                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-2625
                                    ___________

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Timothy Wayne Spence,                    *      [UNPUBLISHED]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

                               Submitted: April 20, 1999

                                   Filed: August 11, 1999
                                    ___________

Before McMILLIAN, LOKEN, and MURPHY, Circuit Judges.
                            ___________

PER CURIAM.

      On May 21, 1996, DEA agents found nineteen kilograms of marijuana in a Des
Moines hotel room and Timothy Wayne Spence hiding in the bathroom. Spence was
convicted of possessing marijuana with intent to distribute in violation of 21 U.S.C. §
841(a)(1), and we affirmed. See United States v. Spence, 125 F.3d 1192 (8th Cir.
1997), cert. denied, 118 S. Ct. 1544 (1998). He now appeals the district court1 order
denying his motion for post-conviction relief under 28 U.S.C. § 2255. The issue on


      1
       The HONORABLE HAROLD D. VIETOR, United States District Judge for
the Southern District of Iowa.
appeal is whether his trial attorneys provided ineffective assistance when they failed
to move to suppress evidence uncovered during an allegedly invalid warrant search of
his home following a prior arrest for possessing marijuana in Illinois. We affirm.

       In December 1995, an informant delivered marijuana to Spence at a truck stop
near Chicago. Police arrested Spence in a motor home containing the marijuana and
then executed a warrant to search his Illinois home, where they found marijuana
wrappings similar to those in the motor home. Before trial in this case, Spence moved
to exclude all evidence resulting from this Illinois arrest as inadmissible under Rule
404(b) of the Federal Rules of Evidence. His written motion disclosed that
“[d]efendant is still awaiting trial in Illinois . . . . and there is presently pending a
motion to suppress the search of [his home] as conducted pursuant to an invalid
anticipatory warrant.” When the district court took up this motion to exclude before
the start of trial, defense counsel again referred to the alleged defect in the Illinois
warrant:

            THE COURT: So after . . . his arrest, they obtained a search
      warrant and they searched his home . . . right?

             MR. PAFF [the prosecutor]: That’s right.

                                  *    *   *     *   *

            THE COURT: Okay. And there’s been no motion to suppress that
      evidence in this case, correct? In this case.

             MR. BROWN [local counsel for Spence]: Has not been filed, no.

             THE COURT: Do you want to say something, Mr. Ettinger?

            MR. ETTINGER [Illinois counsel for Spence]: Judge, the search
      warrant for Mr. Spence’s house was an anticipatory search warrant, the
      condition being that the marijuana from the house trailer was supposed to

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      be delivered to Spence at his house. Based on that condition, then they
      could execute the search warrant. I’ve got a copy of the search warrant.
      That never happened.

                                 *    *   *     *   *

             THE COURT: You’ve challenged it in Illinois?

            MR. ETTINGER: Yes, it’s an anticipatory search warrant. I
      mean, it’s not even close, in my opinion.

                                 *    *   *     *   *

            THE COURT: . . . but you do have a motion filed in Illinois to
      suppress the results of the search of the house?

             MR. ETTINGER: Just the house, Judge, not the motor home.

             THE COURT: Okay. That’s not been heard yet?

             MR. ETTINGER: No. They made me an offer I didn’t want to
      refuse, so they told me if I went ahead on motions, and then this
      happened.

            THE COURT: At any rate, no motion has been filed here to
      suppress that, right?

             MR. BROWN: That’s right.

Returning to the Rule 404(b) motion to exclude, the court deferred ruling until the
government introduced its other evidence at trial. At the close of the government’s
other evidence, the court ruled that evidence from the search of Spence’s Illinois home
would be admissible under Rule 404(b), a ruling we affirmed on direct appeal. After
the court made this ruling, the anticipatory warrant issue was again briefly discussed
outside the jury’s presence:

                                          -3-
            MR. PAFF: . . . my understanding is [defense counsel] want to
      preserve their ability to challenge the warrant on the house. . . .

               THE COURT: Let me ask this: You say [preserve] their ability
      . . . to challenge the warrant. There’s not anything we do here that would
      affect their ability to challenge the warrant in the Illinois state proceeding,
      is there?

             MR. BROWN: No, Your Honor. But we think it’s a foundational
      defect if the warrant was deficient under federal law as well. Whether I
      filed a motion or not, I think it’s a foundational matter that the Court is
      going to have to address.

             THE COURT: What do you mean foundational matter? If you
      don’t move to suppress in advance of trial, I don’t understand that I’ve
      got an obligation to . . . conduct a suppression . . . in the middle of a trial.

             MR. BROWN: That’s what we’re going to be asking for if they
      offer that evidence.

            THE COURT: You’ve known for quite a while that they had this
      evidence.

             MR. BROWN: About ten days.

             THE COURT: And you never came in and asked for fast pretrial.

             MR. BROWN: I did not. No. I did not.

When trial resumed, one of the Illinois police officers who searched Spence’s home
identified the evidence of marijuana trafficking uncovered during that search and
testified without objection that the search was conducted pursuant to a search warrant.
On cross examination, the officer testified that Illinois charges arising out of Spence’s
arrest and the search of his home had not yet been tried.



                                            -4-
       On appeal, Spence argues trial counsel provided ineffective assistance because
the search of his Illinois home was based upon an invalid anticipatory warrant, counsel
were deficient in not filing a timely motion to suppress that evidence in this case, and
there is a reasonable probability the outcome of the trial would have been different had
this prejudicial evidence of prior marijuana trafficking been excluded.

        After careful review of the record, we conclude Spence failed to prove that trial
counsel’s performance was constitutionally deficient. The above-quoted portions of
the trial transcript in this case reveal that defense counsel reviewed the allegedly invalid
anticipatory warrant, determined its validity was subject to challenge, and filed a
motion to suppress in the Illinois case. When advised of those facts, the district court
verified that no motion to suppress had been filed in this case and invited defense
counsel to advise of any ruling on the motion filed in the Illinois case. The record on
this § 2255 motion contains neither the allegedly invalid warrant nor evidence as to the
outcome of Spence’s motion to suppress in the Illinois criminal case. Without that
evidence, Spence’s assertion that a motion to suppress attacking the warrant in this
case would have succeeded is sheer speculation. Indeed, it is far more likely that
defense counsel failed to suppress evidence from the warrant search in Illinois and then
concluded any motion to suppress in this case would be futile. In any event, absent
concrete proof that a motion to suppress the fruits of the Illinois warrant search would
have been granted, Spence’s motion for § 2255 relief was properly denied.

       The district court’s May 20, 1998, Order of Dismissal is affirmed.

       A true copy.

              Attest:

                 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.


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