Petition — Azhocar v. United States

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

78-524

No.

ALFRED E. AZHOCAR,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FREDERIC L. LINK

303 West "A" Street

San Diego, CA 92101

(714) 232-6671

Attorney for Petitioner

ALFRED E. AZHOCAR

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

No.

ALFRED E. AZHOCAR,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FREDERIC L. LINK

303 West "A" Street

San Diego, CA 92101

(714) 232-6671

Attorney for Petitioner

ALFRED E. AZHOCAR

TOPICAL INDEX

Page

TABLE OF AUTHORITIES iii

PETITION FOR WRIT OF CERTIORARI 1

OPINION BELOW 2

JURISDICTION 2

QUESTIONS PRESENTED FOR REVIEW 3

CONSTITUTIONAL PROVISIONS 4, 5

INVOLVED

STATEMENT OF FACTS 5

REASONS FOR GRANTING THE WRIT 14

I 14

CERTIORARI SHOULD ISSUE

WHERE THE COURT OF APPEALS

HAS UTILIZED INCORRECT FACTS

TO REACH A FINDING, AND IN

SO DOING, HAS IMPROPERLY

EXTENDED THE MOVING VEHICLE

EXCEPTION TO SUSTAIN A WAR-

RANTLESS SEARCH.

A TRIAL COURT THAT STATES

ITS PREDISPOSITION NOT TO

BELIEVE AN ACCUSED WHO AP-

PEARS BEFORE IT FOR THE

FIRST TIME SHOULD NOT THERE-

AFTER PRESIDE OVER THE

CASE. UNDER THE CIRCUM-

STANCES, THE TRIAL JUDGE

ERRED IN FAILING TO RE-

CUSE HIMSELF RESULTING

IN MANIFEST UNFAIRNESS

TO PETITIONER.

CONCLUSION

APPENDIX A

OPINION

APPENDIX B

Order Denying Rehearing

aa.

TABLE OF AUTHORITIES

Cases

Almeida-Sanchez v. United States,

U.S. 266 (9th Cir. 1973)

beriey v. United States, 42,

Cady v. Dombrowski, 25,

73 U.S. 433 (1973)

Carrol v. United States,

U. _

Chambers v. Maroney, 24, 25%

399 U.S. 42 T1340)

Coolidge v. New Hampshire,

403 U.S. 443 echae

Davis v. Board of School

Commissioners,

517 F.2d 1044 (5th Cir. 1975)

Harris v. United States,

In re Murchison,

oD (1955)

Offutt v. United States,

348 U.S. II (1954)

Plazola v. United States,

291 F.2d 56 (9th Cir. 1961)

iii.

TABLE OF AUTHORITIES cont. TABLE OF AUTHORITIES cont.

cases mAUES Cases Pages

Preston v. United States, 25 United States v. Ritter 36

. ’

U.S. 304 (1964) - th Cir. 1976)

Public Utilities Commission 41 United States v. Strickler 29

v. Pollak, 343 U.S. 451 (1952) 490 F.2d 378 (0th Cir, 1973)

South Dakota v. OPES e 26

oe STATUTES

Texas v. White, 26 18 U.S.C.

22(h

423 U.S. 304 (1976) » Pes ;

ae UViuassee 924

United States v. Abascal, 29 4 3

. th Cir. 1977) 21 U.S.C. § 841 2

United States v. Chadwick, 25, 26 21 U.S.C 841 1

433 U.S. I (1977) -S.C. § (a) (1) 3

2i.U0.8.C. 84

United States v. Church, 27 c. 5 6 3

490 F.2d 353 (9th Cir. 1973) 28 U.S.C. § 455 35

United States v. Cohn 27

: 7 mn 26 U.8.C. § 1254(1) 3

United States v. Connolly, 27

479 F.2a 930 (9th Cir. 1973) CONSTITUTION

U.S. Constitution, Amendment IV 4

United States v. adore. 29 . ade

74 F. th Cir. 1973) U.S. Constitution, Amendment V A

United States v. Mallides, 30 U.S. Constitution, Amendment VI 5

F. th Cir. 1973) = , ”

United States v. Patterson, 30

° t ir. 1974)

iv. Vv.

t Page

OTHER AUTHORITIES g IN THE

Canon 3, Code of Judicial Conduct 41 | suP COURT OF THE UNTTED STATES

Wright, Miller & Cooper, 36

Federal Practice and Procedure October Term, 1978

Section 3542

No.

ALFRED E. AZHOCAR,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Petitioner, Alfred E. Azhocar,

respectfully prays that a Writ of

Certiorari issue to review the judgment

of the United States Court of Appeals for

the Ninth Circuit entered on June 16,

1978.

vi. ie

OPINION BELOW

The Court of Appeals rendered its

Opinion affirming the conviction of

Petitioner on June 16, 1978. On

September 6, 1978, the Court denied a

Petition for Rehearing and rejected a

suggestion for Rehearing en banc. A copy

of the Opinion of June 16, 1978, and the

Order denying a rehearing of September 6,

1978, are attached as Appendix "A" and

Appendix "B" respectively.

JURISDICTION

On June 16, 1978, the Court of

Appeals entered judgment affirming the

convictions of Petitioner Alfred A. Azhocar

for conspiracy to import heroin and

cocaine, a violation of 21 U.S.C. § 841,

possession of cocaine with intent to

distribute, a violation of 21 U.S.C.

§ 841(a) (1), and possession of a firearm

by a convicted felon, a violation of

18 U.S.C. §§ 922(h), 924.

Jurisdiction to review the judgment

of the Court of Appeals is conferred upon

this Court by Title 28, United States

Code, section 1254(1).

QUESIONS PRESENTED FOR REVIEW

1. Did the trial court erroneously

deny Petitioner's motions to suppress evi-

dence by finding that there was probable

cause to stop and search the vehicle

driven by Patricia Azhocar?

2. Did the trial court commit

prejudicial error by failing to recuse

itself after stating at the outset of the

proceedings that it would not believe

Petitioner under any circumstances?

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment IV:

The right of the people to

be secure in their persons,

houses, papers and effects,

against unreasonable searches

and seizures, shall not be

violated, and no warrants

shall issue, but upon pro-

bable cause, supported by

oath or affirmation, and

particularly describing

the place to be searched

and the persons or things

to be searched.

United States Constitution, Amendment V:

No person shall be held to

answer for a capital, or

otherwise infamous crime,

unless on a presentment or

indictment of a Grand Jury,

except in cases arising in

the land or naval forces,

or in the Militia, when in

actual service in time of

War or public danger; nor

shall any person be subject

for the same offense to be

twice put in jeopardy of

life or limb; nor shall be

compelled in any criminal

case to be a witness against

himself, nor be deprived of

life, liberty, or property,

without due process of law;

nor shall private property

be taken for public use,

without just compensation.

United States Constitution, Amendment VI:

In all criminal prosecutions,

the accused shall enjoy the

right to a speedy and public

trial, by an impartial jury

of the State and district

wherein the crime shall

have been committed, which

district shall have been

previously ascertained by

law, and to be informed of

the nature and cause of the

accusation; to be confronted

with the witnesses against

him; to have compulsory

process for obtaining witnesses

in his favor, and to have

the Assistance of Counsel

for his defence.

STATEMENT OF FACTS

References to the Clerk's Record on

Appeal will hereafter be cited as "C.R."

followed by the appropriate page number.

References to the Reporter's Transcript on

Appeal in 16 volumes will be cited as "R.T."

followed by the appropriate volume and

page number.

Petitioner and codefendant

Geronimo Gutierrez-Sanchez were held in

custody throughout the district court pro-

ceedings in lieu of bails of $300,000 and

$200,000 respectively. On October 8, 1976,

Gutierrez-Sanchez had a bail review hearing

before the Honorable Gordon Thompson, Jr.

Gutierrez's counsel filed with the court

the affidavit of Petitioner indicating that

Petitioner would testify concerning

Gutierrez's innocence at a separate trial

for Gutierrez if Petitioner was severed and

tried first. This affidavit had been pre-

viously filed on October 5, 1976. [R.T.

Vol. II, page 87]. [C.R. page 257].

Speaking in reply to counsel's request that

the court read the affidavit the court

stated:

THE COURT: And frankly, to be

truthful with you, I wouldn't

care what Mr. Alfredo Azhocar

said in an affidavit. I

wouldn't believe him if he

said on a stack of Bibles.

Call it what you will. That's

the facts.

Now, a jury might and that's

a very good reason for not

waiving the jury and I would

encourage you not to. And

I'm sure Mr. McCabe [Peti-

tioner's trial counsel] knows

me better than to waive a

jury in this case, but to

be truthful with you, to

exonerate your client by

Alfred Azhocar is not the

way to go. I think that man

is going to hurt you more

than he's going to help you.

MR. GOLDBERG: Well, there's

nothing else, your Honor.

That's the point. It's just

THE COURT: Well, if nobody

else convicted your client,

Mr. Azhocar probably would

just by his testimony for

RAM, « «© «

(R.T. Vol. II, pages 87-88].

On October 12, 1976, prior to the

hearings on various other motions, Peti-

tioner and Gutierrez tmnoved’ the court to

disqualify itself on the grounds that the

court had previously expressed bias and

prejudice against Petitioner. The court

summarily denied the motion. [R.T. Vol. III,

page 110}.

The first motion to be taken up was

the motion to suppress evidence filed by

Petitioner and the other defendants. [R.T.

Vol. III, page 111]. Petitioner filed an

affidavit alleging ownership of two vehicles

that were searched by narcotics agents.

[R.T. Vol. III, page 119]. The Government

then presented evidence to the effect that

both cars were registered to someone other

than Petitioner. [R.T. Vol. III, pages 126-

127]. The court then ruled that the affi-

davits were insufficient and Petitioner

would be required to testify in order to

establish standing in his motion to sup-

press.

Petitioner testified that he owned

both the 1971 Ford and the 1968 Cadillac.

[R.T. Vol. III, page 150]. He purchased

both vehicles with his own money and had

given the Cadillac to Patricia Azhocar,

his cousin, to use at his direction. The

car was purchased about four months prior

to October 12th. The Cadillac was registered

in Patricia Azhocar's name for convenience.

On cross-examination, and over objection

by Petitioner's counsel, Petitioner was

asked if the car was purchased for Patricia

Azhocar to haul narcotics in, and Petitioner

replied, yes. [R.T. Vol. III, page 153].

Again over objection of Petitioner's counsel,

Petitioner testified that he gave the 1971

Ford to Patricia Azhocar to use during a

time a shipment of dope came in. [R.T.

Vol. III, page 157]. Petitioner's testimony

convincingly established his ownership and

dominion and control over the cars. [R.T.

Vol. III, pages 159-162], accordingly, the

trial court ruled that Petitioner had

standing to suppress the evidence seized

from the car.

The following testimony was heard

on the issue of probable cause to stop and

search the vehicle that Patricia Azhocar

was driving on July 27, 1976. Surveillance

agents had seen Miss Azhocar driving a

black over maroon Cadillac meet with

Refugio Salazar-Garcia (a "documented"

narcotics offender and D.E.A. fugitive)

at a Big Boy's Restaurant in Tijuana.

This meeting took place on July 23, 1976,

four days before the stop of Patricia's

car. [R.T. Vol. IV, page 359]. Agents had

10.

determined that Petitioner and his wife

were living at 551 llth Street, Imperial

Beach, California. The agents knew that

Petitioner had been convicted previously

of a state narcotics offense and that he

had been seen in the company of Gutierrez-

Sanchez in a vehicle which was driven by

Sanchez near an apartment near the Hotel

Conquistadore in Tijuana. [R.T. Vol. IV,

page 359]. Petitioner was seen to get out

of the car enter a blue van and go to the

residence of Francisco Lizzaraga-Ozuna,

(another "documented" narcotics offender)

leave that residence and go to the residence

of Refugio Salazar-Garcia. There was also

evidence of a series of phone calls between

the house allegedly belonging to Gutierrez-

Sanchez on Darby Street in Spring Valley,

the Hotel Conquistadore in Tijuana, and

Petitioner's house in Imperial Beach.

Agents began surveillance of the

Petitioner's home at about twelve o'clock

on July 27, 1976. At 4:25 Patricia

Azhocar was observed to arrive in the same

black over maroon Cadillac she had been

seen four days previously in Mexico. [R.T.

Vol. IV, page 360). She entered the resi-

dence. Several minutes later she exited

the residence, opened the trunk and removed

a package. She then took the package back

into the house. [R.T. Vol. IV, page 361].

At approximately 5:25 Patricia left the

house carrying a large box which she

placed in the trunk of the same vehicle

and drove away. [R.T. Vol. IV, page 361].

At this point D.E.A. Agent Cuevas

decided to have her followed. Unmarked

D.E.A. vehicles followed her for about

twenty-five minutes. Patricia realized

she was being followed and ultimately

12.

drove into the K-Mart shopping center in

Chula Vista where she was immediately

surrounded by marked local police vehicles.

(R.T. Vol. IV, pages 366-368]. Patricia

was removed from the Cadillac and one of

the uniformed police officers who had

effected the stop at the request of D.E.A.

agents searched and found contraband in

the trunk. [R.T. Vol. IV, page 368]. The

agents had decided to stop the vehicle

prior to the time Patricia Azhocar pulled

into the parking lot as they felt she was

aware of their surveillance since they

were "sticking right on her bumper."

[R.T. Vol. IV, page 374]. After finding

contraband in the trunk of the car, a

search warrant was obtained for a search

of Petitioner's residence in Imperial

Beach, and the search of a 1971 Ford.

13.

REASONS FOR GRANTING THE WRIT

CERTIORARI SHOULD ISSUE

WHERE THE COURT OF APPEALS

HAS UTILIZED INCORRECT FACTS

TO REACH A FINDING, AND IN

SO DOING, HAS IMPROPERLY

EXTENDED THE MOVING VEHICLE

EXCEPTION TO SUSTAIN A WAR-

RANTLESS SEARCH.

The Court of Appeals recited several

factors in arriving at the finding that

"abundant probable cause existed" to justify

a warrantless search of the automobile

driven by Patricia Azhocar. A perusal of

the factors relied upon by the Court of

Appeals reveals several basic misconceptions

of the evidence before the trial court.

First, the Court of Appeals found

that Petitioner had told a Prug Enforcement

Administration informant that he (Petitioner)

was purchasing narcotics from Gutierrez,

14.

a known drug trafficker. (Appendix A,

page 4). The testimony of the government

agents in the trial court reflects that

such information was not imparted until

after the search of the vehicle, sometime

during business hours the following day,

and that it had actrally been provided by

a state narcotics official's informant.

(R.T. Vol. V, pages 54, 544). In fact,

government counsel conceded that the

information had not been received by the

searching government agents until after

the arrest of Gutierrez on the following

day. [R.T. Vol. VI, page 566]. It is

axiomatic then that such a factor could

not have been utilized by the government

agents prior to stopping the Patricia

Azhocar vehicle on the preceding day. That

such information may have been known to

the government when a later warrant was

15.

sought, cannot relate back under any theory

to create probable cause for the search

of the automobile on July 27th.

Petitioner sought a Rehearing in

the Court of Appeals, contending, among

other things, that the Court had incorrectly

assumed certain facts. In its Order denying

the Petition for Rehearing, the Court also

amended its Opinion. Instead of finding

that Petitioner had boasted of purchasing

narcotics from a drug trafficker, Gutierrez,

(See Appendix A, page2), the Court changed

its Opinion to recite that Petitioner was

observed by D.E.A. agents meeting with

Gutierrez and two other D.E.A. fugitives

on several occasions. (See Appendix B,

page 2). The amendment to the opinion

still miscontrues the evidence before the

district court. Gutierrez, a codefendant

at trial, was acquitted at the close of

16.

the Government's case pursuant to Rule 29

of the Federal Rules of Criminal Procedure.

The evidence in the trial court simply did

not show that there had been several meet-

ings; at best, it showed one possible

occasion where a meeting could have occurred.

Secondly, the Court of Appeals

found as a factor known to the searching

agents, the existence of certain telephone

toll records from a phone at the former

purported residence of Petitioner to an

apartment in Tijuana, Mexico. Allegedly,

Petitioner and two indicted codefendants

had been seen together near that apartment

months earlier. (Appendix A, page 2). In

fact, the evidence before the trial court

revealed that between May and July, 1976,

during the period of government surveillance

of the indicted defendants, one of them,

Gutierrez, was seen at the apartment in

17.

Mexico, but not in the presence of Peti-

tioner, other codefendants, or Patricia

Azhocar, the driver of the vehicle ulti-

mately searched. [R.T. Vol. V, pages 433-

435. Further, there was no evidence before

the trial court that any questionable toll

calls had been placed to the Mexico apart-

ment from the place where Petitioner resided

at the time of the search, or that Peti-

tioner himself had made any such calls.

Thirdly, the Court of Appeals

observed that the automobile driver,

Patricia Azhocar, was seen talking with

Salazar, a "D.E.A. fugitive", in Tijuana

on July 23, 1976, four days before the

stop, search, and seizure in question.

However, no illegal conduct was observed

by surveilling agents and no evidence was

presented that any illicit transaction

occurred or was observed by an agent.

18.

Nevertheless, the act of those two people

innocently meeting is a fact which the

Court of Appeals declared gave rise to an

inference four days later that Patricia

Azhocar was then transporting contraband.

(Appendix A, page 4).

In essence, the Court of Appeals

accumulated a series of independent,

innocent activities, coupled those acti-

vities with inferences of illicit conduct,

and then implicitly found that the agents

reasonably believed Patricia Azhocar was

a courier of narcotics. Such a finding

was improper in light of the fact that there

was no evidence of any illicit activity

on the July 23rd meeting between Patricia

and Salazar, the fact that there was a

lack of any surveillance of Patricia

Azhocar preceding her arrival at the resi-

dence of Petitioner and during the four

19.

day interim, the lack of any knowledge

that Petitioner was in fact at the resi-

dence upon the arrival and departure of

Patricia, and the lack of any specific

or articulable knowledge that the bag and

box carried to the residence from Patricia's

automobile trunk contained any contraband.

The Court's finding that Patricia

was in the residence of Petitioner for an

hour (the evidence shows that it was about

20 minutes [R.T. Vol. IV, pages 360, 361,

365, 401-403, Vol. IX, page 810]) is

indicative of the Court's misconception

of the facts.

Also, interesting to note is the

observation at fn.2 of the Court of Appeals'

Opinion, to wit, that at the trial of

Petitioner, following pre-trial motions to

suppress, evidence was adduced that Peti-

tioner had directed Patricia to deliver

20.

narcotics to him at the surveilled resi-

dence. This after-the-fact evidence can-

not sustain the apparent finding that the

officers' hunch at the time of the search

was a correct one.

Perhaps the most significant factor

to the Court of Appeals in its assessment

that probable cause existed to search the

vehicle was that upon exiting Petitioner's

residence, Patricia Azhocar drove in an

erratic and evasive manner, when followed

by unmarked surveillance vehicles.

(Appendix A, page 4). The testimony of

the case agent is crucial to the setting.

Agent Cuevas testified that "we made it

quite obvious she was under surveillance.

We were sticking right on her bumper... ."

([R.T. Vol. IV, page 374]. The subjective

intent of the agent is of paramount impor-

tance. When Patricia was observed to

21.

depart the residence, Cuevas issued orders

to have the vehicle stopped. When queried

about the purpose for stopping the car,

Cuevas replied:

Well, hopefully, it was going

to be an aid to me in this

continuing investigation, and

that, hopefully, the police

officers would come up with

more information for me to

support my search warrant

that I was trying to get

for the vehicle.

[R.T. Vol. IV, page 375].

The agents were aware that Patricia

might mistake a stop by one of them in

unmarked cars as a “robbery attempt or

masher incident or rip off," hence the

request to city police officers in marked

patrol units to effect the stop. [R.T.

Vol. IV, pages 374-375]. One of the

assisting agents told the police to stop

her on a ruse, indicating that he wanted

22.

the vehicle stopped on the pretense that

it was a stolen vehicle which possibly

contained stolen arms. [R.T. Vol. V, page

454]. When Patricia pulled into the

shopping center parking lot, she was imme-

diately corralled bv several marked police

units, escorted from the car by an officer

wielding a shotgun, handcuffed, and placed

in the rear of a patrol unit. Shortly

thereafter, a city narcotics officer who

had volunteered to assist, obtained the

keys to the trunk, conferred with govern-

ment agents, and then opened the trunk and

removed a bag containing narcotics while

government agents watched from a distance

in other areas of the parking lot.

The Court of Appeals observed that

under the circumstances of this case,

abundant probable cause existed to believe

that a delivery of narcotics was taking

23.

place. Such a finding flies in the face

of the apparent state of mind of the agents

participating in the surveillance, who,

even after the seizure from the car, and

the ensuing interrogation of Patricia

Azhocar, proceeded to seek the issuance of

a search warrant for the residence. [R.T.

Vol. Iv, page 404 ]. Clearly, then, the

stop and search of the vehicle was pre-

mised on mere suspicion and hunch.

In broad-brush fashion, the Court

of Appeals cites Chambers v. Maroney, 399

U.S. 42 (1970), and apparently declares

that the existence of seemingly exigent

circumstances, coupled with the "facts"

then perceived, brought the instant situa-

tion within the purported "moving vehicle

exception" to the warrant requirement.

Petitioner respectfully contends

that the necessary "facts" are lacking.

24.

0 tnd Coe ee:

Further, although this Court has denoted

a distinction between homes, offices, and

automobiles as they concern the Fourth

Amendment, automobiles are nevertheless

"effects" within its ambit. Cady v.

Dombrowski, 413 U.S. 433, 439 (1973), and

Chambers v. Maroney, supra, at page 52.

Neither of those decisions however esta-

blish an automobile exception to the war-

rant requirement. See, Preston v. United

States, 376 U.S. 364 (1964).

This Court's treatment of automo-

biles has been based in part on their

inherent mobility, which often makes a

judicial warrant impracticable. United

States v. Chadwick, 433 U.S. 1 (1977).

So, notwithstanding the lack of any danger

of the removal of the vehicle or the des-

truction of evidence, certain warrantless

searches of vehicles have been upheld.

25.

See, Cady v. Dombrowski, supra, at pages

441-442; South Dakota v. Opperman, 428

U.S. 364, 367 (1976); United States v.

Chadwick, supra.

However, a perusal of its previous

holdings should demonstrate to this Court

totally distinguishable, factual contexts.

The instant case is clearly neither an

inventory inspection or a safety check,

nor can it be paralleled to the "search

incident to arrest" which was delayed

until the stationhouse as in Texas v.

White, 423 U.S. 67 (1975). The prior

decisions of this Court have made it clear

that in nearly all instances where there is

no reasonable likelihood that the automo-

bile could or would be moved, the "auto-

mobile exception" is irrelevant. See,

dissenting opinion, Cady v. Dombrowski,

supra, at page 451, citing Coolidge v.

26.

New Hampshire, 403 U.S. 443, 461 (1971),

and Carrol v. United States, 267 U.S. 132,

156 (1924).

With several government agents and

more than three local police vehicles

surrounding the Patricia Azhocar vehicle,

the likelihood of its removal was extremely

remote. Obviously, the search cannot be

sustained under the border search excep-

tion. Almeida-Sanchez v. United States,

433 U.S. 266 (1973). Likewise inapplicable

is any purported argument for the applica-

tion of the plain view doctrine. Harris v.

United States 390 U.S. 234 (1968). The

only basis upon which the search in the

instant case can be upheld is through a

finding of probable cause coupled with

exigent circumstances. As noted previously,

the theory of probable cause is badly

marred by the incorrect portrayal of the

27.

Sa! a wie oti

evidence. Further, to conclude that the

government agents had inadequate oppor

tunity to secure the vehicle and proceed

to apply for and obtain a warrant from a

magistrate is inherently unreasonable.

; ae conclusion, Petitioner respect-

fully submits that the Court of Appeals

failed to follow its own prior decisions

in reaching the judgment it did in this

case. See, United States v. Connolly,

479 F.2d 930 (1973) and cases cited therein;

and, United States v. Cohn, 472 F.2d 290

( 1970); cf. United States v. Church,

490 F.2d 353 (1973) [concurring opinion,

Judge Duniway].

The Court of Appeals in the instant

case cited Chambers v. Maroney, 300 U.S. 42

and a single decision from a different

panel of the Ninth Circuit some seven years

after Chambers, United States v. Abascal,

28. ;

564 F.2d 821, 828 as precedent to uphold

the validity of the search. By relying

On erroneous factual findings, the Court

below arrived quickly at the conclusion

that probable cause existed. Even assuming

arguendo, that the factual findings recited

in its opinion were accurate, the Court

disregarded its holdings in prior cases

where more substantial facts were present

and yet the searches were held illegal

and not founded on probable cause. See,

e.g. United States v. Strickler, 490 F.2d

378; United States v. Majourau, 474 F.2d

766; Plazola v. United States, 291 F.2d 56.

The evidence before the lower courts

in this case reveals little more than a

generalized suspicion among the government

agents, based upon Patricia Azhocar's

associations with a fugitive four days

earlier, that the containers taken from

29.

and returned to her trunk contained

narcotics. Objective facts must be pre-

sent, not a police officer's intuitive

hunch. See, United States v. Mallides,

473 F.2d 859, 862, fn.5 and cases cited

therein. What the officers thought and

believed is indicative of their good

faith; however, what they knew at the

time of the detention and search was not

even the equivalent of the “series of

superficially innocent activities" cited

in United States v. Patterson, 492 F.2d

995 (9th Cir. 1974) as a basis for up-

holding a warrantless search. All evidence

derived from the illegal search of Patricia

should have been suppressed.

30.

— ee

a Atte, on 4

A TRIAL COURT THAT STATES

ITS PREDISPOSITION NOT TO

BELIEVE AN ACCUSED WHO AP-

PEARS BEFORE IT FOR THE

FIRST TIME SHOULD NOT THERE-

AFTER PRESIDE OVER THE CASE.

UNDER THE CIRCUMSTANCES, THE

TRIAL JUDGE ERRED IN FAILING

TO RECUSE HIMSELF RESULTING

IN MANIFEST UNFAIRNESS TO

PETITIONER,

In holding that the trial judge

properly denied Petitioner's motion to

recuse, the Court of Appeals recited three

requirements that must be met before an

affidavit of bias is legally sufficient.

The Court held:

It must state facts which

if true fairly support the

allegation that bias or

prejudice stemming from

(1) an extrajudicial source

(2) may prevent a fair de-

cision on the merits. The

focus is not only on the

source of the facts and

their distorting effect on

a decision on the merits,

31.

as required by Grinnell,

but also on (3) the sub-

stantiality of the support

given by these facts to

the allegation of bias,

as required by Berger.

Appendix A, pages 9-10.

Here again, the Court of Appeals

made an erroneous conclusion, to wit, that

the trial court had read "everything that

had been filed at the time the remark had

been made," thus attributing the bias as

judicial rather than extrajudicial.

(Appendix A, page 10). Neither Petitioner

nor the Government had filed any eviden-

tiary documents at the time the district

court judge made the improper remarks.

The record below wil! reflect only that an

indictment naming Petitioner had been re-

turned and possibly a search warrant had

been read by the trial judge. There had

been no significant proceedings before the

32.

‘

{

trial court, and the court had read only

the accusatory pleadings of the Government,

not even Petitioner's affidavit. No agency

investigative reports, grand jury testimony,

or other material had been considered by

the judge. [R.T. of Gutierrez's Bail Review

Hearings, October 7-8, 1976, pages 54-62].

Therefore, the conclusion by the

Court of Appeals that the trial court's

bias was not from an extrajudicial source

is wholly without support in the record

below. As such, the Court of Appeals

either substituted, or perhaps provided

its own version of what actually occurred

in the mind of the trial court.

The Court of Appeals, in stating

that the trial judge's remarks were "ill-

advised and not condoned," swept aside the

fair import of those remarks and concluded

that the remarks were not a reflection of

33.

the judge's disposition towards Petitioner.

(Appendix A, pages 8, 10). In so doing,

the Court engaged in speculation about the

trial judge's state of mind, something

Petitioner was not permitted to do in his

motion to recuse. Petitioner's contention

regarding the source of the trial court's

bias was summarily labeled "conclusory"

because Petitioner did not aver why he

believed the source to be extrajudicial.

(Appendix A, page 11). One wonders how

the scope of review was perceived by the

Court of Appeals.

Assuming arguendo, that the Court

below properly found that the Affidavit of

Petitioner was insufficient and that the

trial court's consideration of it was

appropriate, what is patently clear is

that neither court followed the mandate of

28 U.S.C. § 455. That section provides,

34.

» Dee wsre

in pertinent part, as follows:

(a) Any justice, judge,

magistrate, or referee in

bankruptcy of the United

States shall disqualify

himself in any proceeding

in which his impartiality

might reasonably be ques-

tioned.

The present section 455 was enacted

as a measure to stem the growing dissatis-

faction with the former Satutory standards

and was intended to "broaden and clarify

the grounds for judicial disqualification."

Act of Dec. 5, 1874, Pub. L. No. 93-512,

§ 1, 88 Stat. 1609.

The stated aim of the drafters of

the amendment to section 455 was:

» «+ « tO promote public

confidence in the impar-

tiality of the judicial

process by saying, in

effect, if there is a

reasonable factual basis

for doubting the judge's

35.

impartiality, he should

disqualify himself and let

another judge preside over

the case. (emphasis added)

1974 H.R. REP. No. 1453,

ong. , ess 5.

The grounds for disqualification

of judges under section 455 include the

grounds set forth in 28 U.S.C. § 144; and,

the two should be construed in similar

fashion. Davis v. Board of School Commis-

sioners, 517 F.2d 1044 (Sth Cir. 1975);

United States v. Ritter, 540 F.2d 459

(10th Cir. 1976); see also, Wright, Miller

& Cooper, Federal Practice and Procedure,

section 3542,

The mandate of section 455(a) is

self-activating, whereas the same motion

made under the purview of section 144

requires a substantial showing, and the

adherence to certain procedural criteria

36.

by a moving party. It is respectfully

submitted that certiorari should issue so

that this Court can give the courts of the

United States a guideline to follow in

the above regard, that does not vary. In

the instant case, the trial court should

have recused itself pursuant to the language

of section 455a, but instead examined its

apparent predisposition only under the

section 144 language which is more narrow.

When the language and remarks made

by the trial judge were called to his

attention by Petitioner's motion to

recuse, the proper course of action would

have been to transfer the case to another

judge. Even though the trial judge may

honestly not have felt himself to be biased.

certainly the appearance of a bias was

manifest to him. As this Court observed

in In re Murchison, 349 U.S. 133, 136

37.

(1955), quoting from an earlier decision

in Offutt v. United States, 348 U.S. ll, 14

(1954) ". to perform its high function

in the best way 'justice must satisfy the

appearance of justice'." (emphasis added).

The affidavit filed by Petitioner

in the trial court stated:

ALFRED E. AZHOCAR, being

first duly sworn, deposes

and says as follows:

(1) I am the defendant

in the above entitled action.

(2) Although I was not

personally present at the

hearing of my codefendant,

GERONIMO GUTIERREZ-SANCHEZ,

on October 8, 1976, I have

been advised by my counsel

that certain remarks were

made by the HONORABLE GORDON

THOMPSON, JR., indicating

a predisposition and pre-

judgment on his part con-

cerning my case.

(3) Specifically, the

HONORABLE GORDON THOMPSON, JR.

has a personal bias and pre-

judice against me.

(4) During the hearing

of motions relative to my

codefendant's bail on

38,

October 8, 1976, and with-

out having seen me except

for brief court appearances,

and without having been

called upon to pass upon

my credibility, I am advised

that Judge THOMPSON said

in form and substance:

(a) That he would not

believe anything I testi-

fied to;

(b) That if the only

evidence offered in the

case Of GERONIMO GUTIERREZ-

SANCHEZ was my testimony,

that my testimony in and

of itself, would be enough

to convict my codefendant;

and,

Say, the Judge would not

believe me.

(5) Although I do not

know the specific language

that the Judge utilized, I

am further advised and believe

that Judge THOMPSON has stated,

in form or in substance, that

if I am convicted of the

charges in the indictment,

that I will receive the max-

imum sentence.

(6) I am compelled to

State matters in this affi-

davit on advisement and be-

lief because I was not per-

sonally present at the hear-

ing and have not reviewed a

transcript of the proceedings.

39,

A transcript of the pro-

ceedings has been requested

from the official Court

Reporter. By reference,

I specifically incorporate

the transcription of that

proceeding when received

as a part of my affidavit.

I therefore request leave

to supplement this affi-

davit upon receipt of such

transcript, should that

supplemental information

be deemed necessary by the

Court.

(7) I am filing this

affidavit in what I believe

to be timely fashion in

light of the fact that I

learned of the bases for

this affidavit late October 8,

1976, following the hearing

referred to above.

Still another precept imposed a

duty on the trial judge to excuse himself

from further participation in the instant

That precept is embodied in Canon

3C(1) of the Code of Judicial Conduct for

United States Judges developed by the

40.

idea noi

Judicial Conference of the United States.

Canon 3C imposes a duty upon a judge to

examine whether his decision to sit on a

case may present even an appearance of

impropriety, and as such, establishes a

more stringent standard than the Congres-

sional enactments. Canon 3C provides in

pertinent part:

A judge shall disqualify

himself in a proceeding in

which his impartiality might

reasonably be questioned

In recusing himself in the case of

Public Utilities Commission v. Pollak,

343 U.S. 451 (1952), Justice Frankfurter

declared:

The guiding consideration

is that the administration

of justice should reasonably

appear to be disinterested

as well as be so in fact.

Id. at page 467.

41.

Here, the poorly-chosen words of

the trial judge, announcing that he would

not believe the Petitioner “on a stack of

Bibles" and admonishing Petitioner's counsel

of the hazards of a jury waiver, signaled

an atmosphere of hostility and distrust

which culminated with the imposition of

two ten-year terms of imprisonment for

Petitioner to serve consecutively. The

"ill-advised remarks" were extraneous to

the matter then before the court and were

spoken prior to the judge receiving any

evidence or information about either the

facts of the case or the persons accused.

Interestingly, the Court of Appeals

actually appears to base its affirmance

upon the truth of the assertions in the

affidavit, thus disregarding the mandate

of Berger v. United States, 255 U.S. 22

(1922), which it denotes as the seminal

42.

decision. In Berger, Supra, allegations

that a judge was prejudiced against defen-

dants because of their foreign birth were

held sufficient to warrant disqualification.

If a trial court, prior to the commencement

of any meaningful proceedings, announces

his predisposition about an accused's

credibility and flatly states he will not

believe his testimony under any circum-

stances, the test of Berger is certainly

appropriate. Petitioner respectfully sub-

mits that his affidavit in the instant case

recites facts and reasons that at a minimum,

"give fair support to the charge of a bent

of mind that may prevent or impede part-

iality." Berger, supra, 255 U.S. at 33-34.

(emphasis added). Where, as here, a

reasonable question arises concerning a

judge's impartiality, he should recuse

himself.

43.

a a EE ———— Ra el

—

CONCLUSION

For the foregoing reasons, Petitioner

respectfully requests that a Writ of

Certiorari issue to review the judgment of

the United States Court of Appeals for

the Ninth Circuit.

DATED: 9-25-78

Respectfully submitted,

FREDERIC L. LINK |

Attorney for Petitioner

ALFRED E. AZHOCAR

APPENDIX A

44,

APPENDIX "A"

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Defendant-Appellant.

)

vs. )

)

ALFRED ESTEBAN AZHOCAR, ) NO. 76-3737

)

Defendant-Appellant. ) OPINION

)

UNITED STATES OF AMERICA, )

)

Plaintiff-Appellee, )

)

vs. )

)

ALFRED ESTEBAN AZHOCAR, ) NO. 77-3187

)

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:

* The Honorable Warren G. Ferguson, United

States District Judge for the Central District

of California, sitting by designation.

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.

§ 84l1(a) (1). Later, ina 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 viola-

tion 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 Proceedincas 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,l/ 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. Appellant

also told another DEA informant that he

was purchasing narcotics from Gutierrez.

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 together.

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, re~

moved 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

a ee ee —= =

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-1l

carbine, a loaded .38 snub-nosed revolver,

a rifle, and drug paraphernalia.

At trial, appellant moved to sup-

press 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 (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 re-

quired to stop and search an automobile

on the highway is probable cause to be-

lieve that it contains any type of contra-

band.

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

(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 from a reliable informant

that appellant, a convicted drug felon,

had stated he was purchasing narcotics

from Gutierrez, a known drug trafficker;

they knew that there had been telephone

calls from appellant's residence to loca-

tions in Tijuana where he, Salazar and

Gutierrez had been seen together; 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 him-

self pursuant to 18 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 (1922), is the seminal case interpreting

the bias statute. There, the Supreme Court

held that the judge against whom an affi-

davit 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. Only after the legal sufficiency

10.

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 (1975),

rehearing denied, 423 U.S. 1081 (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 ad-

dressed 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

ll.

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 cumber-

some 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), "[oJnly the

individual judge knows fully his own thoughts

and feelings and the complete context of

facts alleged." This is a valid consid-

eration, since inguiry into the circum-

stances surrounding the presumptively true

allegations is often appropriate in deter-

mining whether they are such as would

prevent a fair decision on the merits.4/

12.

See, e.g., Los Angeles Trust Deed & Mort-

gage 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 con-

stituting an abuse of discretion, and his

argument that they support a claim of

statutory bias fails on two grounds.

First, no timely and sufficient

affidavit stating these claims was ever

filed. Appellant's failure to follow

these procedural requirements therefore

defeats his charge of bias. United States

v. Anderson, 561 F.2d 1301, 1302-03 (9th

Cir. 1977).

Second, even if these claims now

made on appeal had been included in a

timely § 144 affidavit, they would be

insufficient to satisfy the statute.

Adverse rulings do not constitute the

requisite bias or prejudice of § 144.

Berger v. United States, 255 U.S. 22, 34

(1921); Ex parte American Steel Barrel Co.,

230 U.S. 35, 43-44(1913); Chessman v. Teets,

239 F.2d 205, 215 (9th Cir. 1956), vacated

on other grounds, 354 U.S. 156 (1957);

Beecher v. Federal Land Bank, 153 F.2d

987, 988 (1945); cert. denied, 328 U.S.

871, rehearing denied, 329 U.S. 819 (1956);

In re Equitable Trust Co., 232 F. 836, 840

14.

(9th Cir. 1916).

There is thus no merit to appellant's

claim of bias based on adverse rulings.

C. Statements at bail hearings. In his

§ 144 affidavit, Azhocar stated that Judge

Thompson demonstrated bias and prejudice

in his remarks at one of co-defendant

Gutierrez's bail hearings. According to

Azhocar, Judge Thompson, in considering an

affidavit made by Azhocar in Support of

Gutierrez's motion for bail reduction,

said that he would not believe anything

Azhocar testified to, that Azhocar's

testimony in and of itself would be enough

to convict Gutierrez, and that Azhocar

would not le believed no matter what he

said.

While Judge Thompson 's actual

remarks-/ were ill-advised, and are not

15.

condoned, we believe his denial of appel-

lant's motion for legal insufficiency of

the affidavit of bias was proper.

United States v. Grinnell Corp.,

384 U.S. 563, 583 (1966) and Berger v.

United States, 255 U.S. 22, 23 (1922),

are the leading cases interpreting the

bias statute. Grinnell held that "(t]he

alleged bias and prejudice to be disquali-

fying must stem from an extrajudicial source

and result in an opinion on the merits on

some basis other than what the judge learned

from his participation in the case."

(emphasis added. )

In Grinnell, Judge Wyzanski had

stated: "Maybe you will persuade somebody

else. And if you think so, all right.

I just assure you it is a great ceremonial

act, as far as I am concerned." The Supreme

Court emphasized that “any adverse attitudes

16.

that Judge Wyzanski evinced toward the

defendants were based on his study of the

depositions and briefs," and that taken in

context, his statement was "merely a terse

way” of ruling on evidence after the lawyer

had gotten on his nerves.

Berger, as noted supra, held that

the judge against whom an affidavit is

filed may pass upon its legal sufficiency

because, among other reaons, it is an

essential prerequisite to recusal that the

facts alleged "give fair support" to the

charge that the judge's attitude is one

"that may prevent or impede impartiality

of judgment." 255 U.S. at 33-34. He may

not, however, pass on the truth or falsity

of the facts alleged. He can properly deny

the affidavit for insufficiency if the

facts, taken as true, do not provide fair

Support for the contention that statutory

17.

bias exists. Id. at 35.

Thus, to be legally sufficient, the

affidavit must meet three requirements. It

must state facts which if true fairly sup-

port the allegation that bias or prejudice

stemming from (1) an extrajudicial source

(2) may prevent a fair decision on the

merits. The focus is not only on the

source of the facts and their distorting

effect on a decision on the merits, as

required by Grinnell, but also on (3) the

substantiality of the support given by these

facts to the allegation of bias, as required

by Berger.

We believe Azhocar's affidavit is

legally sufficient on each of these three

grounds. First, there is simply no evidence

in the affidavit that Judge Thompson's

statement was based on an extrajudicial

source. Azhocar's contention that the

18.

judge had not seen him previously except

for brief court appearances is only mini-

mally relevant to this point. As this

Circuit noted in United States v. Montecalvo,

545 F.2d 684, 685 (9th Cir. 1976), a dis-

trict judge may rely on facts contained in

reports properly brought to his attention

in the performance of his judicial duties

as the basis for his remarks. Here the

record supports the Government's claim

that Judge Thompson had read everything

that had been filed in the case at the

time the remark was made.

Second, in context, Judge Thompson's

statement was simply an indication of the

weight he would give Azhocar's testimony

at the time of Gutierrez's bail hearing

based on what he then knew. The remarks

were made at Gutierrez's fifth bail review

hearing, and Gutierrez was depending on

19.

Azhocar's affidavit to prevail. The

remarks simply reflect Judge Thompson's

inclination not to reduce Gutierrez's

bail on the basis of an exculpatory affi-

davit by co-defendant Azhocar. They do

not indicate that Judge Thompson would

close his eyes and ears to other evidence

later in Azhocar's trial bearing on

Azhocar's credibility, or his guilt or

innocence.

Third, Azhocar's claim that Judge

Thompson's statement could not have "con-

ceivably come from the judge's participation

in the case" is conclusory. It does not

indicate why the source is believéd to be

extrajudicial or what it might have been.

Since Judge Thompson's remarks appear

likely to have been based on information

properly brought to his attention in the

performance of his judicial duties,

20.

se ee

Azhocar's claim is insufficiently sub-

stantiated to support an allegation of

statutory bias.

D. “Maximum sentence” statement.

Azhocar also claimed in his affidavit that

Judge Thompson stated that if convicted of

the charges in the indictment, Azhocar

would receive the maximum sentence. Accord-

ing to the affidavit, this claim was based

on “advisement and belief" because Azhocar

was not present at the bail hearing where

the statements were allegedly made, and he

did not have a transcript of the proceedings.

The affidavit, however, specifically incor-

porates the transcript of the hearing. £/

As a result, the affidavit does no more

than allege the actual statements in the

record as facts constituting personal bias

and prejudice. Since the transcript reveals

21.

no such statement, we must conclude from

a reading of the affidavit as a whole that

the "maximum sentence" statement is not

asserted as a fact therein.

Even accepting the statement as

a fact asserted in the affidavit, however,

the assertion shares a common legal defi-

ciency with the allegation concerning

Judge Thompson's other statements at the

bail hearing: there is no basis for a

conclusion that the source of the alleged

statement was extrajudicial. Thus, pursuant

to Grinnell, this allegation is insufficient

to show the personal bias or prejudice

requisite under § 144.

IV. Conclusion

Since we find that there was

probable cause for the initial search of

appellant's car, and since Judge Thompson

properly determined that the affidavit of

22.

bias was insufficient, the judgments of

the district court are

AFFIRMED.

23.

Footnotes

l. [reference on page 3]

Among other things, the DEA was

aware that Gutierrez was currently charged

in Mexico with tax evasion involving millions

of dollars made through narcotics dealings.

2. [reference on page 4]

Evidence at trial revealed that

appellant set up the meeting between

Patricia and Salazar in Tijuana, that

appellant directed her to deliver a package

of cocaine to his house in California, and

that while she was inside his house he

weighed out and repackaged a portion of it,

instructing Patricia to take the remaining

cocaine with her.

36 {reference on page 9]

18 U.S.C. § 144 provides:

Whenever a party to any proceeding

in a district court makes and files

a timely and sufficient affidavit that

the judge before whom the matter is

pending has a personal bias or pre-

judice either against him or in favor

of any adverse party, such judge shall

proceed no further therein, but another

judge shall be assigned to hear such

proceeding.

The affidavit shall state the

facts and the reasons for the belief

that bias or prejudice exists, and

22,

shall be filed not less than ten days

before the beginning of the term at

which the proceeding is to be heard,

or good cause shall be shown for

failure to file it within such time.

A party may file only one such affi-

davit in any case. it shall be accom-

panied by a certificate of counsel

of record stating tiiat it is made in

good faith.

[reference on page 12]

See Berger v. United States, 255 U.S.

33 (1522) and Part Ill B. intra.

[reference on page 15]

THE COURT: And frankly, to be

truthful with you, I wouldn't care

what Mr. Alfredo Azhocar said in

an affidavit. I wouldn't believe

him if he said on a stack of

Bibles. Call it what you will.

That's the facts.

Now, a jury might and that's a very

good reason for not waiving the jury

and I would encourage you not to.

And I'm sure Mr. McCabe knows me

better than to waive a jury in this

case, but to be truthful with you,

to exonerate your client by Alfred

Azhocar is not the way to go. I think

that man is going to hurt you more

than he's going to help you.

MR. GOLDBERG: Well, there's nothing

else, your Honor. That's the point.

It’s just .« e

THE COURT: Well, if nobody else

convicted your client, Mr. Azhocar

probably would just by his testimony

for him, .« « e

[reference on page 21]

The affidavit stated in part as

follows:

I am compelled to state matters in

this affidavit on advisement and

belief because I was not personally

present at the hearing and have not

reviewed a transcript of the pro-

ceedings. A transcript of the pro-

ceedings has been requested from

the official Court Reporter. By

reference, I specifically incorporate

the transcription of that proceeding

when received as a part of my

affidavit.

iii

APPENDIX B

APPENDIX "B"

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

ALFRED ESTEBAN AZHOCAR,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

ALFRED ESTEBAN AZHOCAR,

Defendant-Appellant.

NO. 76-3737

ORDER

NO. 77-3187

me ee ee eee ee eee ee ee ee ee ee

Appeal from the United States District Court

for the Southern District of California.

Before: CHAMBERS and CHOY, Circuit Judges,

and FERGUSON,* District Judge.

¥?The Honorable Warren Ferguson, United

States District Judge for the Central District

of California, sitting by designation.

On June 29, 1978, appellant Azhocar

filed a petition for rehearing with a sug-

gestion for rehearing en banc.

The panel as constituted in this

case has voted to amend the opinion filed

June 16, 1978 as follows: (All references

are to the slipsheet opinion.)

line 4] Put a period after "seen"

and delete "together."

3. At page 1895, column 2, lines

19-23: [Appendix A, pages 7-8] the

phrase which begins with the words

"DEA agents" and substitute therefor

the following:

l. At page 1894, column 2, lines

13-15: [see Appendix A, page 3, line

16] Delete the sentence "Appellant

also told another DEA informant that

he was purchasing narcotics from

Gutierrez." and substitute therefore

the following:

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.

2. At page 1894, column 2, lines

19 and 20: [see Appendix A, page 4,

; a

DEA agents knew that

appellant, a convicted drug

felon, had been meeting with

Gutierrez and with two other

drug traffickers;

4. At page 1895, line 27:

[Appendix A, page 8, line 6] Delete

"together".

With the opinion so amended, the

panel has voted to deny the petition for

rehearing and to reject the suggestion for

rehearing en banc. The full court has been

advised of the proposed amendments, and of

the suggestion for rehearing en banc, and

no judge has requested a vote on the

suggestion for rehearing en banc. Fed.R.

App.P. 35(b).

It is ordered that the opinion in

this case is amended as set forth above;

the petition for rehearing is denied and

the suggestion for rehearing en banc in

rejected,

a =

ey ee es

AFFIDAVIT OF SERVICE BY MAIL

STATE OF CALIFORNIA )

)ss.

COUNTY OF SAN DIEGO )

CRYSTAL WALLS, being first duly

sworn, says:

That affiant is a citizen of the

United States, over 18 years of age, a

resident of and employed in the County of

San Diego, State of California, and not a

party to the within action.

That affiant's business address is

303 West "A" Street, San Diego, California,

92101.

That affiant served the attached

Petition for Writ of Certiorari by placing

two (2) true copies in an envelope addressed

to the following:

Robert H. Bork,

Solicitor General

Department of Justice

10th & Constitution Avenue

Washington, D.C. 20530

Said envelope was thereafter on

September 25, 1978, deposited in the United

States mail at San Diego, California.

Subscribed and

Sworn to before

me this 25th day of

September, 1978.

said County and State

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.