United States Court of Appeals For the First Circuit

No. 22-1947

UNITED STATES OF AMERICA,

Appellee,

v.

RONALD YOEL MARTE CARMONA, a/k/a Alberto Gonzalez Carmona, a/k/a Guy

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Kayatta, Selya, and Montecalvo, Circuit Judges.

Thomas J. Gleason and Gleason Law Offices, P.C. on brief for appellant. Joshua S. Levy, Acting United States Attorney, and Karen Eisenstadt, Assistant United States Attorney, on brief for appellee.

June 3, 2024 SELYA, Circuit Judge. Defendant-appellant Ronald Yoel

Marte Carmona was convicted on charges stemming from multiple

fentanyl sales. On appeal, he challenges the district court's

denial of his motions to suppress the fruits of a Terry stop. He

adds that the evidence supporting his six convictions was

insufficient. Concluding, as we do, that the Terry stop was

grounded in reasonable, articulable suspicion and that the

verdicts are supported by the record evidence, we affirm.

I

"We rehearse the relevant facts, recounting them 'in the

light most hospitable to the verdict, consistent with record

support.'" United States v. Concepcion-Guliam,

(1st Cir.) (quoting United States v. Tkhilaishvili,

(1st Cir. 2019)), cert. denied,

(2023). We then

lay out the travel of the case.

A

In early 2019, Travis Roy bought about 150 to 200 grams

of fentanyl every two to three days from a seller, whom he knew as

"Guy." Roy communicated with Guy by text message. Roy texted Guy

the type and quantity of drugs he wanted, and Guy texted him the

location in Lawrence or Methuen, Massachusetts at which he could

pick up the drugs and make payment. When Roy reported to that

location on the specified date, a runner would give him the drugs

- 2 - and take his payment. Roy never met with Guy. Nor did he know

Guy's actual name.

In May of that year, Roy became a confidential informant,

and law enforcement began an investigation to uncover Guy's

identity. New Hampshire State Trooper Sergeant Shane Larkin —

assigned to a Federal Bureau of Investigation (FBI) task force —

orchestrated several controlled buys between Roy and Guy. Before

each of the controlled buys, law enforcement agents met with Roy

to equip him with audio recording devices and provide him with the

money he needed to pay for the drugs. During each buy, the agents

conducted surveillance of the location where Roy would meet Guy's

runner. And after each buy, the agents met with Roy to retrieve

both the recording devices and the drugs obtained. Throughout the

investigation, Roy contacted Guy by text message to three different

phones.

The first controlled buy took place on May 21, 2019.

The day before, Roy texted Guy on Phone #1 to order twenty "sticks"

(about 200 grams) of fentanyl. On the day of the buy, Guy texted

Roy the address where he could meet Guy's runner to pick up the

fentanyl. The exchange between Roy and the runner took seconds.

Subsequent testing confirmed that the drugs consisted of 197.6

grams of fentanyl.

In early June, Guy texted Roy to inform Roy that he had

changed his phone number. The second controlled buy took place on

- 3 - July 10, 2019. The day before, Roy and Guy coordinated by text

messages to Phone #2 the purchase of another twenty sticks of

fentanyl. The exchange took place the next day: Roy and a runner

— who was later identified as Santo Andres Lara — met at a specified

location, the runner gave Roy the drugs, and Roy gave the runner

the payment.1 Subsequent testing confirmed that the drugs

consisted of 196.5 grams of fentanyl.

In July of 2019, law enforcement obtained a ping warrant

for Phone #2, which allowed them to obtain information from that

phone's service provider about that phone's location at regular

intervals. Location data revealed that Phone #2 was frequently at

a residential building (the Riverside residence) in Lawrence. The

data also revealed that Phone #2 was at another residential

building (the Alder residence) for a few hours each night. Based

on this information, the agents concluded that Guy resided at the

Riverside residence and maintained a stash house at the Alder

residence.

The third and fourth controlled buys took place on July

31, 2019 and August 6, 2019, respectively. The day before each

purchase, Roy texted Guy at Phone #2 to buy twenty sticks of

fentanyl. On the day of the exchange, Guy texted Roy from Phone

1Lara was arrested in October of 2019. He was subsequently indicted with the defendant and pleaded guilty to two counts related to the July 10 controlled buy.

- 4 - #2 to tell him where he should meet the runner. Once there, an

individual approached Roy's vehicle to give him the fentanyl and

retrieve the payment. Subsequent testing confirmed that the drugs

exchanged during the third purchase consisted of 194.4 grams of

fentanyl; the drugs exchanged during the fourth purchase consisted

of 197.3 grams of fentanyl.

On August 15, 2019, Braintree Police Sergeant Matthew

Heslam and another agent were surveilling the Riverside residence

when Sergeant Heslam received information — pursuant to the ping

warrant — that Phone #2 was at the residence. At about 6:00 PM,

the agents observed a taxicab arrive and the defendant (carrying

a cell phone) exited a rear-side door of the residence and climbed

into the taxicab. Suspecting that the defendant was Guy, Sergeant

Heslam stopped the taxicab, falsely claiming that the driver had

committed a traffic violation, in order to investigate the

defendant's identity. As a result of the stop, Sergeant Heslam

learned the defendant's name and that he lived at the third-floor

apartment in the Riverside residence. The defendant was not

arrested.

The fifth controlled buy took place on September 19,

2019. The objective for that buy, though, was to locate Guy's

stash house. For that reason, Sergeant Larkin planned a "double

deal." Roy requested his usual twenty sticks of fentanyl, and

upon receiving them, he requested an additional ten sticks of

- 5 - fentanyl (presumably to give law enforcement the opportunity to

follow the runner to the stash house). Although the runner

delivered the additional fentanyl that day, law enforcement was

unable to locate the stash house. Subsequent testing confirmed

that the drugs exchanged that day consisted of 297.3 grams of

fentanyl.

Less than one week later, Guy texted Roy to let Roy know

that he had changed his phone number. Law enforcement then

obtained a ping warrant for Phone #3. On October 3, 2019, Lawrence

Police Officer David Moynihan, Jr., received information that

Phone #3 was located at a multifamily home (the Butler residence)

in Lawrence, and he set up surveillance. At about 11:30 AM,

Officer Moynihan observed the defendant exit the house, hand

something to the driver of a vehicle that had pulled up in front

of the house, and return to the house. Because the house had two

floors and it was unknown which floor the defendant was on, two

uniformed agents were tasked with entering the house and

investigating which apartment the defendant was occupying.

Lawrence Police Officer Eduardo De La Cruz went up to

the second floor. When the defendant answered the door, Officer

De La Cruz told him that he was looking for a fictitious

individual. The defendant stated that the individual sought did

not live there. After Officer De La Cruz asked the defendant if

- 6 - he was sure, the defendant stated, "I'm the only person that lives

here. No one lives here. Only me."

On October 11, 2019, law enforcement agents executed a

search warrant of the second-floor apartment in the Butler

residence. The defendant was present at the time. In the one

furnished bedroom, the agents found $1,555 in cash, Phone #3, and

two jewelry receipts. One receipt identified the defendant as the

buyer and listed Phone #3 as his telephone number. The defendant

was arrested.

B

In due course, a federal grand jury sitting in the

District of Massachusetts returned a six-count indictment against

the defendant and Lara. As relevant here, the indictment charged

the defendant with one count of conspiracy to distribute and to

possess with intent to distribute 400 grams or more of fentanyl

(count one), see

, and five counts of distribution

and possession with intent to distribute forty grams or more of

fentanyl (counts two through six), see

. Each of

the distribution counts corresponded with a particular controlled

buy.

In May of 2020, the defendant moved to suppress the

fruits of the August 15 traffic stop, arguing that the stop was

unconstitutional because it was not supported by probable cause or

reasonable suspicion. In December of 2020, the defendant filed an

- 7 - amended motion to suppress not only the fruits of the traffic stop

but also the fruits of the October 11 search of the Butler

apartment. The government opposed both motions, and the court

heard argument on August 4, 2021. The court denied the defendant's

motions, finding that the agents possessed reasonable suspicion to

effectuate the August 15 stop.

The defendant's trial began on July 12, 2022. The

government presented testimony from Sergeant Larkin, Sergeant

Heslam, Officer Moynihan, Officer De La Cruz, Massachusetts State

Trooper Ryan Dolan, Roy, and Lara. It also introduced, among other

things, recordings of each of the sales, photographs of the

fentanyl, and an extraction report linking all three phones to the

same user. At the close of the government's case in chief, the

defendant moved for judgment of acquittal. See Fed. R. Crim. P.

29(a). The district court deferred decision. The defendant then

presented the testimony of FBI Agent Evan Kalaher in order to

highlight to the jury an inconsistency in Lara's testimony. At

the close of all the evidence, the defendant again moved for

judgment of acquittal, see

and the court again deferred

decision.

On July 18, 2022, the jury returned guilty verdicts on

all counts. Following the filing of the defendant's memorandum in

support of the motions for judgment of acquittal and the

government's opposition, the district court denied the motions.

- 8 - Although the court acknowledged that the government's case was

circumstantial, it observed that "the circumstances weave together

in a fashion that lea[ve] me fully satisfied that a reasonable

jury under these circumstances could reach the verdict that the

jury did in this case." The court subsequently imposed a sentence

of 120 months' imprisonment. This timely appeal ensued.

II

In this venue, the defendant challenges both the denial

of his motions to suppress and the denial of his motions for

judgment of acquittal. We address each challenge in turn.

A

We turn first to the district court's denial of the

defendant's motions to suppress the fruits of the August 15 traffic

stop. In examining the denial of a motion to suppress, "we

scrutinize the district court's factual findings for clear error

and evaluate its conclusions of law . . . de novo." United States

v. Ruidíaz,

(1st Cir. 2008).

In this case, the defendant argues that the district

court erred in denying his motions to suppress because the

"government failed to establish that law enforcement possessed

reasonable suspicion for the warrantless stop of [the] taxi." We

review this claim of error de novo. See United States v. Pontoo,

(1st Cir. 2011) (stating that "district court's

conclusions of law, including its ultimate conclusion as to whether

- 9 - the facts as found show reasonable suspicion, engender de novo

review"); see also United States v. Arnott,

(1st

Cir. 2014).

We begin with constitutional bedrock. The Fourth

Amendment's proscription against "unreasonable searches and

seizures," U.S. Const. amend. IV, "does not prohibit all searches

and seizures but, rather, only those that are unreasonable,"

Pontoo,

; see Terry v. Ohio,

(1968).

The Supreme Court has held that the Fourth Amendment "extend[s] to

brief investigatory stops of persons or vehicles that fall short

of traditional arrest." United States v. Arvizu,

(2002). All evidence seized in contravention of the Fourth

Amendment is subject to exclusion. See United States v. Camacho,

(1st Cir. 2011); see also Terry,

(explaining that exclusionary rule "has been recognized as a

principal mode of discouraging lawless police conduct").

To determine whether a brief investigatory stop — a Terry

stop — passes constitutional muster, we must first ascertain

whether the officer possessed "reasonable, articulable suspicion

of an individual's involvement in some criminal activity."

Ruidíaz,

. We then ascertain whether the "actions

undertaken pursuant to that stop [were] reasonably related in scope

to the stop itself 'unless the [officer had] a basis for expanding

[his] investigation.'"

at 28-29 (quoting United States v.

- 10 - Henderson,

(1st Cir. 2006)). The defendant here

does not challenge the scope of the stop. We thus limit our review

to ascertaining whether the Terry stop was supported by

"reasonable, articulable suspicion."

.

Reasonable suspicion is a "protean" concept, Arnott,

, and it demands that a reviewing court "look at the

'totality of the circumstances' of each case," Arvizu,

(quoting United States v. Cortez,

(1981)).

Reasonable suspicion "deals with degrees of likelihood, not with

certainties or near certainties." Arnott,

. But it

"requires more than a naked hunch." Id.; see United States v.

Arthur,

(1st Cir. 2014). In the last analysis, to

be deemed reasonable, the officer's suspicion of an individual's

involvement in criminal conduct must be "particularized and

objective." Cortez,

; see Arvizu,

.

In the instant case, it is undisputed that the agents

who stopped the defendant on August 15 knew the following facts

prior to the Terry stop:

• Guy — an unidentified fentanyl seller — coordinated

(by way of text message) fentanyl sales with Roy on

May 21, 2019 from Phone #1 and on July 10, 2019

from Phone #2.

- 11 - • Location data from a ping warrant of Phone #2 showed

that Phone #2 was frequently located at the

Riverside residence.

• On July 30, an agent surveilling the Riverside

residence observed the defendant there.

• On August 6, Guy coordinated (by way of text

message) another fentanyl sale with Roy from Phone

#2.

• On August 15 (the day of the stop), the agents

surveilling the Riverside residence — pursuant to

information that Phone #2 was there — observed the

defendant leaving the residence with a phone in his

hand and entering a taxi.

Considering the totality of these circumstances and

giving due weight to the inferences drawn by the agents, see

Ornelas v. United States,

(1996), we hold that

the agents who stopped the defendant possessed a reasonable,

articulable suspicion that the defendant was Guy — the unidentified

fentanyl seller. This suspicion was "particular, that is,

specific" to the defendant, United States v. Woodrum,

(1st Cir. 2000), and it was reasonable: "[a] reasonably prudent

police officer standing in [these agents'] shoes and knowing what

[they] knew would certainly have harbored such suspicion[]."

Pontoo,

; see Arthur,

.

- 12 - The defendant demurs, arguing that there was no evidence

that he "was involved in any criminal activity . . . on the date

the taxi was stopped." The case law is clear, though, that an

officer's reasonable, articulable suspicion of a defendant's

involvement in past criminal activity may ground a permissible

Terry stop. See United States v. McCarthy,

(1st

Cir. 1996) (citing United States v. Hensley,

(1985)). So it was here: the agents who stopped the defendant on

August 15 possessed reasonable, articulable suspicion that the

defendant had engaged in past criminal conduct and, thus, the Terry

stop was permissible.

That ends this aspect of the matter. Because the agents

who stopped the defendant on August 15 possessed a reasonable,

articulable suspicion that he was Guy and that he had engaged in

at least three fentanyl sales, the district court did not err in

denying the defendant's motions to suppress the fruits of that

stop.

B

We turn last to the district court's denial of the

defendant's motions for judgment of acquittal. We review the

denial of a defendant's timely motions for judgment of acquittal

de novo. See United States v. De La Cruz,

(1st Cir.

2016). "In the course of that review, we take the evidence, both

direct and circumstantial, in the light most hospitable to the

- 13 - government and draw all reasonable inferences in the government's

favor."

And we ask whether that evidence "enables a rational

factfinder to conclude beyond a reasonable doubt that the defendant

committed the charged crime[s]." United States v. Kilmartin,

(1st Cir. 2019) (quoting United States v. Gomez,

(1st Cir. 2001)); De La Cruz,

. In the

end, we "need not be convinced that the verdict is correct; [we]

need only be satisfied that the verdict is supported by the

record." Kilmartin,

.

To sustain a conviction under

(a)(1),

(b)(1)(B)(vi) in this case, the evidence present at trial must

have enabled the jury to conclude, beyond a reasonable doubt, that

the defendant knowingly or intentionally distributed or possessed

with the intent to distribute forty grams or more of a substance

containing fentanyl. In addition, to sustain a conviction under

in this case, the evidence adduced at trial must

have enabled the jury to conclude, beyond a reasonable doubt, both

that a conspiracy to distribute or to possess with an intent to

distribute fentanyl existed and "that the defendant knowingly and

willfully joined in that conspiracy." United States v. Ramos-

Baez,

(1st Cir. 2023) (quoting United States v.

Millán-Machuca,

, 19 (1st Cir. 2021)).

The defendant here challenges all six of his

convictions, that is, the five convictions under section 841 for

- 14 - five controlled buys and the one conviction under section 846 for

conspiracy. We examine each conviction below, grouping any that

are supported by overlapping evidence.

1. Count six. With respect to the conviction stemming

from the September 19, 2019, controlled buy coordinated through

Phone #3, the defendant argues that there was no evidence proving

that Phone #3 belonged to him. This is so, the defendant says,

because he was arrested in an unknown location in the Butler

apartment, it is unknown where exactly (in the only furnished

bedroom) Phone #3 was found, and the receipt linking the phone to

him proves at most that the defendant "may have possessed Phone #3

at an earlier time." This is more cry than wool.

At trial, the government put forth sufficient evidence

from which a reasonable factfinder could conclude that Phone #3

belonged to the defendant. For one thing, Officer De La Cruz

testified that — when he went to the second-floor apartment of the

Butler residence — the defendant "identified himself as Ronald

Carmona" and stated that he was "the only person" that lived there.

For another thing, Sergeant Heslam testified that when law

enforcement executed the search warrant in that apartment, the

defendant alone was home and only one bedroom was furnished. In

that bedroom, the officers retrieved Phone #3 and a jewelry receipt

identifying the defendant as the buyer and listing Phone #3 as his

phone number.

- 15 - Given all this evidence, a rational factfinder could

have found, beyond a reasonable doubt, that Phone #3 belonged to

the defendant and, thus, that the defendant was Guy — the fentanyl

seller who coordinated the September 19 controlled buy. Because

the verdict on this count is supported by the record, the evidence

was sufficient to convict the defendant on count six.

2. Counts two, four, and five. With respect to the

convictions stemming from the May 21, July 31, and August 6

controlled buys arranged through Phones #1 and #2, the defendant

argues that there was "no direct evidence" proving that he

possessed either phone. He points out that neither phone was

recovered and that the "mere fact" that Phone #3 was found in the

apartment where he was arrested is insufficient to establish that

he possessed Phones #1 and #2. We do not agree.

"Direct evidence . . . is not essential to ground a

conviction; circumstantial evidence alone may suffice."

Concepcion-Guliam,

. The circumstantial evidence

that the government adduced here was multifaceted and sufficient

to lead a rational factfinder to conclude, beyond a reasonable

doubt, that Phones #1 and #2 belonged to the defendant and, as

such, that the defendant was the fentanyl seller who coordinated

the three controlled buys by way of these phones.

At trial, the government proffered testimony from both

Sergeant Larkin and Roy that the controlled buy for May 21 was

- 16 - coordinated using Phone #1 and the buys for July 31 and August 6

were coordinated using Phone #2. The government also introduced

into evidence an extraction report linking those two phones to

Phone #3 and showing that all three phones were used by the same

individual.

There was more. The government introduced evidence of

surveillance observations and ping location data which placed the

defendant and Phone #2 at the same location on August 15. The

defendant's argument that the area that Sergeant Heslam surveilled

that day was "densely populated" is unavailing. Defense counsel

twice asked Sergeant Heslam — in cross-examination — whether he

agreed that the area surveilled "is a densely populated residential

area." Sergeant Heslam responded in the affirmative both times.

The jury thus knew that the area surveilled, indeed all of Lawrence

(as per Sergeant Heslam's own testimony), was densely populated.

And it was their "responsibility to weigh the evidence in its

totality, resolve contradictions in the facts, and gauge the

credibility of the witnesses." United States v. Didonna,

(1st Cir. 2017).

The defendant attempts to blunt the force of the evidence

by arguing that the government did not "prove that [he] possessed

the phones and used them on the dates of offense." But the evidence

proved precisely that — albeit through circumstantial evidence.

Sergeant Larkin's testimony, Roy's testimony, and the extraction

- 17 - report linked the three phones. Sergeant Heslam's testimony pinned

the defendant to Phone #2. Other testimony — namely, Officer

Moynihan's testimony, the recovery of Phone #3, and the jewelry

receipt — pinned the defendant to Phone #3. Based on this

evidence, a rational factfinder could conclude, beyond a

reasonable doubt, that the defendant possessed Phones #1 and #2 on

the dates in question and that the defendant was Guy, the

unidentified fentanyl seller.

3. Count three. With respect to the conviction stemming

from the July 10 controlled buy, the defendant argues that the

evidence is insufficient to ground his conviction on count three

because Lara's testimony is "deeply flawed." The defendant asserts

that Lara's testimony is "deeply flawed" due to inconsistent

statements he allegedly made about "core facts."

At trial, Lara testified that — on July 10 — the

defendant called him to meet the defendant outside a store. There,

the defendant (Lara stated) gave him fentanyl to deliver to a

buyer, Roy. After completing the sale, he — Lara testified — met

the defendant to give the defendant Roy's payment. Lara also

testified that prior to that, the defendant called him about six

times to pick up smaller quantities of fentanyl from another

individual (Gordo). However, on November 20, 2019, Lara met with

law enforcement agents to give a proffer, and there, he made no

- 18 - mention of Gordo. The defendant argues that this inconsistency

renders the totality of Lara's testimony "deeply flawed."

It is well-settled, though, that in examining a

sufficiency-of-the-evidence claim, an appellate court is to

refrain from making any credibility judgments. See United States

v. Chan,

(1st Cir. 2020); United States v. Negrón-

Sostre,

(1st Cir. 2015); United States v.

Sherman,

(1st Cir. 2008). We have stated that "a

defendant cannot win a sufficiency-of-the-evidence challenge by

claiming . . . the witnesses against him were not credible."

United States v. Maldonado-Peña,

(1st Cir. 2021).

"[I]t is not our prerogative to make independent assessments of

witness credibility. Rather, we must 'resolve[] all credibility

issues in favor of the verdict.'" United States v. Oliver,

(1st Cir. 2021) (second alteration in original)

(citation omitted) (quoting United States v. Andújar,

(1st Cir. 1995)).

Here, the alleged inconsistency did not relate to the

July 10 controlled buy. It related to fentanyl sales before July

10, and the jury was made aware of the contradiction. The jury

may have chosen either to disregard Lara's testimony entirely and

to rely only on the remainder of the evidence or to consider some

portions of Lara's testimony credible and to disregard

contradictory parts. There was no error in either approach:

- 19 - "credibility determinations are for the jury." United States v.

Alicea,

(1st Cir. 2000). And the "jury has the

prerogative to credit some parts of a witness's testimony and

disregard other potentially contradictory portions."

Considering the totality of the evidence as to count

three — that is, Sergeant Larkin's testimony, Roy's testimony,

Sergeant Heslam's testimony, the extraction report, and Lara's

testimony — we hold that the evidence presented at trial

established that a rational factfinder could conclude, beyond a

reasonable doubt, that the defendant was guilty of count three.

In other words, the record supports the jury's verdict as to count

three.

4. Count one. We turn last to the conspiracy conviction.

The defendant's principal argument here is that the government

failed to identify the runners and to prove, beyond a reasonable

doubt, that they possessed the intent both to agree to the

conspiracy and to commit the underlying crime. It is possible,

the defendant says, that the runners did not even know that they

were delivering drugs to Roy. Without proving the runners' intent,

the defendant continues, the government is unable to prove that

the defendant engaged in a conspiracy.

To begin, the government did not have to identify all

the runners in order to prove a conspiracy. See United States v.

Nason,

(1st Cir. 1993). "The essence of a

- 20 - conspiracy is the existence of the conspiracy agreement, not the

identity of those who agree."

To prove the existence of a

conspiracy agreement, the government may rely on inferences based

on the unidentified runners' actions. See United States v. Santos-

Soto,

(1st Cir. 2015).

In this case, the government adduced evidence that could

support a reasonable inference that the unidentified runners

possessed the requisite intent: the surreptitious nature of the

deliveries, the locations of the deliveries, the defendant's

willingness to pay for each delivery, the size, weight, and

packaging of the drugs, and the payment given in exchange for the

packages. Roy testified at trial that he picked up all the

fentanyl purchases in the Methuen, Lawrence area. He stated that

the exchanges were "quick handoff[s]" to ensure that "everybody

[gets] in and out safely" and that law enforcement (or residents

who may call the police) do not notice. In addition, several of

the exhibits introduced during Sergeant Larkin's testimony were

photographs of the drugs retrieved from the runners. The

photographs show small cylinders packed in clear plastic bags,

which Roy testified were "rock hard."

"[J]uries are not required to examine the evidence in

isolation, for 'individual pieces of evidence, insufficient in

themselves to prove a point, may in cumulation prove it. The sum

of an evidentiary presentation may well be greater than its

- 21 - constituent parts.'" United States v. Ortiz,

(1st Cir. 1992) (quoting Bourjaily v. United States,

(1987)). So it was here: the totality of the evidence

presented at trial established that a rational factfinder could

conclude, beyond a reasonable doubt, that the defendant was guilty

of conspiracy.

III

We need go no further. For the reasons elucidated above,

the district court's denial of the defendant's motions to suppress

and denial of his motions for judgment of acquittal are

Affirmed.

- 22 -