768 F.2d 263 (8th Cir. 1985), 84-5137, United States v. Arenal

Docket Nº:84-5137 to 84-5140.
Citation:768 F.2d 263
Party Name:UNITED STATES of America, Appellee, v. Juan Cabada ARENAL, a/k/a David Omera, a/k/a Cansio, Appellant. UNITED STATES of America, Appellee, v. Pablo DIAZ, Appellant. UNITED STATES of America, Appellee, v. Rene CORDERO, Appellant. UNITED STATES of America, Appellee, v. Daniel Rogelio GONZALES, Appellant.
Case Date:July 18, 1985
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 263

768 F.2d 263 (8th Cir. 1985)

UNITED STATES of America, Appellee,

v.

Juan Cabada ARENAL, a/k/a David Omera, a/k/a Cansio, Appellant.

UNITED STATES of America, Appellee,

v.

Pablo DIAZ, Appellant.

UNITED STATES of America, Appellee,

v.

Rene CORDERO, Appellant.

UNITED STATES of America, Appellee,

v.

Daniel Rogelio GONZALES, Appellant.

Nos. 84-5137 to 84-5140.

United States Court of Appeals, Eighth Circuit

July 18, 1985

Submitted March 11, 1985.

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James R. Koby, LaCrosse, Wis., Scott F. Tilsen, Minneapolis, Minn., Mark W. Malzahn, Anoka, Minn., for appellant.

Daniel W. Schermer, Asst. U.S. Atty., Minneapolis, Minn., for appellee.

Before HEANEY, Circuit Judge, BRIGHT, Senior Circuit Judge, and ARNOLD, Circuit Judge.

BRIGHT, Senior Circuit Judge.

In these consolidated drug cases, Juan Cabada Arenal, Rene Pena Cordero, Pablo Diaz, and Daniel Rogelio Gonzales appeal from their convictions for violations of 21 U.S.C. Sec. 841(a)(1). Appellant Cordero was also convicted on one count of conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846. Arenal, Diaz, and Gonzales entered conditional guilty pleas under Fed.R.Crim.P. 11(a)(2), reserving the right to appeal from adverse rulings on pretrial motions for severance and for suppression of evidence. Cordero pleaded not guilty and was convicted following a jury trial. For reversal, Cordero contends that the district court 1 erred in (1) denying his motion for a bill of particulars, and (2) permitting certain improper expert testimony concerning the existence of a conspiracy. We reverse Cordero's conviction on the conspiracy count, and affirm the district court with respect to all other issues on appeal.

I. BACKGROUND.

On January 6, 1984, Sergeant Ronald Johnson of the Minneapolis Police Department obtained a warrant to search an apartment at 2640 Second Avenue South, Minneapolis, based on information supplied by a "confidential reliable informant." Johnson executed the warrant and found

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forty-seven grams of cocaine wrapped in packages and priced for sale. All of the cocaine was cut with Inositol. Appellant Cordero, who was in the apartment at the time of the search, was arrested for possession of cocaine.

On January 13 and 14, 1984, Sergeant Johnson obtained and executed four additional search warrants based on information supplied by the same "confidential reliable informant." 2 The searches resulted in the arrests of appellants Diaz, Gonzales, and Arenal for possession of cocaine. All of the cocaine seized from various locations was cut with Inositol.

A federal grand jury returned a twelve-count superseding indictment against the appellants and two other individuals, charging all six with conspiring to distribute cocaine in violation of 21 U.S.C. Sec. 846. The four appellants were also charged with substantive counts of distributing cocaine or possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1).

Diaz, Gonzales, and Arenal filed motions to suppress evidence seized in the searches and to sever trials. Following a pretrial hearing before a magistrate, the district court adopted the magistrate's report and recommendation and denied the motions. Thereafter, Diaz, Gonzales, and Arenal entered conditional guilty pleas pursuant to Fed.R.Crim.P. 11(a)(2), specifically reserving the right to appeal the district court's adverse determinations on their severance and suppression motions.

Cordero pleaded not guilty, and stood trial on three substantive counts of possession of cocaine with intent to distribute and one count of conspiracy. A jury convicted him on the conspiracy count and one of the substantive counts, and acquitted him on the remaining counts. This appeal followed.

II. DISCUSSION.

A. Arenal, Diaz, and Gonzales.

  1. Validity of the search warrants.

    Appellants first challenge the denial of their motions to suppress evidence seized in the searches, arguing that, because of alleged deficiencies in the warrants and supporting affidavits, police obtained the evidence in violation of their fourth amendment rights. According to appellants, the affidavits 3 failed to establish probable cause because they referred to information supplied by a "confidential reliable informant," but did not adequately demonstrate the informant's underlying reliability or the basis of his knowledge. Appellants also contend, among other things, that the affidavits lacked independent corroboration of the informant's allegations, and that alterations on the face of some of the documents invalidated the warrants.

    Under the standard established in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the task of a magistrate issuing a search warrant is to determine whether, in light of all the circumstances set forth in the affidavit, "there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed." Id. at 238-39, 103 S.Ct. at 2332 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)). Courts are to interpret affidavits in a nontechnical, common-sense fashion, and the magistrate's determination of probable cause is entitled to great deference. See, e.g., Gates, 462 U.S. at 236, 103 S.Ct. at 2331; United States v. Little, 735 F.2d 1049, 1055 (8th Cir.), modified on other grounds sub nom. United States v. Sager, 743 F.2d 1261 (8th Cir.1984), cert. denied,

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    --- U.S. ----, 105 S.Ct. 1196, 84 L.Ed.2d 341...

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