents
Appellee,
v.
Defendants, Appellants.
Before
June 7, 2017
THOMPSON, Circuit Judge. Brothers Stanley and Joshua
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I. The Cast and Crew of the Conspiracy
operation worked: both Stanley and Willis paid runners who carried
pill and sold them to dealers for $19 each. Over time, the
respectively. Dealers sold the pills on the street for $30 a pop.
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The runners for the Gonsalves brothers--all friends,
first, they flew. Then they switched to driving after one of the
many as 8,000 or 9,000 per trip, and one reported that she once
While they were looking into the Willis operation, the FBI-led
task force (that also included ATF and IRS2 agents, Massachusetts
State Police, plus some Boston police officers to boot) found out
task force also learned that the Barnstable Police Department and
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a DEA-led Cape Cod Drug Task Force were already looking into the
But, the post-Willis era did not last long because by this point,
resupply; and since that was "the end of the money," the seizure
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violation of 18 U.S.C. 1956(h); (2) multiple counts of
1957.
items seized during the February 2012 traffic stop. The district
court denied the motion. For its part, the government moved in
That motion got denied, too. The Gonsalveses' trial finally got
During the trial, Joshua moved for a mistrial three times after
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Strategically, the brothers mounted a credibility
because some were addicted to drugs, some were "jilted" lovers who
wanted revenge, and many had taken the stand in exchange for lesser
were found guilty on all of the charges except the 924(c) count--
court, the jury found that two cars, a house, and the drug-deal
cash seized from Joshua and Shaw were all subject to forfeiture.
The jury also calculated that over five million dollars was
Stanley.
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sixty months for his gun conviction under 18 U.S.C. 924(c). The
parties and the judge, in the end, agreed that life wasn't called
unlawful monetary transactions, plus five years for the gun charge.
DISCUSSION
court should have suppressed the evidence seized the night of his
support his conviction, and (4) Stanley argues that the court
his motion to suppress all of the evidence seized the night of his
February 2012 arrest (the drugs, the money, and the digital scale).
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a) Background
police acted on a tip they received from CI-1. The informant who
enough oxycodone buyer that he or she knew when Joshua and Shaw's
police that Joshua and Shaw had put together enough money to buy
3We also note here that by the time CI-1 appeared on the
scene in 2011, the FBI-led task force investigating Willis had
already combined resources with the DEA-led task force and
Barnstable police. So on top of their newly-cultivated source,
the agents and officers investigating Joshua knew the brothers
were trafficking oxycodone from evidence gathered during the
Willis investigation, including wiretapped conversations and text
messages from Willis' phone seized after his May 2011 arrest.
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Doe 4." Both CI-1 and a second CI had previously told police that
said Joshua and Shaw would leave home around 4:30 that afternoon
They watched the trio park next to a white Infiniti, exit the car,
and enter the house where the Infiniti was parked. Police knew
from pulling over that same white Infiniti one month prior that
When Joshua, Shaw, and Tavares left some two hours later,
him over. When the officer who conducted the stop reported back
search the car. But if Joshua refused, the officer was instructed
to search the car anyway because the police had probable cause to
$6,253 cash wad in his pocket. It was too dark outside to search
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the car, so police called for a drug-sniffing dog. Overhearing
the talk about the arrival of a drug dog, Shaw pulled a bag of
pills from her bra and threw them into the woods. Seeing the toss,
seized during the search, claiming that the stop and search
then serving on the DEA's Cape Cod Drug Task Force and
testified at the hearing. Butler was not present at the stop and
the hearing, the court denied Joshua's motion. The court found
that CI-1's tip gave police reasonable suspicion that Joshua was
justified the stop, Joshua's frisk, and detaining the car and its
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occupants until the drug-sniffing dog could arrive. United States
police saw Shaw discard the drugs, officers had probable cause to
wrong. His theory goes like this: police had no right to ask him
to get out of the car to begin with (the officer told Joshua he
for a drug-sniffing dog, and if they hadn't done these things Shaw
never would have tossed the pills, and if she hadn't tossed the
pills police wouldn't have had cause to search the car or arrest
them. The government argues that the police had probable cause
based on CI-1's tip to stop the car and search its occupants, so
everything that followed was fair game. But even if not, the
government argues that the district court was right to find that
police had reasonable suspicion to stop the car, and that suspicion
ripened into probable cause to arrest everyone and search the car
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Polanco, 634 F.3d 39, 41-42 (1st Cir. 2011). Under this rubric we
with the government that the officers had probable cause to stop
Joshua and search the car, and so we affirm the district court's
580 (1991); accord United States v. Lopez, 380 F.3d 538, 543 (1st
2013)), cert. denied, 136 S. Ct. 908 (2016), and cert. denied sub
credibility." United States v. White, 804 F.3d 132, 136 (1st Cir.
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2015) (quoting Ramrez-Rivera, 800 F.3d at 27-28), cert. denied,
three times before the February 2012 search CI-1 had proven
Shaw's planned trip to the New Bedford area about three weeks
newest tip was probably reliable, too. See United States v. Tiem
Trinh, 665 F.3d 1, 10-11 (1st Cir. 2011); Ramrez-Rivera, 800 F.3d
4
Joshua suggests that the three-week time period that passed
after CI-1's last confirmed tip made the tip at issue here somehow
unreliable, or otherwise tarnished CI-1's record of reliability.
But he does not explain why that is so--and in light of the steps
we explain below that police took to confirm the tip before acting
on it, we do not think it is.
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Further, notwithstanding Joshua's unsubstantiated claim
Joshua and Shaw many times, so the CI knew when their supply was
low and when they needed to restock. See White, 804 F.3d at 137
Acushnet (CI-1 said they would be driving to the New Bedford area,
by CI-1). After the Cadillac parked, Joshua and Shaw got out of
the car (CI-1 said the two of them were making the trip).
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activity through the Willis investigation--including information
than CI-1 developed during and after the Willis investigation told
(and who told the officer who stopped Joshua that police already
and Joshua thinks that CI-1's tip was so inaccurate that it could
Vigeant, 176 F.3d 565, 573 n.9 (1st Cir. 1999). Specifically,
Joshua points out that (1) he drove to Acushnet, but CI-1 said he
was headed to New Bedford; (2) CI-1 didn't mention that Shaw's
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friend would be with Joshua and Shaw; and (3) police only found
280 pills, not the promised 2,000. But none of these facts
undermine our belief that police had probable cause to stop and
search the car that night. First, although the task force
Joshua was going to the "New Bedford area," and the district
it here. See Polanco, 634 F.3d at 41-42. Acushnet and New Bedford
the "New Bedford area" was accurate. The same goes for his second
for the ride--because the omission of the fact does not make CI-1's
circumstances, White, 804 F.3d at 136, and given the other factors
effectuate the search. See Lopez, 380 F.3d at 543. That means
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the mid-search discovery of a smaller-than-anticipated pill stash
does not change whether the officers had probable cause to begin
with.
cause to stop Joshua and search his car. We affirm the district
arguments and our analysis; but this time, we present the facts in
a) Background
5
He also says that the testimony of Katelyn Shaw should be
suppressed, the theory being: (1) police detained Joshua and Shaw
longer than necessary to dispel the reasonable suspicion police
had to pull them over to begin with (if they even had reasonable
suspicion), and (2) it was only because of this unlawfully-long
detention that Shaw lobbed her drugs and was eventually forced to
testify, so (3) her testimony is the fruit of her unlawful
detention. The government points out that Joshua did not raise
this argument to the district court, so it argues that the issue
is waived. We agree. See United States v. Santos Batista, 239
F.3d 16, 19 (1st Cir. 2001) ("Failure to raise suppression
arguments before trial 'shall constitute waiver thereof.'"
(quoting Fed. R. Crim. P. 12(f))).
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previously incarcerated. Before going into business with Willis,
the brothers were part of a burglary crew that got caught; the
their behalf while they were in jail. The government also wanted
being that the two trusted each other enough to strike their
illicit deal when Stanley got out of jail in 2009 because they
wanted to keep out any mention of past jail time, and pointed out
did it once, they probably did it again). Before trial began, the
district court ruled that witnesses could "talk about their prior
she had with Joshua about oxycodone, she said "[i]t was a
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conversation about Josh making money, since he just got out of
immediately struck the testimony and told the jury: "[y]ou can't
day of testimony.
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Third, on day ten, Crystal Flaherty (a cooperating ex-
girlfriend) was asked what Joshua said to her about his oxycodone
Gonsalveses'] side of the story yet, but I am just not sure it's
been prejudicial."6
that he resold pills he bought from Stanley, and who was arrested
6
Apparently, the district court judge did not give a final
ruling on this motion, nor was she asked to do so.
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prosecutor, rephrasing, continued saying, "[Stanley] is out in the
Alberico about how women wanted to "marry" him for just "one little
blue pill." The district court denied Stanley's later motion for
based on the fact that he committed crimes in the past, not on the
prosecutor's closing remark that Stanley was "out of jail" was the
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Joshua and Stanley was mitigated by the district court's prompt
b) Mistrial Analysis
Acosta, 773 F.3d 298, 306 (1st Cir. 2014) (improper testimony);
United States v. Gentles, 619 F.3d 75, 80-81 (1st Cir. 2010)
States v. Cresta, 825 F.2d 538, 549 (1st Cir. 1987). Second, if
United States v. Dunbar, 553 F.3d 48, 58 (1st Cir. 2009)). Those
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implemented only where the "taint" of the improper evidence is
find that the district court did not abuse its discretion in
i) Witness Statements
578 F.2d 888, 890 (1st Cir. 1978); see also Cresta, 825 F.2d at
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allowed, but extended comment is impermissible.") (citation
may not have registered with the jury at all: the district court
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margins, the potential for prejudice . . . can be satisfactorily
United States v. Freeman, 208 F.3d 332, 345 (1st Cir. 2000)
Van Anh, 523 F.3d 43, 54 (1st Cir. 2008) (quoting United States v.
Reiner, 500 F.3d 10, 16 (1st Cir. 2007)). Given the content and
the "extreme case" that would make Joshua and Stanley's case the
Joshua was freshly out of jail just before she explained her own
and distributing pills and picking up money all over Cape Cod.
how she helped her brother use cash to buy a Cadillac registered
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laundering). Flaherty, too, mentioned that Joshua was a "convicted
the defendants' briefs are silent on the point, we assume for the
to misconduct.
well that the trial's outcome was likely affected, thus warranting
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a new trial." Gentles, 619 F.3d at 81 (quoting United States v.
Azubike, 504 F.3d 30, 38 (1st Cir. 2007)). The comment was
his point by saying that Stanley was "in the community." The
district court quickly struck the offending remark, and later when
instructing the jury, cautioned them that the closing remarks were
not evidence and that the jury could not consider anything the
indeed it adds anything at all). The district court did not abuse
government did not present enough evidence for the jury to convict
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arguments in the light most favorable to the verdict, Rodrguez-
Soler, 773 F.3d at 289-290, followed by the arguments and our take.
a) Background
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being a jilted ex, Doran also had a drug problem while she was
brand of attack.)
the deals they got for testifying; and (2) the government did not
government disagrees.
b) Sufficiency Analysis
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the prosecution successfully proved the essential elements of the
crime." United States v. George, 841 F.3d 55, 61 (1st Cir. 2016)
(quoting United States v. Chiaradio, 684 F.3d 265, 281 (1st Cir.
2012)).
i) Witness Credibility
1161, 1174 n.4 (1st Cir. 1993). "We are not at liberty to question
820 F.3d 26, 31 (1st Cir. 2016), cert. denied, 137 S. Ct. 138
arguments to the jury, but the jury found him guilty nonetheless.
but does not explain how or why his case escapes our credibility
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Instead, it had to show three things, that Stanley (1) possessed
that they saw Stanley handle a rifle he pulled out from behind his
States v. Carlos Cruz, 352 F.3d 499, 509 (1st Cir. 2003) (testimony
possession).
evidence that Stanley possessed the gun "in furtherance of" his
Robinson, 473 F.3d 387, 399 (1st Cir. 2007) (quoting United States
v. Grace, 367 F.3d 29, 35 (1st Cir. 2004)). For instance, a gun
Carlos Cruz, 352 F.3d at 509 (quoting United States v. Garner, 338
F.3d 78, 81 (1st Cir. 2003)). That's what the government showed
here: Doran said Stanley kept the gun behind the couch where he
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said he had the rifle for protection in case someone tried to rob
him.
7
Stanley puzzlingly mentions that the jury was confused about
his guilt because it wrote "? Were any guns seized?" on the verdict
form. The government doesn't have to introduce the actual gun
into evidence to prove a 924(c) charge--indeed, the jury's note
doesn't relate to any element of the offense--so we do not see how
this point helps Stanley. In any case, we don't have to parse it
out any further because the argument is undeveloped, and
undeveloped arguments are waived. United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990).
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a) Background
The PSR calculated his total offense level as forty-six. The only
by $20 per pill (Stanley's average sale price when he sold thirty-
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probably is almost irrelevant as we go forward." Indeed, the
appropriate here."
both got twenty years in prison. When Stanley pointed out, "all
for the 924(c) charge, the court explained that Stanley was "the
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Stanley appeals his sentence, arguing that the district
his base offense level was too high. The government disagrees,
and contends that even if the court made some error in assessing
Stanley's drug quantity, the error did not affect his substantial
rights.
b) Analysis
means Stanley must show "(1) that an error occurred (2) which was
clear and obvious and which not only (3) affected the [his]
States v. Ros-Hernandez, 645 F.3d 456, 462 (1st Cir. 2011); accord
United States v. Goodhue, 486 F.3d 52, 55 (1st Cir. 2007). Under
8
The parties squabble over whether some of Stanley's fact-
specific drug-quantity-calculation arguments are waived. We give
him the benefit of the doubt and review them all for plain error.
See United States v. Kinsella, 622 F.3d 75, 86 (1st Cir. 2010)
(taking an analogous approach).
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that the error "affected [Stanley's] substantial rights."
must show "a reasonable likelihood 'that, but for the error, the
2016), cert. denied, 137 S. Ct. 620 (2017) (quoting United States
demonstrating that "the district court would have imposed the same
sentence even without the error." United States v. Reed, 830 F.3d
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explained that Stanley's alternative Guidelines calculation did
were needed, she explained that even if the Guidelines range "turns
statements show that the court would have imposed the same sentence
even under the correct range. That means that any error did not
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CONCLUSION
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