U.S. v. Quintanilla

• Decision Date: 03 June 1994
• Docket Number: 93-2770,Nos. 93-2701,s. 93-2701
• Citation: 25 F.3d 694
• Parties: UNITED STATES of America, Appellee, v. Jose Santos QUINTANILLA, Appellant. UNITED STATES of America, Appellee, v. Juan Torres VELASQUEZ, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 694

25 F.3d 694

UNITED STATES of America, Appellee, v. Jose Santos QUINTANILLA, Appellant.

UNITED STATES of America, Appellee, v. Juan Torres VELASQUEZ, Appellant.

Nos. 93-2701, 93-2770.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 13, 1993.

Decided June 3, 1994.

Colia F. Ceisel, St. Paul, MN, argued, for Jose Santos Quintanilla.

Howard S. Carp, Minneapolis, MN, argued, for Juan Torres Velasquez.

Jeffrey S. Paulsen, Minneapolis, MN, argued (Francis X. Hermann and Jeffrey S. Paulsen, on the brief), for appellee.

Before WOLLMAN, Circuit Judge, HEANEY, Senior Circuit Judge, and LOKEN, Circuit Judge.

WOLLMAN, Circuit Judge.

Juan Torres Velasquez and Jose Santos Quintanilla appeal their convictions and sentences for possessing marijuana with the intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1), and for conspiring to distribute marijuana, in violation of 21 U.S.C. Secs. 841(b)(1)(B) and 846. Velasquez also appeals his conviction for carrying a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. Sec. 924(c)(1). We affirm the judgments of the district court. ¹

I.

Velasquez's and Quintanilla's convictions resulted from an undercover investigation involving an informant, Ysidro Mendez. In November 1991, acting pursuant to a tip, police officers stopped Mendez in St. Paul, Minnesota, as he was returning from a trip to collect money for drugs that he had distributed previously. When the police searched his car, they did not find any drugs, but they seized $7000 in cash, $3000 of which Mendez admitted was drug money. Mendez cooperated with the government and was not charged as a result of the stop.

After Mendez had agreed to cooperate, law enforcement authorities directed him to approach Velasquez and to inquire about obtaining marijuana for three fictitious Iowa buyers. Over a period of about one week in January 1992, Mendez negotiated with Velasquez for the sale of approximately 150 pounds of marijuana. Using equipment that the government had provided, Mendez recorded his telephone negotiations with Velasquez as well as one face-to-face meeting. During the negotiations, Velasquez identified Quintanilla, whom Velasquez and Mendez called "Santos," and Quintanilla's father as two of his marijuana suppliers. Velasquez indicated that he preferred to obtain marijuana from Quintanilla's father because Quintanilla charged higher prices and was careless at times. As the negotiations neared completion, Mendez went to Velasquez's residence to pick up a sample. At that time, Velasquez had in his possession ninety-six pounds of marijuana, none of which he had acquired from Quintanilla. Mendez took a 2.2 pound sample and left. Shortly thereafter, acting upon the authorities' instruction, Mendez telephoned Velasquez and reiterated that his buyers wanted 150 pounds, even if they had to pay a higher price. Mendez suggested that Velasquez get the balance from "Santos," and Velasquez agreed to do so the next day.

Upon completion of the telephone conversion, officers obtained search warrants for Velasquez's and Quintanilla's residences. At Velasquez's house, the officers seized ninety-one pounds of marijuana packaged for distribution, a semiautomatic .380 caliber pistol with a loaded clip but no bullet in the chamber, and two scales. They also seized a deposit slip with "Santos" and the telephone number of Quintanilla's residence written on the back as well as Velasquez's address book which listed Quintanilla's telephone number under the name "Santos." At Quintanilla's residence, the officers seized seventeen pounds of marijuana packaged for sale, a scale, and drug notes documenting the sale of 401 pounds of marijuana. According to the notes, on two prior occasions "Juan" had purchased from Quintanilla forty pounds of marijuana and twenty pounds of marijuana, respectively.

After a jury trial, both defendants were convicted. They now appeal.

II.

A. Search of Quintanilla's Residence

Quintanilla argues that the affidavit supporting the warrant application to search his residence contained deliberate or reckless misrepresentations. Without the misrepresentations, Quintanilla contends, the affidavit failed to establish probable cause to search his residence. See Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978).

We first must determine whether this issue has been properly preserved for appeal. Although Quintanilla filed a motion to suppress evidence, he argued only that the warrant application on its face failed to establish probable cause. Quintanilla did not argue to the district court prior to, during, or after trial that the affidavit contained misrepresentations. When evidence presented for the first time at trial might provide a basis for suppressing other evidence, the defendant must bring the new basis to the district court's attention to preserve the issue for appeal. United States v. Martin, 982 F.2d 1236, 1241 (8th Cir.1993); United States v. Longmire, 761 F.2d 411, 420-21 (7th Cir.1985). "An appellate court should not rely on evidence first produced at trial to reverse a pre-trial denial of a suppression motion not renewed at trial." United States v. Hicks, 978 F.2d 722, 724 (D.C.Cir.1992) (citing 4 Wayne R. LaFave, Search and Seizure Sec. 11.1. (b) (2d ed. 1987)). Assuming, as Quintanilla argues, that he did not become aware of the misrepresentations in the affidavit until Mendez testified, ² Quintanilla, nevertheless, could have brought the issue to the district court's attention during the trial or in a post-trial motion. Accordingly, because Quintanilla has not properly preserved the issue for appeal, we review for plain error.

Mendez called the individual about whom he provided information "Santos." Quintanilla argues, therefore, that the use of the name Jose Santos Quintanilla in the affidavit was a deliberate or reckless misrepresentation. Although Mendez testified that he had never met the person whom he called "Santos," he never stated or otherwise indicated that he did not know that "Santos" and Jose Santos Quintanilla were the same person. Accordingly, we find no plain error in the district court's failure to suppress evidence seized from Quintanilla's residence on the ground that the affidavit contained material misrepresentations.

Quintanilla also argues that the district court erred by denying his motion to suppress evidence seized from his residence because the affidavit, on its face, did not establish probable cause. We review a district court's ruling on a motion to suppress evidence for clear error. United States v. Wold, 979 F.2d 632, 634 (8th Cir.1992). The affidavit, which summarized the results of an eight-month investigation, established that Quintanilla was a distributor of marijuana and had a large quantity of marijuana in his possession at the time of the warrant application. This information was sufficient to establish a fair probability that contraband or other evidence of a crime would be found at his residence. See Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). Accordingly, the district court did not clearly err in denying Quintanilla's motion to suppress.

B. Brady Violations

Both defendants argue that they were denied due process because the government failed to disclose information in its possession that they could have used to impeach Mendez. The government argues that the defendants did not properly preserve the issue for appeal because they did not file a motion for a new trial based upon newly discovered evidence when they became aware of the violation. See Fed.R.Crim.Pro. 33. Because we conclude that the government's failure to disclose does not rise to constitutional error, however, we need not address the government's argument.

Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), requires the government to produce all material evidence, whether impeachment or exculpatory, Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972), in its possession that is favorable to the defendant. Evidence is material "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985).

In a pretrial letter to the defendants' attorneys, the government disclosed the following information: Mendez was convicted in 1975 for importing marijuana. Although he was paroled after serving a third of his five-year sentence, his parole was revoked and he served eighteen additional months in prison. No controlled substances were found in Mendez's vehicle when he was stopped in November 1991. Because Mendez cooperated, the government did not file any charges as a result of the stop. In January 1992, the government paid Mendez $2000 to relocate his family and $100 for expenses that he had incurred while cooperating with the government.

The defendants became aware that the government had failed to disclose evidence when they received the presentence investigation reports (PSRs). The PSRs, which were prepared using information obtained from the United States Attorney's files, included the following information: In 1991, Mendez was a major distributor of marijuana and cocaine in the Twin Cities area. While under surveillance by drug agents, Mendez had contact with members of a drug distribution organization. When Mendez's vehicle was stopped in November 1991, "[s]everal evidentiary items were seized, including $7,000 in United States currency."

Despite the government's failure to disclose the above information, substantial evidence of Mendez's drug trafficking history as well as the circumstances surrounding his decision to cooperate with the...