United States v. Lawrence Gilbert Chesher

678 F.2d 1353 UNITED STATES of America, Appellee, v. Lawrence Gilbert CHESHER, Appellant. No. 80-1011. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 9, 1981. Decided June 9, 1982. Doron Weinberg, San Francisco, Cal., argued, for appellant; Larson, Weinberg & Harris, San Francisco, Cal., on brief. Sanford Svetcov, Chief Asst. U. S. Atty., San Francisco, Cal., argued, for appellee; Richard Dondero, Asst. U. S. Atty., San Francisco, Cal., on brief. Before GOODWIN and NORRIS, Circuit Judges, and McNICHOLS, District judge. * NORRIS, Circuit Judge: 1 Appellant Lawrence Chesher was convicted on stipulated facts of having manufactured methamphetamine, a Schedule II non-narcotic controlled substance, in violation of 21 U.S.C. § 841 (a)(1). 2 Chesher challenges the district court's denial of his timely motion to suppress evidence as illegally obtained. He argues that the drug laboratory seized in his residence should have been suppressed because it was neither seized pursuant to a valid warrant nor validly seized in plain view. 3 Chesher contends that an "indicia warrant" authorizing officers to search for any indicia of membership in or association with…

Appellant Lawrence Chesher was convicted on stipulated facts of having manufactured methamphetamine, a Schedule II nonnarcotic controlled substance, in violation of 21 U.S.C. § 841 (a)(1).

Chesher challenges the district court’s denial of his timely motion to suppress evidence as illegally obtained. He argues that the drug laboratory seized in his residence should have been suppressed because it was neither seized pursuant to a valid warrant nor validly seized in plain view.

Chesher contends that an “indicia warrant” authorizing officers to search for any indicia of membership in or association with the Hells Angels Motorcycle Club, was invalid under both the First and Fourth Amendments to the United States Constitution. He also contends that a second warrant, obtained by the officers after they discovered the drug laboratory, was invalid.

I.

On June 12,1979, an indictment was filed in the United States District Court for the Northern District of California, charging Chesher, along with thirty-one other defendants, with violating Title IX of the Organized Crime Control Act of 1970. This title, commonly known as The Racketeer Influenced and Corrupt Organizations Act (RICO),…

dissenting:

Because I disagree with the majority’s standard of review and its treatment of the issue of sufficiency of the evidence, I respectfully dissent.

In considering Chesher’s claim that the evidence against him was insufficient to support the conviction, the majority limits review to a determination of whether the stipulated facts present substantial evidence of guilt beyond a reasonable doubt. In doing so, the majority relies upon Lundgren v. Freeman, 307 F.2d 104, 113-115 (9th Cir. 1962) which in turn is based upon rule 52(a) of the Federal Rules of Civil Procedure.

I do not believe that either rule 52(a) Federal Rules of Civil Procedure or Lund-gren apply to this case. Rule 23(c) of the Federal Rules of Criminal Procedure provides:

Professor Wright in Federal Practice and Procedure, § 374 states:

I have not found a case in this Circuit establishing a standard of review in a criminal case such as this in which (1) there are no findings of fact or conclusions of law, (2) there is no written opinion by the trial court, and (3) the only evidence is a written stipulation of fact. In such a case the rational approach is for this court to determine de novo whether the…