United States Court of Appeals

For the Eighth Circuit

___________________________

No. 17-1335

___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Marcos De La Torre

lllllllllllllllllllllDefendant - Appellant

____________

Appeal from United States District Court 

for the District of Nebraska - Omaha

____________

Submitted: May 17, 2018

Filed: October 22, 2018

____________

Before SMITH, Chief Judge, BEAM and COLLOTON, Circuit Judges.

____________

SMITH, Chief Judge.

Marcos De La Torre was convicted of conspiracy to distribute and/or possess

with intent to distribute 500 grams or more of a mixture or substance containing

methamphetamine (“Count I”) ; possession with intent to distribute 5 grams or more

of actual methamphetamine (“Count II”); and distribution and/or possession with

intent to distribute 50 grams or more of actual methamphetamine (“Count IV”). De
La Torre appeals, arguing that the district court erred in denying his motion to 1

suppress, motion to dismiss for violation of the Speedy Trial Act, and motion for

acquittal. He also alleges that the district court made several erroneous evidentiary

rulings at trial and contends that his attorney rendered ineffective assistance before

and during trial. We decline to review his ineffective-assistance-of-counsel claimand

affirm on the remaining issues.

I. Background

We take the following facts from the testimony given over the course of De La

Torre’s four-day trial. We present them “in the light most favorable to the verdict.”

United States v. Meeks, 639 F.3d 522, 525 (8th Cir. 2011) (citation omitted).

In 2014, De La Torre had become a target of investigation for law enforcement

in the Omaha, Nebraska area. De La Torre operated De La Torre Auto Repair, an auto

repair shop at 4016 Hamilton Street in Omaha. Law enforcement suspected that he

illegally distributed controlled substances from that location.

In August 2014, Ryan Slavicek, an acquaintance of De La Torre’s, delivered

a car to De La Torre’s shop for service. The two men decided that De La Torre would

conduct a test drive of the car. De La Torre drove the vehicle, with Slavicek and

Slavicek’s young son as passengers. Soon, local police pulled them over for a traffic

violation. Slavicek was removed from the car, while De La Torre and Slavicek’s son

remained inside. Slavicek consented to a search ofthe vehicle. The officersrecovered

about two ounces ofmethamphetamine fromthe car’s center console. They also found

several thousand dollars in cash on both De La Torre and Slavicek. Slavicek had a

history of methamphetamine use. Both men were arrested, and Slavicek was

subsequently charged in state court with possession of methamphetamine. State

The Honorable Laurie Smith Camp, Chief Judge, United States District Court

1

for the District of Nebraska.

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authorities later dismissed this charge, and federal authorities indicted Slavicek for

drug possession. Slavicek claimed, from the time of his arrest through De La Torre’s

trial, that the methamphetamine was not his. At some point, Slavicek agreed to serve

as an informant in assisting authorities in the investigation of De La Torre.

Early on the morning of July 1, 2015, police surveilled De La Torre, seeking

evidence of illicit drug sales. At about 5:00 a.m., officers began monitoring De La

Torre’s auto repair business. This business shared a building with another business,

Neo’s Auto Repair and Collision. At about 6:30 a.m., police also went to De La

Torre’s home to ask him to consent to a search of it. De La Torre’s brother, David,

answered the door. David informed police that De La Torre was not at home and that

he preferred to discuss the matter with De La Torre before consenting.

With police permission, David called De La Torre and apprised him of the

situation. Eventually, De La Torre spoke with the officers directly and granted

permission to search the house. “[W]ithin a matter of a few minutes” of the phone

call’s end, a car arrived at the shop. Tr. of Proceedings, Vol. II, at 257, United States

v. De La Torre, No. 8:16-cr-00115 (D. Neb. Oct. 26, 2016), ECF No. 108. A man

later identified as Miguel Diaz-Huizar, an associate of De La Torre, got out of the car.

Diaz-Huizar worked at Neo’s and, occasionally, did mechanical work for De La

Torre. He was observed entering De La Torre’s shop carrying nothing. When he left

a short while later, he was carrying a bag containing a plastic container. Police

stopped Diaz-Huizar’s car for two minor traffic offenses (an expired license plate and

failure to signal) shortly after he left the shop. The officers discovered about three

quarters of a pound of methamphetamine in the container found in the car. However,

the roughly contemporaneous search of De La Torre’s house proved fruitless.

In September 2015, acting as an informant, Slavicek initiated a conversation

with De La Torre about Slavicek’s legal troubles while wearing a wire. When asked

about the conversation at trial, Slavicek stated, “[T]he government wanted me to

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make contact with [De La Torre] about any drug involvement. My intention while I

was there was to confront him about the drugs that he put in the vehicle.” Id. at 175. 

In March 2016, De La Torre was indicted on Counts I, II, and IV. His father,

Marcos De La Torre-Casas (“Casas”), was indicted on Count I and for possession

with intent to distribute 5 grams or more of methamphetamine (“Count III”). Count

I alleged that De La Torre and his father’s conspiracy lasted fromon or about January

2011 to July 2015. Count II alleged that the possession of methamphetamine took

place on August 25, 2014, the date that De La Torre wasstopped while with Slavicek.

The offense date for Count IV was July 1, 2015, the date of the search of De La

Torre’s home and business.

De La Torre was arraigned on April 6, 2016. The government moved for

2

detention on that day, which De La Torre resisted. The district court held a detention

hearing on April 21 and ruled in favor of the government. On April 26, De La Torre

filed a motion to extend the pretrial motions deadline to May 17, which the district

court granted. De La Torre filed a motion to suppress on May 17. The magistrate

judge held a hearing on the motion on June 16. The magistrate judge first addressed

whether it would consider a number of defense motions challenging the validity of

the warrant used to search De La Torre’s home. At the conclusion of the hearing, the

magistrate judge determined that these motions, filed well after the pretrial motions

deadline, were inexcusably untimely. The magistrate judge entered his order

recommending that the district court deny the motion to suppress. De La Torre filed

objections to the magistrate judge’s findings and recommendation. The district court

issued a written order adopting the magistrate judge’s findings and recommendation

on August 24. On August 25, the district court set trial for September 27.

All docket events, as well as the trial, took place in 2016. 2

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On September 1, the government filed a motion to continue the trial date to

enable the U.S. Marshals Service (USMS) to secure witness Tammy Gall, who was

incarcerated in a federal facility in Phoenix, Arizona. The magistrate judge granted

the motion on September 6, referencing both the ends of justice and Gall’s status as

a necessary witness. De La Torre objected, but the district court noted that De La

Torre did not dispute the government’s facts. It found the time needed by the USMS

to secure the witness was reasonable. The district court overruled De La Torre’s

objection on September 21.

On October 19, De La Torre filed a motion to dismiss for Speedy Trial Act

violations. The motion alleged that the district court had erroneously excluded the

delay caused by the continuance to secure Gall’s presence at trial. The district court

denied the motion, concluding that the continuance promoted the ends of justice and,

even if it did not, fewer than 70 non-excludable days would have run before trial:

The Court concludes that the delay resulting from the continuance

served the ends of justice, thus, the time was properly excluded from the

speedy trial clock. See § 3161(h)(7)(A). Nevertheless, as discussed

below, even if the delay resulting from the continuance had not been

excluded, 70 days will not have elapsed since Defendant’s first

appearance, taking into account other excludable periods under the Act.

United States v. De La Torre, No. 8:16-cr-00115, 2016 WL 6102338, at *1 (D. Neb.

Oct. 19, 2016).

Also shortly before trial, De La Torre filed a motion in limine seeking to

exclude the recording of his conversation with Slavicek. He argued that the poor

sound quality destroyed its evidentiary value. Additionally, he sought the exclusion

of pictures of text messages from Gall’s phone that allegedly demonstrated that he

supplied her with illegal drugs. He asserted the messages (1) were hearsay, (2) lacked

sufficient proof of connection to himto qualify asthe admissions of a party opponent,

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(3) necessarily included hearsay statements of Gall, and (4) were taken out of context

of De La Torre and Gall’s conversations. Finally, he argued that lack of forensic

analysis on the phone, as well as the limited number of text messages, would mislead

the jury and prejudice him in violation of Federal Rule of Evidence 403. On the first

day of trial, before voir dire commenced, the district court denied the motion asto the

text messages and delayed ruling on the recording until later in the trial.

At trial, the government presented the testimony of Omaha Police Department

Officer James Holtmeyer. Officer Holtmeyer was one of the officers who conducted

the August 2014 traffic stop of De La Torre and Slavicek. Holtmeyer testified that

Slavicek spoke with the officers outside the vehicle and gave consent to search.

During this time, De La Torre remained in the car alone with Slavicek’s son.

Holtmeyer acknowledged that either Slavicek or De La Torre could have been

responsible for the methamphetamine found in the center console.

The next witness, DEA Agent Frank Feden, provided information regarding the

use of informants in criminal investigations and Slavicek’s cooperation with law

enforcement. Agent Feden stated that he took part in Slavicek’s proffer interview,

which spurred the wired conversation. In this operation, law enforcement placed a

hidden recorder and video camera on Slavicek and sent himto De La Torre’s business

to talk to him. They hoped that De La Torre would implicate himself in the sale of

illegal drugs.

De La Torre’s conversation with Slavicek was recorded with a hidden camera

affixed to Slavicek’s person and an audio recording device shaped like a key fob and

placed on Slavicek’s key ring. However, because the recording devices did not

transmit contemporaneously, Slavicek was also given a device referred to as a “Kel”

that allowed police to hear what was happening in real time. The government moved

to admit a DVD of the conversation during Agent Feden’s testimony. The district

court accepted it over a defense objection. The court gave a limiting instruction,

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ordering the jury not to accept anything Slavicek stated in the recording for the truth

of the matter asserted.

The government then called Slavicek to the witness stand. Slavicek stated that

he had used methamphetamine off and on for several years leading up to his August

2014 arrest. He said he had met De La Torre through work around 2010 and that De

La Torre eventually became one of his sources for methamphetamine. He testified

that he bought methamphetamine from De La Torre over 20 times, in amounts

ranging from 1/4 ounce to 1/4 pound. In addition, he testified that he had purchased

large quantities (over two pounds) of marijuana from De La Torre on several

occasions. He also disclosed that he had entered into a conditional nonprosecution

agreement to have his charges dropped in exchange for testifying at De La Torre’s

trial; his only instruction from the government was that he be honest.

Slavicek stated that when he and De La Torre conducted drug deals they did

so at another auto shop operated by De La Torre. He testified that he personally saw

De La Torre in possession of “[p]robably a couple pounds” of methamphetamine in

a Tupperware container. Tr. of Proceedings, Vol. II, at 170. According to Slavicek,

they never conducted drug deals at the shop on Hamilton Street.

Douglas County Sheriff’s Deputy Theresa Ogorzaly testified as to her role in

the investigation. She and other officers monitored the drug buy between Casas and

Gall. She also explained that after Gall’s arrest, she consented to a search of her

phone, which Ogorzaly conducted. Ogorzaly took pictures of drug-related text

messages Gall exchanged with De La Torre and discussed them with Gall.

Gall, who, like Slavicek, was subject to a cooperation agreement, testified

about her relationship with De La Torre and his father. She said that she knew De La

Torre supplied methamphetamine, thatshe purchasedmethamphetamine fromhimon

several occasions for both personal use and for resale, and that Casas delivered drugs

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for De La Torre. She logged her transactionsin a day planner and communicated with

De La Torre through both phone calls and text messages. The court received Gall’s

planner and notebook into evidence during her testimony. The text messages between

Gall and De La Torre were also admitted during her testimony.

Diaz-Huizar also testified, claiming that he was not involved in narcotics. He

represented that he only picked up the package because De La Torre asked him to and

did not know that it contained a controlled substance.

After the government rested, the defense moved for a judgment of acquittal

under Federal Rule of Criminal Procedure 29, which the district court denied.

De La Torre testified in his own defense. He stated that he did not tell DiazHuizar to pick up a package from the shop; that he barely knew Gall; and that he

never texted Gall, spoke to her on the phone, or sold drugs to her. He also

categorically denied that he sold any drugs out of his shops. Moreover, he denied

responsibility for the methamphetamine recovered in the August 2014 stop and said

that he only spoke as he did with Slavicek to mollify him, as he seemed angry and

dangerous.

After about four and a half hours of deliberation, the jury found De La Torre

guilty on all three counts. De La Torre moved for acquittal or, in the alternative, a

new trial. The district court denied the motions. 

II. Discussion

On appeal, De La Torre argues that the district court erred in denying his

motion to suppress, motion for acquittal, and motion to dismiss. He also contendsthe

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district court made reversible evidentiary errors. Finally, he argues that his counsel

provided ineffective assistance by not timely moving for a Franks hearing.

3

A. Motion to Suppress

De La Torre seeks reversal of the court’s denial of his suppression motion,

averring that the search warrant application for his shop wasinvalid. He contendsthe

warrant application should have disclosed that the search of his home yielded no

contraband and that his business shared a building with another business. He also

argues that the evidence did not sufficiently connect the “cube shaped object” the

affidavit claims Diaz-Huizar possessed as he left the shop to the “brown paper bag”

in which the police found drugs after stopping Diaz-Huizar. Appellant’s Br. at 14.

The task of the issuing magistrate is simply to make a practical,

common-sense decision whether, given all the circumstances set forth

in the affidavit before him, including the “veracity” and “basis of

knowledge” of persons supplying hearsay information, there is a fair

probability that contraband or evidence of a crime will be found in a

particular place. And the duty of a reviewing court is simply to ensure

that the magistrate had a “substantial basis for . . . conclud[ing]” that

probable cause existed.

Illinois v. Gates, 462 U.S. 213, 238–39 (1983) (alteration and ellipsis in original)

(quoting Jones v. United States, 362 U.S. 257, 271 (1960)). 

In ruling on a motion to suppress, probable cause is determined based

on the information before the issuing judicial officer. We look to the

totality of the circumstances to determine whether an affidavit is

sufficient to demonstrate probable cause. Probable cause exists if the

warrant application and affidavit describe circumstances showing a fair

probability that contraband or evidence of a crime will be found in a

particular place, and our duty on appeal is simply to ensure that the

Franks v. Delaware, 438 U.S. 154 (1978). 3

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magistrate had a substantial basis for concluding that probable cause

existed. Though the issue of probable cause is reviewed de novo, this

court accords great deference to the issuing judge’s determination that

the affidavit established probable cause.

United States v. Keele, 589 F.3d 940, 943 (8th Cir. 2009) (cleaned up).

De La Torre’s challenge to the warrant’s sufficiency fails. The facts set forth

in the affidavit support probable cause. Police observed a man, Diaz-Huizar, entering

De La Torre’s repair shop empty-handed. Moments later, the same man left carrying

something with a noticeable shape. Authorities stopped this man and found him with

methamphetamine and a scale. The police observance of contraband potentially

originating from De La Torre’s shop adequately supported the authorization of a

search warrant for the shop. These facts support the finding of a fair probability that

evidence of a drug crime would be found in the shop. See id. Accordingly, we affirm

the denial of the motion to suppress.

B. Speedy Trial

De La Torre argues that the time excluded for the continuance requested by the

government should have counted for Speedy Trial Act purposes. The government

responds that the delay was needed to secure the presence of witness Tammy Gall and

therefore was excludable. The government also notes that even if that period were not

excluded, fewer than 70 non-excludable days elapsed between De La Torre’s

arraignment and trial. The record supports the government’s alternative basis for

affirmance.

Under the Speedy Trial Act, a defendant must be brought to trial within

seventy days from the indictment or the first appearance, whichever

occurs later. 18 U.S.C. § 3161(c)(1). If the defendant is not brought to

trial within this period, the indictment must be dismissed on the

defendant’s motion. Id. § 3162(a)(2). Excluded from the seventy day

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limit are delays granted for certain specific reasons. Id. § 3161(h). As

relevant here, excludable periods include delays resulting from the filing

of pretrial motions, § 3161(h)(1)(D), the unavailability of an essential

witness, § 3161(h)(3)(A), the joinder of a codefendant for whom the

Speedy Trial Act clock has not yet run, § 3161(h)(6), and a finding by

the district court that “the ends of justice . . . outweigh the best interests

of the public and the defendant in a speedy trial.” § 3161(h)(7)(A).

United States v. Porchay, 651 F.3d 930, 935–36 (8th Cir. 2011) (emphases added).

In an appeal of a Speedy Trial Act ruling, we review factual findings for clear error

and legal conclusions de novo. United States v. Aldaco, 477 F.3d 1008, 1016 (8th Cir.

2007) (citing United States v. Van Someren, 118 F.3d 1214, 1216 (8th Cir. 1997)).

Of the 202 calendar days between De La Torre’s arraignment and the

commencement of trial, well more than the amount necessary to avoid violating the

Speedy Trial Act were excludable due to either pending motions or a pretrial motions

deadline extension. See 18 U.S.C. § 3161(h)(1)(D) (excluding “delay resulting from

any pretrial motion, from the filing of the motion through the conclusion of the

hearing on, or other prompt disposition of, such motion”).

De La Torre’s arraignment took place on April 6. This date would normally

mark the start of the speedy trial clock. See 18 U.S.C. § 3161(c)(1). However, the

government filed a detention motion that day, and the district court did not rule on it

until April 21. Therefore, the 70-day clock began to run on April 22. On April 26, De

La Torre filed a motion to extend the pretrial deadline from April 27 to May 17

because his counsel needed more time to review discovery and determine whether to

file any pretrial motions. The district court granted the motion after concluding that

the extension served the ends of justice. The court thus excluded April 26 to May 17,

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the time period between the filing of the motion and the new deadline. De La Torre

4

filed his motion to suppress on May 17 and again stopped the clock. It did not restart

until the district court’s denial of the motion on August 24. As of that date, only four

non-excludable days had elapsed. The next day, August 25, the court set trial for

September 27.

Another seven non-excludable days ran between August 25 and September 1.

On that day, the government moved to continue. This motion stopped the clock until

September 6, when the district court granted the requested continuance. The clock

then ran again from September 7 until September 15, when the government moved

for a conflict hearing. The district court denied the motion on September 22. 

Therefore, as of September 22, no more than 19 non-excludable days of delay

had elapsed. As such, even if we were to reverse the district court’s exclusion of the

period between September 23 and October 25, the date on which trial commenced,

only 51 non-excludable days would have elapsed. Accordingly, the district court did

not err in denying De La Torre’s motion to dismiss.5

C. Evidentiary Rulings

“We review a District Court’s evidentiary rulings for clear abuse of discretion,

reversing only when an improper evidentiary ruling affected the Defendant’s

In his motion, De La Torre “acknowledge[d] that any time granted will not be 4

included in any calculation under the Speedy Trial Act.” Unopposed Mot. to Extend

Pretrial Mots. Deadline at 1, United States v. De La Torre, No. 8:16-00115 (D. Neb.

Apr. 26, 2016), ECF No. 22. 

De La Torre suggests that the two weeks during which the government’s 5

detention motion was pending should not have been excluded because “the matter

was not under advisement for a single day.” Appellant’s Br. at 31. However, he does

not support this claim with any authority. Accordingly, we disregard it. See United

States v. Sigillito, 759 F.3d 913, 933 (8th Cir. 2014). 

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substantial rights or had more than a slight influence on the verdict.” United States

v. Espinoza, 684 F.3d 766, 778 (8th Cir. 2012) (quoting United States v. Faulkner,

636 F.3d 1009, 1017 (8th Cir. 2011)).

De La Torre argues that the recording made of his conversation with Slavicek

was so lacking in sound quality that it should have been ruled inadmissible under

United States v. Trogdon, 575 F.3d 762 (8th Cir. 2009). Regarding the text messages,

he claims they were unreliable hearsay. He also assertsthat the recording and the text

messages were inadmissible under Federal Rule of Evidence 403.

6

1. Slavicek Conversation

We first consider the recording of De La Torre’s conversation with Slavicek.

We review this matter under the abuse of discretion standard. See United States v.

Calderin-Rodriguez, 244 F.3d 977, 987 (8th Cir. 2001) (citing United States v. Huff,

959 F.2d 731, 737–38 (8th Cir. 1992)).

The decision to admit partially inaudible audio tapes is a matter within

the sound discretion of the district court. The district court should assess

whether the unintelligible portions of the tape are so substantial, in view

of the purpose for which the tapes are offered, asto render the recording

as a whole untrustworthy. In making this determination, the district

Though De La Torre describes the evidence as falling under Federal Rule of 6

Evidence 404(b), we reject this characterization, as all the challenged “exhibits were

offered as direct evidence of the charged crimes.” Appellee’s Br. at 30. We therefore

decline to conduct a Rule 404(b) analysis. See United States v. Ballew, 40 F.3d 936,

941 (8th Cir. 1994) (“[The appellant’s] objection under 404(b) mischaracterizes the

evidence in question as evidence of ‘other crimes, wrongs, or acts.’ The . . . evidence

is better described as direct evidence of the crime charged . . . . Direct evidence of the

crime charged is not subject to the heightened scrutiny of Rule 404(b).” (citation

omitted)).

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court should consider whether the tapes are audible enough to provide

the jury with the gist of the conversations, as well as whether the

defendant was given an opportunity to offer his version of the inaudible

portions so as to clear up whatever ambiguities the tapes might have

raised.

Trogdon, 575 F.3d at 765 (cleaned up). 

We have reviewed the recording. Like the recording in Trogdon, the audio in

this case is of “admittedly poor quality.” Id. at 765. However, its poor quality did not

render the recording wholly untrustworthy. The government introduced the tapes at

trial to show De La Torre’s response to Slavicek’s accusations that he was

responsible for the drugs found during the August 2014 traffic stop. The contents of

the audible portions of the recording were sufficient to “provide the jury with the gist

of the conversation[].” Id. (cleaned up). Further, De La Torre testified and provided

his own interpretation of the exchange. Therefore, the requirements of Trogdon were

satisfied.

We also reject De La Torre’s claim that the admission of the recording violated

Federal Rule of Evidence 403. Before trial and later, when the government offered

the recording into evidence, De La Torre objected to its admission. He argued that the

government had not laid a sufficient foundation and that any statements made by

Slavicek on the recording were inadmissible hearsay. The court admitted the

recording subject to a limiting instruction:

[T]he objections are overruled except with respect to hearsay. And I’m

going to give the jury a limiting instruction on that topic.

In the DVD that you will be watching, Exhibit No. 5, you may or

may not conclude that certain statements are made by the defendant on

that DVD.

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Those statements you may accept and consider for whatever

purpose you think is relevant.

Any statements that you hear on that DVD from other people,

including the individual by the name of Slavicek, Ryan Slavicek, you

are not to accept for the truth of the matter asserted.

That is all that I can tell you on that.

Tr. of Proceedings, Vol. I, at 111, United States v. De La Torre, No. 8:16-cr-00115

(D. Neb. Oct. 25, 2016), ECF No. 107.

De La Torre made no objection to the limiting instruction. Therefore, we

review this claim for plain error. See United States v. DeRosier, 501 F.3d 888, 899

(8th Cir. 2007) (standard of review for unobjected-to jury instructions generally); see

also United States v. Williams, 717 F.3d 35, 42 (1st Cir. 2013) (“When a defendant

does not interpose a contemporaneous objection to a limiting instruction, we will

review an afterthought complaint about the instruction only for plain error.” (citations

omitted)); United States v. Fraser, 448 F.3d 833, 841 (6th Cir. 2006) (“We review the

limiting instruction . . . for plain error because Kahari did not object at trial.”

(citations omitted)).

De La Torre claims that the court’s instruction to the jury not to accept

Slavicek’s statements in the video for the truth of the matter asserted confused the

jury. See Fed. R. Evid. 403 (“The court may exclude relevant evidence if its probative

value is substantially outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence.”). But the court’s instruction accurately

stated the law on the jury’s consideration of the statements made in the recording. It

informed the jury that the purpose for which they could consider Slavicek’s hearsay

statements was limited; however, no such constraints cabined their consideration of

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the statements made by De La Torre. De La Torre’s objections to the recording’s

admission demonstrated a concern that could be convicted on the basis of

inadmissible hearsay. We see no error, plain or otherwise, in giving the jury an

accurate instruction ofthe law intended to prevent that wrong. See, e.g., United States

v. King, 36 F.3d 728, 732 (8th Cir. 1994) (recognizing limiting instructions’ role in

preventing jury from giving inappropriate consideration to out-of-court statements).

De La Torre has not shown that a danger relating to any of the bases for exclusion set

forth in Rule 403 substantially outweighed the probative value of the evidence.

Accordingly, we affirmthe district court’s rulings with respect to the recording

of the conversation between De La Torre and Slavicek.

2. Tammy Gall’s Text Messages

We next address De La Torre’s challenge to the district court’s admission of

Gall’s text messages. 

A statement made by a defendant’s coconspirator is admissible if the

coconspirator made it “during and in furtherance of the conspiracy.” Fed. R. Evid.

801(d)(2)(E). 

In order for an out-of-court statement of a co-conspirator to be

admissible, the government must show by a preponderance of the

evidence (1) that a conspiracy existed; (2) that the defendant and the

declarant were members of the conspiracy; and (3) that the declaration

was made during the course and in furtherance of the conspiracy.

Although courts may consider the contents of the statements, the

government must produce independent evidence outside of the

statements themselves to establish the existence of the conspiracy.

United States v. Whitlow, 815 F.3d 430, 434 (8th Cir. 2016) (cleaned up).

“Coconspirator statements are in furtherance of the conspiracy if they discuss the

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supply source for the illegal drugs or identify a coconspirator’s role in the

conspiracy.” United States v. Cazares, 521 F.3d 991, 999 (8th Cir. 2008) (cleaned

up). A declarant need not be indicted as a coconspirator to qualify under Rule

801(d)(2)(E). See United States v. Davis, 457 F.3d 817, 825 (8th Cir. 2006) (citing

United States v. Mahasin, 362 F.3d 1071, 1084 (8th Cir. 2004)). “We review a district

court’s admission of a coconspirator’s statements under Rule 801(d)(2)(E) for an

abuse of discretion.” United States v. Exson, 328 F.3d 456, 461 (8thCir. 2003) (citing

United States v. Frazier, 280 F.3d 835, 848 (8th Cir. 2002)). 

The evidence at trial established that De La Torre sold drugs and that Gall was

arrested with Cases, De La Torre’s father, after they conducted a monitored drug buy.

Gall testified that Casas was there on his son’s behalf and acted as a runner for him.

She also testified that she both used drugs and sold them and that De La Torre

supplied her with drugs for both purposes on numerous occasions during the course

of the conspiracy. She explained to the jury that the text messages concerned drug

transactions between herself and De La Torre. Therefore, she qualified as a

coconspirator, and the text messages were nonhearsay. See, e.g., United States v.

Conway, 754 F.3d 580, 588 (8th Cir. 2014) (“[E]vidence is sufficient to show a

conspiracy where drugs are purchased for resale.” (citation omitted)); United States

v. Bell, 573 F.2d 1040, 1044 (8th Cir. 1978) (“It is not necessary . . . that a defendant's

complicity in a conspiracy be proved beyond a reasonable doubt for a statement to be

admissible under Fed. R. Evid. 801(d)(2)(E). The ordinary civil standard of

preponderance of the evidence is sufficient since the district court is ruling on

admissibility rather than ultimate guilt.” (citing United States v. Petrozziello, 548

F.2d 20, 23 (1st Cir. 1977)).

De Le Torre’s additional challenges to the admission of the text messages are

presented as a Rule 403 claim but ultimately go to the text messages’ weight and not

their admissibility. We discern no reversible error in the district court’s admission of

the text messages. Two officers and the owner of the cell phone testified as to how

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the investigators came to possess the messages. In addition, Gall discussed the nature

of her text conversations with De La Torre. The jurors had the text messages available

to read for themselves and could assign to them any weight they saw fit.

Therefore, we affirm the district court’s admission of the text messages.

D. Sufficiency of the Evidence

De La Torre contends that the evidence was insufficient to support his

convictions. He thus claims that the district court erroneously denied his Rule 29

motion. He argues that the government’s case isfatally weakened by inconsistencies

7

in the testimony ofseveral witnesses and evidentiary gaps. For instance, he notes that

Slavicek had a conditional plea agreement with the government. He also asserts that

Slavicek’s testimony that he did not appear nervous during the August 2014 stop

contradicted Officer Holtmeyer’s testimony that Slavicek did appear nervous.

Additionally, he contends that the jury improperly ignored the possibility that the

drugs found in the console might have belonged to Slavicek’s child’s mother, as the

jury had heard evidence that the car was hers and that, like Slavicek, she had also

been a user of methamphetamine. On the whole, De La Torre’s sufficiency arguments

consist of credibility challenges to the various government witnesses. Individually

and collectively, these arguments do not show the jury lacked sufficient evidence to

find him guilty of the charged offenses.

We defer substantially to a jury’s findings at trial:

We review de novo the denial of a motion for judgment of

acquittal based on the sufficiency of the evidence. We look at the

evidence in the light most favorable to the verdict and accept all

reasonable inferences that can be drawn from the verdict. The standard

of review is very strict, and we will reverse a conviction only if we

He does not challenge the district court’s denial of his request for a new trial.

7

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conclude that no reasonable jury could have found the accused guilty

beyond a reasonable doubt.

Importantly, we do not review questions involving the credibility

of witnesses, but leave credibility questions to the jury. Therefore, even

if the evidence adduced at trial rationally supports conflicting

hypotheses, we will refuse to disturb the conviction. The presence of one

possible innocent explanation for the government’s evidence does not

preclude a reasonable jury from rejecting the exculpatory hypothesis in

favor of guilt beyond a reasonable doubt.

United States v. Muhammad, 819 F.3d 1056, 1060 (8th Cir.) (cleaned up), cert.

denied, 137 S. Ct. 218 (2016).

De La Torre contends that the district court should have granted his motion for

acquittal on the basis that “[n]o reasonable jury would have found [him] guilty of the

three charges that were leveled against him in the matter.” Appellant’s Br. at 15. We

disagree. In this case, the jury heard sufficient evidence that, if believed, supported

a finding that De La Torre was guilty as charged. Accordingly, we hold thatsufficient

evidence supports the jury’s verdict.

E. Ineffective Assistance

De La Torre argues that his trial counsel was ineffective for failing to timely

make a Franks claim and for deficient trial performance. However, this case does not

present those special circumstances that justify consideration of trial counsel’s

potential ineffectiveness on direct appeal. See United States v. McAdory, 501 F.3d

868, 872–73 (8th Cir. 2007). Accordingly, we decline to review De La Torre’s

ineffective-assistance-of-counsel claim without prejudice. See id. at 873. 

III. Conclusion

Accordingly, the judgment of the district court is affirmed. 

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