25 F.3d 694 (8th Cir. 1994), 93-2701, United States v. Quintanilla

Docket Nº:93-2701, 93-2770.
Citation:25 F.3d 694
Party Name:UNITED STATES of America, Appellee, v. Jose Santos QUINTANILLA, Appellant. UNITED STATES of America, Appellee, v. Juan Torres VELASQUEZ, Appellant.
Case Date:June 03, 1994
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 694

25 F.3d 694 (8th Cir. 1994)

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

June 3, 1994

Submitted Dec. 13, 1993.

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[Copyrighted Material Omitted]

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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.

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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.

  1. 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

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    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...

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