Unpublished Disposition, 931 F.2d 898 (9th Cir. 1991)

MEMORANDUM^** 

In the first of these consolidated appeals (No. 90-30194), Danh Phuong Nguyen challenges the legality of his sentence. He claims that the district court impermissibly considered the case against his co-defendant, Moui-Ba Van Le, in determining what punishment to assign him. In the second of these consolidated appeals (No. 90-30195), Moui-Ba Van Le challenges the legality of his conviction. He claims that physical evidence seized pursuant to a search warrant should have been suppressed and further, that the district court erred in failing to grant a hearing to consider the reliability of that search warrant. Le also challenges the district court's refusal to grant his motion in limine to preclude the admission of certain evidence, and he claims that he was denied effective assistance of counsel. We affirm the district court in all respects.

* A

The district court had proper jurisdiction under 18 U.S.C. § 3231. Both appeals are timely, and this court has proper jurisdiction under 28 U.S.C. § 1291.

B

Appellants were co-defendants below. Both men were charged in two-count indictments with (a) conspiracy to distribute cocaine and (b) possession with intent to distribute cocaine. Nguyen pled guilty to conspiracy, and he received a sentence of sixty months in prison followed by three years of supervised release; the possession charge was dismissed. Le, on the other hand, did not plead guilty, and after a very brief trial, he was convicted on both counts. Shortly thereafter, Le received concurrent sixty-month sentences, one for each count, and four years of subsequent supervised release.

Appellants were involved in a common criminal endeavor. In July 1989, Nguyen moved into a house owned by Le and became the latter's tenant. Four months later, on November 21, a certain individual to whom Nguyen had lent a large sum of money and who apparently could not repay it, contacted the Drug Enforcement Administration ("DEA") and reported knowledge that Nguyen was trafficking in cocaine. Early that same afternoon, after recording two telephone conversations between this informant and Nguyen, the DEA arranged for an undercover agent to attempt to purchase cocaine from Nguyen.

Shortly thereafter, before 2:30 p.m., Nguyen and Le left Nguyen's residence together in a white Volvo and drove to the appointed meeting place, where another car containing the informant and the undercover agent awaited their arrival. After a brief discussion between Nguyen and the informant, Le left the Volvo and carried a shopping bag to the other car. After entering the other car, Le handed the bag to the agent, who found a shoe box inside the bag and four clear plastic bags of white powder inside the shoe box. The powder was later identified as cocaine.

As the agent examined the packets, he asked Le about the quality of the contents, and Le assured him that it was good. At this point, Le noticed and pointed to what he correctly believed to be police surveillance in a car across the parking lot. The agent attempted to assure Le that they could go around to the back of the building to complete the transaction, but Le, leaving the cocaine in the agent's possession, quickly exited the car and returned to Nguyen and the Volvo. The police then observed the Volvo leave and return to Nguyen's residence.

Several minutes later, still standing in the parking lot, the informant telephoned Nguyen's home to see what had happened. The call apparently reassured the appellants, and they shortly returned to the meeting place in a different car. Nguyen and the agent then briefly discussed the price and availability of future supplies of cocaine and agreed upon a current price of $24,000 per kilogram. Immediately after this discussion, both Nguyen and Le were arrested. Subsequent chemical analysis revealed that the amount of cocaine first brought to the meeting place was somewhat less than two kilograms with a purity of fifty-six percent. A search warrant issued forthwith for Nguyen's residence, and pursuant to that search, DEA agents recovered three smaller quantities of cocaine, an electronic scale, and a loaded 9mm. pistol. Papers seized at the home included a telephone bill in Le's name.

II

Addressing Nguyen's appeal first, we review the legality of a criminal sentence de novo. See United States v. Ahumada-Avalos, 875 F.2d 681, 684 (9th Cir.), cert. denied, 110 S. Ct. 118 (1989). Nonetheless, we afford trial courts broad discretion in weighing factors relevant to the imposition of a sentence under the Federal Sentencing Guidelines. See United States v. Borrero-Isaza, 887 F.2d 1349, 1352 (9th Cir. 1989).

To prevail, Nguyen "must cite where it 'affirmatively appears in the record that the court based its sentence on improper information.' " United States v. Lewis, 880 F.2d 243, 246 (9th Cir. 1989) (quoting Farrow v. United States, 580 F.2d 1339, 1359 (9th Cir. 1978) (en banc) (emphasis in original)). This Nguyen has failed to do. The only evidence to which Nguyen points is a statement by the sentencing court regarding its perception of the relative culpability of Nguyen and Le. See Brief for Appellant at 5. There is no indication in this statement or in anything else to which Nguyen has directed our attention to suggest that the court based Nguyen's sentence on factors relating to the case against Le, and in any event, relative culpability is clearly a permissible consideration under the Guidelines.¹ 

Nguyen places great reliance upon United States v. Enriquez-Munoz, 906 F.2d 1356 (9th Cir. 1990), but that case is not on point. The issue in Enriquez-Munoz was whether a district court could depart upward from the Sentencing Guidelines merely in order to equalize one defendant's sentence with that of a co-defendant. There has been no upward departure in this case, and thus there is no suggestion that any additional increment of Nguyen's sentence is attributable to any attempt at equalization. Nguyen's sentence of sixty months falls squarely within the presumptive sentence range appropriate for his base offense level and criminal history: fifty-one to sixty-three months. Nguyen has presented no ground upon which we may question, let alone overrule, the district court's selection of a sentence within that range. See United States v. Pelayo-Bautista, 907 F.2d 99, 101 (9th Cir. 1990). We also note, as the government has pointed out, that Nguyen expressed no objection at the time of sentencing to the statements of the district court of which he now complains. In similar circumstances, other courts have held such objections to have been waived. United States v. Sneath, 557 F.2d 149, 150 (8th Cir. 1977).

For the foregoing reasons, we affirm Nguyen's sentence.

III

Turning to the merits of Le's appeal, we also affirm.

* Le first argues that the affidavit supporting the search warrant for Nguyen's residence failed to establish a nexus between the appellants' observed illegal conduct and the residence sufficient to support probable cause to believe that relevant evidence would be found inside the residence. We review a magistrate's finding of probable cause, which is a legal determination, de novo, but we review the findings of fact upon which such a determination is based for clear error. See United States v. Linn, 880 F.2d 209, 214 (9th Cir. 1989) (citing United States v. Arrellano-Rios, 799 F.2d 520, 522 (9th Cir. 1986) and United States v. Pinion, 800 F.2d 976, 979 (9th Cir. 1986), cert. denied, 480 U.S. 936 (1987)). Under an application of these standards, we reject Le's contention.

As this court held in United States v. Fannin, 817 F.2d 1379 (9th Cir. 1987), " [d]eterminations of probable cause must be upheld if, under the 'totality of the circumstances' surrounding a request, the issuing magistrate had a substantial basis for finding probable cause." 817 F.2d at 1381 (citations omitted). The totality of the circumstances in this case supports a finding of probable cause. The police observed the Volvo as it left Nguyen's residence and drove to the preordained meeting place immediately before the appellants attempted to sell cocaine to the undercover agent. The police then observed as both appellants left in that same Volvo and returned to Nguyen's residence, and again, as both men left the residence and returned to the meeting place in a different car. Secondly, records established that the telephone number called by the DEA's informant in order to arrange the meeting belonged to the address in question. These two facts establish a nexus between the appellants' criminal conduct and the searched residence sufficient to justify a finding of probable cause to support the warrant, and as appellant Le admits, the affidavit recited both of these facts. See Brief for Appellant at 11.

As we stated in United States v. Angulo-Lopez, 791 F.2d 1394 (9th Cir. 1986):

Direct evidence that contraband or evidence is at a particular location is not essential to establish probable cause to search the location. United States v. Jackson, 756 F.2d 703, 705 (9th Cir. 1985). A magistrate is entitled to draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of offense. Id.; United States v. Dubrofsky, 581 F.2d 208, 213 (9th Cir. 1978). In the case of drug dealers, evidence is likely to be found where the dealers live. United States v. Valenzuela, 596 F.2d 824, 829 (9th Cir.), cert. denied, 441 U.S. 965 ... (1979). When the traffickers consist of a ringleader and assistants, a fair probability exists that drugs will be present at the assistants' residence as well as at the ringleader's. See United States v. Foster, 711 F.2d 871, 879 (9th Cir. 1983), cert. denied, 465 U.S. 1103 ... (1984).

791 F.2d at 1399. It is important to emphasize that when issuing a search warrant, a judge or magistrate

need not determine that the evidence sought is in fact on the premises to be searched ... or that the evidence is more likely than not to be found where the search takes place.... The magistrate need only conclude that it would be reasonable to seek the evidence in the place indicated in the affidavit.

United States v. Peacock, 761 F.2d 1313, 1315 (9th Cir.) (citations omitted; emphasis in original), cert. denied, 474 U.S. 847 (1985); see also United States v. Rabe, 848 F.2d 994, 997 (9th Cir. 1988) ("fair probability" that relevant evidence will be found on premises to be searched suffices to establish probable cause). We have upheld findings of probable cause under circumstances similar to those in the present case in both Fannin and Angulo-Lopez, and we conclude that the facts recited in the affidavit at issue here similarly warrant a finding of probable cause.

B

Le next contends that the district court improperly and prejudicially denied his request for a Franks hearing. Under the rule of Franks v. Delaware, 438 U.S. 154 (1978), a criminal defendant is entitled to have an opportunity to challenge the accuracy of facts contained in an affidavit for a search warrant under certain limited conditions. Subsequent case law has established that in order to be entitled to a Franks hearing, a defendant must make a preliminary showing that " 'the affidavit contains intentionally or recklessly false statements' " and that " 'the affidavit purged of its falsities would not be sufficient to support a finding of probable cause.' " United States v. Stanert, 762 F.2d 775, 780 (9th Cir.) (quoting United States v. Lefkowitz, 618 F.2d 1313, 1317 (9th Cir.), cert. denied, 449 U.S. 824 (1980)), as amended, 769 F.2d 1410 (1985). Le has failed to meet this burden. He contends that the affidavit's failure to set forth the fact that the appellants left the shoe box of cocaine in the parking lot with the undercover agent before returning to Nguyen's residence was a material omission that may have misled the reviewing magistrate. However, Le has not challenged the veracity of the facts that were recited in the affidavit, and we have already held that those facts alone supported a finding of probable cause.

C

Le's third contention is that the district court improperly denied his motion in limine to exclude admission of the evidence seized at Nguyen's residence. He claims that because the evidence was found at the home of his co-defendant and because there was insufficient evidence to tie Le to the contents of the home, introduction of the seized evidence was clearly more prejudicial than probative. See Fed.R.Evid. 403. We review a district court's balancing of prejudice and probity in its decision to admit evidence under Rule 403 for an abuse of discretion. See United States v. Savinovich, 845 F.2d 834, 837 (9th Cir.), cert. denied, 488 U.S. 943 (1988). We find no abuse here.

As the government correctly points out, one of the crimes for which Le was indicted was conspiracy to distribute cocaine. The presence of additional cocaine, an electronic scale, and a loaded firearm in the home of an alleged co-conspirator are all directly relevant to that charge. See United States v. Vaccaro, 816 F.2d 443, 452 (9th Cir.), cert. denied sub nom. Alvis v. United States, 484 U.S. 914 (1987). Physical evidence relating to a conspiracy is admissible even if found in the possession of a co-conspirator. See United States v. Crespo de Llano, 838 F.2d 1006, 1018 (9th Cir. 1987). Moreover, the police did observe Le as he departed, returned, and departed again from the home in question in the company of his alleged co-conspirator, and Le has acknowledged that he is the owner of the house. Under these circumstances, we cannot say that the district court committed reversible error in admitting the seized evidence.

D

Finally, Le contends that he was denied effective assistance of counsel by reason of his attorney's failure to call his co-defendant, Nguyen, as a witness. We decline to address this issue on direct appeal. See United States v. Wagner, 834 F.2d 1474, 1482 (9th Cir. 1987). As we have held on numerous occasions, the proper procedure through which to present such a claim is through a collateral attack, which allows for a fuller and more reliable development of facts outside the scope of the original record. See United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984) (per curiam), cert. denied, 470 U.S. 1058 (1985).

AFFIRMED.