UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JOSE VELARDE-PAVIA, Defendant - Appellant. No. 20-2135 (D.C. No. 2:18-CR-02212-KG-1) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before PHILLIPS , BALDOCK , and BRISCOE , Circuit Judges.

________________ _________________ Based in part on information from a confidential informant (“CI”), police officers in Roswell, New Mexico obtained warrants to search Jose Velarde-Pavia’s truck, his residence, and two other residences associated w ith him. Inside the truck, officers found and seized a bout 130 grams of methamphe tamine and two firearms. And while searching him, the officers found about 5 grams of methamphetamine inside his pants pocket.

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 12, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 20-2135 Document: 010110630768 Date Filed: 01/12/2022 Page: 12 Before trial, but after th e searches, the government le arned that the officer who signed the affidavit in support of the sear ch warrant, Officer Gerald Juarez, had recently been using cocaine and sending sexua lly suggestive texts to the same CI. After learning this, Velarde-Pavia filed tw o motions. In the first, he moved to obtain the CI’s identity. In the second, he moved to suppress the methamphetamine seized from his truck and his pants pocket as well as the firearms seized from his truck. And he asked for an evidentiary hearing under Franks v. Delaware , 438 U.S. 154 (1978). The district cour t denied both motions. At tria l, Velarde-Pavia moved for acquittal, arguing that insufficient evidence supported the charges. The district court denied that motion too. Now, Velarde-Pavia appeals the deni al of his three motions. Exercising jurisdiction under 28 U.S. C. § 1291, we affirm.
BACKGROUND Officer Gerald Juarez, a longtime veteran of the Ro swell Police Department’s Metro Narcotics Task Force Division, worked with a CI who told him that VelardePavia was selling methampheta mine. On June 7, 2018, w ith the CI’s information, Officer Juarez signed an affidavit to suppor t search warrants for Velarde-Pavia, his truck, and three residences associated w ith Velarde-Pavia. For purposes of this appeal, the relevant portions of the affidavit state as follows: 3. Affiant met with a re liable, credible and conf idential informant. Said informant has assisted Affiant and ot her law enforcement personnel with controlled substance investigations , by providing information on more than three separate occasions that ha s led to the recovery of controlled substances. Appellate Case: 20-2135 Document: 010110630768 Date Filed: 01/12/2022 Page: 23 4. Said informant has personally witnessed the sale of controlled substances on more than three sepa rate occasions while working for Agents with the Chavez County Me tro Narcotics Task Force. Said informant has personally purchased cont rolled substances for Agents with the Chavez County Metro Narcotics Task Force on more than three separate occasions. 5. Said informant has provided in formation which has proven to be truthful. Said informant has never provided false information to the knowledge of affiant. Said info rmant has associated with known Methamphetamine sellers and users and is familiar with the appearance of methamphetamine and how it is packaged and sold. 6. Affiant learned from the informan t that within the past seventy-two (72) hours the informant has witnesse d a subject known as Jose VelardePavia to be selling Methamphetamin e from his vehicle and has several residences where he stashed large amounts of narcotics. 7. Within the past 72 hours Agen ts during a controlled buy through surveillance observed a white truck bearing NM-LDN-973 a white Toyota associated to Mr. Velard e-Pavia leave 806 W. 11th and travel to 1500 W. Albuquerque. The truck was operate d by Mr. Velarde-Pavia. Agents observed Mr. Velarde-Pavi a outside his truck ta lking with a female outside of the residence. A short time later the truck returned departed (sic) from 1500 W. Albuquerque a nd returned to 806 W. 11th. The informant was able to purchase me thamphetamine from Mr. VelardePavia. Agents learned from the info rmant that Mr. Velarde-Pavia had travelled to an unknown location to pick up the Methamphetamine. R. vol. 2 at 25–26. Based on O fficer Juarez’s affidavit, a state-court judge issued the search warrants. Four days later, New Mexico police officers executed th e warrants. Though they seized no evidence during the searches of the homes, police se ized two guns and about 136 grams of methamph etamine from Velarde-Pavi a’s truck. In his pants pocket, the police also seized about 5 gr ams of methamphetamine. Velarde-Pavia was indicted on two charges: (1) unlawful possess ion with intent to distribute 50 grams or Appellate Case: 20-2135 Document: 010110630768 Date Filed: 01/12/2022 Page: 34 more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1 ) and (b)(1)(A); and (2) possession of a firearm in relation to drug trafficking, in violation of 18 U.S.C. § 924(c)(1). In February 2019, before Velarde-Pavi a’s trial, the sher iff’s office began investigating Officer Juarez after receiving information that he may have recently been using cocaine while em ployed as a police officer. 1 This eventually led the sheriff’s office to interview the CI in this case. Over several interviews between Febr uary and April 2019, the CI told investigators that the CI had started work ing for Officer Juarez sometime in “June, April, May” of 2018 after getting “busted with an ounce [of drugs].” Supp. R. vol. 3 at 174, 233. The CI worked at Officer Ju arez’s direction. The CI helped Officer Juarez, and his fellow officers working in tandem with him, by participating in controlled buys of illegal drugs. Usually, the CI was pa id between $60 to $100 for each buy that led to an arrest. In total, the CI made about $1,000.

1 In its order denying Velarde-Pavia’s motion to suppress and to obtain a Franks hearing, the district court found that Officer Juarez had “made an unprompted statement that he had been us ing cocaine for six months.” R. vol. 1 at 58. The district court cites docket entry 109 for that info rmation. According to the docket sheet, docket entry 109 was a motion in limine about Officer Juarez. We have been unable to locate that document in th e record. But even assuming O fficer Juarez started using cocaine six months before the investigati on, that would mean that Officer Juarez began using in August 2018—at least two months after he si gned the affidavit in this case. Appellate Case: 20-2135 Document: 010110630768 Date Filed: 01/12/2022 Page: 45 The CI acknowledged that in 2019, afte r working with Officer Juarez for “a while,” 2 Officer Juarez started sending the CI sexually inappropria te text messages. But the CI was never alone with Office r Juarez, and despite Officer Juarez’s advances, in the CI’s view, the re lationship was purel y professional. After the prosecutors provi ded him copies of these interviews, Velarde-Pavia moved to compel the disclosure of the C I’s identity. He sought the CI’s identity to assess the CI’s credibility and undermine the contents of th e search-warrant affidavit. In a separate motion, Velarde-Pavia made two requests. First, he moved to suppress the methamphetamine and firearms, argui ng that the warrant lacked sufficient information on its face to establish probable cause. Second, he sought a Franks hearing, arguing that the af fidavit omitted material info rmation that undermined the CI’s reliability. The district court denied his motions. The case proceeded to trial. After th e government rested its case, VelardePavia moved for judgment of acquittal under Federal Rule of Criminal Procedure 29, arguing that insufficient evidence supported th e charges. The district court denied his motion. A jury later convicted Velarde-Pavia on both counts.

2 During one interview, the CI told i nvestigators that Officer Juarez sent inappropriate text messages “ during that time frame” of Ma y or June 2018 to January 2019. R. vol. 2 at 128. But in another inte rview, two months late r, the CI clarified that the messages didn’t begin until “a wh ile” after the CI had begun working with Officer Juarez. Supp. R. vol. 3 at 237. Appellate Case: 20-2135 Document: 010110630768 Date Filed: 01/12/2022 Page: 56 DISCUSSION Velarde-Pavia raises four issues on appeal. First, he argues that the district court should have suppressed the methamphet amine and firearms seized because the affidavit lacked sufficient in formation to establish probabl e cause. Second, he insists that he was entitled to a Franks hearing to contest Officer Ju arez’s credibility. Third, he argues the CI’s identity should have b een disclosed so that he could gather information by which to contest the CI’s credibility. Fourth, Velarde-Pavia contends that insufficient evidence supported his conviction. We address each argument in

turn.
I. Probable Cause for the Search Warrant Before issuing a search warrant, a magist rate must determine under the totality of circumstances whether the affiant ha s established probable cause of a crime justifying the search. United States v. Biglow , 562 F.3d 1272, 1280 (10th Cir. 2009). Probable cause is a “fair probability” that c ontraband or evidence of a crime will be found in a particular place. Id. We review a district court’s probable-cause determination de novo. Id. But our review of a magistra te’s probable-cause ruling is more deferential. Id. As a reviewing court, we simply ask whether a magistrate judge had a “substantial basis for concl uding that probable cause existed.” Illinois v. Gates , 462 U.S. 213, 238–39 (1983) (cleaned up). The affidavit here satisfies that standard. To start, “[w]hen there is sufficient independent corroboration of an informant’s in formation, there is no need to establish the veracity of the informant.” United States v. Danhauer , 229 F.3d 1002, 1006 (10th Appellate Case: 20-2135 Document: 010110630768 Date Filed: 01/12/2022 Page: 67 Cir. 2000). Less than 72 hours be fore the magistrate signed th e search warrant, the CI “was able to purchase methamphetam ine from Mr. Velarde-Pavia” during a controlled buy. 3 R. vol. 2 at 26; see United States v. Aranda-Diaz , 623 F. App’x 912, 916 (10th Cir. 2015) (finding th at a controlled buy supplied “sufficient corroborating information” to support probable cause). The affidavit also provided information to establish the veracity of the CI. For example, it stated that “on more than three separa te occasions” the CI had participated in controlled buys with officers and provided information that “led to the recovery of controlled subs tance.” R. vol. 2 at 25; see United States v. Long , 774 F.3d 653, 658–59 (1 0th Cir. 2014) (affirming a probable cause determination because, among other reasons, the CI ha d participated in controlled buys and provided information that le d to the seizure of drugs). Taken together, the affidavit provided sufficient information for the magistrate to find probable cause. Still, Velarde-Pavia argues the metham phetamine and fire arms should have been suppressed because the affidavit was an obvious “cut and paste” job from another warrant. We acknowledge that the use of boilerplate language cannot replace the needed “parti cularized facts.” United States v. Weaver , 99 F.3d 1372, 1378 (6th

3 Velarde-Pavia counters that the c ontrolled buy cannot es tablish probable cause because “there was no indication in th e affidavit that any officers actually observed the informant buying methamphet amine.” Opening Br. at 25. But we foreclosed this argument in United States v. Artez , 389 F.3d 1106, 1112 (10th Cir. 2004), where we explained that “the absence of constant visual contact with the informant conducting the transaction does not render a controlled purchase insufficient.” Appellate Case: 20-2135 Document: 010110630768 Date Filed: 01/12/2022 Page: 78 Cir. 1996). But the use of some generic la nguage does not invalidate a warrant so long as there is still su fficient information to support probable cause. United States v.
Romo , 914 F.2d 889, 898 (7th Cir. 1990). A nd here, more specific language would only further affirm the CI’s re liability. This is so because Officer Juarez paid the CI $60 to $100 for each controlled buy, and the CI made about $1 ,000. Thus, the CI must’ve participated in far more than just three controlled buys. In sum, there was a “substantial basi s” for finding probable cause, and the district court properly denied Vela rde-Pavia’s suppression motion.
II. Franks Hearing We have yet to adopt a standard of review for the denial of a Franks hearing. United States v. Cooper , 654 F.3d 1104, 1128 (10th Cir. 2011). But other circuits apply either clear error or de novo review. Id. We need not decide which standard applies now because, even unde r the stricter de novo standa rd, the district court did not err in denying Velarde-Pavia a Franks hearing. Under Franks , a Fourth Amendment violation o ccurs when “(1) an officer’s affidavit supporting a search warrant application contains a reckless misstatement or omission that (2) is material because, but fo r it, the warrant coul d not have lawfully issued.” United States v. Moses , 965 F.3d 1106, 11 10 (10th Cir. 2020) (cleaned up). So to obtain a Franks hearing, a defendant must ma ke a substantial preliminary showing of both recklessn ess and materiality. Id. To make this showing, a defendant must provide affidavits from witnesses, or adequately expl ain why such affidavits are absent. Artez , 389 F.3d at 1116. Appellate Case: 20-2135 Document: 010110630768 Date Filed: 01/12/2022 Page: 89 Velarde-Pavia has failed to satisfy his burden. The crux of his argument is that if the district court had held a Franks hearing, he “could have proved” that Officer Juarez lied in his af fidavit. Opening Br. at 31–32. But “the information that could be gleaned from a Franks hearing cannot be the basis for granting a Franks hearing.” United States v. Smith , 846 F. App’x 641, 648 (10th Cir. 2021). In any event, Velarde-Pavia has offered no evidence that Officer Juarez lied in his affidavit. Rather than make the needed “substant ial preliminary showing,” Velarde-Pavia only speculate s that Officer Juarez could be lying—that is not enough. For example, Velarde-Pavia points out that th e CI told investigators that he or she had started working for Officer Juarez “in May or June of 2018.” Opening Br. at 30. And because the warrant wa s issued on June 7, 2018, 4 it’s possible, according to Velarde-Pavia, that the CI didn’t start working for Officer Ju arez until after the warrant had already been issued . There are two issues with this argument. First, if the CI started working with Offi cer Juarez in May or the beginning of June, Officer Juarez did not lie in the affidavit. And second, the mere possi bility that the CI’s statement could be interpreted in Velarde-Pavi a’s favor falls far short of a “substantial preliminary showing.” Ultimate ly, Velarde-Pavia gives us no reason to doubt the affidav it’s affirmations. As another example, Velarde-Pavia also argues that Officer Juarez lied because the affidavit stated that the CI had “pers onally purchased controlled

4 In another part of their interview, the CI stated that he or she started working with Officer Juarez in “June , April, May” of 2018. Appellate Case: 20-2135 Document: 010110630768 Date Filed: 01/12/2022 Page: 910 substances for Agents with the Chavez County Metro Na rcotics Task Force,” even though the CI told investigators that he or she “only worked for Gerald Juarez and no one else.” Opening Br. at 29– 31. But those statements ar e not inconsis tent. First, Officer Juarez is part of th e Chavez County Metro Narcotics Task Force. Second, the CI’s admission of having “ only worked” for Officer Juar ez can be understood as the CI reporting only to Officer Juarez during these controlled buys. The CI, however, is not asserting that she didn’t interact w ith other police office rs. Indeed, the CI acknowledges that other officers were alwa ys with Officer Juar ez when they met. To the extent that Velarde-Pavia argue s that Officer Juarez’s later drug use and sexually inappropriate text messages underm ine his credibility, we do not alter our analysis. We agree with the di strict court that much of this conduct arose after he signed the affidavit for the search warrants. And even if the affidavit would require this information, Velarde-Pavia bears the burden of demonstrating that its in clusion would have made the warrant defective. Moses , 965 F.3d at 1110. But as we expl ained above, given the controlled buy, probable cause supported the warrant. 5 At bottom, Velarde-Pavia only speculate s that Officer Juarez lied in his affidavit. The district court thus properly de nied his request for a Franks hearing.

5 Velarde-Pavia also argues that the affidavit left out information that undermined the CI’s cr edibility, such as the CI receiving payment for participating in the controlled buys and the CI’s previous drug use. But the controlled buy furnished the needed probable cause. See United States v. Nelson , 450 F.3d 1201, 1214 (10th Cir. 2006) (affirming a probable-cause de termination based on a controlled buy). Appellate Case: 20-2135 Document: 010110630768 Date Filed: 01/12/2022 Page: 1011 III. Disclosure of CI’s Identity Under Rovario “We review for abuse of discretion a de nial of a motion to compel discovery regarding a confidential informant.” Long , 774 F.3d at 663. Velarde-Pavia argues that the district court erred in denying his motion to compel the CI’s identity under Rovario v. United States , 353 U.S. 53 (1957). In
Rovario , the Supreme Court held that a CI’s identity must be disclosed “whenever it would be relevant and helpful to an accu sed’s defense or essential to a fair determination of a cause.” United States v. Moralez , 908 F.2d 565, 567 (10th Cir. 1990) (citing Rovario , 353 U.S. at 60–61). But we have n’t required disclosure when “the informant is not a partic ipant in or a witne ss to the crime char ged” or when the defendant merely speculates “about the possible usefulness of an informant’s testimony.” Id. Here, the district court denied Velard e-Pavia’s motion to compel because the CI was neither a witness nor a participan t to Velarde-Pavia’s charged crime. We agree with that analysis. See United States v. Holmes , 311 F. App’x 156, 162 (10th Cir. 2009) (affirming denial of a motion to compel a CI’s identity because the CI did not participate in the illegal transaction). As an added point, Velarde-Pavia can only speculate about the possible relevancy of the CI’s testimony. If he had the CI’s identity, Vela rde-Pavia argues, he Appellate Case: 20-2135 Document: 010110630768 Date Filed: 01/12/2022 Page: 1112 “could have proved” inconsistencie s in Officer Juarez’s affidavit. 6 Opening Br. at 16. But “speculation about the possible useful ness of an informant’s testimony” is insufficient to obtai n a CI’s identity. Moralez , 908 F.2d at 567; see also United States v. Mendoza-Salgado , 964 F.2d 993, 1001 ( 10th Cir. 1992) (“Where the value of the informer’s testimony remains speculative at best, we cannot say the district court erred by denying disclosure of the informer’s identity.”). So the district court did not err in denying Velarde-Pavia’s motion to compel.
IV. Sufficiency of the Evidence fo r Velarde-Pavia’s Conviction We review de novo a motion based on sufficiency of the evidence. United States v. Smith , 641 F.3d 1200, 1204 (10th Cir. 201 1). We ask whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt and view the evidence in favor of the verdict. Id. We do not reweigh the evidence or determine the credibi lity of witnesses. Id. Velarde-Pavia contends that insuffi cient evidence supported his intent-todistribute-methamphetamine conviction becau se officers found “[ n]o scales, baggies, client, list, etc.” Opening Br . at 34. But given the expe rt testimony explaining that drug dealers do not always ha ve these items, the amount of methamphetamine found on him and in his truck, and where the dr ugs were hidden insi de the truck, the evidence more than sufficed to support his conviction. Velarde- Pavia contests his

6 Velarde-Pavia reiterates the same “inc onsistencies” here as he did in arguing for a Franks hearing. As we explai ned above, many of those alleged inconsistencies are not inconsistencies at all. Appellate Case: 20-2135 Document: 010110630768 Date Filed: 01/12/2022 Page: 1213 § 924(c)(1) conviction based on his claim that insuffi cient evidence supported his methamphetamine-distribution conviction. Because we c onclude sufficient evidence supports his drug-trafficking conviction, it follows that sufficient evidence supports his § 924(c)(1) conviction too. Thus, the district court properly denied his motion for judgment of acquittal.
CONCLUSION We affirm the denial of Velarde-Pavia’s motions.

Entered for the Court
Gregory A. Phillips Circuit Judge Appellate Case: 20-2135 Document: 010110630768 Date Filed: 01/12/2022 Page: 13