United States v. Guthrie , 184 F. App'x 804 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
June 21, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 05-8113
(D. Ct. No. 04-CR-215-WFD)
CHANCY DAVID GUTHRIE, (D. Wyo.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, Chief Circuit Judge, BARRETT, Senior Circuit Judge, and O’BRIEN,
Circuit Judge.
Defendant-Appellant Chancy Guthrie was charged with attempted interstate
transportation of child pornography in violation of 18 U.S.C. § 2252A(a)(1) and (b)(1).
Prior to trial, he filed a motion to suppress evidence seized pursuant to a search warrant.
Following denial of the motion to suppress, Mr. Guthrie entered a conditional plea of
guilty, reserving the right to appeal that ruling. The motion to suppress is the basis of this
appeal. We take jurisdiction under 28 U.S.C. § 1291 and AFFIRM.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
I. BACKGROUND
In August 2004, Yahoo! employees discovered that nineteen files appearing to
contain child pornography had been uploaded to its server. Pursuant to its statutory
obligation, see 42 U.S.C. § 13032(b)(1), Yahoo! reported this activity to the National
Center for Missing and Exploited Children (“NCMEC”). NCMEC positively identified
seven images as child pornography. Investigators ultimately traced the activity to a
computer located at 515 Hall Avenue, Jackson, Wyoming (the “Hall Avenue residence”).
The residence belonged to Clinton and Deborah Guthrie.
Based on this information, Special Agent Nicole Balliet, an officer with the
Wyoming Internet Crimes Against Children Task Force, prepared an affidavit for a search
warrant and submitted it to part-time Magistrate Judge James Lubing. During his review
of Agent Balliet’s affidavit, Magistrate Judge Lubing noted that he was acquainted with
Clinton and Deborah Guthrie because, as an attorney in private practice, he had
represented their son, Chancy, nearly four years earlier in a criminal matter. The affidavit
made no mention of Chancy, however, and there was nothing to indicate that Chancy was
the subject of investigation for the instant crime. Magistrate Judge Lubing approved and
signed the warrant to search the Hall Avenue residence.
Upon execution of the warrant, Debbie Guthrie informed Agent Balliet that she
and her husband were in the process of moving, and that they had already moved their
computer to their new residence. Mrs. Guthrie then gave Agent Balliet written consent to
seize the computer from their new home.
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Following the seizure of the computer, Agent Balliet sought another search
warrant—this time, to search the hard drive of the seized computer. She submitted an
affidavit to Magistrate Judge William Beaman; the affidavit was identical in all material
respects to the affidavit she submitted to Magistrate Judge Lubing. Magistrate Judge
Beaman approved the warrant, and the search of the computer produced numerous images
of child pornography. Two days later, Chancy Guthrie met with his parole officer and
confessed that he possessed and uploaded the pornographic images to his parents’
computer.
Mr. Guthrie was charged in a two-count indictment for attempted interstate
transportation of child pornography. See 18 U.S.C. § 2252A(a)(1) and (b)(1). Prior to
trial, he filed a motion to suppress evidence obtained in the search of his parents’ home.
He argued that because Magistrate Judge Lubing had represented him in an earlier
criminal matter, he was not acting as a neutral and detached magistrate at the time he
signed the warrant application.1 The facts of the prior representation are as follows: In
August 2000, Mr. Guthrie was charged with first and third degree sexual assault on a
minor. Mr. Guthrie’s parents retained Magistrate Judge Lubing, who also works as a
private defense attorney, to represent him. Mr. Guthrie entered into a plea agreement
1
Although the computer was ultimately seized pursuant to Ms. Guthrie’s written
consent, and the ensuing search of the computer’s hard drive was conducted pursuant to
an intervening search warrant, the Government concedes that it would have had no
occasion to seek Ms. Guthrie’s consent without a valid search warrant for the Hall
Avenue residence. Accordingly, this appeal involves the validity of the first search
warrant.
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with the government and was sentenced to eight to ten years’ imprisonment, which was
suspended on the condition that Mr. Guthrie successfully complete a boot camp program
offered by the Wyoming Department of Corrections. In September 2001, Mr. Guthrie
completed the boot camp program and the attorney-client relationship between Magistrate
Judge Lubing and Mr. Guthrie terminated.
The District Court denied the motion. Thereafter, Mr. Guthrie pleaded guilty to
one count of the indictment in exchange for dismissal of the second count; he was
sentenced to 180 months’ imprisonment. He now challenges the District Court’s denial
of his motion to suppress.
II. DISCUSSION
In reviewing the denial of a motion to suppress, this Court views the evidence in
the light most favorable to the government and accepts the district court’s factual findings
unless clearly erroneous. United States v. Soderstrand, 412 F.3d 1146, 1151 (10th Cir.
2005). We review de novo a district court’s legal conclusions regarding the sufficiency
of a search warrant under the Fourth Amendment. Id.On appeal, Mr. Guthrie argues that Magistrate Judge Lubing was not a “neutral
and detached magistrate” because he had previously represented Mr. Guthrie in a criminal
matter in which Mr. Guthrie pleaded guilty to sexual assault on a minor. He argues that
when presented with the warrant to search the Hall Avenue residence, Magistrate Judge
Lubing knew or should have known that Mr. Guthrie was involved in uploading the
pornographic materials and therefore should have sua sponte recused himself pursuant to
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28 U.S.C. § 455(a).
To safeguard rights protected by the Fourth Amendment, “it is essential that a
magistrate issuing a search warrant be neutral and detached.” United States v. Ramirez,
63 F.3d 937, 941 (10th Cir. 1995). “[A] search premised on a warrant issued by a
magistrate who lacks such neutrality and detachment ‘stands on no firmer ground than if
there had been no warrant at all.’” Id. (quoting Coolidge v. New Hampshire, 403 U.S.
443, 453 (1971)). Whether a magistrate is neutral and detached in a particular case is “an
individualized and contextual inquiry[, and] [c]ourts must focus on the specific
circumstances surrounding the issuance of the warrant and decide whether the magistrate
‘manifested that neutrality and detachment demanded of a judicial officer when presented
with a warrant application for a search and seizure.’” Id. (quoting Lo-Ji Sales, Inc. v.
New York, 442 U.S. 319, 326 (1979)).
The Supreme Court has found a lack of neutrality on the part of the magistrate
issuing a search warrant in cases where the magistrate aided law enforcement officers in
their investigation of the crime, see Coolidge, 403 U.S. 443; Lo-Ji Sales, 442 U.S. 319,
and in cases where the magistrate had a pecuniary interest in issuing search warrants, see
Connally v. Georgia, 429 U.S. 245, 250 (1977). Neither of these circumstances are
present here. Mr. Guthrie argues, however, that the disqualification statute, 28 U.S.C.
§ 455 gives context to the “neutral and detached” debate and that if a magistrate was
required (and failed) to recuse himself under the statute, then he cannot be considered
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“neutral and detached” as required by the Fourth Amendment.2
The disqualification statute provides in relevant part: “Any justice, judge, or
magistrate of the United States shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.” 28 U.S.C. § 455(a).3 Recusal cases are
“extremely fact driven,” Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d
648, 660 (10th Cir. 2002), and the test for recusal is “whether a reasonable person,
knowing all the relevant facts, would harbor doubts about the judge’s impartiality,” David
v. City and County of Denver, 101 F.3d 1344, 1350 (10th Cir. 1996). A judge is required
to recuse himself when there is “an appearance of bias, regardless of whether there is
actual bias.” Bryce, 289 F.3d at 659. We review the judge’s decision regarding recusal
for an abuse of discretion. David, 101 F.3d at 1351.
We conclude, for several reasons, that recusal was not required in this case. As an
initial matter, that Magistrate Judge Lubing was casually acquainted with Clinton and
2
Because we conclude that recusal was not required, we express no opinion as to
whether a violation of 28 U.S.C. § 455(a) also violates the Fourth Amendment’s
requirement that a neutral and detached magistrate issue a warrant. Cf. United States v.
Murphy, 768 F.2d 1518, 1540 (7th Cir. 1985) (noting that the “appearance of
impropriety”—as opposed to actual impropriety—causes the judicial system to suffer but
does not undercut personal rights); United States v. Lovaglia, 954 F.2d 811, 814 (2d Cir.
1992) (stating that Congress intended that § 455(a) would set an “objective standard
designed to promote public confidence in the impartiality of the judicial process”).
3
In denying the motion to suppress, the District Court relied on § 455(b) which
provides that a judge should disqualify himself, “where he has personal bias or prejudice
concerning a party, or personal knowledge of disputed evidentiary facts concerning the
proceeding.” 28 U.S.C. § 455(b). Mr. Guthrie does not argue on appeal that this
provision applies to his motion to suppress. Accordingly, we do not address it here.
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Deborah Guthrie—the individuals actually listed in the search warrant—does not raise the
specter of bias. Jackson, Wyoming is a small rural town. The very nature of such towns
is that magistrate judges may be acquainted with people whose names come before the
court as being involved in a crime. Mere acquaintance does not require recusal, even if
the acquaintance is because the individual is related to a former client. See United States
v. Heffington, 952 F.2d 275, 279 (9th Cir. 1991) (Though “judges . . . in rural counties
often know more about the local criminal recidivists . . . than their more urban colleagues,
we are not prepared to disqualify small-town judges on demand.”). Mr. Guthrie rightly
does not argue that based on that fact, alone, Magistrate Judge Lubing should have
recused himself from the matter.
Mr. Guthrie contends, however, that because his parents were listed on the
warrant, because the Hall Avenue residence was Mr. Guthrie’s address during the prior
representation, and because the crime was sexual in nature, Magistrate Judge Lubing
should have known that Mr. Guthrie was the target of the investigation. We disagree.
The facts, as they existed before Magistrate Judge Lubing, see United States v.
Avilez-Reyes, 160 F.3d 258, 260 (5th Cir. 1998) (Jones, J., dissenting) (“recusal motions
must be viewed in terms of events as the parties knew them at the time”), would lead a
reasonable person to believe only that a former client’s parents were being investigated
for a crime. The affidavit presented to Magistrate Judge Lubing did not give any
indication that Mr. Guthrie was the subject of an investigation. In fact, even law
enforcement officials were not aware of Mr. Guthrie’s involvement until he admitted
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committing the crime in a meeting with his probation officer nearly a week later.
In any event, even if Magistrate Judge Lubing might reasonably have believed that
Mr. Guthrie was involved in the instant matter, “a judge’s prior representation of a
witness or party in an unrelated matter does not automatically require disqualification.”
David, 101 F.3d at 1351; Mitchael v. Intracorp, Inc., 179 F.3d 847, 861 (10th Cir. 1999)
(same); see also United States v. Lovaglia, 954 F.2d 811, 815–17 (2d Cir. 1992)
(sentencing judge’s prior friendship with victim of crime did not require recusal in
defendant’s sentencing proceeding); United States v. Outler, 659 F.2d 1306, 1312 (5th
Cir. 1981) (magistrate judge who issued search warrant was not obligated to disqualify
himself even though he prosecuted defendant three years earlier in unrelated case). Here,
Magistrate Judge Lubing had an attorney-client relationship with Mr. Guthrie in a wholly
unrelated matter that ended approximately three years prior to the facts giving rise to the
instant appeal.
Moreover, the affidavit presented to Magistrate Judge Lubing was overwhelmingly
sufficient to establish probable cause. Not only does Mr. Guthrie concede this fact, but an
indisputably neutral and detached magistrate—Magistrate Judge Beaman—reviewed the
same material facts, found that such evidence amounted to probable cause, and authorized
a search of the computer’s hard drive. See Outler, 659 F.2d at 1312 (absent other factors,
when evidence “overwhelmingly” establishes probable cause, there is no reason to
question the magistrate’s impartiality). There is no evidence to suggest that Magistrate
Judge Lubing based his decision on anything other than the facts presented in Agent
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Balliet’s affidavit. Without such evidence, we do not question Magistrate Judge Lubing’s
impartiality.
III. CONCLUSION
For the foregoing reasons we find that Magistrate Judge Lubing was not required
to recuse himself under 28 U.S.C. § 455(a). We therefore AFFIRM the District Court’s
denial of Mr. Guthrie’s motion to suppress.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Circuit Judge
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