United States v. Bodnar

37 F.4th 833

UNITED STATES of America, Appellee,

v.Scott BODNAR, aka Pep, Terrell Givens, Donald Burns, Defendants,Robert Capelli, Defendant-Appellant.

No. 19-4362-cr

August Term 2021

United States Court of Appeals, Second Circuit.

Argued: September 1, 2021

Decided: June 21, 2022

Rahul Kale (Marc H. Silverman, on the brief), Assistant United States Attorneys, for Leonard C. Boyle, Acting United States Attorney for the District of Connecticut, New Haven, CT, for Appellee the United States of America.

Tina Schneider, Portland, ME, for Defendant-Appellant Robert Capelli.

Before: Walker, Calabresi, and Menashi, Circuit Judges.

John M. Walker, Jr., Circuit Judge:

Robert Capelli was convicted of possessing marijuana with intent to distribute, and of conspiracy to distribute and possess with intent to distribute, 100 kilograms or more of marijuana following a jury trial in the United States District Court for the District of Connecticut. On appeal, he claims that (1) the district court (Janet Bond Arterton, J. ) erred in denying his motion to suppress marijuana that was obtained during a warrantless search of a private single-engine airplane; (2) the government improperly bolstered the testimony of its cooperating witnesses at trial; and (3) he received ineffective assistance of counsel at sentencing. We hold that the vehicle exception to the Fourth Amendment's warrant requirement applies to the search of the private aircraft used to transport Capelli's marijuana and that there was probable cause to search the plane. There is no merit to Capelli's remaining challenges. Accordingly, we AFFIRM the denial of the motion to suppress, the judgment of conviction, and the sentence.

BACKGROUND

The following background is taken from the undisputed facts in Capelli's motion to suppress, as well as from the evidence introduced at trial.

The Charged Conduct

Beginning in 2013, Capelli, together with co-defendants Scott Bodnar and Terrell Givens, transported bulk quantities of marijuana from California to Connecticut. At first, the three flew on commercial flights to California, purchased marijuana there, and mailed the drugs in packages back to Connecticut for distribution. They began by mailing five-pound packages and later increased the weight of the shipments ten-fold.

As their operation grew, their transportation scheme evolved. They enlisted a pilot, Donald Burns, to fly a Piper single-engine propeller airplane between the coasts and carry purchase money on the outbound flight to California and marijuana on the return. The marijuana was packaged in vacuum-sealed bags stored in black duffle bags. Capelli coordinated the flights with Burns and managed the finances of the operation. He tracked the marijuana shipments and enterprise profits on detailed spreadsheets saved on a thumb drive.

With Burns transporting the cash and marijuana on the plane, Capelli, Bodnar, and Givens continued to make round trips to California on commercial flights to purchase the marijuana. When Burns returned to Connecticut with a marijuana shipment, he would deliver it to Capelli and his two associates at a pre-arranged location where they would prepare the marijuana for distribution.

In 2016, Steven Hobart joined the scheme. Hobart knew marijuana suppliers and arranged for lodging for Capelli and the others when they visited California. Hobart also paid Capelli to transport Hobart's own cash and marijuana on Burns's plane.

The June 29, 2017 Search

The frequency and timing of Burns's flights and his unusual flight path caught the attention of the Federal Aviation Administration ("FAA"). Two single-engine Piper 32 aircrafts registered to Burns made at least 15 round trips to the same area in Northern California between 2015 and 2017. Instead of flying directly, Burns flew along the southern border of the United States, adding hundreds of miles and significant costs to each trip. Burns routinely returned to Connecticut shortly after arriving in California. Moreover, flying cross-country in a single-engine plane costs considerably more than commercial air-travel. After determining that Burns was living in Connecticut, where both aircrafts were registered, the FAA alerted the Drug Enforcement Administration ("DEA") that it was monitoring Burns's travel.

On June 29, 2017, after tracking one of Burns's cross-country flights, DEA agents and local police met Burns at the airport in Stratford, Connecticut as he was climbing out of the plane. Agent Carlos Penagos confirmed Burns's identity, identified himself as a member of the DEA, and explained that he "was there to conduct a ramp check."¹ During a ramp check, a pilot must produce his credentials and other documents for inspection. The FAA has delegated the authority to conduct ramp checks to "[f]ederal, [s]tate, [and] local law enforcement."² A ramp check ensures compliance with FAA regulations and does not require even suspicion of an antecedent violation for law enforcement to conduct one.³

Burns asked Agent Penagos whether he needed a warrant to conduct the ramp check. The agent responded, correctly, that he did not. During this encounter, Agent Penagos observed that Burns was "evading," "expressing nervousness," and unable to sustain eye contact.⁴

Additionally, according to the DEA report of investigation, when Agent Penagos asked Burns whether there were firearms or anything illegal on board, Burns answered that there might be "some marijuana."⁵ The report further detailed that Agent Penagos then informed Burns of his Miranda⁶ rights, Burns confirmed that he understood those rights, and Agent Penagos requested consent to search the plane. According to the report, Burns both verbally consented and signed a DEA Consent to Search form.

At some point after Agent Penagos's conversation with Burns had begun, a drug sniffing canine and handler from the Stratford Police Department approached the plane. During an exterior sweep of the plane, the dog alerted to the presence of narcotics. Significantly, the DEA agents and police officers did not search the airplane until after both the canine alert and Burns's signed consent.

As a result of the search, the agents and officers found 16 duffle bags containing approximately 400 pounds of marijuana in the interior of the plane. Burns told the agents that the drugs were to be delivered to Capelli. With Burns's cooperation, the agents arranged for a controlled delivery. At the agreed-upon location, the agents encountered Capelli, Bodnar, and a third person, Alex Maldonado. They arrested Capelli and Bodnar and recovered two cell phones and the thumb drive. Maldonado was not arrested.

The DEA later obtained a warrant to search Capelli's cell phones and the thumb drive. One phone contained records relating to the cross-country travel, including Capelli's communications with Burns. The search of the thumb drive revealed the spreadsheets detailing the finances of the operation, including the quantities, prices, and kinds of marijuana purchased, the distribution of the drugs among the members of the scheme, the expenses incurred on each trip, and the scheme's profits.

A grand jury returned a four-count superseding indictment charging Capelli with conspiracy to distribute and to possess with intent to distribute 1,000 kilograms or more of marijuana (Count 1), possession with intent to distribute 100 kilograms or more of marijuana (Count 2), conspiracy to commit money laundering (Count 3), and money laundering (Count 4). Before trial, Capelli unsuccessfully moved to suppress the marijuana recovered from the plane.

Conviction, Sentence, and Appeal

Capelli went to trial on all counts. The government's evidence included the seized marijuana; the spreadsheets from the thumb drive; text messages between Capelli and Burns; videos from Capelli's cell phones, in which he flaunted his wealth and discussed his trips to California; travel records for Capelli and his co-defendants; testimony from government agents, including Agent Penagos and an FAA agent; and testimony from Maldonado and Hobart, who had cooperation agreements with the government.

The jury convicted Capelli of a lesser-included offense within Count One, finding him guilty of conspiracy to distribute and possess with intent to distribute 100 kilograms or more of marijuana. The jury also found Capelli guilty of possession with intent to distribute the same amount, as charged in Count Two. The jury acquitted Capelli of money laundering and its related conspiracy, as charged in Counts Three and Four.

The district court sentenced Capelli to prison for 95 months on Counts One and Two (to run concurrently), followed by the mandatory minimum of four years of supervised release; imposed a fine of $30,000; and levied a $200 special assessment. Capelli timely appealed.

DISCUSSION

On appeal, Capelli challenges the denial of his motion to suppress; argues that, at trial, the government impermissibly bolstered the testimony of its cooperating witnesses; and claims that his counsel was ineffective for failing to request an offense level reduction at sentencing. None of these claims, which we discuss in order, has merit.

I. Suppression Under the Fourth Amendment Was Properly Denied

Before trial, Capelli moved to suppress the marijuana recovered from the plane. To support his motion to suppress, Capelli argued that the agents’ reason for conducting the ramp check was pretextual and that they had exceeded regulatory bounds in conducting it. Capelli also challenged the government's claim that Burns had validly consented to a search of the plane, arguing that any such agreement was the result of intimidation and thus invalid. Capelli did not dispute the drug sniffing dog's alert to the exterior of the plane.

The district court, upon oral argument but without an evidentiary hearing, denied the motion to suppress on the basis that Capelli lacked a reasonable expectation of privacy in the duffle bags. Accordingly, it did not reach the issue of whether the...