U.S. v. Davis

• Decision Date: 10 August 1981
• Docket Number: 80-1100 and 80-1101,Nos. 80-1094,s. 80-1094
• Citation: 663 F.2d 824
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph Shelton DAVIS, III, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Dana MONTGOMERY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Douglas Hart SNYDER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 824

663 F.2d 824

UNITED STATES of America, Plaintiff-Appellee, v. Joseph Shelton DAVIS, III, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Dana MONTGOMERY, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Douglas Hart SNYDER, Defendant-Appellant.

Nos. 80-1094, 80-1100 and 80-1101.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 6, 1981.

Decided Aug. 10, 1981. ^**

Rehearings in No. 80-1094 Denied Sept. 14 and Nov. 6, 1981.

Philip A. DeMassa, San Diego, Cal., for Davis.

Donald B. Marks, Marks & Brooklier, Beverly Hills, Cal., for Snyder.

Arthur Mabry, Los Angeles, Cal., for Montgomery.

Eric L. Dobberteen, Asst. U. S. Atty., Los Angeles, Cal., argued for the United States; Andrea Sheridan Ordin, U. S. Atty., Los Angeles, Cal., on brief.

Appeal from the United States District Court for the Central District of California.

Before WALLACE and FERGUSON, Circuit Judges, and MARQUEZ, ^* District Judge.

WALLACE, Circuit Judge:

Davis was indicted by a federal grand jury on nine counts: two separate conspiracies to violate narcotics laws, five separate substantive offenses involving importation and possession with intent to distribute hashish oil, one charge of conducting a continuing criminal enterprise, and one violation of the income tax laws for filing a false tax return. Snyder was charged with participation in one conspiracy to import and possess with intent to distribute hashish oil and with two substantive offenses of importation and possession with intent to distribute hashish oil. Montgomery was charged in the second conspiracy involving possession with intent to distribute hashish oil and one substantive offense of possession with the same intent. Davis and Snyder were convicted by a jury on all counts charged against them. Montgomery was convicted on the conspiracy to possess count, but was acquitted on the possession with intent to distribute count. All three appeal and we affirm as to Montgomery and Snyder, and affirm in part and vacate and remand in part as to Davis.

I

Between 1976 and mid-1977, the three appellants, along with numerous other individuals, were engaged in a scheme to import hashish oil into the United States. The scheme involved numerous couriers who were employed to act as traveling businessmen. These couriers carried the hashish oil in air pockets of typewriters or tape cassette cases. At trial, the government presented evidence of such trips through the testimony of four different couriers.

Throughout the implementation of the scheme, Davis was the center of the conspiracy. He provided the expense money, clothing, and devices. He was primarily responsible for the instruction of the couriers involved in the scheme. Davis used the money generated by the activities for several different business ventures. He operated a natural food distribution corporation known as Prashadam Distributing International (PDI). Davis was president and major investor of funds for PDI. PDI invested substantial amounts of money in an auto pin-striping business known as Delphi Auto Design (Delphi).

In August 1977, Kulak, an investor in the operation, was kidnapped by two disaffected associates of the PDI/Delphi group (Kieffer and Bovan). In October 1977, Bovan was shot to death. Several members of the Delphi business were arrested for his murder. The subsequent investigation surrounding Bovan's murder resulted in the application for two search warrants by state police officers. The execution of these search warrants produced important evidence introduced during the government's case-in-chief. The first warrant was for the PDI offices. That search produced a tape recording. The second warrant was for a residence known as 71 Blue Lagoon. That search produced a notebook used by one of the government witnesses, Fedorowski, during his testimony.

The following issues were raised by Davis on appeal: (1) whether the district court erroneously failed to make a de novo probable cause finding regarding the two state search warrants in the case, (2) whether the district court erred in finding that the state search warrants established probable cause to search, (3) whether the district court improperly denied an evidentiary hearing designed to traverse the face of the two state search warrant affidavits, (4) whether the district court should have dismissed Count Eight of the indictment for lack of specificity, (5) whether the district court improperly refused to grant a mistrial based on the possible observation by the jury of Davis in manacles while being transported to the courtroom, and (6) whether the district court erred by failing to suppress Davis's 1977 income tax return. Davis and Montgomery raise the issue of whether there was sufficient evidence to support their convictions. Snyder, joined by Davis, questions whether the district court erred by failing to grant Snyder a severance of counts in which he was not charged, and whether the district court should have granted a motion for a mistrial based upon the reading of a disapproved jury instruction.

II

Davis has raised several different challenges to the government's use of evidence secured pursuant to the two search warrants. First, he argues that the district judge failed to determine independently whether the state warrants complied with the United States Constitution. The Supreme Court held in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), that "(i)n determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out." Id. at 223-24, 80 S.Ct. at 1447. Davis argues that in the instant case, the district judge's cursory consideration of the search warrants did not constitute the independent inquiry into the existence of probable cause mandated by Elkins. He relies on a conversation which indicates that the district judge was under the mistaken impression that Davis had no right to suppress the search warrants because the warrants were not issued by the United States government or its agents. ¹ The record reflects, however, that the district judge did review the documents and specifically found there was probable cause.

Next, Davis argues that the warrants are fatally defective in that the supporting affidavits do not state facts sufficient to enable a magistrate to make a determination of probable cause. The complaint is addressed to informant disclosures. The test used for judging the sufficiency of affidavits based on hearsay information provided by an informant is the two-pronged test established in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). First, the affidavit must inform the magistrate of some of the underlying circumstances on which the informant relied to reach his conclusions. Second, the affidavit must inform the magistrate of some of the underlying circumstances from which the officer concluded that the informant was credible or that the information was reliable. Id. at 114, 84 S.Ct. at 1514. Facts, rather than the officers' speculations or conclusions, must be provided to the magistrate to substantiate both of these two prongs. Spinelli v. United States, 393 U.S. 410, 416-19, 89 S.Ct. 584, 589-90, 21 L.Ed.2d 637 (1969).

Davis argues that the affidavits contained conclusory statements and failed to provide sufficient specific information to satisfy the Aguilar test. We disagree. The Supreme Court has held that "affidavits for search warrants ... must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion.... Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area." United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965).

Both the PDI and the Blue Lagoon warrants resulted from a thorough police investigation conducted before the warrants were sought. That investigation established that Bovan had been shot, and that Kulik was found in possession of a large quantity of white heroin. Within several days of the killing, the police had apprehended Fiori and charged him with Bovan's murder. Fiori had implicated himself as well as other individuals. The only differences between the affidavits supporting the two search warrants were that the affidavit for the Blue Lagoon warrant stated the background of a different affiant and added the results of the interview with Fedorowski. Both affidavits contained the following information. Informant No. 1 provided personal observations concerning a plan to murder Bovan and others. He provided details of people involved in conversations, times, and locations. Informant No. 2 disclosed conversations with Davis concerning the drug conspiracy. Informant No. 3's information corroborated Informant No. 1's disclosures. Lending support to the accuracy of the disclosures is the fact that Informants Nos. 1 and 3 provided the police with information that was against their penal interests. In addition, the information provided by Informants 1 and 2 was sufficiently detailed to support the magistrate's finding of probable cause. Thus, we find that both search warrant affidavits established sufficient indicia of the informants' credibility to enable the magistrate to exercise independent judgment in establishing the existence of probable cause.

Finally, Davis argues that the district court improperly denied his motion for an evidentiary hearing to traverse the search warrant affidavits and attack their veracity. That issue must be distinguished from the issue of whether each of the affidavits, on its face, supplied probable cause. United States v. Chesher, No. 80-1011, slip op. at 969-70 (9th Cir., March 30, 1981). In support of his motion for an...