Opposition — Azhocar v. United States

| 7 Supreme Court, U, &

FILED

|

No. 78-524 i JAN 5 1979

~ ~ MICHAEL RODAK, JR., CLERK

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

ALFRED E. AZHOCAR, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTII CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. McCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

ROBERT J. ERICKSON

ANDREW GORDON

Atiorneys

Department of Justice

Washington, D.C. 20530

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CITATIONS

Cases:

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

Carroll v. United States, 267 U.S. 182......

Chambers v. Maroney, 399 U.S. 42 ..........

King v. United States, 576 F.2d 482 ........

Rakas vy. Illinois, No. 77-5781 (Decem-

2,

Scott v. United States, 486 U.S. 128 ........

United States v. Burke, 506 F.2d 1165,

cert. denied, 421 U.S. 915 ~....................

United States v. Chadwick, 433 U.S. 1......

United States v. Clark, 559 F.2d 420 ........

United States v. Grinnell Corp., 384 U.S.

ea cnsemsiieicnnenanse

United States v. Lovasco, 431 U.S. 783....

United States v. McConnell, 500 F.2d

ERE ES ae reer ne era

United States v. Ortiz, 422 U.S. 891 ........

United States v. Rodriguez-Alvarado, 510

SER Rae ce ce

United States v. Wolfson, 558 F.2d 59......

aon SoS —-

II

Statutes: shal In the Supreme Court of the United States

18 U.S.C. 922 (Ih) <ecccnevaccocncescccnnceccccneeeceonnes 2

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18 U.S.C. 4205 (b) (2) -ecocssccccoveseseesnneeeeeoen 2

21 U.S.C. 841(8) (1) ne--cccovcesccconccesccecnvesees 2

Se NE 6h sibs ensinetieiiacgitineiclommimiliicaahaliis 2 No. 78-524

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BD Is FD oacnseccccenenvececsesmncsenecnennnsauctnens 13 ALFRED E. AZHOCAR, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. A)

is reported at 581 F.2d 735.

JURISDICTION

The judgment of the court of appeals was entered

on June 16, 1978. A petition for rehearing was de-

nied on September 6, 1978. A petition for a writ of

certiorari was filed on September 27, 1978. The juris-

(1)

2

diction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTIONS PRESENTED

1. Whether the evidence seized in a warrantless

search of the car driven by petitioner’s cousin should

have been suppressed.

2. Whether the trial judge erred in denying peti-

tioner’s motion that he recuse himself.

STATEMENT

Following a jury trial in the United States District

Court for the Southern District of California, peti-

tioner was convicted of conspiracy to import, possess

and distribute heroin and cocaine, in violation of 21

U.S.C. 846, and possession of cocaine with the intent

to distribute it, in violation of 21 U.S.C. 841(a) (1).’

He was sentenced to two consecutive 10-year terms

of imprisonment followed by a lifetime special parole

term. After a bench trial based on stipulated facts

derived from the narcotics conspiracy trial, petitioner

was found guilty of receipt of a firearm by a con-

victed felon in violation of 18 U.S.C. 922(h) and

924 and sentenced to five years’ imprisonment under

18 U.S.C. 4205(b)(2), the sentence to run con-

1Count I named Olivia Azhocar-Angulo, Norma William-

son, Thomas Reyes, Geronimo Gutierrez-Sanchez, and Refugio

Salazar-Garcia as petitioner’s co-conspirators. Olivia Azho-

car’s severance motion was granted by the trial court. Guti-

errez-Sanchez was acquitted by the trial court, and Reyes and

Williamson were acquitted by the jury. Salazar-Garcia has

not yet been tried.

3

currently with that imposed for the narcotics con-

victions.”

The government’s evidence showed that DEA

agents began surveillance in January 1976 of a

group of narcotics dealers in Mexico and the border

areas of California. Petitioner, who had previously

been convicted of narcotics offenses in state court,

was one of the suspected dealers who was placed

under surveillance (Tr. 348-346). During the fed-

eral investigation, petitioner was seen with Gutierrez-

Sanchez, a known narcotics trafficker who maintained

residences both in Mexico and California (Tr. 344,

346-349, 356-359, 398, 430). Petitioner was also seen

with Salazar-Garcia and Lizzaraga-Ozuna, both of

whom were being sought on federal drug charges

(Tr. 356-359). During this same period, Salazar-

Garcia introduced a DEA informant to Gutierrez-

Sanchez so that they could discuss the possibility of

smuggling narcotics into the United States (Tr. 355).

In the course of this investigation, government

agents reviewed the billing records for petitioner’s

home telephone, which revealed calls to Gutierrez-

Sanchez’s apartment in Mexico (where petitioner had

been seen with Gutierrez-Sanchez) to Gutierrez-

Sanchez’s residence in California, and to a hotel in

Tiajuana where Gutierrez-Sanchez had stayed (Tr.

358). Government agents also learned that Mexican

authorities had charged Gutierrez-Sanchez with evad-

2 After this conviction, four additional counts that charged

similar offenses were dismissed at the government’s requ: st.

4

ing the taxes on millions of pesos earned from the

sale of narcotics (Tr. 364-365).

On July 23, 1976, DEA agents in Mexico observed

Patricia Azhocar, petitioner’s cousin by marriage,

meet with Salazar-Garcia (a known associate of

Gutierrez-Sanchez) in a black-over-maroon Cadillac

(Tr. 373, 449, 497). On the same day petitioner was

seen in the parking lot of Patricia’s apartment build-

ing (Tr. 366, 373-374).

On July 27, at about noon, agents began surveil-

lance of petitioner’s residence in Imperial Beach,

California, about four miles from the Mexican

border (Tr. 346, 360-362, 364, 389). During the

next four hours, the agents observed a number of

individuals arrive in automobiles, enter the residence,

and leave (Tr. 360). At approximately 4:25 p.m.,

Patricia arrived at petitioner’s house driving the

same Cadillac she had been driving when she met

with Salazar-Garcia in Mexico (Tr. 360, 401).

Patricia entered the house for a short time, then

returned to the car, removed a large package from

the trunk, and reentered the house (Tr. 360-361,

401-402). About 20 minutes later she left the house

carrying a box and a bag, placed those items in the

trunk, and drove away (Tr. 360, 402-403).° The law

enforcement officers followed.

’ While Patricia was in petitioner’s house, one of the agents

left to seek the assistance of an Assistant United States Attor-

ney in obtaining a warrant to search the Cadillac (Tr. 366,

386, 403-404).

5

After she had driven a short distance, Patricia

began to drive erratically in an apparent attempt to

evade the surveilling officers (Tr. 375-376, 445, 453-

454). During this time, Agent Williams spoke to the

Chula Vista police concerning the circumstances of

their investigation and requested that the local police

stop Patricia on the ruse that they believed that the

car had been stolen and that it contained firearms

(Tr. 367, 454). After about 25 minutes of driving

in circles, Patricia parked the car in a store parking

lot. Several Chula Vista policemen pulled up behind

Patricia, asked her to step out of the car, and con-

ducted a search of the car that uncovered a box and

bag containing three kilograms of cocaine, cutting

agents, and a scale (Tr. 368, 456, 478-479).

Patricia cooperated with government agents, giv-

ing consent for a search of another car and her

apartment (Tr. 494-496, 508). The agents found

three pounds each of heroin and cocaine in the sec-

ond car (Tr. 1012-1013, 1017). A later warrant-

authorized search of petitioner’s house yielded quanti-

ties of heroin, marijuana, and cocaine, $4,900 in

cash, and numerous firearms (Tr. 915-920, 946-948,

955-956, 993-996). Approximately $100,000 in cash

was discovered hidden behind a panel in the trunk

of petitioner’s car, which was parked in the adjoin-

ing garage (Tr. 169, 961-962, 1003).

Prior to trial, petitioner moved to suppress the

evidence seized from the Cadillac driven by Patricia

Azhocar. Although Patricia was the registered owner

of the car, petitioner testified that he was the true

6

owner and that he had permitted Patricia to use it

to carry and store narcotics (Tr. 150-151, 154). He

stated that he had given Patricia the money to pur-

chase the car and pay for its registration, and that

he told her to register the car in her own name

(Tr. 150-152, 154, 158). The district court ruled

that petitioner had established standing to chal-

lenge the search (Tr. 162). The court concluded that

there was probable cause for the search of the vehi-

cle, and that the “fastbreaking” circumstances justi-

fied proceeding without a warrant, since the car was

parked in a public place and there was a danger that

conspirators might try to destroy any evidence in the

car (Tr. 724-725). Accordingly, petitioner’s motion

to suppress the evidence discovered in the car was

denied.

Patricia Azhocar testified as a prosecution witness

at trial (Tr. 1090-1221), and the evidence seized

from the Cadillac, as well as the drugs, money, and

firearms seized at petitioner’s home, were introduced

into evidence.

ARGUMENT

1. a. Petitioner contends (Pet. 14-30) that the

search of the Cadillac was unsupported by probable

cause and that the evidence discovered as a result of

the search should have been suppressed. This conten-

tion is without merit. Since this case involves only

the application of settled principles to the facts of

this case, it does not present an issue warranting

review by this Court. Moreover, as the court of ap-

7

peals correctly concluded (Pet. App. 8), there was

“abundant probable cause to believe that a delivery

of narcotics was being made” by Patricia Azhocar

and that the narcotics were in her automobile.‘

A six-month investigation encompassing surveil-

lance in both the United States and Mexico had re-

vealed that petitioner, himself a convicted narcotics

dealer, was associating with other known traffickers

in Mexico. Telephone toll records provided additional

evidence of petitioner’s communications with other

members of the conspiracy. Informants provided in-

formation that Gutierrez-Sanchez was arranging the

movement of large quantities of narcotics from Mex-

ico to the United States, and investigators suspected

that petitioner was involved. A few days after she

was seen talking with Salazar-Garcia in Mexico,

petitioner’s cousin, Patricia Azhocar, visited petition-

er’s house. She was driving the same automobile in

which she had met Salazar-Garcia. Based upon the

information gained in their investigation, when the

agents observed Patricia carry a package into peti-

tioner’s house and return shortly thereafter to the car

with two other packages, they drew the inference

that she was assisting petitioner in the importation

and distribution of narcotics and that the packages

Petitioner also attacks the search (Pet. 22-23), on the

ground that one of the agents requested that local police stop

Patricia’s car on the pretense that they believed the car was

stolen and that it contained guns. However, since the federal

agents had probable cause for the search, the subjective state

of mind of the individual officers is not relevant. See Scott v.

United States, 436 U.S. 128, 188 (1978).

8

in her car contained narcotics. Patricia’s evasive

driving maneuvers when she noticed that she was

being followed provided strong corroboration for the

agents’ conclusions. As the district court observed

(Tr. 724), “her desperate efforts to elude the agents

and her activity in so doing changed what may

well have been an innocent or strong suspicion

into probable cause.” See United States v. Rodriguez-

Alvarado, 510 F.2d 1068, 1064 (9th Cir. 1975).

Petitioner argues (Pet. 19-20) that the activities

outlined above were innocent in themselves and that

the agents’ actions were premised ‘‘on mere suspicion

and hunch” (Pet. 24). But even though individual

actions, viewed in isolation, may appear to be inno-

cent, the probable cause determination turns on “the

totality of the circumstances and the inferences that

flow therefrom.” United States v. Clark, 559 F.2d

420, 424 (5th Cir. 1977). “[T]he officers are entitled

to draw reasonable inferences from these facts in

light of their knowledge of the area and their prior

experience * * *.” United States v. Ortiz, 422 U.S.

891, 897 (1975).

b. Alternatively, assuming that there was proba-

ble cause, petitioner urges (Pet. 27-28) that there

was no justification for conducting the search with-

out first obtaining a warrant. He implicitly recog-

nizes that the agents could not leave the automobile

unsecured in the public parking lot because of the

danger that Patricia would drive off and elude them,

or that the co-conspirators might empty the car of

evidence. See Carroll v. United States, 267 U.S. 132,

9

153 (1925). But he argues that the agents could

have guarded Patricia and the car until a warrant

was secured, and that “[w]ith several government

agents and more than three local police vehicles sur-

rounding the Patricia Azhocar vehicle, the likelihood

of its removal was extremely remote” (Pet. 27).

It is well settled that when an automobile is

stopped in a public street or parking area on the

basis of probable cause, the police may search it im-

mediately rather than detaining it while they seek

a search warrant. Chambers v. Maroney, 399 U.S.

42, 51 (1970). See United States v. Chadwick, 433

U.S. 1, 14 n.8 (1977).°

’ Moreover, although the court of appeals did not consider

this point, even if the search of the car had been improper,

suppression would not have been required because petitioner

had no constitutionally protected privacy interest in the car.

The district court based its conclusion that petitioner had

standing to challenge the legality of the search on his testi-

mony that he had provided Patricia with the money to pur-

chase the car, and that he was the true owner of the vehicle

although it had been registered and licensed in Patricia’s

name. As this Court explained in Rakas v. Illinois, No. 77-

5781 (December 5, 1978), the only persons entitled to chal-

lenge the legality of a search are those whose constitutionally

protected expectations of privacy have been violated. Peti-

tioner’s testimony that he had provided the money to purchase

the car so that Patricia could use it to store and transport

narcotics for him did not establish that he had a legitimate

constitutionally protected expectation of privacy in the vehi-

cle. Petitioner admitted that he had only driven the car on

two or three occasions and that Patricia generally kept the

car at her apartment and had its use (Tr. 159). Since peti-

tioner allowed Patricia to purchase the car, register it in her

own name, and have it under her control from day to day, the

fact that he had provided the purchase price so that the car

10

2. Petitioner also contends (Pet. 31-43) that the

trial judge erred in refusing to recuse himself.

During a pretrial hearing on a motion to reduce

Gutierrez-Sanchez’s bail, Gutierrez-Sanchez argued

that the government’s case against him was so weak

that he had little incentive to flee (Tr. 79-81). In

support of that argument, he offered an affidavit in

which petitioner averred that if he were tried first,

he would then testify at Gutierrez-Sanchez’s trial and

exculpate him (Tr. 84-85). The trial judge denied

the motion, stating that he had “reviewed this case

and all of the pleadings in the case and I have got

to say to be truthful with you, that I think [Gutierrez-

Sanchez is] going to run” (Tr. 83). The trial judge

also stated that although he had not seen petitioner’s

affidavit, “frankly, to be truthful with you, I wouldn’t

care what [petitioner] said in an affidavit. I wouldn’t

believe him if he said on a stack of bibles” (Tr.

87). The court then cautioned Gutierrez-Sanchez’s

counsel about resting his defense on petitioner’s testi-

mony, stating that as a witness petitioner “is going

to hurt you more than he’s going to help you”

(Tr. 88).

would be available to carry narcotics did not allow him to

claim a legitimate expectation of privacy. See United States

v. McConnell, 500 F.2d 347 (5th Cir. 1974) (defendant who

permitted and paid for rental of car for co-defendant not

entitled to challenge search) ; cf. United States v. Burke, 506

F.2d 1165 (9th Cir. 1974), cert. denied, 421 U.S. 915 (1975)

(defendant who claimed he had paid for van that was regis-

tered in his brother’s name held entitled to challenge search

because his frequent use gave him a legitimate expectation

of privacy).

11

Shortly thereafter, petitioner filed a motion pursu-

ant to 28 U.S.C. 144° for recusal on the grounds that

the trial judge’s comments demonstrated bias against

petitioner.’ After a hearing the trial judge denied

the motion, ruling that “I know whether or not I’m

prejudiced against somebody or I’m not, and I think

I’m the only one who does know that, and I’m cer-

tainly not prejudiced against anybody” (Tr. 109).

He also emphasized that petitioner was being tried by

a jury, and that his own role in the trial of the case

would be a limited one, since it was his policy not to

comment on the evidence, to question witnesses, or

otherwise to take an active role at trial (Tr. 109-110).

The court of appeals concluded (Pet. App. 15) that

the trial judge’s remarks at the bail hearing had

been “ill-advised, and are not condoned,” but it af-

firmed the denial of the recusal motion on the

grounds that petitioner had not established any extra-

judicial source of prejudice, nor shown that the judge

°28 U.S.C. 144 provides in pertinent part:

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 prejudice either against him or in favor of any

adverse party, such judge shall proceed no further there-

in, but another judge shall be assigned to hear such

proceeding.

* Petitioner’s affidavit also alleged on information and be-

lief that the judge had stated he intended to impose the maxi-

mum sentence permitted if petitioner was convicted. The

transcript demonstrated that the judge made no such remarks

(see Pet. App. 21-22), and petitioner does not now rely on

that allegation.

12

would be affected by his initial assessment of peti-

tioner’s credibility and “close his eyes and ears to

other evidence” (Pet. App. 19-21).

Petitioner apparently concedes that disqualifying

prejudice must stem from an extrajudicial source,

United States v. Grinnell Corp., 384 U.S. 563, 583

(1966); Berger v. United States, 255 U.S. 22, 23

(1921), but he urges (Pet. 33) that “the conclusion

by the Court of Appeals that the trial court’s bias

was not from an extrajudicial source is wholly with-

out support in the record below,” because the only

materials filed at that time were “the accusatory

pleadings of the government.”

The record provides no support for this contention.

At the hearing on Gutierrez-Sanchez’s bail, the dis-

trict judge stated that he had reviewed everything

filed so far in the case (Tr. 83, 87). He indicated

that he had carefully gone over the records of

Gutierrez-Sanchez’s three prior bail review proceed-

ings before the magistrate, another district judge,

and the court of appeals (Tr. 83-84, 87; R. 1, 14,

16).* Additionally, on September 22, 1976, the gov-

ernment had filed two factual affidavits describing

the evidence against petitioner and Gutierrez (R.

128-131). The court of appeals correctly concluded

that petitioner had provided no reason to believe that

the trial judge’s opinion of petitioner’s credibility

was not based upon the record in the case before him,

and accordingly that he was not required to recuse

himself.

s“R.” refers to the record filed in the court of appeals.

13

Petitioner also argues (Pet. 34-40) that the district

court erred in failing to consider his recusal motion

in light of 28 U.S.C. 455, which, he contends (Pet.

36), is “self-activating” and requires less substantia-

tion than a motion under Section 144. Petitioner

based his motion solely on Section 144, and he never

urged either court below to consider his claim under

Section 455. Since this claim was never advanced

in the courts below, it is not a proper basis for review

by this Court. United States v. Lovasco, 431 U.S.

783, 788 n.7 (1977). In any event, there is no rea-

son why the result would be any different under Sec-

tion 455 than under Section 144, since Section 455

did not eliminate the extrajudicial source require-

ment for disqualification based on bias or prejudice.

See King v. United States, 576 F.2d 432, 487 (2d

Cir. 1978); United States v. Wolfson, 558 F.2d 59,

62 (2d Cir. 1977). Accordingly, petitioner’s motion

to disqualify Judge Thompson was properly denied

under any statutory test.

14

CONCLUSION

The petition for a writ of certiorari should be :

denied.

Respectfully submitted.

WADE H. McCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

ROBERT J. ERICKSON

ANDREW GORDON

Attorneys

JANUARY 1979

N vo 8. GOVERNMENT PRINTING Office; 1978 263994 250