                     United States Court of Appeals
                               FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 09-2568
                                     ___________

United States of America,                 *
                                          *
       Plaintiff - Appellee,              *
                                          * Appeal from the United States
       v.                                 * District Court for the
                                          * Southern District of Iowa.
Rafael DeLazaro,                          *
                                          * [UNPUBLISHED]
       Defendant - Appellant.             *
                                     ___________

                                Submitted: January 14, 2010
                                    Filed: February 11, 2011
                                    ___________

Before LOKEN,1 Chief Judge, JOHN R. GIBSON,2 and WOLLMAN, Circuit Judges.
                               ___________

PER CURIAM.

        Rafael DeLazaro was convicted of one count of conspiring to distribute at least
five kilograms of cocaine. See 21 U.S.C. § § 846, 841(a)(1), and (b)(1)(A)(ii). He
appeals, contending that his conviction should be reversed because it was based on


       1
       The Honorable James B. Loken stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2010. He has been succeeded by the Honorable William Jay Riley.
       2
       The Honorable John R. Gibson retired January 26, 2011. This opinion is
consistent with his vote at the panel’s conference following oral argument on January
14, 2010.
evidence obtained on the basis of a constitutionally inadequate search warrant. He also
argues that there was insufficient evidence to sustain the conviction and that the district
court3 erred in admitting evidence of prior bad acts. We affirm.

        In the summer of 2007, law enforcement began investigating a cocaine
distribution ring in Ottumwa, Iowa. Law enforcement focused their investigation on
Bill Edwards and his brother, James, and two bars that Bill owned. The investigation
included the use of confidential informants, controlled buys, surveillance, and digital
recordings of some of the controlled buys. The investigation spanned a one-year
period and ultimately resulted in an application for search warrants for twelve
locations, including DeLazaro’s residence, and arrest warrants for DeLazaro and
nine others. All the defendants except DeLazaro pleaded guilty before trial and several
testified under plea agreements at DeLazaro’s trial. Following a three-day trial,
DeLazaro was convicted of conspiracy to distribute at least five kilograms of cocaine
and sentenced to 168 months’ imprisonment and five years of supervised release. He
now appeals the conviction.

                                            I.

        DeLazaro filed a motion to suppress evidence obtained from the July 18, 2008,
search of his home. He characterized the affidavit in support of the warrant as being
intentionally and recklessly false and misleading, warranting suppression under Franks
v. Delaware, 438 U.S. 154 (1978). Following a hearing, the district court denied the
motion, concluding that no Franks violation had occurred. United States v. DeLazaro,
No. 4:08-CR-99, slip op. at 5-8 (S.D. Iowa Jan. 9, 2009).




       3
      The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.

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       In support of his argument that the district court erred in denying the motion,
DeLazaro directs us to information supplied by two confidential informants, Adam
McKinney and Mario Gadberry, which he characterizes as false and misleading.
McKinney was a bouncer at the Dugout Bar, one of the bars owned by Bill Edwards,
who agreed to supply information and participate in controlled buys of cocaine for law
enforcement.

        The affidavit submitted in support of the application for the warrant was
prepared by a Drug Enforcement Administration special agent. It states that on May
13, 2008, DeLazaro met with McKinney at the Dugout Bar, where “DeLazaro said the
price for an ounce of cocaine would be one thousand dollars ($1,000) the next day if
[McKinney] was interested.” DeLazaro states that the recorded conversation of this
transaction does not corroborate this statement and in fact shows its falsity, as the
recorded conversation was between McKinney and two females. The affidavit also
states that on June 17, 2008, McKinney purchased approximately 30.7 grams of
cocaine from DeLazaro at his residence and that McKinney agreed to record this
transaction. DeLazaro points out that the recording of the transaction referred to in the
affidavit makes no mention of drugs or cocaine. DeLazaro argues that the
government’s failure to inform the magistrate judge that the recordings did not contain
any reference to drugs or cocaine constituted an intentional omission warranting
reversal. Finally, DeLazaro states that the special agent omitted the fact that one of the
confidential sources he named in the affidavit was the above-described Mario
Gadberry. Not only did law enforcement know that Gadberry had been dishonest in
providing information to law enforcement, the affidavit itself stated that Gadberry had
lied to law enforcement.

       When considering the denial of a motion to suppress, we review the factual
findings of the district court for clear error and its conclusions of law de novo. United
States v. Reinholz, 245 F.3d 765, 773 (8th Cir. 2001). A search warrant is
constitutionally inadequate when the affidavit which formed the basis for the

                                           -3-
determination of probable cause contains “false or omitted statements made knowingly
and intentionally or with reckless disregard for the truth.” Id. at 774. To prevail on
a Franks claim, a defendant must show that: (1) a law enforcement officer knowingly
and intentionally, or with reckless disregard for the truth, included a false statement in
the warrant affidavit, and (2) without the false statement, the affidavit would not have
established probable cause. Id. With respect to omissions, a defendant must show that
law enforcement omitted facts with the intent to make, or in reckless disregard of
whether they thereby made, the affidavit misleading and (2) with the omitted
information included, the affidavit would not have been sufficient to support a finding
of probable cause. United States v. Jacobs, 986 F.2d 1231, 1234 (8th Cir. 1993). An
inference of recklessness may be inferred “only when the material omitted would have
been ‘clearly critical’ to the finding of probable cause.” United States v. Ozar, 50 F.3d
1440, 1445 (8th Cir. 1995) (quoting United States v. Reivich, 793 F.2d 957, 961 (8th
Cir. 1986)).

        The government concedes that DeLazaro’s voice cannot be heard on the
recording of the May 13, 2008, controlled buy and that the recording of the June 17,
2008, controlled buy does not contain any reference to drugs or cocaine. Indeed, the
special agent who prepared the affidavit testified that he did not listen to all of the tapes
of the controlled buys. However, neither of these omissions constitutes a Franks
violation. For one thing, the special agent was not aware that the tapes did not
corroborate the informant’s description of the transaction, so any omission could not
have been intentional. DeLazaro characterizes the agent’s failure to listen to all of the
tapes as negligent, but negligence does not meet the reckless or intentional standard
necessary to prove a Franks violation. See Reinholz, 245 F.3d at 775. Moreover, the
evidence established a plausible explanation for any discrepancies between the tapes
and the descriptions of the controlled buys. There was testimony that the recording of
the May transaction took place in the Dugout Bar and that the background noise made
it very difficult to hear the tape at all. Beyond that, there was testimony that
recordings of drug transactions commonly fail to corroborate an informant’s

                                             -4-
description of the transaction because drug traffickers are familiar with law
enforcement tactics and will sometimes conduct drug transactions by using code words
or no words at all.

         Although the recordings do not corroborate McKinney’s descriptions of the
controlled buys, other evidence does. Law enforcement officers waited outside the
bar and the house and searched McKinney both before and after his dealings with
DeLazaro. DeLazaro offers no other explanation for the source of the cocaine
recovered from McKinney. See United States v. Watson, 952 F.2d 982, 989 (8th Cir.
1991) (fact that defendant’s voice was not heard in the tape of controlled buys does
not compel a rational juror to disbelieve law enforcement testimony regarding
defendant’s involvement). Thus, even if the affidavit had stated that the recordings
did not record DeLazaro’s voice or contain a reference to drugs, there is other evidence
in the affidavit to support a finding of probable cause.4 That being the case, the
omitted material was perforce not “clearly critical to the finding of probable cause,”
and thus the district court did not err in denying the motion to suppress.

                                          II.

       DeLazaro next contends that the district court erred in denying his motion for
judgment of acquittal. He contends that acquittal was appropriate because the evidence
against him “consisted almost entirely of post- arrest accomplice testimony.”

       We review the sufficiency of the evidence de novo, viewing the evidence in the
light most favorable to the government, resolving conflicts in the government’s favor,
and accepting all reasonable inferences that support the verdict. United States v.
Reddest, 512 F.3d 1067, 1069-70 (8th Cir. 2008). “We will overturn the verdict of a

       4
      This other evidence similarly forecloses DeLazaro’s argument concerning the
government’s failure to disclose the questionable reliability of information received
from Mario Gadberry. See Reivich, 793 F.2d at 962-63.

                                          -5-
jury only in rare cases,” and DeLazaro must show that no reasonable jury could have
found that he was guilty beyond a reasonable doubt. United States v. Lee, 356 F.3d
831, 836 (8th Cir. 2003).

       While recognizing that this court does not weigh evidence or judge the
credibility of witnesses, DeLazaro reminds us that we must evaluate the evidence to
ensure that there is sufficient evidence to prove all the elements of the crime charged
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 313-20 (1979).
He points out that much of the testimony against him came from witnesses testifying
pursuant to plea agreements and that some of their testimony was inconsistent.

         Although DeLazaro identifies some minor inconsistencies in the testimony of
the cooperating witnesses, they are insufficient to undermine the jury’s finding that
DeLazaro participated in a conspiracy to distribute cocaine. “Testimony does not
become legally unsubstantial because the witness stands to gain by lying; the defendant
is entitled to cross-examine such witnesses to expose their motivations, and it is up to
the jury to decide whether the witness is telling the truth despite incentives to lie.”
United States v. Crenshaw, 359 F.3d 977, 988 (8th Cir. 2004).

         The testimony against DeLazaro was substantial. In addition to the two
controlled buys, there was testimony that DeLazaro introduced Mario Gadberry to the
cocaine ring and showed him how to use inositol5 to cut or adulterate the cocaine for
resale. David Horvath testified that DeLazaro provided cocaine to Jason Sexton and
Debbie Johnson for distribution and that he had bought cocaine directly from
DeLazaro “more than a dozen” times. DeLazaro admitted that his house had a
surveillance camera on the front door and he did not deny that he had obtained a cell

       5
       There was evidence that the cocaine seized in the controlled buys also
contained inosital, a Vitamin B derivative, and that dealers will sometimes mix
cocaine with inosital. There was additional testimony that Delazaro purchased inosital
from the GNC store in Ottumwa.

                                          -6-
phone under a fictitious name -- all items associated with the drug trade and
circumstantial evidence supporting the jury’s verdict. See Lee, 356 F.3d at 837
(considering presence of drug-related equipment, including a surveillance camera, as
support for jury verdict).

         That DeLazaro’s voice cannot be heard on the recordings of the controlled
buys does not compel the conclusion that his conviction is not supported by substantial
evidence. See Watson, 952 F.2d at 988-89. The jury was free to consider any
inconsistencies in the evidence and evaluate the motivation and the credibility of the
witnesses. “We have repeatedly upheld jury verdicts based solely on the testimony of
co-conspirators and cooperating witnesses, noting that it is within the province of the
jury to make credibility assessments and resolve conflicting testimony.” United States
v. Coleman, 525 F.3d 665, 666 (8th Cir. 2008) (citation omitted). The district court
did not err in denying DeLazaro’s motion for judgment of acquittal.

                                          III.

       Finally, DeLazaro argues that the district court erred in admitting evidence of
prior bad acts. Specifically, DeLazaro complains about the admission of evidence
about previous drug sales in the Chicago area, gang affiliation, and felony convictions.
DeLazaro contends that this evidence had no bearing on the issues in the case and was
improperly admitted for the purpose of proving his propensity to commit criminal acts.
See Fed. R. Evid. 404(b).

        We review the district court’s decision to admit evidence of other crimes,
wrongs, or acts for abuse of discretion. United States v. Gaddy, 532 F.3d 783, 789 (8th
Cir. 2008). Evidence of prior bad acts “is admissible to prove motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident, unless
the party seeking its exclusion can demonstrate that it serves only to prove the
defendant’s criminal disposition.” United States v. Smith, 383 F.3d 700, 706 (8th Cir.

                                           -7-
2004). Such evidence “is admissible if it is relevant to a material issue, the other
crimes are similar and reasonably close in time to the charged crime, the evidence is
sufficient to support a jury’s finding that the defendant committed the other crimes, and
the probative value of the evidence is not substantially outweighed by unfair prejudice.
Id.

       Bill Edwards testified that DeLazaro was selling cocaine in Chicago, and David
Horvath testified that he “observed a transaction of cocaine” between Bill Edwards and
DeLazaro in Chicago. DeLazaro contends that the district court abused its discretion
in admitting this evidence, as it describes events not reasonably close in time to the
alleged conspiracy, lacks evidentiary support, and is more prejudicial than probative.
DeLazaro explains that he did not move to Ottumwa until August of 2006, so these
transactions had to have taken place at least a year before the charged conspiracy
began.

        We conclude that the district court did not abuse its discretion in admitting the
evidence of the Chicago drug sales. The evidence was relevant to DeLazaro’s motive
and probative of his intent to distribute, see United States v. Harris, 352 F. 3d 362, 365
(8th Cir. 2003), and was well within the permissible time boundaries this court has
articulated. See, e.g., United States v. Hardy, 224 F.3d 752, 757 (8th Cir. 2000).

        Likewise, there was no abuse of discretion in admitting evidence about
DeLazaro’s gang association or criminal convictions. Bill Edwards’s testimony that
he and DeLazaro were in the same street gang was probative of the relationship
between two conspirators and was not offered to prove guilt by association with a gang
or unduly prejudicial. See United States v. Johnson, 28 F.3d 1487, 1497-98 (8th Cir.
1994). Finally, DeLazaro failed to object to the admission of, and indeed himself
testified regarding his three felony convictions. In any event, we are convinced that
in light of the overwhelming evidence against him, any error in admitting the



                                           -8-
challenged evidence would have been harmless. United States v. DeAngelo, 13 F.3d
1228, 1233 (8th Cir. 1994).

      The conviction is affirmed.
                         _________________________




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