United States v. Marcos De La Torre
907 F.3d 581
| 8th Cir. | 2018Background
- De La Torre ran an auto-repair business in Omaha and was investigated for distributing methamphetamine; a traffic stop in Aug. 2014 yielded ~2 ounces of meth in a vehicle and cash on De La Torre and an associate, Ryan Slavicek. Slavicek later became a government informant.
- On July 1, 2015, surveillance of De La Torre’s shop observed Miguel Diaz‑Huizar enter empty‑handed and leave carrying a bag; officers stopped him and found ~3/4 lb meth in the container. A contemporaneous search of De La Torre’s home found nothing.
- Slavicek wore a recorder during a later meeting with De La Torre; the recording and cooperating witness Tammy Gall’s phone/texts were used at trial. Gall testified she bought meth from De La Torre and that De La Torre’s father acted as a runner.
- De La Torre was indicted on conspiracy (Count I), possession with intent (Count II), and distribution (Count IV). He moved to suppress the shop warrant, to dismiss under the Speedy Trial Act, and later moved for acquittal after conviction.
- The district court denied the suppression, found Speedy Trial Act compliance, admitted the recording with a limiting instruction and Gall’s text messages as coconspirator statements, and the jury convicted De La Torre on all counts. The Eighth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument (De La Torre) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Validity of search warrant for shop (motion to suppress) | Affidavit omitted failed house search and building shared with another business; connection between observed "cube" and brown bag is weak | Surveillance observed person leave shop with shaped item and was later found with meth and scale; supports fair probability evidence would be in shop | Warrant valid; suppression denial affirmed |
| Speedy Trial Act dismissal | Continuance to secure witness should not be excluded; trial delay violated 70‑day rule | Periods of excluded delay (pretrial motions, continuance for essential witness/ends of justice) apply; even without exclusion fewer than 70 non‑excludable days elapsed | Denial of dismissal affirmed; no Speedy Trial Act violation |
| Admissibility of Slavicek recording | Audio is poor; recording should be excluded under Trogdon and Rule 403 as misleading/prejudicial | Audible portions convey the gist; limiting instruction prevents hearsay misuse; De La Torre testified and could explain inaudible parts | Admission not an abuse of discretion; limiting instruction appropriate |
| Admissibility of Gall’s text messages | Texts are hearsay/unreliable; lack of forensic link to De La Torre | Gall was proven a coconspirator by independent evidence; texts were in furtherance of conspiracy and thus nonhearsay under Rule 801(d)(2)(E) | Text messages admissible; Rule 403 concerns go to weight not admissibility |
| Sufficiency of evidence (Rule 29) | Credibility issues and alternate innocent explanations (e.g., others could own drugs) make convictions unsupported | Jury credited cooperating witnesses and physical evidence; reasonable inferences support convictions | Sufficiency review defers to jury; convictions affirmed |
| Ineffective assistance of counsel (Franks challenge) | Counsel failed to timely seek Franks hearing to challenge warrant affidavit | No special circumstances to resolve ineffectiveness on direct appeal | Court declined to address ineffectiveness on direct appeal (dismissed without prejudice) |
Key Cases Cited
- Illinois v. Gates, 462 U.S. 213 (1983) (totality‑of‑the‑circumstances test for probable cause)
- United States v. Keele, 589 F.3d 940 (8th Cir. 2009) (deference to magistrate’s probable‑cause finding on review)
- United States v. Trogdon, 575 F.3d 762 (8th Cir. 2009) (standard for admitting partly inaudible audio tapes)
- United States v. Whitlow, 815 F.3d 430 (8th Cir. 2016) (requirements for admitting coconspirator statements under Rule 801(d)(2)(E))
- United States v. Muhammad, 819 F.3d 1056 (8th Cir.) (standard for sufficiency of evidence review)
- United States v. McAdory, 501 F.3d 868 (8th Cir. 2007) (when ineffective‑assistance claims may be considered on direct appeal)