State of Maine v. Franklin F. Arbour Jr.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2016 ME 126
Docket: Ken-15-519
Argued: June 8, 2016
Decided: August 11, 2016

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

STATE OF MAINE

v.

FRANKLIN F. ARBOUR JR.

HUMPHREY, J.

[¶1] Franklin Arbour Jr. appeals from a judgment of conviction for

multiple drug offenses entered by the Superior Court (Kennebec County,

E. Walker, J.) following a jury trial. He contends that (1) the court erred by

denying his motion to suppress evidence seized pursuant to a search warrant;

(2) the court erred by denying his motion to suppress a statement he made to

a police officer before receiving Miranda warnings; and (3) the evidence of

drug quantity at trial was insufficient to support his conviction for aggravated

trafficking of heroin.1 We affirm the judgment.

1 We are unpersuaded by, and do not discuss further, Arbour’s claims that the evidence at trial

was otherwise insufficient to support his convictions, that the court erroneously instructed the jury,
and that he is entitled to a new trial due to prosecutorial misconduct.
2

I. BACKGROUND

A. Search Warrant

[¶2] On September 17, 2014, Augusta police sought a search warrant to

conduct a search at an apartment located at 58 River Street in Augusta. In the

affidavit accompanying the request for a search warrant, Detective Eric Dos

Santos offered the following facts. He had recently arrested John Howard on

outstanding warrants and for a probation violation. While Howard was

detained at the county jail on a probation violation hold, he agreed to provide

information regarding stolen tools found in his vehicle and other criminal

activity; the detective arranged to have the probation hold lifted and Howard

released. Howard told the detective that he had sold stolen tools for Arbour;

that Arbour sold stolen merchandise out of his residence on the top floor of

58 River Street; that Howard had made multiple trips for Arbour from the

apartment to sell or pawn stolen tools in Maine, New Hampshire, and

Massachusetts; and that he would receive gas money and heroin from Arbour

in exchange for selling the tools for him. Howard also told the detective that

he would buy heroin from Arbour for his own use, and that Arbour usually

had “a couple of bundles” of heroin—meaning at least twenty bags of heroin—

in his apartment at any given time. Howard also described an air compressor
 3

that he had seen at Arbour’s apartment on his most recent visit, which

Detective Dos Santos noted matched the description of a compressor that was

recently reported stolen in Augusta. Finally, Howard provided a hand-drawn

map of Arbour’s apartment and indicated that not only were there stolen tools

in the apartment, but there was also a marijuana grow operation in the

adjoining attic. The detective confirmed through a police database that

Howard had sold tools to pawn shops in Maine, New Hampshire, and

Massachusetts. The court (Augusta, E. Walker, J.) issued a search warrant

authorizing, inter alia, a search of the apartment and the seizure of heroin,

marijuana, other scheduled drugs, and tools.2

B. Execution of the Search Warrant and Arbour’s Arrest

[¶3] Viewed in the light most favorable to the jury’s verdict, the

evidence at trial establishes the following facts. State v. Robinson, 2016 ME 24,

¶ 2, 134 A.3d 828. On September 17, 2014, officers with the Augusta Police

Department and the Maine Drug Enforcement Agency executed the search

warrant at the top floor apartment at 58 River Street, which was known by

police to be the residence of Arbour and his girlfriend, Angie Sousa. When law

enforcement arrived to execute the warrant, Sousa was the only person

2 The attic was not specifically described in the warrant, but this issue was not raised before the

suppression court or on appeal.
4

present in the apartment. At some point, Arbour showed up at the apartment

without being contacted by law enforcement3 and spoke with Detective Jason

Cote, who was in the apartment’s entry area. Arbour told Cote to “go ahead

and arrest me now” and stated that his girlfriend, Sousa, “had nothing to do

with it.”4 Cote placed Arbour under arrest and notified Dos Santos, who was

searching the attic at the time. Both detectives transported Arbour to the

Augusta Police Department. At the police department and before receiving

Miranda warnings, Arbour made an incriminating statement, which was

recorded by an interview room camera.

[¶4] During the search, the police found 114 marijuana plants and

approximately twenty-five pounds of processed marijuana in the apartment

and the adjoining attic. In the only room being used as a bedroom, the police

found several items that would likely be used by a man, as well as a debit card

in Arbour’s name, in the nightstand on the left-hand side of the bed. In the

same area, the police also found a thermos, which contained, relevant to this

3 Evidence presented at the hearing on Arbour’s motion to suppress a statement he later made

at the police department established that the police allowed Sousa to leave the apartment before
Arbour showed up. Sousa was later arrested and charged with a drug offense.

4 At the hearing on Arbour’s motion to suppress his later statement, Cote testified that, without

prompting, Arbour told him to “go ahead and arrest me now” and stated, “[my] girlfriend had
nothing to do with this.”
 5

appeal, 1,252 packets of what the police believed to be heroin and a sandwich

bag containing what appeared to be cocaine base.5

C. Charges

[¶5] On November 14, 2014, a grand jury returned an eight-count

indictment charging Arbour with the following:

• Aggravated trafficking of scheduled drugs (heroin) (Class A),
17-A M.R.S. § 1105-A(1)(H) (2015);
• Aggravated trafficking of scheduled drugs (heroin) with a prior
conviction (Class A), 17-A M.R.S. § 1105-A(1)(B)(1) (2015);
• Aggravated trafficking of scheduled drugs (cocaine/cocaine
base) with a prior conviction (Class A), 17-A M.R.S.
§ 1105-A(1)(B)(1);
• Unlawful trafficking in scheduled drugs (cocaine/cocaine base)
(Class B), 17-A M.R.S. § 1103(1-A)(A) (2015);
• Unlawful trafficking in scheduled drugs (marijuana) (Class C),
17-A M.R.S. § 1103(1-A)(F) (2015);
• Aggravated cultivating of marijuana (Class B), 17-A M.R.S.
§ 1105-D(1)(A)(2) (2015);
• Unlawful possession of scheduled drugs (cocaine base)
(Class B), 17-A M.R.S. § 1107-A(1)(A)(2) (2014);6 and
• Unlawful possession of scheduled drugs (heroin) (Class C),
17-A M.R.S. § 1107-A(1)(B)(1) (2014).

Arbour pleaded not guilty to all charges at his arraignment on

November 25, 2014.

5 The thermos also contained approximately 11.7 grams of bk-MDEA (“bath salts”), and the

police found stolen tools throughout the apartment.

6 Subsections 1107-A(1)(A) and (B) have since been amended. See P.L. 2015, ch. 308, §§ 1, 2;

P.L. 2015, ch. 346, § 6 (effective Oct. 15, 2015).
6

D. Motion to Suppress Evidence Seized from Apartment

[¶6] Arbour moved to suppress all evidence seized from the apartment,

and he later filed a supplemental motion for a Franks hearing pertaining to the

search warrant affidavit. See Franks v. Delaware, 438 U.S. 154, 155-56 (1978).

A hearing was held on May 26, 2015, and the court (Kennebec County,

Murphy, J.) denied both motions.7 In its ruling, the court found that there was

a substantial basis for the finding of probable cause supporting the warrant

because (1) the information provided by Howard as related in the affidavit

was very specific; (2) Howard demonstrated a base of knowledge from his

criminal exploits with Arbour; (3) Howard’s credibility was supported by his

statements against penal interest regarding his use and possession of heroin;

and (4) his credibility was further bolstered by the corroborating information

regarding his selling of tools and his description of an air compressor in the

apartment.

7 The court denied the motion for a Franks hearing because it found that the search warrant was

supported by probable cause even without considering the statement in the affidavit that would
have been the subject of the Franks hearing. See State v. Torrey, 1998 ME 5, ¶ 4, 704 A.2d 397.
Arbour does not challenge this aspect of the court’s decision on this appeal.

 7

E. Motion to Suppress Statement at Police Department

[¶7] Arbour also moved to suppress a statement he made in the

interview room at the police department before receiving Miranda warnings.

On July 23, 2015, the court held a testimonial hearing on the motion.

Detectives Cote and Dos Santos testified, and the court watched the interview

room video. In an order dated July 24, 2015, the court (Augusta, Fowle, J.)

denied Arbour’s motion.

[¶8] The court found the following facts, which are supported by record

evidence. See State v. Lovett, 2015 ME 7, ¶ 3, 109 A.3d 1135. At some point

between the time when Arbour was arrested at the apartment and when he

made the statement in question at the police department, Dos Santos was

informed that Arbour had asked to be arrested upon his arrival at the

apartment. After Arbour was taken to the police department, he was put in an

interview room. He was alone in the room for approximately two minutes,

handcuffed behind his back. Detective Dos Santos entered the room and spent

less than two minutes “describing what had occurred that day,” including that

Sousa, Arbour’s girlfriend, had been arrested and charged with drug offenses.
8

Arbour then stated, “She had nothing to do with it. It’s all me.”8 At that point,

the detective instructed Arbour to not make any further statements, finished

explaining what had occurred that day, and then provided him with the

warnings required by Miranda v. Arizona, 384 U.S. 436 (1966). After Arbour

invoked his right to remain silent, the detective terminated the interaction.

[¶9] Based on its findings, the court concluded that Arbour was not

subjected to custodial interrogation at the time he made his incriminating

statement because “the actions of Detective Dos Santos in providing [Arbour]

with a summary of the evidence against him, and information as to the status

of Ms. Sousa, [does not] constitut[e] a statement reasonably likely to elicit an

incriminating response, nor was such a statement calculated to do so.”

F. Trial

[¶10] A two-day trial commenced on August 24, 2015. The jury viewed

the relevant portion of the interview room video. Arbour presented evidence

to suggest that he and Sousa were merely housesitting at the apartment for an

incarcerated friend, that multiple people had access to the apartment, and that

he was not responsible for the drugs. He moved for a judgment of acquittal

8 Although the court found that Arbour had stated, “She had nothing to do with it,” or “She had

nothing to do with this,” the video appears to show that Arbour actually said, “She had nothing to do
with any of it.” For accuracy, we use the latter version in the remainder of this opinion.
 9

based on insufficiency of the evidence at the close of the State’s case-in-chief

and again at the close of trial. The court (Kennebec County, E. Walker, J.)

denied both motions. Six counts went to the jury,9 and the jury returned

verdicts of guilty on all counts. Arbour moved for a judgment of acquittal or a

new trial, and the court denied the motion after a hearing on

October 14, 2015. The court sentenced Arbour to twenty-five years in jail on

Count 1, with all but eighteen years suspended, and four years’ probation,

with concurrent sentences on all other charges. Arbour timely appealed to us

from both the conviction and his sentence.10

II. DISCUSSION

A. Motion to Suppress Evidence Seized from Apartment

[¶11] Arbour first contends that the court erred by denying his motion

to suppress evidence because the affidavit in support of the search warrant

did not establish probable cause. Specifically, he argues that the affidavit

“fail[ed] to set forth sufficient information establishing [Howard]’s veracity or

reliability.”

9 Arbour stipulated to the prior conviction alleged in Counts 2 and 3 of the indictment. The

court, with agreement of the parties, consolidated Counts 1 and 2 of the indictment into a single
count and Counts 3 and 4 into a second count to submit to the jury.

10
The Sentence Review Panel denied Arbour’s request for leave to appeal his sentence on
December 17, 2015.
10

[¶12] We “review directly the finding of probable cause made by the

[judge] who issued the warrant, affording great deference to the issuing

[judge],” State v. Wright, 2006 ME 13, ¶ 8, 890 A.2d 703, and we “draw all

reasonable inferences from the affidavit to support the finding of probable

cause . . . limit[ing] our inquiry to whether there is a substantial basis for the

finding of probable cause under the totality of the circumstances test,” State v.

Estabrook, 2007 ME 130, ¶ 5, 932 A.2d 549. Pursuant to that test, “[p]robable

cause is established when, given all the circumstances set forth in the affidavit

before [the judge], including the veracity and basis of knowledge of persons

supplying hearsay information, there is a fair probability that contraband or

evidence of a crime will be found in a particular place.” State v. Rabon,

2007 ME 113, ¶ 22, 930 A.2d 268 (quotation marks omitted). “When a

warrant affidavit reports information provided by an informant . . . the

totality-of-the-circumstances approach permits a balanced assessment of the

relative weights of all the various indicia of reliability (and unreliability)

attending [the] informant’s tip.” Id. ¶ 23 (quotation marks omitted).

[¶13] An informant’s assertions, on their own, may establish probable

cause if the affidavit demonstrates the informant’s reliability or basis of

knowledge, such as firsthand observation of contraband or illegal activity. See
 11

id. ¶ 24; see also United States v. Taylor, 985 F.2d 3, 6 (1st Cir. 1993) (“[T]he

affidavit may disclose an adequate basis for evaluating the informant’s

veracity through the very specificity and detail with which it relates the

informant’s first-hand description of the place to be searched or the items to

be seized.”). In addition, an informant’s credibility is bolstered if the affidavit

contains statements against his or her penal interest, even if the informant is

from the “criminal milieu.” See Rabon, 2007 ME 113, ¶ 28, 930 A.2d 268

(quotation marks omitted); see also State v. Appleton, 297 A.2d 363, 369

(Me. 1972). Even without sufficient information about the informant, an

informant’s assertions can still support probable cause if the affidavit contains

“something more,” such as corroboration by outside sources. Rabon,

2007 ME 113, ¶¶ 29-30, 930 A.2d 268 (quotation marks omitted).

[¶14] In this case, the affidavit (1) provided detailed information about

the named informant, Howard, and explained how he had come to directly

observe contraband in the apartment; and (2) noted that Howard had

provided highly specific information, including a hand-drawn map of the

apartment. The affidavit also contained statements by Howard against his

penal interest. Furthermore, the police corroborated Howard’s assertions

that he had pawned or sold tools as he described and that he had observed a
12

possibly stolen air compressor in the apartment. In these ways, this case

differs from Rabon, in which we concluded that the affidavit provided

insufficient information about the informant and that the police had only

corroborated “readily available information” that did not “show that the

tipster has knowledge of concealed criminal activity,” 2007 ME 113, ¶ 34,

930 A.2d 268 (quotation marks omitted); unlike the informant in Rabon,

Howard provided “inside information” about criminal activity and contraband

in the apartment. See id. (quotation marks omitted).

[¶15] The fact that the affidavit contains information that Howard’s

criminal history involves convictions for crimes of dishonesty, and that the

police arranged for Howard to be released from incarceration on a probation

hold before he provided them with information, may be considered when

conducting the “balanced assessment” of the factors supporting or

undercutting the informant’s tip. See id. ¶ 23 (quotation marks omitted).

However, given the information in the affidavit unrelated to Howard,11 and

the deference that must be shown to the judge who issued the warrant, see

11 In addition to recounting the information provided by Howard, the affidavit stated that Dos

Santos had looked up Arbour’s criminal record and found that he had previously been convicted of
drug crimes and dealing in stolen property, among other offenses. “An affiant’s knowledge of the
target’s prior criminal activity or record clearly is material to the probable cause determination.”
United States v. Taylor, 985 F.2d 3, 6 (1st Cir. 1993); see also State v. Gallant, 531 A.2d 1282, 1284
(Me. 1987) (considering a target’s prior conviction for drug trafficking in assessing whether there
was probable cause for a search warrant).
 13

Wright, 2006 ME 13, ¶ 8, 890 A.2d 703, Howard’s criminal history and the

benefit he received from the police do not negate probable cause.

[¶16] We conclude that there was a substantial basis for the finding of

probable cause to issue the search warrant and that the suppression court did

not err by denying Arbour’s motion to suppress the evidence seized from the

apartment.12

B. Motion to Suppress Statement at Police Department

[¶17] Arbour next contends that the court erred by denying his motion

to suppress his statement that Sousa “had nothing to do with any of it, it’s all

me,” which he made to Dos Santos at the Augusta Police Department before

receiving Miranda warnings. He argues in part that he was subjected to

interrogation at the time he made the statement because the detective knew

that, by providing Arbour with information about the evidence against him

and the charges against Sousa, he was likely to elicit an incriminating

response based on the fact that Arbour had already made an incriminating

statement at the apartment.13

12 Because we conclude that there was a substantial basis for the finding of probable cause to

issue the search warrant, we do not consider the State’s alternative “good faith” argument.

13 Arbour does not directly argue that the detective was trying to play upon Arbour’s personal

relationship with Sousa. Arbour’s contention that the “highly custodial environment” of the
interview room should factor into our analysis in this case is not supported. See Rhode Island v.
14

[¶18] We review the court’s factual findings for clear error and “the

ultimate determination of whether the statement should be suppressed” de

novo. State v. Bragg, 2012 ME 102, ¶ 8, 48 A.3d 769 (quotation marks

omitted). The State concedes that Arbour was in custody at the time he made

the statement, and the basic facts are not in dispute. Therefore, we must only

consider whether the court erred by concluding that Arbour was not subject

to interrogation at the time he made the statement at issue.

[¶19] “A person subject to interrogation while in police custody must

first be given a Miranda warning, otherwise statements made in the course of

the interrogation will not be admissible against that person.” State v.

Holloway, 2000 ME 172, ¶ 13, 760 A.2d 223. Interrogation, in this context,

“refers not only to express questioning, but also to any words or actions on

the part of the police (other than those normally attendant to arrest and

custody) that the police should know are reasonably likely to elicit an

incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291,

301 (1980).14 “The test for determining whether a police officer’s statement is

Innis, 446 U.S. 291, 300 (1980) (“‘Interrogation,’ as conceptualized in the Miranda opinion, must
reflect a measure of compulsion above and beyond that inherent in custody itself.”).
14 Although Dos Santos testified at the suppression hearing that it is his practice to inform an

arrestee of the charges and evidence against him or her, his statements to Arbour likely were not
communications “normally attendant to arrest and custody,” which always fall outside the
definition of “interrogation” for purposes of Miranda, Innis, 446 U.S. at 301, such as “[b]rief, routine
 15

the functional equivalent of interrogation reasonably likely to elicit an

incriminating response is an objective one.” State v. Smith, 612 A.2d 231, 233

(Me. 1992). “Officers do not interrogate a suspect simply by hoping that he

will incriminate himself,” and ordinarily, there is no interrogation in the

absence of direct questioning unless the defendant is subjected to “compelling

influences [or] psychological ploys.” Arizona v. Mauro, 481 U.S. 520, 529

(1987). The overriding consideration “[i]n deciding whether particular police

conduct is interrogation [is] preventing government officials from using the

coercive nature of confinement to extract confessions that would not be given

in an unrestrained environment.” Id. at 529-30.

[¶20] We have specifically recognized that the “Innis definition of

interrogation is not so broad as to capture within Miranda’s reach all

declaratory statements by police officers concerning the nature of the charges

against the suspect and the evidence relating to those charges.” Bragg, 2012

ME 102, ¶ 16, 48 A.3d 769 (quotation marks omitted). In Bragg, after taking

an intoxilyzer test and being informed that her results were over the legal

limit, the defendant “responded [to the police officer] that she had thought

when she ordered the second margarita at dinner it was probably a bad idea.”

questions posed to a suspect during ‘booking’ procedures,” State v. Estes, 418 A.2d 1108, 1111 (Me.
1980) (alteration in original) (quotation marks omitted).
16

Id. ¶ 6. We concluded that the officer had merely provided “a matter-of-fact

communication of the evidence” and that this communication was not the

functional equivalent of interrogation. Id. ¶ 16 (quotation marks omitted).

Although we suggested that our conclusion was based to some extent on the

fact that the defendant was entitled to the intoxilyzer test information under

state law, we also cited with approval other cases reaching broader

conclusions. Id.

[¶21] For example, we cited Caputo v. Nelson, 455 F.3d 45, 50-51 (1st

Cir. 2006), in which the United States Court of Appeals for the First Circuit

determined that a police officer had not engaged in the functional equivalent

of interrogation by using the defendant’s phone in his presence “to relay

information about what the officers found at [the defendant]’s residence” to

other officers. Bragg, 2012 ME 102, ¶ 16, 48 A.3d 769. In discussing the

limits of Innis’s conception of “interrogation,” the Caputo court approvingly

cited Plazinich v. Lynaugh, 843 F.2d 836, 837, 839 (5th Cir. 1988), in which the

Fifth Circuit concluded that an officer did not interrogate a defendant by

informing him that his co-defendant had attempted suicide. Caputo, 455 F.3d

at 51. In Bragg, we also cited Easley v. Frey, 433 F.3d 969, 971, 974 (7th Cir.

2006), in which the Seventh Circuit held that an investigator had not
 17

“interrogated” a defendant when he told the defendant about evidence

implicating him in a prison murder and informed him that he could be subject

to the death penalty if convicted. Bragg, 2012 ME 102, ¶ 16, 48 A.3d 769. The

Easley court noted that there was no evidence that the investigator’s

statements were “anything more than a matter-of-fact communication of the

evidence against [the defendant] and the potential punishment he faced” and

stated, “[W]e do not believe that the provision of information, even if its

weight might move a suspect to speak, amounts to an impermissible

‘psychological ploy.’” Easley, 433 F.3d at 974 (quotation marks omitted).

[¶22] Taken together, our opinion in Bragg and the cases we cited

approvingly stand for the proposition that informing a person of the evidence

against him, and of a co-defendant’s status, does not constitute interrogation

in the absence of evidence that the person was subjected to “compelling

influences,” or that the communication was a “psychological ploy,” see Mauro,

481 U.S. at 529, to elicit an incriminating response. See Innis, 446 U.S. at 299

(describing “psychological ploys” as including positing the subject’s guilt,

minimizing the moral seriousness of the crime, and casting blame on the

victim or others). In this case, there is no evidence of compelling influences or

that the detective was engaging in a “psychological ploy” to elicit an
18

incriminating statement from Arbour. Rather, the evidence supports the

court’s findings that the detective could recall knowing only that Arbour had

previously asked to be arrested—not that he had previously made a statement

deflecting responsibility from Sousa; that the detective provided Arbour only

“with a brief summary as to what had occurred and what evidence had been

seized”; that Arbour “was not invited to or encouraged to respond”; that the

detective stopped Arbour from making any further statements; and that he

“quickly ended any communication” with Arbour once he invoked his Miranda

rights. We conclude that Arbour was not subject to interrogation at the time

he made his statement and therefore that the court did not err by denying his

motion to suppress.15

C. Heroin Quantity

[¶23] Finally, Arbour challenges the sufficiency of the evidence of drug

quantity supporting his conviction for aggravated trafficking of heroin.

Because Arbour stipulated to a prior drug conviction, the State had to prove

beyond a reasonable doubt that he intentionally or knowingly possessed

15 We note that “[a]ny knowledge the police may have had concerning the unusual susceptibility

of a defendant to a particular form of persuasion might be an important factor in determining
whether the police should have known that their words or actions were reasonably likely to elicit
an incriminating response from the suspect.” Innis, 446 U.S. at 302 n.8 (emphasis added).
However, it would be difficult to conclude that the detective was aware of any “unusual
susceptibility” of Arbour to incriminate himself merely based on the knowledge that Arbour had
asked to be arrested at the apartment.

 19

“6 grams or more or 270 or more individual bags, folds, packages, envelopes

or containers of any kind containing heroin.” 17-A M.R.S. § 1105-A(1)(H),

(1)(B)(1); see also 17-A M.R.S. § 1103(1-A) (2015) (providing that “a person is

guilty of unlawful trafficking in a scheduled drug if the person intentionally or

knowingly trafficks in what the person knows or believes to be a scheduled

drug, which is in fact a scheduled drug”); 17-A M.R.S. § 1101(17)(E) (2015)

(defining “traffick” to include “possess[ing] 2 grams or more of heroin or 90 or

more individual bags, folds, packages, envelopes or containers of any kind

containing heroin”).

[¶24] At trial, the State presented evidence that 1,252 packets seized

from the apartment had the characteristics of heroin packaging and that a

certified chemist confirmed that five randomly chosen packets contained

heroin. The chemist further testified he could make the “common sense

inference” that the other packets also contained heroin, even if he could not

make a “scientific inference” to that effect. We conclude that this evidence

was sufficient for the jury to find beyond a reasonable doubt that 270 or more

of the packets seized from the apartment contained heroin. See State v.

Barnard, 2001 ME 80, ¶ 12, 772 A.2d 852 (holding that even “[i]n the absence

of a chemical analysis, other direct and circumstantial evidence,” including
20

testimony by an experienced drug agent as to the appearance of substances

believed to be drugs, “can establish beyond a reasonable doubt the identity of

drugs”).

[¶25] Arbour’s suggestion that our recent decision in State v. Pinkham,

2016 ME 59, 137 A.3d 203, affects his conviction is incorrect. In Pinkham, we

vacated a heroin trafficking conviction where the defendant pleaded guilty to

trafficking “2 grams or more of heroin” but the State did not present evidence

sufficient to show that the defendant trafficked “pure” heroin in that amount.

Pinkham, 2016 ME 59, ¶¶ 3, 8, 23, 137 A.3d 203. In this case, by contrast,

Arbour was convicted of trafficking heroin in a quantity of “6 grams or more

or 270 or more individual bags, folds, packages, envelopes or containers of any

kind containing heroin.” Because the State was not required to prove that the

packets contained a certain amount of pure heroin, Pinkham does not apply.

See id. ¶ 15.

D. Conclusion

[¶26] For the foregoing reasons, we affirm the judgment.

The entry is:

Judgment affirmed.

 21

On the briefs:

Luann L. Calcagni, Esq., Augusta, for appellant Franklin F.
Arbour, Jr.

Janet T. Mills, Attorney General, and Katie Sibley, Asst. Atty.
Gen., Office of the Attorney General, Augusta, for appellee
State of Maine

At oral argument:

Luann L. Calcagni, Esq., for appellant Franklin F. Arbour, Jr.

Katie Sibley, Asst. Atty. Gen., for appellee State of Maine

Kennebec County Superior Court docket number CR-2014-958
FOR CLERK REFERENCE ONLY