                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                           January 23, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 18-1053
                                                  (D.C. No. 1:14-CR-00231-WJM-1)
 RICKY GARRISON, a/k/a “G”,                                   (D. Colo.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before McHUGH, MORITZ, and EID, Circuit Judges.
                 _________________________________

      Ricky Garrison was indicted with fifteen others on drug trafficking and related

offenses arising from an alleged large-scale conspiracy to distribute cocaine, heroin

and methamphetamines. Garrison was convicted on twenty counts after a jury trial

and now appeals his convictions on three grounds: (1) the district court abused its

discretion in denying him leave to file an untimely motion to suppress; (2) the

evidence was insufficient to support his conspiracy conviction; and (3) he received



      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
ineffective assistance of counsel. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.

                                  BACKGROUND

      Garrison was charged in the indictment with 53 counts of drug and weapons

offenses and one count of enabling interstate prostitution. The indictment followed

an investigation in which law enforcement obtained orders authorizing a succession

of wiretaps on Garrison’s phone and those of some of his co-defendants, including

Francisco Ramirez. The telephone calls and text messages intercepted under the

wiretaps were the basis for many of the charges in the case.

      Garrison filed a motion to suppress the wiretap evidence, which the district

court denied. He also moved for leave to file a second, untimely motion to suppress

this evidence, which the district court also denied. Garrison proceeded to trial, where

the jury convicted him on one count of conspiracy to distribute and possess with

intent to distribute cocaine, cocaine base, or methamphetamine, and nineteen counts

of using a communications device to facilitate a drug offense. Before the jury’s

verdict, Garrison unsuccessfully moved for judgment of acquittal on the conspiracy

count, arguing that the evidence showed only a buyer-seller relationship. The court

sentenced Garrison to 156 months of imprisonment on the conspiracy count with a

concurrent sentence of 48 months on the use-of-communications counts. Garrison

timely appealed from the judgment of conviction.




                                           2
                                     DISCUSSION

       A. Denial of leave to file an untimely motion to suppress the wiretap
          evidence

       Garrison argues the district court abused its discretion in denying him leave

file a second, untimely motion to suppress the wiretap evidence. See Fed. R. Crim.

P. 12(c)(3) (stating court “may consider” an untimely pretrial motion “if the party

shows good cause”). Under this standard, we will not disturb the district court’s

decision unless we have “a definite and firm conviction that it made a clear error of

judgment or exceeded the bounds of permissible choice in the circumstances.” United

States v. Messner, 107 F.3d 1448, 1454 (10th Cir. 1997) (internal brackets and quotation

marks omitted). We discern no abuse of discretion in the district court’s refusal to

consider Garrison’s untimely motion.

       The district court set and then extended the deadline for filing suppression

motions several times in the first two years of this case. As most relevant here, it

issued an order in July 2015 setting a deadline for discovery motions and for filing

“[a]ll suppression motions, including wiretap suppression motions (four corners and

non-four corners).” R. Vol. 1 at 211. The deadline for filing suppression motions

was 60 days after the hearing on discovery issues. Id. The district court decided the

discovery motions on December 3, 2015, without a hearing, which made February 1,

2016, the deadline for filing all wiretap and other suppression motions. Garrison did




                                             3
not file a motion to suppress the wiretap evidence by this deadline or seek an

extension to do so.1

       Two months after the February 1 deadline passed, Garrison asked the court to

vacate this deadline and reopen the filing period, citing the recent withdrawal of his

counsel as cause. The court concluded it had “more than adequate reason to deny”

this request outright in light of Garrison’s failure to meet the February 1 deadline, but

nonetheless granted Garrison’s request “solely in the interests of justice.” R. Vol. 1

at 518. The court set May 6, 2016, as the new deadline for filing all wiretap and

other suppression motions. Id.

       Garrison filed a motion to suppress the wiretap evidence by the extended

May 6 deadline. As relevant here, Garrison argued in his motion that all wiretap

evidence must be suppressed because the judge that authorized the first wiretap order

in the chain, on co-defendant Ramirez’s phone, incorrectly concluded the wiretap

was necessary as required by 18 U.S.C. § 2518(3)(c) (issuing judge must determine

that “normal investigative procedures have been tried and have failed or reasonably

appear to be unlikely to succeed if tried or to be too dangerous”). The purpose of this

“necessity” requirement is “to ensure that wiretapping, which is relatively intrusive

compared with other investigative methods, is not used in situations where traditional

investigative techniques would be sufficient to expose the criminal activity.” United

States v. Zapata, 546 F.3d 1179, 1185-86 (10th Cir. 2008). The issuing judge


       1
        A defendant’s failure to timely file a motion to suppress constitutes a
waiver. See United States v. Vance, 893 F.3d 763, 769 & n.5 (10th Cir. 2018).
                                             4
independently makes the necessity and other required determinations based on the facts

submitted by the government. See 18 U.S.C. § 2518(3).

      Garrison argued surveillance of Ramirez’s phone was not necessary based

primarily on the government’s use of a confidential informant referred to as CHS-1 in its

affidavit supporting the Ramirez wiretap. First, Garrison argued the information the

government included in the affidavit regarding its use of CHS-1 demonstrated that

traditional investigative techniques were working and that a wiretap was therefore not

necessary. Second, Garrison asserted, as he had in a previous court filing, that he

knew the identity of CHS-1 and that the government had omitted material

information from the affidavit concerning this individual, information that if included

would have further demonstrated that the Ramirez wiretap was not necessary.

Garrison also identified CHS-1 by name in his suppression motion and recited

detailed evidence from the record regarding this individual that he claimed was

material and improperly omitted from the wiretap affidavit.

      In his suppression motion Garrison also requested discovery of “all

information about CHS-1 from the law enforcement and prosecution agencies

involved in this investigation.” R. Vol. 2 at 93. Garrison asserted this information

was necessary for him “to complete a Franks argument and affidavit.” Id.

      A “Franks argument” seeks to suppress evidence obtained as a result of a

search warrant or wiretap authorization under Franks v. Delaware, 438 U.S. 154

(1978). Under Franks, a criminal defendant may challenge a facially sufficient

affidavit for a wiretap authorization on the ground that investigators knowingly,

                                            5
intentionally, or recklessly included false information in the affidavit or omitted

material information from it. See United States v. Green, 175 F.3d 822, 828

(10th Cir. 1999) (citing Franks). “If a wiretap affidavit omits material information that

would vitiate either the necessity or the probable cause requirements had it been included,

the resultant evidence must be suppressed.” Id. at 828. Garrison’s argument in his

May 6 motion that the government omitted material information regarding CHS-1

from the affidavit supporting the Ramirez wiretap was thus a Franks argument. See

id.

       To prevail on a motion to suppress under Franks, the defendant must establish by

a preponderance of the evidence that the government intentionally or recklessly included

false statements or omitted material information from the affidavit and, further, that when

these failings are corrected the affidavit was insufficient to support the warrant or

authorization. See Franks, 438 U.S. at 155-56. The Supreme Court contemplated that an

evidentiary hearing is necessary for a defendant to make this showing. See id.; United

States v. Yeje-Cabrera, 430 F.3d 1, 8 (1st Cir. 2005) (observing with respect to a

motion to suppress wiretap evidence that “[a] Franks hearing . . . is the proper route

for addressing” the concern that “government omitted material information that

would have prevented a finding of necessity”). But such government affidavits are

presumed to be valid, so to receive a Franks hearing and an opportunity to present these

challenges a defendant must first make “a substantial preliminary showing” that he or she

can meet this standard. Franks, 438 U.S. at 155-56; see id. at 171-72. This preliminary

showing must include an offer of proof, and the defendant must provide supporting

                                              6
affidavits or satisfactorily explain their absence. Id. at 171; United States v. Herrera,

782 F.3d 571, 573 (10th Cir. 2015).

       Garrison did not request a Franks hearing in his timely filed motion to suppress or

attempt to make the required preliminary showing even though he made a Franks-based

argument there. Instead, almost eight weeks later, Garrison filed a motion for leave to

file a second, now untimely, motion to suppress “pursuant to the holdings in Franks v.

Delaware.” R. Vol. 1 at 542. Garrison cited the government’s recent confirmation that

Garrison had correctly identified CHS-1 as the basis for his request and suggested he was

unable to bring a Franks motion without this confirmation.

       The district court rejected this rationale and denied Garrison’s motion for leave

initially and on reconsideration. In so doing, the district court noted it had already

reopened the period for filing suppression motions once at Garrison’s urging. It further

concluded that Garrison had failed to demonstrate that he could not bring a Franks-based

motion regarding the wiretap affidavit and CHS-1 earlier in the proceeding, particularly

since Garrison had reported his identification of CHS-1 in both his timely filed, May 6

motion to suppress and in his October 2015 discovery motions filed more than eight

months earlier.2




       2
          In fact, in its December 2015 order denying Garrison’s discovery motions,
the district court observed that not only did Garrison’s attorneys claim to know
CHS-1’s identity, “they also seem to know many details about CHS-1 that could
arguably support a claim that the Government was not sufficiently forthcoming to the
judge that issued the wiretaps.” R. Vol. 1 at 407.
                                              7
       Garrison argued to the district court and argues again on appeal that the latter

conclusion is erroneous because without confirmation of CHS-1’s identity he could not

make the required “substantial preliminary showing” that the government had

intentionally or recklessly omitted information regarding CHS-1 from its affidavit that

was material to the issuing judge’s necessity determination. The district court was not

persuaded, and we find no abuse of discretion in this determination. First, Garrison cites

no authority in support of this proposition. Second, Garrison had no difficulty making

and supporting a Franks argument regarding alleged material omissions concerning

CHS-1 in his timely May 6 motion to suppress based on his belief as to CHS-1’s identity.

In fact, the allegedly material omissions and supporting evidence Garrison reported there

were repeated in the Franks motion he later proffered in connection with his motion for

leave to file a second, untimely motion to suppress.3 In addition, to the extent

confirmation of CHS-1’s identity was necessary to his Franks motion, Garrison’s

identification of CHS-1 in his timely motion to suppress effectively forced the

government to confirm this identification so it could respond to Garrison’s material

omission/Franks argument there. As the district court noted, Garrison could have

achieved the same result through a Franks motion timely filed by the May 6 deadline.




       3
          We also note that when Garrison requested disclosure of information regarding
CHS-1 in his October 2015 discovery motion, on the ground that the requested
information was “necessary in order to fully present a Franks challenge,” he specifically
stated that he did not need the government to disclose CHS-1’s identity because he
already knew it. R. Vol. 1 at 306-07 & n.2.
                                             8
The district court did not abuse its discretion in denying Garrison leave to file an

untimely Franks motion.

       B. Sufficiency of the evidence supporting conspiracy conviction

       Garrison argues the district court erred in denying his motion for acquittal

because the government failed to prove he was engaged in a conspiracy. To obtain

the conspiracy conviction, the government was required to prove: (1) an agreement

between Garrison and at least one other person to violate the law; (2) Garrison’s

knowledge of the essential objectives of the conspiracy; (3) his knowing and

voluntary participation in the conspiracy; and (4) interdependence among the

co-conspirators. See United States v. Cornelius, 696 F.3d 1307, 1317 (10th Cir.

2012). Garrison argues the government failed to prove the first and fourth elements,

an agreement to distribute drugs and an interdependence among the co-conspirators,

because the evidence only showed a series of buyer-seller relationships. Under our

precedent, a buyer-seller relationship shields end-user consumers from a drug

conspiracy conviction, but not buyers who “intend to redistribute the drugs for profit,

thereby furthering the objective of the conspiracy.” Id. at 1317-18 (internal quotation

marks omitted).4 We review the sufficiency of the evidence supporting Garrison’s

conspiracy conviction de novo, viewing all evidence in the light most favorable to the


       4
          Garrison cites case law from other circuits in arguing that a reseller can also
benefit from the buyer-seller rule, but we have rejected this contention as “contrary
to this court’s precedent.” United States v. Gallegos, 784 F.3d 1356, 1360 (10th Cir.
2015) (rejecting argument that “a drug purchaser does not enter into a conspiracy
with his supplier simply by reselling the drugs to his own customers” (internal
quotation marks omitted)).
                                              9
jury verdict and drawing all reasonable inferences in support of that verdict. See

United States v. Wright, 506 F.3d 1293, 1297 (10th Cir. 2007).

      In this case there was sufficient evidence supporting the jury’s conspiracy

verdict. In particular, the government presented evidence of more than a simple

buyer-seller relationship between Garrison and his suppliers. For example, trial

testimony and other evidence showed that Garrison made repeated weekly and

sometimes daily drug purchases from at least three different suppliers for the purpose

of resale rather than his own personal use. The government also presented evidence

that Garrison and his suppliers worked together in fulfilling the requests of

Garrison’s customers and that one of Garrison’s suppliers, Ramirez, contacted

Garrison when he had extra drugs available and sold him drugs on credit on one

occasion. There was also testimony at trial that Garrison and a supplier shared

“magic cut,” a substance they used to add weight to the drugs so they could be sold at

a higher profit. In addition, Garrison referred to one of his suppliers, Ramirez, as his

“partner.” Suppl. R. Vol. 1 at 72. This evidence was sufficient for a rational jury to

infer that there was an agreement between Garrison and one or more of his suppliers

to distribute drugs and that his relationship with his co-conspirators was

interdependent. See, e.g., United States v. Carter, 130 F.3d 1432, 1439 (10th Cir.

1997) (stating jury may “infer an agreement constituting a conspiracy from the acts

of the parties and other circumstantial evidence indicating concert of action for the

accomplishment of a common purpose” (internal quotation marks omitted)); Wright,



                                           10
506 F.3d at 1299 (stating buyer-seller relationship where participants knew that drugs

were being purchased for resale “is patently an interdependent one”).

       C. Ineffective assistance of counsel

       Garrison also argues his convictions must be reversed and that he is entitled to a

new trial due to ineffective assistance of counsel. Garrison did not contend that his

counsel was ineffective before the district court, though he arguably suggested as much in

his motion asking the district court to reconsider its denial of his motion for leave to file

an untimely Franks motion. See R. Vol. 3 at 226-27 (arguing Garrison had asked his

prior counsel to file a Franks motion and that their failure to timely do so before

withdrawing in February 2016 was good cause for the court to reset the pretrial deadline

motion for a second time). Garrison also asserted the district court’s denial of his motion

for leave to file an untimely Franks motion itself denied his right to effective assistance

of counsel. Id. at 226. The district court did not address these contentions in its order

denying Garrison’s motion for reconsideration.

       Under these circumstances, we will not consider Garrison’s ineffective-assistance

claims. We have long held that “[i]neffective assistance of counsel claims should be

brought in collateral proceedings, not on direct appeal.” United States v. Galloway,

56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). We adopted this rule because

       [a] factual record must be developed in and addressed by the district court
       in the first instance for effective review. Even if evidence is not necessary,
       at the very least counsel accused of deficient performance can explain their
       reasoning and actions, and the district court can render its opinion on the
       merits of the claim.



                                              11
Id. (footnoted omitted). The district court’s opinion is particularly important to our

review because “the district court is familiar with the proceedings and has observed

counsel’s performance, in context, firsthand.” Id. The district court is also

well-positioned to assess whether counsel’s performance, even if ineffective, prejudiced

his defense as required for relief. See Strickland v. Washington¸ 466 U.S. 668, 687, 694

(1984) (in addition to showing counsel’s assistance was deficient, defendant must show

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different”); see also Massaro v. United States,

538 U.S. 500, 505 (2003) (“[I]neffective-assistance claims ordinarily will be litigated in

the first instance in the district court, the forum best suited to developing the facts

necessary to determining the adequacy of representation during an entire trial.”).

       Garrison is correct that in rare instances we will review an ineffective assistance of

counsel claim on direct appeal, but “only where the issue was raised before and ruled

upon by the district court and a sufficient factual record exists.” United States v. Battles,

745 F.3d 436, 457 (10th Cir. 2014) (internal quotation marks omitted). Neither

circumstance is present here, because the factual record is not fully developed and the

district court has not ruled on Garrison’s ineffective-assistance claims. Accordingly, if

Garrison wishes to bring an ineffective assistance of counsel claim, he must do so in

collateral proceedings.5


       5
         Garrison asserted in his opening brief that he received ineffective assistance
of counsel in part because his trial attorney failed to propose two instructions
necessary to his theory of defense. When the government pointed out in response
that Garrison’s counsel had proposed these instructions, Garrison shifted gears in his
                                              12
                                     CONCLUSION

       The district court’s judgment is AFFIRMED.

                                              Entered for the Court


                                              Allison H. Eid
                                              Circuit Judge




reply brief to argue that the district court abused its discretion in failing to give these
instructions. We decline to review this challenge to the district court’s jury
instructions because we ordinarily do not consider issues raised for the first time in a
reply brief. Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000). To the extent
Garrison’s opening brief can be read to raise this issue, it was not adequately
presented for our review. See Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1134
n.4 (10th Cir. 2004) (“Scattered statements in the appellant's [opening] brief are not
enough to preserve an issue for appeal.”).

                                            13
