Unpublished Disposition, 879 F.2d 866 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 879 F.2d 866 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.Frank QUIROGA, Defendant-Appellant.

No. 88-1380.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 29, 1989.Decided July 13, 1989.

Before TANG, REINHARDT and WIGGINS, Circuit Judges.


MEMORANDUM* 

After being convicted on various drug-related charges, Frank Quiroga appeals on two grounds. First, Quiroga argues that his Fourth Amendment rights were violated and that incriminating evidence must be suppressed because the search warrant was obtained improperly. Second, Quiroga complains that his Fifth Amendment Due Process rights were violated because the government relied on coerced testimony of co-conspirators. We affirm.

On October 8, 1987, Quiroga was named in a seven-count indictment along with three co-conspirators.1  Specifically, Quiroga was charged in Count One with conspiracy to distribute cocaine in violation of 21 U.S.C. § 841(a) (1) and 21 U.S.C. § 846; in Counts Two, Three, and Five of distribution of cocaine in violation of 21 U.S.C. § 841(a) (1); and in Count Seven of possession with the intent to distribute cocaine in violation of 21 U.S.C. § 841(a) (1). The alleged conspiracy covered the time period March 1986 to October 1987.

After a jury trial, Quiroga was convicted on all five counts of which he was charged. Quiroga was sentenced to seven years imprisonment and is presently serving this sentence.

On or about October 1, 1987, the government obtained a warrant to search the appellant's vehicle and his Las Vegas residence. The warrant permitted the government to search for cocaine, drug paraphernalia, and documents relating to drug transactions. As a result of the search, incriminating evidence was seized.

The warrant was supported by an affidavit executed by Drug Enforcement Administration ("DEA") agent Eugene Bustos. In asserting the existence of probable cause, Bustos alleged six separate incidents regarding cocaine transactions involving Frank Quiroga. The six incidents allegedly occurred between March 19, 1986 and September 30, 1987. Information from these incidents was obtained from undercover DEA agents and confidential informants.

On December 7, 1987, the appellant filed a motion to suppress in which he alleged that Bustos' affidavit contained either deliberate falsehoods or grossly negligent misrepresentations. The government responded by claiming that any errors in the affidavit were the result of simple negligence. After hearings on the motion, a magistrate recommended that the motion be denied because the affidavit established probable cause even if the disputed portions of the affidavit were deleted. On June 3, 1988, the district court entered an order adopting the magistrate's recommendations and denied the motion to suppress.

Although a magistrate's determination of probable cause is only reversed for clear error, United States v. McQuisten, 795 F.2d 858, 861 (9th Cir. 1986), we review de novo a district court's probable cause determination with a redacted affidavit. United States v. Dozier, 826 F.2d 866, 871 (1987), cert. denied, 109 S. Ct. 312 (1988).

The appellant now argues that under the authority of Franks v. Delaware, 438 U.S. 154 (1978), his conviction should be reversed. In Franks, the Supreme Court held that

where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false information is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

438 U.S. at 155-156.

So long as the affiant in good faith believes the information to be truthful, the warrant may show probable cause even if every fact in the affidavit is not correct. In this regard, the Supreme Court acknowledged that information "sometimes must be garnered hastily," Id. at 165, and that the rule of exclusion does not apply to instances where "police have been merely negligent in checking or recording the facts relevant to a probable cause determination." Id. at 170. "Allegations of negligence or innocent mistake are insufficient." Id. at 171; see also United States v. Smith, 588 F.2d 737, 740 (9th Cir. 1978) ("Omissions or misstatements resulting from good faith mistakes will not invalidate an affidavit which on its face establishes probable cause."), cert. denied, 440 U.S. 939 (1979).

The government admits that because of an incorrect identification during earlier stages of the investigation, investigators mistook Emilio Morgner for the appellant. Based upon the record now before us, we are unable to reach the question of whether these errors were deliberate or the result of reckless disregard for the truth, in which case the erroneous statements would have to be redacted under the authority of Franks. But even if the disputed parts of the affidavit are redacted, the remaining portions still indicate probable cause.

For example, in the affidavit, the following is asserted: Edwin Delgado made cocaine transactions with a DEA undercover agent on August 19 and September 1, 1987. After being arrested on October 1, 1987, Delgado named the appellant as his source for the cocaine, indicating that cocaine was in an envelope inside the appellant's vehicle. Delgado cooperated with the agents in attempting to catch the appellant selling the cocaine. However, the attempt was unsuccessful because the appellant became aware of the police surveillance and told Delgado that the deal was off. This information was corroborated by DEA agent Jim Mitchell who actually observed the envelope inside the appellant's vehicle.

With respect to the search of the vehicle, the allegations in the affidavit, particularly those relating to the events of October 1, 1987, the very day that the search warrant was executed, were sufficient for the magistrate to conclude that probable cause existed, that "there is a fair probability that contraband or evidence of a crime will be found in a particular place."2  Illinois v. Gates, 462 U.S. 213, 238 (1983). With respect to the search of the house, little or no incriminating evidence was obtained and any error in admitting such evidence was harmless.

Quiroga also argues that his Fifth Amendment due process rights were violated because the government relied on testimony of co-conspirators. The appellant asserts that if these witnesses "had not testified the way the Government wished, then their sentences would have been harsher." Appellant's Opening Brief at 15.

"It is well-established that a conviction in federal court may be based on the uncorroborated testimony of an accomplice, if the testimony is not 'incredible or unsubstantial on its face.' This is true even where the accomplice hopes to receive lenient treatment." Darden v. United States, 405 F.2d 1054 (9th Cir. 1969) (citations omitted); see also United States v. Lopez, 803 F.2d 969, 973 (9th Cir. 1986) (same), cert. denied, 481 U.S. 1030 (1987).

Especially since there are no allegations that the co-conspirators' testimony was in any way "incredible or unsubstantial on its face," and considering the fact that the appellant had the right of cross-examination, we find that the government's reliance on these witnesses did not deprive the appellant of due process.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

The three co-conspirators named in the indictment are Edwin Delgado, Juan Del Prado, and Emilio Morgner

 2

In addition, after redaction, the affidavit also alleges that the appellant negotiated a sale of 80.2 grams of cocaine to an undercover agent in March 1986