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 with him. Inside the truck, 

officers found and seized about 130 grams of methamphetamine 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* This order and judgment is not binding precedent, except under the doctrines 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 12, 2022

Christopher M. Wolpert 

Clerk of Court

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Before trial, but after the searches, the government learned that the officer who 

signed the affidavit in support of the search warrant, Officer Gerald Juarez, had 

recently been using cocaine and sending sexually suggestive texts to the same CI. 

After learning this, Velarde-Pavia filed two 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 court denied both motions. At trial, Velarde-Pavia moved for 

acquittal, arguing that insufficient evidence supported the charges. The district court 

denied that motion too. 

Now, Velarde-Pavia appeals the denial of his three motions. Exercising 

jurisdiction under 28 U.S.C. § 1291, we affirm. 

BACKGROUND 

Officer Gerald Juarez, a longtime veteran of the Roswell Police Department’s 

Metro Narcotics Task Force Division, worked with a CI who told him that VelardePavia was selling methamphetamine. On June 7, 2018, with the CI’s information, 

Officer Juarez signed an affidavit to support search warrants for Velarde-Pavia, his 

truck, and three residences associated with Velarde-Pavia. For purposes of this 

appeal, the relevant portions of the affidavit state as follows: 

3. Affiant met with a reliable, credible and confidential informant. Said 

informant has assisted Affiant and other law enforcement personnel with 

controlled substance investigations, by providing information on more 

than three separate occasions that has led to the recovery of controlled 

substances. 

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4. Said informant has personally witnessed the sale of controlled 

substances on more than three separate occasions while working for 

Agents with the Chavez County Metro Narcotics Task Force. Said 

informant has personally purchased controlled substances for Agents with 

the Chavez County Metro Narcotics Task Force on more than three 

separate occasions. 

5. Said informant has provided information which has proven to be 

truthful. Said informant has never provided false information to the 

knowledge of affiant. Said informant 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 informant that within the past seventy-two 

(72) hours the informant has witnessed a subject known as Jose VelardePavia to be selling Methamphetamine from his vehicle and has several 

residences where he stashed large amounts of narcotics. 

7. Within the past 72 hours Agents during a controlled buy through 

surveillance observed a white truck bearing NM-LDN-973 a white Toyota 

associated to Mr. Velarde-Pavia leave 806 W. 11th and travel to 1500 W. 

Albuquerque. The truck was operated by Mr. Velarde-Pavia. Agents 

observed Mr. Velarde-Pavia outside his truck talking with a female 

outside of the residence. A short time later the truck returned departed 

(sic) from 1500 W. Albuquerque and returned to 806 W. 11th. The 

informant was able to purchase methamphetamine from Mr. VelardePavia. Agents learned from the informant that Mr. Velarde-Pavia had 

travelled to an unknown location to pick up the Methamphetamine. 

R. vol. 2 at 25–26. Based on Officer Juarez’s affidavit, a state-court judge issued the 

search warrants. 

Four days later, New Mexico police officers executed the warrants. Though 

they seized no evidence during the searches of the homes, police seized two guns and 

about 136 grams of methamphetamine from Velarde-Pavia’s truck. In his pants 

pocket, the police also seized about 5 grams of methamphetamine. Velarde-Pavia was 

indicted on two charges: (1) unlawful possession with intent to distribute 50 grams or 

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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-Pavia’s trial, the sheriff’s office began 

investigating Officer Juarez after receiving information that he may have recently 

been using cocaine while employed as a police officer.1

 This eventually led the 

sheriff’s office to interview the CI in this case. 

Over several interviews between February and April 2019, the CI told 

investigators that the CI had started working 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 Juarez’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 paid 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 using cocaine for six months.” R. vol. 1 at 58. The district 

court cites docket entry 109 for that information. 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 the record. But even assuming Officer Juarez started using 

cocaine six months before the investigation, that would mean that Officer Juarez 

began using in August 2018—at least two months after he signed the affidavit in this 

case. 

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The CI acknowledged that in 2019, after working with Officer Juarez for “a 

while,”2

 Officer Juarez started sending the CI sexually inappropriate text messages. 

But the CI was never alone with Officer Juarez, and despite Officer Juarez’s 

advances, in the CI’s view, the relationship was purely professional. 

 After the prosecutors provided him copies of these interviews, Velarde-Pavia 

moved to compel the disclosure of the CI’s identity. He sought the CI’s identity to 

assess the CI’s credibility and undermine the contents of the search-warrant affidavit. 

In a separate motion, Velarde-Pavia made two requests. First, he moved to suppress 

the methamphetamine and firearms, arguing that the warrant lacked sufficient 

information on its face to establish probable cause. Second, he sought a Franks

hearing, arguing that the affidavit omitted material information that undermined the 

CI’s reliability. The district court denied his motions. 

The case proceeded to trial. After the government rested its case, VelardePavia moved for judgment of acquittal under Federal Rule of Criminal Procedure 29, 

arguing that insufficient evidence supported the charges. The district court denied his 

motion. A jury later convicted Velarde-Pavia on both counts. 

2

 During one interview, the CI told investigators that Officer Juarez sent 

inappropriate text messages “during that time frame” of May or June 2018 to January 

2019. R. vol. 2 at 128. But in another interview, two months later, the CI clarified 

that the messages didn’t begin until “a while” after the CI had begun working with 

Officer Juarez. Supp. R. vol. 3 at 237. 

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DISCUSSION 

 Velarde-Pavia raises four issues on appeal. First, he argues that the district 

court should have suppressed the methamphetamine and firearms seized because the 

affidavit lacked sufficient information to establish probable cause. Second, he insists 

that he was entitled to a Franks hearing to contest Officer Juarez’s credibility. Third, 

he argues the CI’s identity should have been 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 magistrate must determine under the totality 

of circumstances whether the affiant has 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 contraband 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 magistrate’s probable-cause ruling is 

more deferential. Id. As a reviewing court, we simply ask whether a magistrate judge 

had a “substantial basis for concluding 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 information, there is no need to establish 

the veracity of the informant.” United States v. Danhauer, 229 F.3d 1002, 1006 (10th 

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Cir. 2000). Less than 72 hours before the magistrate signed the search warrant, the CI 

“was able to purchase methamphetamine 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 that 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 separate occasions” the CI had 

participated in controlled buys with officers and provided information that “led to the 

recovery of controlled substance.” R. vol. 2 at 25; see United States v. Long, 774 

F.3d 653, 658–59 (10th Cir. 2014) (affirming a probable cause determination 

because, among other reasons, the CI had participated in controlled buys and 

provided information that led to the seizure of drugs). Taken together, the affidavit 

provided sufficient information for the magistrate to find probable cause. 

Still, Velarde-Pavia argues the methamphetamine and firearms 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 “particularized facts.” United States v. Weaver, 99 F.3d 1372, 1378 (6th 

3

 Velarde-Pavia counters that the controlled buy cannot establish probable 

cause because “there was no indication in the affidavit that any officers actually 

observed the informant buying methamphetamine.” 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.” 

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Cir. 1996). But the use of some generic language does not invalidate a warrant so 

long as there is still sufficient information to support probable cause. United States v. 

Romo, 914 F.2d 889, 898 (7th Cir. 1990). And here, more specific language would 

only further affirm the CI’s reliability. 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 basis” for finding probable cause, and the 

district court properly denied Velarde-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 under the stricter de novo standard, the district court did 

not err in denying Velarde-Pavia a Franks hearing. 

 Under Franks, a Fourth Amendment violation occurs when “(1) an officer’s 

affidavit supporting a search warrant application contains a reckless misstatement or 

omission that (2) is material because, but for it, the warrant could not have lawfully 

issued.” United States v. Moses, 965 F.3d 1106, 1110 (10th Cir. 2020) (cleaned up). 

So to obtain a Franks hearing, a defendant must make a substantial preliminary 

showing of both recklessness and materiality. Id. To make this showing, a defendant 

must provide affidavits from witnesses, or adequately explain why such affidavits are 

absent. Artez, 389 F.3d at 1116. 

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 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 affidavit. 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 “substantial preliminary showing,” 

Velarde-Pavia only speculates that Officer Juarez could be lying—that is not enough. 

For example, Velarde-Pavia points out that the 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 was issued on June 7, 2018,4

 it’s possible, according to 

Velarde-Pavia, that the CI didn’t start working for Officer Juarez until after the 

warrant had already been issued. There are two issues with this argument. First, if the 

CI started working with Officer Juarez in May or the beginning of June, Officer 

Juarez did not lie in the affidavit. And second, the mere possibility that the CI’s 

statement could be interpreted in Velarde-Pavia’s favor falls far short of a 

“substantial preliminary showing.” Ultimately, Velarde-Pavia gives us no reason to 

doubt the affidavit’s affirmations. 

As another example, Velarde-Pavia also argues that Officer Juarez lied 

because the affidavit stated that the CI had “personally 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. 

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substances for Agents with the Chavez County Metro Narcotics 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 are not inconsistent. First, 

Officer Juarez is part of the Chavez County Metro Narcotics Task Force. Second, the 

CI’s admission of having “only worked” for Officer Juarez 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 with other police officers. Indeed, the CI 

acknowledges that other officers were always with Officer Juarez when they met. 

 To the extent that Velarde-Pavia argues that Officer Juarez’s later drug use and 

sexually inappropriate text messages undermine his credibility, we do not alter our 

analysis. We agree with the district 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 inclusion would have made the warrant 

defective. Moses, 965 F.3d at 1110. But as we explained above, given the controlled 

buy, probable cause supported the warrant.5

 At bottom, Velarde-Pavia only speculates that Officer Juarez lied in his 

affidavit. The district court thus properly denied his request for a Franks hearing. 

5

 Velarde-Pavia also argues that the affidavit left out information that 

undermined the CI’s credibility, 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 determination based on a controlled buy). 

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III. Disclosure of CI’s Identity Under Rovario

“We review for abuse of discretion a denial 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 accused’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 haven’t required disclosure when 

“the informant is not a participant in or a witness to the crime charged” or when the 

defendant merely speculates “about the possible usefulness of an informant’s 

testimony.” Id. 

Here, the district court denied Velarde-Pavia’s motion to compel because the 

CI was neither a witness nor a participant 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, Velarde-Pavia argues, he 

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“could have proved” inconsistencies in Officer Juarez’s affidavit.6

 Opening Br. at 16. 

But “speculation about the possible usefulness of an informant’s testimony” is 

insufficient to obtain 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 for 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. 2011). 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 credibility of witnesses. Id. 

 Velarde-Pavia contends that insufficient evidence supported his intent-todistribute-methamphetamine conviction because officers found “[n]o scales, baggies, 

client, list, etc.” Opening Br. at 34. But given the expert testimony explaining that 

drug dealers do not always have these items, the amount of methamphetamine found 

on him and in his truck, and where the drugs were hidden inside the truck, the 

evidence more than sufficed to support his conviction. Velarde-Pavia contests his 

6

 Velarde-Pavia reiterates the same “inconsistencies” here as he did in arguing 

for a Franks hearing. As we explained above, many of those alleged inconsistencies 

are not inconsistencies at all. 

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§ 924(c)(1) conviction based on his claim that insufficient evidence supported his 

methamphetamine-distribution conviction. Because we conclude 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 

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