Unpublished Disposition, 922 F.2d 845 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 922 F.2d 845 (9th Cir. 1990)

UNITED STATES of America Plaintiff-Appelleev.Foster T. HOOVER, Defendant-Appellant.

No. 87-1110.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 6, 1990.* Decided Jan. 9, 1991.

Before ALARCON, BRUNETTI and KOZINSKI, Circuit Judges.


Foster T. Hoover appeals from the judgment entered upon his conviction of two counts of possession of a destructive device in violation of Title 26 U.S.C. § 5861(d). We discuss each of his grounds for appeal and the facts pertinent thereto under separate headings.

Hoover raises several issues which were not presented to the district court. First, he contends that 26 U.S.C. § 5861 is unconstitutionally vague or that it violates his second amendment right to bear arms. Second, Hoover argues he was entrapped. Third, he argues the jury was biased.

"As a general rule, we will not consider an issue raised for the first time on appeal ...." Bolker v. C.I.R., 760 F.2d 1039, 1042 (9th Cir. 1985); Jovanvich v. United States, 813 F.2d 1035, 1037 (9th Cir. 1987). We have recognized three narrow exceptions to the general rule. These exceptions are: "1) a review is necessary to prevent a miscarriage of justice or to preserve the integrity of the judicial process, 2) a change in law raises a new issue while an appeal is pending, and 3) the issue is purely one of law." Jovanvich at 1037. No showing has been made that any of these exceptions apply to these claims.

Hoover also argues for the first time on appeal that he was denied the opportunity to call persons named on his witness list. The record reflects otherwise. When asked by the judge if he had further witnesses, Hoover responded "I have no other witnesses."

Hoover asserts that the district court abused its discretion in denying his request to recall a witness for further cross-examination. Hoover sought to recall the witness to "establish that training aid devices are exempt in the presentation of my foundation of my theory of the case". We review a limitation of cross-examination for abuse of discretion. United States v. Heath, 580 F.2d 1011, 1026 (10th Cir. 1978), cert. denied, 99 S. Ct. 850 (1979). We have reviewed the record. The district court did not abuse its discretion in limiting cross-examination.

Hoover asserts that the district court's failure to appoint lay counsel sympathetic with his religious beliefs violated both his sixth amendment right to the effective assistance of counsel and his first amendment right to the free exercise of his religion.

The district court properly denied his request. There is no sixth amendment right to lay representation. United States v. Wright, 568 F.2d 142, 143 (9th Cir. 1978). In United States v. Turnbull, 888 F.2d 636 (9th Cir. 1989), we held that there is no first amendment right to lay counsel. Id. at 638. The district court did not deny Hoover's first and sixth amendment rights in rejecting his request for lay counsel.

Hoover alleges that he was prejudiced by the government's use of "mind control". Hoover has failed to demonstrate from the record that the government used mind control in this matter.

Hoover contends that his motion to suppress evidence seized by means of an unlawful search was improperly denied. Motions to suppress are reviewed de novo. United States v. Mines, 883 F.2d 801 803 (9th Cir. 1989). A district court's findings of fact are reviewed for clear error. Id.

Hoover contends that the search warrant was not properly signed. The record shows that the affidavit was signed by Agent Myers.

Hoover also alleges that the warrant lacked particularity. Hoover contends that

[t]he search list of items sought at Hoover's residence included as items to be seized that were included just to fatten the list and give it a vagueness that would trigger in its execution, a general search.

Appellant's Brief at 22.

Hoover argues that the following description is vague:

Chemicals and ingredients utilized in manufacturing explosives including but not limited to, ammonium nitrate, potassium chlorate, black powder, dynamite.

any and all drawings, booklets, notes or plans outlining the manufacture of Homemade explosives or destructive devices

Video tapes of test firing of explosive devices.

Any other bomb making or building paraphernalia ... Appellant's Brief at 22.

To satisfy the fourth amendment particularity requirement, "a warrant need only be reasonably specific in its description of objects of a search and need not be elaborately detailed." United States v. Hayes, 794 F.2d 1348, 1354 (9th Cir. 1986). The description of the objects of the search clearly meets this standard.

Third, Hoover contends that the items seized exceeded the scope of the warrant. The only item specifically mentioned as being outside the scope of the warrant is heating fuel. Appellant's Brief at 23.

The standard applied in judging whether the scope of a search warrant has been exceeded is reasonableness. United States v. Hubbard, 493 F. Supp. 209, 229, affirmed, United States v. Heldt, 668 F.2d 1238, 1269 (D.C. Cir. 1981), cert. denied 102 S. Ct. 1971 (1982). The record supports a finding that the search--taken as a whole--was reasonable, even though some items seized were found to be outside the scope of the warrant.

We recently held in United States v. Guy, No. 88-3178, slip op. at 8029 (9th cir. July 31, 1990), that seizure of items not specifically described in a search warrant is justified by the plain view doctrine if they are of an apparent incriminating nature. Id. at 8029. Certain of the items that were not incriminating were returned to Hoover.

Finally, Hoover asserts that there was no probable cause to search. The tapes that gave rise to the search warrant contain statements concerning explosives stored at Hoover's ranch, weaponry, and plans to blow up buildings. To establish probable cause, a magistrate need only conclude from the affidavit that criminal activity is probably shown. United States v. Mulligan, 488 F.2d 732, 736 (9th Cir. 1973). A magistrate's finding of substantial basis for finding probable cause is given great deference. United States v. Fannin, 817 F.2d 1379, 1381 (9th Cir. 1987). Reliance on the conclusions of experienced law enforcement officers regarding whether evidence of a crime is likely to be found is proper. United States v. Crozier, 777 F.2d 1376, 1380 (9th Cir. 1985). The FBI's knowledge of Hoover's involvement in weaponry established probable cause to believe that incriminating evidence might be found at Hoover's residence. The magistrate had a substantial basis for finding probable cause existed. The district court did not err in denying the motion to suppress.

Hoover also challenges the transfer of this matter from Prescott, Arizona to Phoenix, Arizona. He concludes that the order violates 28 U.S.C. §§ 1393 and 1441. Section 1393 was repealed effective November 19, 1988. Section 1441 provides for removal of actions from state courts. Neither are applicable here. Hoover also relies on Rule 18 of the Federal Rules of Civil Procedure in his challenge to the transfer order. Rule 18 provides that "the court shall fix the place of trial within the district with due regard to the convenience of the defendant and the witnesses."

When the district court announced that this matter would be heard in Phoenix, Arizona, Hoover objected. The record reflects that Eric Boudette, the person Hoover designated as his "lay counsel," entered the Prescott courthouse on the date of the proceedings to consider Hoover's objection, "carrying a 44 magnum pistol". Because the Marshal advised the district court that trial of this matter in Prescott would present a security risk, the court overruled Hoover's objection and ordered the transfer.

Setting the place of trial within a district is a decision left to the trial court which will not be overturned absent a showing of abuse. United States v. Mabry, 809 F.2d 671, 683 (10th Cir. 1987), cert. denied, 484 U.S. 874 (1987). The district court properly concluded that an order for a transfer within the district was necessary for security reasons.

Hoover next asserts the district court improperly admitted evidence to prove that he intended to use the mortar as a weapon. In United States v. Fredman, 833 F.2d 837, 839 (9th Cir. 1987), we held that proof of intent is required in cases involving a destructive device as defined under 26 U.S.C. § 5845(f). The district court found the mortar to be a destructive device. Accordingly, proof of intent was properly admitted.

Hoover argues he was not given access to unedited tape recordings. The record does not support this allegation. In response to Hoover's claim, the district court recessed trial to allow him to listen to the original tapes.



The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument pursuant to Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3