Unpublished Disposition, 923 F.2d 864 (9th Cir. 1989)

MEMORANDUM^* 

FACTS AND PROCEEDINGS BELOW.

On January 5, 1989, a warrant was issued to search the residence of Olin and Tami Kicklighter in Sacramento, California. Tami Kicklighter, the defendant's wife, was present when federal drug agents arrived to search the house and attached garage. The officers found methamphetamine in the house and garage; various chemicals and paraphernalia used in the manufacture of methamphetamine were discovered in the garage. The search of the master bedroom and an office bedroom also produced papers containing a recipe for manufacturing methamphetamine, price lists from chemical companies, references to laboratory equipment, and a price list for controlled substances. While the search was being conducted, Olin Kicklighter ("Kicklighter") arrived home alone in a Toyota pick-up truck. He was arrested and searched. Three thousand dollars in currency and two baggies containing white powder, later identified as four grams of methamphetamine, were found in his jacket; a loaded .45 caliber semi-automatic pistol was found in his truck.

After his arrest, Kicklighter admitted he owned the gun and the lab in the garage. He told the officers that the last time he had manufactured drugs was at a shed on Barton Road in Loomis, California ("Loomis property") and that he had manufactured two pounds of methamphetamine. Kicklighter also stated that he had distributed methamphetamine for $800 per ounce.

The search warrant also authorized the search of a residence and shed located on the Loomis property. Federal agents conducted a simultaneous search of this property. In the shed, officers found methamphetamine residue and stains apparently left over from the manufacturing of methamphetamine. Deborra Kintana owned and lived in the house on the property. In Kintana's bedroom, the officers found a lease agreement between her and John McCaive for the shed and pasture area. Kicklighter signed as the witness on that agreement.

On January 13, 1989, Olin and Tami Kicklighter were charged with three counts: (1) conspiring together and with other unknown persons to manufacture and distribute methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a) (1); (2) manufacturing methamphetamine in violation of 21 U.S.C. § 841(a) (1); and (3) using or carrying a firearm in relation to the conspiracy in violation of 18 U.S.C. § 924(c) (1).¹  Kicklighter filed a motion to suppress the evidence seized by the federal agents during their search of his home. He argued that the affidavit submitted in support of the warrant was insufficient to show probable cause to search his house. After a hearing on the motion, the district court concluded the affidavit set forth "ample evidence" to support the warrant and denied Kicklighter's motion. A jury trial was held and Kicklighter was convicted on all three counts. He was later sentenced to 180 months in prison and a five year term of supervised release. Kicklighter timely appeals the denial of his motion to suppress, his convictions on Counts One and Three of the indictment, and the district court's sentencing decision.

ANALYSIS.

Issuance of the Warrant to Search Kicklighter's House.

Kicklighter contends that the affidavit in support of the search warrant did not establish probable cause for the search of his house.²  The affidavit at issue was prepared by DEA Agent Jack Polen. The affidavit established that Tami Kicklighter had made cash purchases of chemicals and supplies used in the manufacture of methamphetamine. Vehicles registered to Kicklighter's address had been used to transport these chemicals and supplies. An informant told Agent Polen that Kicklighter cooked and distributed methamphetamine. Kicklighter does not challenge the source of the information; in fact he concedes the affidavit established probable cause to believe he was a methamphetamine "cook." The affidavit also set forth Agent Polen's experience and specialized drug enforcement training.

We give great deference to a magistrate's determination that sufficient probable cause exists to issue a search warrant and will not overturn it unless clearly erroneous. U.S. v. McQuisten, 795 F.2d 858, 861 (9th Cir. 1986). If the magistrate had a substantial basis for concluding that probable cause existed, the warrant is valid. Id. Kicklighter argues the affidavit failed to show any connection between his house and any drug trafficking offense. We disagree. Agent Polen, in part, relied on his knowledge of drug traffickers to conclude that evidence linking Kicklighter to drug trafficking might be found at his residence. A magistrate may rely on the conclusions of experienced law enforcement officers regarding where evidence of a crime is likely to be found. U.S. v. Fannin, 817 F.2d 1379, 1382 (9th Cir. 1987). Furthermore, we have recognized that " [i]n the case of [suspected] drug dealers, evidence is likely to be found where the dealers live." U.S. v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986). We find the magistrate had a substantial basis for finding probable cause and issuing the warrant to search Kicklighter's residence. The district court properly denied Kicklighter's motion to suppress.

Sufficiency of the Evidence.

Kicklighter argues there was insufficient evidence to convict him of conspiring to manufacture and distribute methamphetamine. Kicklighter does not dispute that the loaded gun found in the truck was his, but he does attack the firearms count which was based on the underlying conspiracy offense. Because Kicklighter failed to move for judgment of acquittal in the district court, we review only for plain error or miscarriage of justice.

"The essential elements of a conspiracy are (1) an agreement to engage in criminal activity, (2) one or more overt acts taken to implement the agreement, and (3) the requisite intent to commit the substantive crime." U.S. v. Meyers, 847 F.2d 1408, 1412-13 (9th Cir. 1988). The government need not show the agreement was explicit--an "implicit agreement may be inferred from the facts and circumstances of the case." U.S. v. Hernandez, 876 F.2d 774, 777 (9th Cir.), cert. denied, --- U.S. ----, 110 S. Ct. 179 (1989) (citation omitted). Here Kicklighter only challenges the "agreement" element of his conspiracy conviction.

We conclude the evidence sufficiently supports Kicklighter's conspiracy conviction. A rational jury could have convicted Kicklighter on Counts One and Three based on the following evidence: (1) Kicklighter admitted he manufactured and distributed methamphetamine; (2) Kicklighter admitted he had manufactured methamphetamine in the shed leased to McCaive in Loomis; (3) McCaive paid the rent for the Loomis property; (4) Tami and Olin Kicklighter's house and garage contained methamphetamine, manufacturing equipment, and paraphernalia for distribution.³ 

The manufacturing equipment and distribution paraphernalia found in the Kicklighters' house and garage provide strong circumstantial evidence of an agreement between Tami and Olin Kicklighter to manufacture and distribute methamphetamine. Moreover, the jury was entitled to disbelieve Kicklighter's statement to the federal agents that he acted alone. See United States v. Goode, 814 F.2d 1353, 1356 (9th Cir. 1987). The remains of a methamphetamine laboratory found in the shed on the Loomis property and Kicklighter's statement that he had last manufactured methamphetamine there are circumstantial evidence of an agreement between Kicklighter and McCaive. From the abundant evidence of manufacturing, as well as Kicklighter's admission of involvement in manufacturing, any rational jury could find that Tami and Olin Kicklighter agreed to manufacture and distribute methamphetamine. See, e.g. U.S. v. Litteral, 910 F.2d 547, 550-51 (9th Cir. 1990). The jury could have also concluded that Kicklighter and McCaive agreed to manufacture methamphetamine at the Loomis property. There was no plain error. We affirm Kicklighter's convictions on Counts One and Three.

Kicklighter's Sentence.

Kicklighter also challenges the sentence imposed by the district court. Kicklighter's failure to object at the sentencing hearing effectively waives his right to later appeal the district court's sentencing decision. Again, we review only for plain error. Kicklighter was sentenced to 180 months in prison and a five year term of supervised release. The sentences imposed are mandatory under 21 U.S.C. § 841(b) (1) (A), 18 U.S.C. § 924(c) (1), and the Federal Sentencing Guidelines.

AFFIRMED.