                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                   November 22, 2006
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                    No. 05-2389
          v.                                         (D. New M exico)
 A BRAH A M A M A Y A ,                         (D.C. No. CR-04-1312-RB)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before HA RTZ, A ND ER SO N, and M cCO NNELL, Circuit Judges.




      Following a jury trial, Abraham Amaya was found guilty of possession with

intent to distribute 500 grams or more of a substance containing

methamphetamine and conspiracy, in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A) and 846. He was sentenced to 120 months imprisonment, followed by

five years of supervised release. He appeals his conviction, which we affirm.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
                                 BACKGROUND

      Amaya’s arrest and conviction occurred as a result of a multi-year

investigation into a methamphetamine trafficking organization run by Guadalupe

Lopez. In December 2003, federal agents working with a confidential informant

purchased four pounds of methamphetamine from Lopez. Based upon this seizure

and other information gleaned from their investigation, the agents obtained a

wiretap on a cellular telephone used by Lopez. Federal authorities began

intercepting calls in M arch 2004.

      On April 5, 2004, federal agents learned from intercepted calls that Lopez

was planning to deliver four pounds of methamphetamine to Amaya’s co-

defendant, Alberto Becerra, the next day. The agents began conducting

surveillance of Becerra. They believed that Lopez would deliver the

methamphetamine using the same black Dodge pickup with Texas license plates

that he had used in the December 2003 sale. Through intercepted calls and

surveillance, the agents found the truck at a Budget Inn in Roswell, New M exico,

on April 6, 2004. At approximately 11:45 a.m., Becerra arrived at the Budget Inn

and met with the driver of the truck, later identified as Amaya.

      Shortly thereafter, Amaya, driving the truck, and Becerra, driving a car, left

the Budget Inn and drove to 7018 LaVanne in Hagerman, New M exico. No one

was home at the residence. Amaya and Becerra got out of their vehicles and

looked underneath the back of the truck.

                                        -2-
      Approximately an hour later, Amaya drove the truck to Becerra’s house at

400 Kansas in Hagerman, New M exico, while Becerra followed in a car. They

remained at Becerra’s house for several hours. At approximately 6 p.m., Amaya

drove the truck back to 7018 LaV anne and parked in the carport, with Becerra

again following in a car. After Becerra and Amaya arrived at the residence, the

agents observed Becerra and another individual conducting “heat runs” to check

for the presence of law enforcement personnel in the area. W hen the agents

observed several vehicles leaving the residence shortly thereafter, fearing that the

methamphetamine they suspected was in the truck had been unloaded and was

being transported away, they stopped the vehicles and secured the residence.

      At this point, Drug Enforcement Administration (“DEA”) Special Agent

M ike M urphy obtained a federal search warrant for the residence and any vehicles

at 7018 LaVanne. The affidavit prepared by Agent M urphy in support of the

warrant contained the following information about the drug trafficking

organization: a confidential source had informed M urphy that Becerra was

“purchasing and distributing large quantities of methamphetamine in the Rosw ell,

New M exico area”; Becerra’s source was in the El Paso, Texas area; on April 6,

2004, a second confidential source 1 told M urphy that Becerra “would be receiving

a large quantity of methamphetamine from an unknown individual in Rosw ell,



      1
      This second confidential source was the wiretap on the cellular phone used
by Lopez.

                                         -3-
NM on April 6, 2004”; on April 6, “law enforcement agents observed B[ecerra]

meet with an unknown individual at a hotel in Roswell”; agents then observed

Becerra drive his vehicle while “the unknown man followed in a separate/second

vehicle with Texas license plates”; “[t]he two vehicles then traveled in tandem to

[a] second location . . . [w here] an individual peered under the second vehicle

with the Texas license”; thereafter, “both vehicles departed driving in tandem to

400 Kansas, Hagerman, NM ”; after several hours, the “vehicle with the Texas

license departed the area” and was driven to 7018 LaVanne in Hagerman, where it

was parked in the carport; after other vehicles arrived and departed the residence,

agents stopped the cars and secured the residence. Application and Aff. for

Search W arrant, Attach. C, R. Vol. I, tab 39.

      W ith respect to the two confidential sources (“CS”s), the affidavit stated

that “[b]oth CS1 and CS2 have provided reliable information in the past that has

been corroborated through other means.” Id. A United States M agistrate Judge

signed the warrant, and the agents’ subsequent search of the residence and the

Dodge pickup truck driven by Amaya uncovered 507.6 grams of

methamphetamine in a hidden compartment in the truck’s axle. Amaya was

arrested.

      On April 8, 2004, Amaya, along with his co-defendants Becerra and

Francicso H uerta-V arela, the ow ner of the residence at 7018 LaVanne, and two

other individuals, was indicted for conspiracy and possession with intent to

                                         -4-
distribute methamphetamine. On M ay 6, the district court set a trial date of June

14, 2004. On M ay 28, the government filed a motion to dismiss the indictment

without prejudice, for the stated reason that “the testimony of a confidential

source will be needed at trial and, for investigative reasons, the United States is

not able to disclose the identity of the confidential source at this time.” M ot. to

Dismiss Indictment W ithout Prejudice, R. Vol. I, tab 38. 2 Finding that the motion

“states good cause,” on June 1, the district court dismissed the indictment without

prejudice. Amaya and his co-defendants were then released from custody.

      On July 9, 2004, a second indictment was lodged against A maya and his

co-defendants, again charging Amaya with conspiracy and possession with intent

to distribute 500 grams or more of methamphetamine. 3 Amaya and his co-

defendants were arrested again. On December 7, 2004, Huerta-Varela filed a

motion to suppress evidence seized during the search of his house. Two days

later, Amaya filed a motion to dismiss the indictment and to suppress all evidence

seized during the search of Huerta-Varela’s house, including the

methamphetamine found in the truck Amaya had driven to the residence. After

holding a hearing, the district court denied the motion to dismiss, denied the



      2
       This confidential source was the wiretap, the revelation of which at that
time would have brought the entire investigation of the Lopez drug trafficking
organization to a halt.
      3
        A third count charged Becerra only with carrying a firearm during and in
relation to a drug trafficking crime.

                                          -5-
motion to suppress with respect to the truck, but granted the motion to suppress

with respect to any evidence found inside Huerta-Varela’s house.

      Amaya, Becerra and Huerta-Varela proceeded to trial, following which the

jury found Amaya and Becerra guilty, but acquitted H uerta-Varela. The court

then sentenced Amaya to 120 months’ imprisonment. This appeal followed.

      Amaya argues on appeal that (1) the district court erred in failing to dismiss

the second indictment because the court had granted the government’s motion to

dismiss the first indictment containing the same charges; and (2) the district court

erred in failing to grant Amaya’s motion to suppress the methamphetamine found

in the truck because the search warrant authorizing the search was inadequate.



                                   D ISC USSIO N

      I. M otion to Dismiss Second Indictment

      Fed. R. Crim. P. 48(a) permits the government, with leave of the court, to

dismiss an indictment. If such a dismissal is sought during trial, the defendant’s

consent is required. W hile “[l]eave of court is required pursuant to such a

motion, . . . ‘[a] court is generally required to grant a prosecutor’s Rule 48(a)

motion to dismiss unless dismissal is clearly contrary to manifest public

interest.’” United States v. Romero, 360 F.3d 1248, 1251 (10th Cir. 2004)

(quoting United States v. Carrigan, 778 F.2d 1454, 1463 (10th Cir. 1985)).

Furthermore, “to honor the purpose of the rule, the trial court at the very least

                                         -6-
must know the prosecutor’s reasons for seeking to dismiss the indictment and the

facts underlying the prosecutor’s decision.” United States v. Derr, 726 F.2d 617,

619 (10th Cir. 1984). “W e review the denial of a motion to dismiss the

indictment for an abuse of discretion.” United States v. Browning, 252 F.3d

1153, 1157 (10th Cir. 2001). 4

      Amaya’s argument appears to focus on the second arrest for the second

indictment, arguing that a second arrest for the same conduct is prosecutorial

harassment and a violation of his due process rights, as well as his right to a

speedy trial. W e disagree.

      The sequence of proceedings in this case does not reveal prosecutorial

harassment or any violation of A maya’s constitutional rights. The district court’s

acquiescence in the dismissal of the first indictment was in accordance with Rule

48(a) and our case law . Reasons w ere given for the government’s desire to

dismiss the indictment, and the court evidently concluded that dismissal was not

“‘clearly contrary to manifest public interest.’” Romero, 360 F.3d at 1251

(quoting Carrigan, 778 F.2d at 1463). The second indictment was brought



      4
        Amaya argues that, because he claims the failure to dismiss the second
indictment violated Amaya’s constitutional rights to due process and a speedy
trial, we must review the refusal to dismiss de novo. W e will, of course, address
his arguments and consider whether the failure to dismiss the indictment violated
Amaya’s constitutional rights. In doing so, we review questions of law de novo,
as we routinely do. If we determine that the failure to dismiss the indictment
violated Amaya’s constitutional rights, we surely will conclude that the district
court abused its discretion.

                                         -7-
promptly, thereby minimizing any delay. These facts distinguish this case from

Derr, upon which Amaya places great reliance. 5 Because there was no

impropriety in the dismissal of the first indictment and the second indictment was

brought promptly, we perceive no abuse of discretion in the district court’s

decision not to dismiss the second indictment. See United States v. Strayer, 846

F.2d 1262 (10th Cir. 1988).

      Furthermore, Amaya suffered no constitutional deprivation as a result of

the proceedings in this case. W hile he endeavors to craft an argument from

several Supreme Court cases, they are all completely different from this case and

afford him no relief. See Klopfer v. North Carolina, 386 U.S. 213, 214 (1967)

(holding that “unusual” stated procedural device of “nolle prosequi with leave”

which permitted prosecution to “indefinitely postpone prosecution on an

indictment without stated justification over the objection of an accused” violates

the Sixth Amendment right to a speedy trial); United States v. M arion, 404 U.S.

307, 313 (1971) (holding that, because the right to a speedy trial does not attach

until a person is “accused,” pre-indictment delay does not violate Sixth

Amendment); Glover v. United States, 531 U.S. 198, 200 (2001) (holding that

increase in prison time from six to twenty-one months constituted prejudice for



      5
       Derr, in which we approved the district court’s dismissal of the second
indictment as a remedy for the improper dismissal of the first indictment, has
been “clearly limited to its particular facts and circumstances.” United States v.
Strayer, 846 F.2d 1262, 1266 (10th Cir. 1988).

                                         -8-
purposes of establishing ineffective assistance of counsel); United States v.

Lovasco, 431 U.S. 783, 796 (1977) (holding that prosecution following good-faith

investigative delay does not violate due process).



      II. M otion to Suppress

      “On appeal from the denial of a motion to suppress evidence, we review the

district court’s factual findings for clear error, viewing the evidence in the light

most favorable to the government.” United States v. Cantu, 405 F.3d 1173, 1176

(10th Cir. 2005). W e review de novo the “district court’s determination of

reasonableness under the Fourth Amendment.” Id.

      Amaya argues the search warrant in this case did not provide probable

cause to connect methamphetamine to the vehicle driven by him. “[P]robable

cause exists w here attending circumstances ‘w ould lead a prudent person to

believe there is a fair probability that contraband or evidence of a crime will be

found in a particular place.’” Id. (quoting United States v. Basham, 268 F.3d

1199, 1203 (10th Cir. 2001)). In assessing whether there is probable cause for a

warrant, “w e assess the sufficiency of a supporting affidavit based on the totality

of the circumstances.” Id. Further, a m agistrate’s determination that a w arrant is

supported by probable cause is entitled to “great deference.” Id. On review, our

task is to “ensur[e] ‘that the magistrate had a substantial basis for concluding that




                                          -9-
probable cause existed.’” U nited States v. Tisdale, 248 F.3d 964, 970 (10th Cir.

2001) (quoting Illinois v. Gates, 462 U.S. 213, 238-39 (1983)).

      The affidavit in this case provided sufficient information to permit the

magistrate to conclude probable cause existed. As the description of the contents

of the affidavit, set forth above, indicates, it described activity consistent with the

delivery of narcotics, including by way of a truck. That established a “fair

probability” that drugs would be found in the truck parked at 7018 LaVanne.

      Furthermore, while A maya argues the affidavit did not sufficiently

establish the “veracity and basis of know ledge” for the confidential sources,

Appellant’s Br. at 15, we conclude it did. The affidavit included the statement

that both sources had “provided reliable information in the past that has been

corroborated through other means.” Application and Aff. for Search W arrant,

Attach. C, R. Vol. I, tab 39. Furthermore, Becerra’s actions corroborated the

confidential informants’ information. See United States v. Danhauer, 229 F.3d

1002, 1006 (10th Cir. 2000) (“W hen there is sufficient independent corroboration

of an informant’s information, there is no need to establish the veracity of the

informant.”). In short, there was a substantial basis for the magistrate judge to

conclude that probable cause existed.

      Even were we to conclude that probable cause was lacking, we could still

affirm the denial of Amaya’s motion to suppress on the basis of the good-faith

exception applicable to search warrants under United States v. Leon, 468 U.S.

                                          -10-
897, 920-24 (1984). Under that exception, “the evidence seized . . . need not be

suppressed if the executing officer acted with an objective good-faith belief that

the warrant was properly issued by a neutral magistrate.” Danhauer, 229 F.3d at

1006. The Supreme Court has recognized “four situations in which an officer

would not have reasonable grounds for believing a warrant was properly issued.”

Id. at 1007 (citing Leon, 468 U.S. at 922-23):

      First, evidence should be suppressed if the issuing magistrate was
      misled by an affidavit containing false information or information
      that the affiant would have known w as false if not for his “reckless
      disregard of the truth.” Second, the exception does not apply when
      “the issuing magistrate wholly abandon[s her] judicial role.” Third,
      the good-faith exception does not apply when the affidavit in support
      of the warrant is “so lacking in indicia of probable cause as to render
      official belief in its existence entirely unreasonable.” Fourth, the
      exception does not apply when a warrant is so facially deficient that
      the executing officer could not reasonably believe it was valid.

Id. at 1007 (quoting Leon, 468 U.S. at 923). None of those situations is present

here. Accordingly, were the warrant not supported by probable cause, the good-

faith exception would bar suppression of the evidence seized from Amaya’s truck.



                                  C ON CLU SIO N

      For the foregoing reasons, we AFFIRM the conviction.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge



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