                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                       April 16, 2007
                   UNITED STATES CO URT O F APPEALS
                                                                    Elisabeth A. Shumaker
                                TENTH CIRCUIT                           Clerk of Court



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

              Plaintiff-Appellee,                        No. 06-2112
 v.                                                    (D. New M exico)
 JUAN GONZALES,                                   (D.C. No. CR-04-2573-JC)

              Defendant-Appellant.




                           OR D ER AND JUDGM ENT *


Before H E N RY, H ARTZ, and HO LM ES, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Juan G onzales pleaded guilty to possession with intent to distribute at least

5 grams or more of a mixture containing cocaine base, in violation of 21 U.S.C. §



      *
        This order and judgment is not binding precedent except under the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.
841(a)(1), (b)(1)(B), and carrying and possessing a firearm in relation to and in

furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). He

was sentenced to 60 months’ imprisonment on each count. In his conditional

plea, he preserved his right to appeal the district court’s denial of his (1) motion

to suppress, and (2) motion to disclose the identity of a confidential informant.

M r. Gonzales also raises an ineffective assistance of counsel claim. W e hold that

the district court did not abuse its discretion when it dismissed M r. Gonzales’s

belated pretrial motions. W e decline to address the ineffective assistance claim

on direct appeal, and therefore, we affirm M r. G onzales’s conviction.

                                 I. BACKGROUND

      On December 29, 2004, a federal grand jury returned a four-count

indictment against M r. Gonzales, which charged him with being a felon in

possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1)

and 924(a)(2) (Count 1), possession with intent to distribute at least 5 grams or

more of a mixture and substance containing cocaine base in violation of 21 U.S.C.

§§ 841(a)(1) and 841(b)(1)(B) (Count 2), possession with intent to distribute less

than 500 grams of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(C) (Count 3), and carrying and possessing a firearm in relation to and

in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)

(C ount 4).




                                          -2-
A. Officer G uenther’s A ffidavit

      On December 4, 2004, Officer Tank D. Guenther of the Albuquerque Police

Department (APD) applied for a warrant to search the premises at 245 Glorieta

NE in Albuquerque. Officer Guenther’s affidavit in support of his application for

a search warrant stated that he had received information from a confidential

source (CS) that from “its several personal observations within the past four

months an individual named ‘Juan’ was selling large amounts of illegal drugs and

had been doing so for a long period of time from the residence described . . . .”

Aple’s Br. att. 1, at 2 (A ffid. of Tank D. Guenther, dated D ec. 4, 2004).

      Officer Guenther averred that within the last 52 hours, the CS had assisted

in a controlled buy from the residence at 245 Glorieta NE. He then described the

procedure used in carrying out the controlled buy and explained that the CS w as

“working off criminal charges,” and that the CS had been told that if he/she

provided false information, the CS would be prosecuted. Id. State District Judge

James F. Blackmer issued a search warrant authorizing the search.

B. The O ffense Conduct

      Four days after officers procured the search warrant, on December 8, 2004,

APD officers and Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)

along w ith Immigration and C ustom Enforcement (ICE) agents executed it. A s

the police and agents approached the front door at 245 Glorieta NE, they saw

someone looking out the window. They immediately entered the residence and

                                         -3-
identified themselves as police officers with a search warrant. As they entered,

the officers saw M r. Gonzales run from the living room to the kitchen. The

officers ordered him to place his hands in the air and to get down on the floor.

Instead of complying with the officers’ commands, M r. Gonzales placed his hands

into the kitchen sink. The officers subdued Gonzales after a brief struggle.

      The search of the residence disclosed 15.63 net grams of cocaine base and

23.70 net grams of cocaine powder. Officers also seized a Smith and W esson .38

special caliber revolver w hich they found in a kitchen cabinet.

      The officers interviewed M r. Gonzales’s girlfriend, who resided with M r.

Gonzales. She told the police that, at the time of the raid, M r. Gonzales had been

cooking crack cocaine. She stated that he took the firearm with him when he

went to sell drugs and that M r. Gonzales usually sold the drugs two blocks from

their residence. M r. Gonzales contends that she also stated that the couple lived

at 245 G lorieta NE for a month or less.

C. M r. G onzales’s Attorneys

      On December 9, 2004, the district court appointed counsel to represent M r.

Gonzales. On M arch 7, 2005, the district court, at M r. Gonzales’s request,

allowed her to withdraw and ordered that M r. G onzales be appointed new counsel.

On M arch 8, 2005, the district court appointed new counsel. On August 11,

2005, M r. Gonzales again requested that new counsel be appointed. After

reviewing the motion for new counsel and M r. Gonzales’s letter to the court, and

                                           -4-
after hearing argument from defense counsel and M r. Gonzales, the district court

permitted M r. G onzales’s second counsel to withdraw.

      The district court then ordered that new counsel be appointed and that he or

she be fluent in Spanish and be prepared to proceed to jury selection and trial on

October 11, 2005. On August 17, 2005, the district court appointed James E.

Bierly to represent M r. G onzales.

D. The Pre-Trial Filings

      M r. Gonzales filed a motion to suppress the evidence and a motion to

disclose the identity of the confidential source on Friday, October 7, 2005, one

working day (given the federal holiday on October 10) before the trial w as to

begin (Tuesday, October 11, 2005). The next day, on October 8, the government

responded to both motions.

      In his motion to suppress evidence, M r. Gonzales alleged that Officer

Guenther, the affiant, had inserted two false statements either intentionally or

with reckless disregard for the truth in his affidavit in support of the search

warrant application. The two statements M r. Gonzales alleged to be false were:

(1) “that a confidential source (CS) had informed APD that ‘within the last 52

hours’ . . . it [sic] had purchased suspected cocaine ‘from an individual it [sic]

knew as ‘Juan’ from the residence to be searched (245 Glorietta SE [sic])”; and

(2) “that an ‘an individual named ‘Juan’ was selling large amounts of illegal

drugs’ ‘within the past four months’ from that same residence.” Rec. vol. I, doc.

                                         -5-
48, ¶¶ 2, 3. M r. Gonzales also claimed that if this information were redacted

from the affidavit, the remaining information did not state probable cause for the

issuance of the warrant.

         M r. Gonzales offered “to take a polygraph examination and/or testify to

prove that he never sold cocaine or any other drug from 245 Glorietta SE [sic];

neither in the 52 hours preceding the issuance of a warrant . . . nor at any other

time.” Id. ¶ 6. M r. Gonzales claimed that “there appears to be serious credibility

problems regarding the CS” and that “the existence of the CS is fiction.” Id. ¶¶

10, 7.

         In its response to M r. Gonzales’s motion to suppress, the government

argued that the motion was untimely because the motion had been filed one

working day prior to trial. Both parties note that the district court set a deadline

for filing pretrial motions ten business days before trial. 1

         The government also argued that M r. Gonzales was not entitled to a hearing

regarding the allegedly false information contained in the affidavit supporting the



         1
         W e note that the district court’s scheduling order set a deadline for filing
motions in limine no later than ten business days prior to jury selection, which
was scheduled for October 11, 2005. There is no dispute that the subject motions
are not motions in limine. The date by which pre-trial motions were to have been
filed would normally be much earlier than ten business days before trial and may
have been as early as February 25, 2005 in this case. However, because the
parties agree that the motion-in-limine scheduling order was the operative one as
to substantive pre-trial motions as w ell, and since that construction is more
generous to the defendant, we use the motion-in-limine deadline of ten business
days before trial as the operative one for purposes of our Rule 12(e) analysis.

                                           -6-
application for a warrant, see Franks v. Delaware, 438 U.S. 154 (1978), because:

(1) M r. Gonzales had failed to submit affidavits or reliable statements of

witnesses in support of his allegations of false statements in Officer Guenther’s

affidavit; (2) M r. Gonzales was focusing on the informant’s credibility and not

Officer Guenther’s; (3) probable cause existed without the informant’s

statements; and (4) even if the district court was to determine that the search

warrant was invalid, the United States v. Leon, 468 U.S. 897 (1984), good-faith

exception applied.

See Rec. vol. I, doc. 51, at 2-6.

      In his motion for disclosure of the confidential informant, M r. Gonzales

acknowledged that there was no absolute right to require disclosure of an

informant’s identity but argued that the CS’s “testimony would be highly

relevant, and could throw possible doubt onto, the identity of the person who was

alleged to have been selling drugs from the residence for four months, and

whether in facts [sic] drugs were being sold from that house for that time period .

. . .” Id. doc. 49, ¶ 16. In opposition to M r. Gonzales’s motion to disclose the

CS, the government argued: (1) the motion was untimely; (2) the controlled buy

monitored by APD officers and ATF agents established the CS’s credibility and,

thereby, obviated any need to disclose the informant’s identity; and (3) the

informant did not witness or participate in the circumstances giving rise to the

charges in the indictment. Rec. doc. 50, at 1-4.

                                          -7-
      On the day of trial, M r. Gonzales filed a reply to the government’s

responses. M r. Gonzales claimed his girlfriend had told the police that she and

M r. Gonzales “had only been in the residence one month.” Rec. vol. I, doc. 52 ¶

1. M r. Gonzales argued that “[t]his directly contradicts the testimony in the

affidavit (regarding the CS know ing ‘Juan’ to have been selling from the

residence for four months).” Id. As to M r. Gonzales’s request to disclose the

identity of the CS, M r. Gonzales said, “A lthough the CS was not a w itness (to

Defendant’s knowledge at this time) regarding the drugs located inside the

residence searched, it was the only witness regarding any activity which permitted

the search warrant to issue. Therefore, its disclosure is crucial.” Id. ¶ 4.

E. District court proceedings

      On the morning of trial, the district court denied M r. Gonzales’s motions as

being both untimely and lacking merit. After the district court denied his

motions, M r. G onzales changed his plea to Counts 2 and 4 of the indictment.

Pursuant to a plea agreement, he entered a conditional guilty plea to Counts 2 and

4. On M arch 29, 2006, the district court sentenced him to two 60-month terms of

imprisonment, to be served consecutively.

                                  II. D ISC USSIO N

      M r. Gonzales argues that the district court erred in denying his motion to

suppress and his motion to disclose the identity of the CS. He also argues that the

district court, when it dismissed these motions as untimely, failed to recognize

                                          -8-
that he had established cause and prejudice for the belated filings. Finally, M r.

Gonzales contends that he received ineffective assistance of counsel when his

counsel filed the untimely motions. For the reasons that follow, we affirm the

district court’s conclusions and decline to address the ineffective assistance of

counsel claim.

A. The dismissal of the pretrial motions as untimely

      W e review the district court’s decision to decline to hear untimely pretrial

motions for an abuse of discretion. United States v. Booker, 952 F.2d 247, 249

(9th Cir. 1991) (“A district court’s decision to decline to hear an untimely

suppression motion is reviewed for abuse of discretion.”). A defendant must

move to suppress evidence prior to trial. F ED . R. C RIM . P. 12(b)(3)(C). A district

court may set a deadline by which parties must make all pre-trial motions, F ED . R.

C RIM . P. 12(c); and, further, “[a] party waives any Rule 12(b)(3) defense,

objection, or request not raised by the deadline the court sets under Rule 12(c) or

by any extension the court provides. For good cause, the court may grant relief

from the waiver.” F ED . R. C RIM . P. 12(e); see United States v. M iller, 987 F.2d

1462, 1464 (10th Cir. 1993) (stating that “the district court . . . may grant relief

from the w aiver for cause shown”).

      In M r. Gonzales’s case, as noted above, the parties agree that any pretrial

motions were required to be filed at least ten business days in advance of trial.

M r. Gonzales filed his motions on October 7, 2005, one business day before his

                                          -9-
trial was set to begin on the following Tuesday. Thus, under the explicit language

of Rule 12 and the court’s scheduling order, M r. Gonzales waived his right to

move to suppress and to seek the identity of the CS.

      M r. Gonzales does not argue that the facts upon which his motions relied

could not have been fully discovered by the date set for these motions. He does

argue that the district court should have inquired whether there was good cause

for the untimely motions before summarily dismissing them. Had the court done

so, he contends, it would have recognized that the eight continuances during the

course of M r. Gonzales’s representation by two separate counsel resulted in the

filing of no substantive motions on his behalf. He argues that “[t]he issues in the[

present] motions were, essentially, M r. Gonzales’[s] only legal defense.” A plt’s

Br. at 34. M r. Gonzales suggests that the district court should have exercised its

discretion to hear his untimely motions “in the furtherance of justice.” Id. at 35.

      M r. Gonzales relies on United States v. Janoe, 720 F.2d 1156, 1164 (10th

Cir. 1983), but that case is inapposite: “In Janoe, we noted that, although the

government had argued in its brief that the defendant waived his right to a . . .

hearing under Rule 12[e] by failing to file a pretrial motion to suppress, [the

government] had abandoned that position at oral argument.” M iller, 987 F.2d at

1465 (emphasis added). As in M iller, “the circumstances in the present case

differ from those in Janoe” because the government never abandoned its position

that the motions were untimely. Thus, “[w]e find no evidence to support relief

                                         -10-
from waiver under Rule12[e].” Id.

      W hen the district court appointed M r. Bierly in August 2005, it informed

him that there would be no more continuances and to be prepared for trial

beginning in October 2005. M r. Gonzales did not indicate that he disagreed with

his counsel’s tactics before trial. There is no cause given for the belated filings,

apart from M r. Gonzales’s present contention of ineffective assistance of counsel,

which we address below. M oreover, the district court also dismissed the motions

on the m erits, further undermining M r. Gonzales’s argument. Accordingly, we

hold that the district court did not abuse its discretion when it determined that M r.

Gonzales’s motion to dismiss and motion to disclose the identity of the

confidential informant were untimely.

B. Ineffectiveness of counsel

      In this circuit, except in rare circumstances, ineffective assistance of

counsel claims must be presented in collateral proceedings. United States v.

Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). On direct appeal

ineffective assistance of counsel claims are “presumptively dismissible, and

virtually all [such claims] will be dismissed.” Id. This rule allows a district court

to develop the factual record necessary for effective review. See Massaro v.

United States, 538 U.S. 500, 505-06 (2003) (“The trial record may contain no

evidence of alleged errors of omission, much less the reasons underlying them.”).

The present claim does not fall into the narrow category of cases that requires no

                                         -11-
further development and are therefore suitable for review on direct appeal. Cf.

United States v. Smith, 10 F.3d 724, 728 (10th Cir. 1993) (deciding an ineffective

assistance of counsel claim on direct appeal where defense counsel averred to

mistakenly omitting a jury instruction on a lesser included offense). If M r.

Gonzales wishes to pursue this claim further, he must do so in a collateral

proceeding under 28 U.S.C. § 2255.

                                III. C ON CLU SIO N

      Accordingly, we AFFIRM M r. Gonzales’s conviction.

                                               Entered for the Court,

                                               Robert H. Henry
                                               Circuit Judge




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