U.S. v. Heffington

• Decision Date: 19 December 1991
• Docket Number: Nos. 89-10311,s. 89-10311
• Citation: 952 F.2d 275
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Henry HEFFINGTON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Manuel Richard ESTEVES, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. William Glenn WOMBLE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Steven Gene SILVA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Ray KIRK, Defendant-Appellant. to 89-10315.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 275

952 F.2d 275

UNITED STATES of America, Plaintiff-Appellee, v. Henry HEFFINGTON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Manuel Richard ESTEVES, Jr., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. William Glenn WOMBLE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Steven Gene SILVA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Ray KIRK, Defendant-Appellant.

Nos. 89-10311 to 89-10315.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 16, 1991.

Decided Dec. 19, 1991.

Douglas B. Cone, Merced, Cal., Patience Milrod, Milrod & Phillips, David E. Roberts, Eric K. Fogderude, Fletcher & Fogderude, Fresno, Cal., Charlotte E. Costan, Burbank, Cal., for defendants-appellants.

Carl M. Faller, Jr., Asst. U.S. Atty., Fresno, Cal., for plaintiff-appellee.

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

Before GOODWIN and NOONAN, Circuit Judges, and HUPP ^* District Judge.

GOODWIN, Circuit Judge:

Five defendants appeal their convictions for manufacturing, and conspiracy to manufacture, methamphetamine. They assert nine alleged defects in the trial and sentencing. Two will be discussed in this opinion; the remainder will be considered in an unpublished memorandum.

Appellants argue, inter alia, that the search warrant was defective because it was not issued by a neutral and detached magistrate as required by the Fourth Amendment and that certain evidence should have been suppressed because the government improperly destroyed laboratory equipment seized at the scene in violation of the Fifth and Sixth Amendments. Finding no constitutional error, we affirm as to both issues.

I

The relevant events in this case took place on the weekend of May 13-15, 1988, at the rural mobile home residence of defendant William Womble's stepfather in Chowchilla, California. Beginning Friday evening a neighbor, Reverend Jerry Gollihar, saw Womble and the other defendants carrying a heating mantle and jugs of clear liquid into a detached garage at the mobile home residence. He also heard hissing noises coming from the garage and observed numerous unidentified persons come and go from the premises, staying only three to five minutes. These activities continued until approximately 4:30 a.m. on Sunday and Monday mornings. On Monday evening, Gollihar telephoned the Madera County Sheriff's Office and described what he had been observing. Sergeant Tom Turk and California Bureau of Narcotics Enforcement Special Agent John Balbach subsequently established a surveillance post in an orchard near the garage. The officers observed the activity at the garage through binoculars and intermittently heard the sound of a pump, which Balbach recognized as a vacuum pump commonly used in the manufacture of methamphetamine.

Turk and Balbach concluded that methamphetamine was being produced, and at approximately 3:00 a.m. they left to obtain a search warrant. Members of the Madera County Sheriff's Department continued the surveillance. At about 6:30 a.m., they observed defendant Henry Heffington's pickup truck leave the residence. Balbach followed. When the car pulled into a private drive and defendant Manuel Esteves exited, Balbach arrested him. The officers became concerned that the suspects might have become aware of the surveillance and might attempt to flee or destroy evidence. At approximately 7:00 a.m., prior to the issuance of the search warrant, Balbach went to the residence and took Womble into custody. No search was conducted until the warrant was issued.

The subsequent search of the residence revealed several plastic bags containing methamphetamine residue, a spatula with methamphetamine on it, and methamphetamine spillage on the dining room carpet. In the garage were found cans and plastic jugs containing acetone and phenyl-2-propane, a form of methamphetamine production waste. A search of Heffington's vehicle revealed a balance scale, filters, a heating mantle, funnels, rubber tubing, thermometers, flasks, plastic gloves, and a bottle of hydrochloric acid.

All five defendants were indicted and charged with two counts of violating the federal narcotics laws. Count One charged conspiracy to manufacture methamphetamine in violation of 21 U.S.C. § 841(a)(1). Count Two charged all defendants with manufacturing or aiding and abetting the manufacture of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. After a seven-day jury trial, all defendants were convicted on all counts.

II

A. The Fourth Amendment Claim

Womble challenges the search warrant issued by a state superior court judge as a violation of the Fourth Amendment requirement that a warrant be issued by a "neutral and detached magistrate." Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 327, 99 S.Ct. 2319, 2324, 60 L.Ed.2d 920 (1979); Connally v. Georgia, 429 U.S. 245, 250, 97 S.Ct. 546, 548, 50 L.Ed.2d 444 (1977) (per curiam); Coolidge v. New Hampshire, 403 U.S. 443, 449-51, 91 S.Ct. 2022, 2029-30, 29 L.Ed.2d 564 (1971). Appellants argue that Judge Moffat, who issued the warrant to search the residence of Womble's stepfather, was not neutral and detached because in 1983, while serving as a federal defender, he had represented defendant Steven Silva in another methamphetamine case in which Heffington and defendant Kenneth Kirk were co-defendants.

The Supreme Court has found an impermissible lack of neutrality in cases where the particular magistrate was also involved in law enforcement activities, had a pecuniary interest in the outcome of his decision, or had "wholly abandoned" his judicial role. The negative implication of these cases is that the facts urged by appellants do not rise to the level of a Fourth Amendment violation.

In Coolidge, the Supreme Court declared that a search warrant issued by the State Attorney General was invalid on the ground that he could not be "neutral and detached" because he was "engaged in the often competitive enterprise of ferreting out crime." Coolidge, 403 U.S. at 449, 91 S.Ct. at 2029 (quoting Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948)). Judge Moffat, in acting as a superior court judge, was not involved in any law enforcement exercise when he heard Sergeant Turk's application for the search warrant.

Connally and Lo-Ji are even less helpful to appellants than Coolidge. In Connally, the Supreme Court found that a state magistrate was not "neutral and detached" where he received a $5 fee for approving a search warrant but received no compensation where a search warrant was refused. See Connally, 429 U.S. at 250-51, 97 S.Ct. at 548-49. Lo-Ji involved a town justice who was contacted by law enforcement officers who wished him to declare two movies obscene so that they might be seized from the defendant's store. After approving a search warrant for the two films, the justice accompanied the officers to the defendant's premises. In the course of the search that followed, the justice approved the addition of hundreds more films and magazines to the existing search warrant following his review of those films. The Supreme Court concluded that the record indicated that the justice had allowed himself to "become a member, if not the leader, of the search party which was essentially a police operation." Lo-Ji, 442 U.S. at 327, 99 S.Ct. at 2324.

Because no one suggests that Judge Moffat was paid on a piece-work basis or that he became a member of the "search party" at the Chowchilla residence, Connally and Lo-Ji, like Coolidge, do not bear on our resolution of the case at bar.

Relying on United States v. Outler, 659 F.2d 1306 (5th Cir.1981), cert. denied, 455 U.S. 950, 102 S.Ct. 1453, 71 L.Ed.2d 665 (1982), Womble suggests that we look to the standards found in various disqualification and recusal statutes in an effort to give the neutrality and detachment requirement some force in this context. Title 28 U.S.C. § 455, the federal recusal statute, provides that federal judges and magistrates must recuse themselves where their impartiality "might reasonably be questioned," where they have "personal bias or prejudice concerning a party," where they have "personal knowledge" of evidentiary facts, where they were involved "in a matter in controversy" while in "private practice," or where they served in "governmental employment" and participated as counsel or adviser "concerning the proceeding." Title 28 U.S.C. § 144 provides that a judge shall be disqualified where he has "a personal bias or prejudice either against [a party] or in favor of any adverse party." Despite the differences in terminology between these two statutes, we have consistently indicated that the tests for personal bias and prejudice are identical. See United States v. Sibla, 624 F.2d 864, 867 (9th Cir.1980); United States v. Carignan, 600 F.2d 762, 764 (9th Cir.1979).

Womble has cited no authority for the proposition that 28 U.S.C. §§ 144 and 455 should guide the due process analysis of a search warrant issued by a state superior court judge. Even assuming that sections 144 and 455 could apply to state judges, the application of these precepts is not automatic. With regard to the "government employment" provision of section 455(b), the provision called upon here since Judge Moffat represented Silva in his capacity as a federal defender, it would be unreasonable to hold that Judge Moffat's representation of Silva in the 1983 methamphetamine case would count as involvement "concerning the matter" presented in the case sub judice. 28 U.S.C. § 455(b)(2). See Chitimacha Tribe v. Harry L. Laws Co., 690 F.2d 1157, 1166 (5th Cir.1982) (finding no section 455(b) problem where the judge's past representation of party involved "unrelated matters"), cert. denied, 464 U.S. 814, 104 S.Ct. 69, 78 L.Ed.2d 83 (1983); Outler, 659 F.2d at 1312 (noting that federal magistrate's...