U.S. v. Azhocar

• Citation: 581 F.2d 735
• Decision Date: 16 June 1978
• Docket Number: 77-3187,Nos. 76-3737,s. 76-3737
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alfred Esteban AZHOCAR, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Alfred Esteban AZHOCAR, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 735

581 F.2d 735

UNITED STATES of America, Plaintiff-Appellee, v. Alfred Esteban AZHOCAR, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Alfred Esteban AZHOCAR, Defendant-Appellant.

Nos. 76-3737, 77-3187.

United States Court of Appeals, Ninth Circuit.

June 16, 1978.

As Amended on Denial of Rehearing and Rehearing En Banc Sept. 6, 1978.

John J. McCabe, Jr., of Mitchell, Schmidt, D'Amico, McCabe & Stutz, San Diego, Cal., for defendant-appellant.

Stephen G. Nelson, Asst. U. S. Atty., San Diego, Cal., for plaintiff-appellee.

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

Before CHAMBERS and CHOY, Circuit Judges, and Ferguson, ^* District Judge.

CHOY, Circuit Judge:

In the first part of a bifurcated trial, a jury convicted Alfred Esteban Azhocar of conspiracy to import heroin and cocaine, a violation of 21 U.S.C. § 841, and of possession of cocaine with intent to distribute, a violation of 21 U.S.C. § 841(a)(1). Later, in a jury-waived trial using the evidence adduced at the preceding trial, he was found guilty of possession of a firearm by a convicted felon, a violation of 18 U.S.C. §§ 922(h), 924.

Azhocar appeals all judgments on the same grounds: first, that there was no probable cause for the police to stop and search the car driven by Patricia Azhocar; and second, that the trial judge should have recused himself because of personal bias and prejudice against the appellant. We affirm the judgment of the district court on both issues.

I. Facts and Proceedings Below

Appellant Azhocar, a convicted felon under California drug laws, was one of several suspected narcotics dealers under surveillance by the Drug Enforcement Agency (DEA) beginning in January, 1976. DEA agents observed him at various times in both Mexico and California with Geronimo Gutierrez-Sanchez, whom the DEA knew as a narcotics trafficker, ¹ and with Refugio Salazar-Garcia and Francisco Lizzarga-Ozuna, both DEA fugitives. During the course of the surveillance Salazar introduced a DEA informant to Gutierrez, after which they discussed smuggling multi-ton quantities of marijuana into the United States from Mexico. On several occasions DEA agents had observed appellant, a convicted drug felon, meeting with Gutierrez, who was known to be a major drug trafficker, as well as with two other DEA fugitives. Telephone billing records showed a series of calls between appellant's house in California and locations in Tijuana where appellant, Gutierrez and Salazar had been seen.

In July, 1976, Patricia Azhocar, who was formerly married to appellant's cousin, was seen driving to a meeting with Salazar in Tijuana. Four days later, agents watching appellant's house in California saw Patricia arrive in the same car she had driven to Tijuana. She went into the house, returned to the car, removed a large bag from the trunk, and re-entered the house. An hour later, she left the house carrying a box and a bag under her arm, placed them in the car's trunk, and drove away. ² DEA agents in an unmarked car followed her. Realizing she was being followed, Patricia drove erratically for about twenty-five minutes before parking in a shopping center. Uniformed police officers then stopped her, searched the car's trunk, and found a quantity of cocaine.

Following later questioning at the DEA office, Patricia voluntarily and knowingly consented to a search of the spare tire of the car, which contained three and one-half pounds of cocaine, and of another vehicle containing three pounds of cocaine and three pounds of heroin.

Based on Patricia's information, a search warrant was issued for appellant's house which led to the seizure of marijuana, cocaine, and heroin, over $100,000 in cash, a .12 gauge shotgun, a military-type M-1 carbine, a loaded .38 snub-nosed revolver, a rifle, and drug paraphernalia.

At trial, appellant moved to suppress the evidence from all the searches as the product of the allegedly illegal initial search of the car Patricia was driving. He testified to his ownership of the car, thus establishing standing to challenge the search. The district court denied the motion.

II. Probable Cause for the Initial Search

While warrantless searches are generally unreasonable, such searches of moving vehicles have often been approved because justified by exigent circumstances: the vehicle is mobile, its driver is alerted, and its contents may not be found again if a warrant is required. See Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Thus, in United States v. Abascal, 564 F.2d 821, 828 (9th Cir. 1977), we stated that under the moving vehicle exception, all that is required to stop and search an automobile on the highway is probable cause to believe that it contains any type of contraband.

In applying this standard to the initial search, all facts known to the officers and all reasonable inferences that could be drawn from these facts prior to the stop and search must be considered. United States v. Martin, 509 F.2d 1211, 1213 (9th Cir.), Cert. denied, 421 U.S. 967, 95 S.Ct. 1958, 44 L.Ed.2d 455 (1975); Rodgers v. United States, 267 F.2d 79, 85 (9th Cir. 1959). The issue is a factual one, turning on the circumstances in each case.

The officers could reasonably have inferred from the totality of facts known to them that Patricia was transporting contraband at the time they stopped her. DEA agents knew that appellant, a convicted drug felon, had been meeting with Gutierrez and with two other drug traffickers: they knew that there had been telephone calls from appellant's residence to locations in Tijuana where he, Salazar and Gutierrez had been seen; they saw Patricia speak with Salazar, a DEA fugitive, in Tijuana; they observed as she delivered a large bag to appellant's house, and returned with a box and bag which she placed in the trunk of her car; and they saw her take evasive action when followed. These particular circumstances provided abundant probable cause to believe that a delivery of narcotics was being made. There was no error in denying appellant's motion to suppress.

III. Recusal

Prior to his first trial, Azhocar moved to have the trial judge recuse himself pursuant to 28 U.S.C. § 144. ³ This statute provides for the assignment of a new judge where a party to the proceeding makes a showing of the present judge's personal bias or prejudice in a timely and sufficient affidavit. Judge Thompson, the trial judge, held that Azhocar's affidavit of bias was legally insufficient, and refused to recuse himself. On appeal, Azhocar urges that this refusal was erroneous on four grounds.

A. Assignment of § 144 motion to another judge for hearing. According to appellant, the statutory command that once a timely and sufficient affidavit is filed the trial judge "shall proceed no further" with the case must be interpreted to mean that the judge cannot even rule on the sufficiency of the affidavit. The only issue the judge can decide, Azhocar argues, is whether or not the affidavit is timely made. Thus, appellant concludes that Judge Thompson's failure to assign the § 144 motion to another trial judge for a hearing was error.

This contention is without merit. Berger v. United States, 255 U.S. 22, 32-34, 41 S.Ct. 230, 65 L.Ed. 481 (1922), is the seminal case interpreting the bias statute. There, the Supreme Court held that the judge against whom an affidavit of bias is filed may pass on its legal sufficiency because, Inter alia, "the reasons and facts for the belief the litigant entertains are an essential part of the affidavit, and must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment." Id. at 33-34, 41 S.Ct. at 233. Only after the legal sufficiency of the affidavit is determined does it become the duty of the judge to "proceed no further" in the case. United States v. Montecalvo, 545 F.2d 684, 685 (9th Cir. 1976); Curry v. Jensen, 523 F.2d 387, 388 (9th Cir.), Cert. denied, 423 U.S. 998, 96 S.Ct. 428, 46 L.Ed.2d 373 (1975), Rehearing denied, 423 U.S. 1081, 96 S.Ct. 871, 47 L.Ed.2d 93 (1976); Undersea Engineering & Construction Co. v. ITT Corp., 429 F.2d 543, 545 (9th Cir. 1970). This is consistent with the language of the statute itself, which makes a timely and Sufficient affidavit prerequisite to recusal.

Moreover, since the inquiry is addressed to the facial sufficiency of the affidavit not to the truth or falsity of the facts stated therein, See United States v. Montecalvo, 545 F.2d at 685 the proposed "hearing" is unnecessary.

Finally, we note that while the statute undoubtedly permits referring the disposition of an affidavit of bias to another judge, See Tenants and Owners in Opposition to Redevelopment v. Department of HUD, 338 F.Supp. 29, 31 (N.D.Cal.1972), the adoption of such a procedure as a general rule would be unwise. Reference of § 144 motions to another judge would be cumbersome and would further delay an already slow judicial process. And as observed in United States v. Mitchell, 377 F.Supp. 1312, 1315-16 (D.D.C.1974), "(o)nly the individual judge knows fully his own thoughts and feelings and the complete context of facts alleged." This is a valid consideration, since inquiry into the circumstances surrounding the presumptively true allegations is often appropriate in determining whether they are such as would prevent a fair decision on the merits. ⁴ See, e. g., Los Angeles Trust Deed & Mortgage Exchange v. SEC, 285 F.2d 162, 176 (9th Cir. 1961) ("a thorough reading of the record" did not substantiate the affiant's position).

Accordingly, we conclude that Judge Thompson's consideration of the sufficiency of the § 144 affidavit was proper.

B. Rulings adverse to appellant. Appellant claims that certain rulings by Judge Thompson during the course of the proceedings showed bias. Appellant does not directly attack these rulings as constituting an abuse of discretion, and his argument that ...