Appeal from the United States District Court for the Central District of California. D.C. No. CR-90-0590-ER-4 UNITED STATES OF AMERICA,. D.C. No. CR-90-0590-ER-1 UNITED STATES OF AMERICA,. D.C. No. CR-90-0590-ER-2 UNITED STATES OF AMERICA,. D.C. No. CR-90-0590-ER-5 UNITED STATES OF AMERICA,. D.C. No. CR-90-0590-ER-6. Edward Rafeedie, District Judge, Presiding.
Before: Arthur L. Alarcon, William A. Norris, and Diarmuid F. O'Scannlain, Circuit Judges. Opinion by Judge O'Scannlain.
O'SCANNLAIN, Circuit Judge:
Appellants were indicted and tried together on drug charges. Following a jury trial, all were convicted of conspiracy to manufacture and to possess methamphetamine with intent to distribute. Croushorn, Piantadosi, and Dewbre were also convicted of manufacturing and possessing methamphetamine with intent to distribute, and of possessing ephedrine with intent to manufacture methamphetamine. Dewbre and Sitton were convicted of an additional count of possessing methamphetamine with intent to distribute. Appellants were sentenced to terms of imprisonment ranging from 168 to 360 months.
Appellants raise a number of challenges to their convictions and sentences. We reverse the convictions of Dewbre and Sitton on the possession with intent to distribute count and remand for clarification of the record with respect to Dewbre's sentencing. In all other respects we affirm.
On Sunday May 27, 1990, Wayne Westphal, a Park Ranger at Death Valley National Monument, came across tire tracks heading off a dirt road toward a box canyon. Westphal followed the tracks into the canyon, where he saw several men and five trucks.*fn1 He also observed weapons. One of the men offered Westphal $200 to forget what he had seen. Westphal told the men he was going to write them tickets for driving off-road, and instructed them to pack their things and leave the canyon. Allen Dewbre and Duncan then jumped in one of the trucks and fled the canyon at a high rate of speed.
Westphal returned to his truck, outside the canyon, and radioed for help. Officers from the Inyo County Sheriff's Department and the Bureau of Land Management answered the call. Together, the law enforcement officers entered the canyon. The glassware and chemical containers they saw led them to believe they had found a methamphetamine lab. They arrested Croushorn, Piantadosi, Helton Sr., and Helton Jr. A search of the area revealed weapons, equipment used to manufacture methamphetamine, five pounds of methamphetamine inside the canyon, and another fifteen pounds outside the canyon entrance.
Shortly after the Death Valley arrests, Allen Dewbre turned himself in to authorities and began providing information to the San Bernardino County Sheriff's Department. He informed the police that the conspirators had manufactured methamphetamine at a cabin in Death Valley, and led them there.
About this time, sheriff's deputies placed Ronald Dewbre under surveillance. Police followed Ronald Dewbre and Sitton to the Budget Mini Storage in Fontana, California, and learned they had gone into Unit 483. The deputies obtained a surreptitious entry ("sneak and peek") warrant for that unit. Upon execution of the warrant, they found equipment and chemicals used to manufacture methamphetamine, a drum containing 4.5 gallons of liquid which later tested positive for methamphetamine, and a large number of weapons.
On June 17, 1990, Croushorn, Romero, and Sitton met at the Budget Mini Storage and went to Unit 483. The manager thought he saw them pass something from the storage unit to Romero's truck. When officers arrested Romero after he left, they found ether and acetone in his truck. When arrested, Romero had in his possession a business card for Ramona Mini Storage, with the number 139 written on it. Officers executed a warrant on Unit 139, and found chemicals and equipment used in the manufacture of methamphetamine. Croushorn was listed on the lease agreement as an authorized user of this unit. In addition, police learned that Piantadosi had storage lockers at Airport Mini Storage. When searched under warrant, those lockers proved to contain additional chemicals and equipment used in manufacturing methamphetamine. The authorities also obtained warrants to search each defendant's residence. A number of weapons were found at Sitton's house.
At trial a government expert testified that no quantitative analysis of the amount of methamphetamine in the mixture seized from Unit 483 had been performed. After trial, a defense expert tested the mixture and found that it contained 68 grams of methamphetamine. The expert expressed the opinion that the mixture was waste from the manufacturing process.
Appellants argue that the government violated their due process rights in two respects: first by bringing federal, rather than state, charges against them, and second by presenting perjured testimony to the grand jury.
We lack the authority to review appellants' claim that the decision to charge them in federal court violated their due process rights. We have recently held that a prosecutor's charging decision cannot be judicially reviewed absent a prima facie showing that it rested on an impermissible basis, such as gender or race. United States v. Redondo-Lemos, 955 F.2d 1296, 1300-01 (9th Cir. 1992); United States v. Diaz, 961 F.2d 1417 (9th Cir., (9th Cir. 1992). Appellants do not claim that discrimination on the basis of any suspect characteristic played a role in their referral to federal court.
Sitton also contends that the trial court lacked jurisdiction because California has not affirmatively consented to federal jurisdiction over federal crimes in that state. This argument is frivolous. Federal courts have exclusive jurisdiction of offenses against the laws of the United States under 18 U.S.C. § 3231; the permission of the states is not a prerequisite to exercise of that jurisdiction. Sitton allegedly violated the laws of two sovereigns, California and the United States. Either or both could have prosecuted him. See United States v. Figueroa, 938 F.2d 1015, 1020 (9th Cir. 1991), cert. denied, 112 S. Ct. 1181, 117 L. Ed. 2d 424 (1992). Thus, Sitton's trial on federal charges in no way infringed upon the state's right to enforce its own laws.
Appellants also assert that their indictment must be dismissed because Allen Dewbre perjured himself before the grand jury. The government concedes that Allen Dewbre testified falsely that his role was merely that of a helper rather than a cook and failed to disclose to the grand jury Duncan's presence at several "cooks" of methamphetamine.
The Supreme Court has recently held, in United States v. Williams, 118 L. Ed. 2d 352, 112 S. Ct. 1735 (1992), that the supervisory power of federal courts over grand jury proceedings is limited. Courts may not use that supervisory power "as a means of prescribing. . . standards of prosecutorial conduct in the first instance." Id. at 1742. The supervisory power can, however, be used to dismiss an indictment where misconduct before a grand jury "amounts to a violation of one of those 'few, clear rules which were carefully drafted and approved by this Court and by Congress to ensure the integrity of the grand jury's functions.' " Id. (quoting United States v. Mechanik, 475 U.S. 66, 74, 89 L. Ed. 2d 50, 106 S. Ct. 938 (1986) (O'Connor, J., Concurring in the judgment)). And, of course, we need not look to the supervisory power at all if the misconduct rises to the level of a violation of the Fifth Amendment right to the judgment of an independent and informed grand jury. See id. at 1744.
We need not decide if Williams has cut back on the power of this court to dismiss an indictment based on the presentation of perjured testimony to the grand jury. Even assuming it has not, we conclude that appellants are entitled to no such relief. Dismissal of the indictment is not appropriate "when a witness' alleged perjury is not material to the defendant's indictment and instead affects only the witness' credibility." United States v. Spillone, 879 F.2d 514, 524 (9th Cir. 1989), cert. denied, 112 L. Ed. 2d 170, 111 S. Ct. 210, 112 L. Ed. 2d 137, 111 S. Ct. 210, 112 L. Ed. 2d 170 (1990); see also United States v. Evans, 928 F.2d 858, 861 (9th Cir. 1991) ("perjured testimony must be material to support dismissal"); United States v. Claiborne, 765 F.2d 784, 791 (9th Cir. 1985) ("if sufficient non-perjurious testimony exists to support the indictment, the courts will not dismiss the indictment due to the presence of perjured testimony"), cert. denied, 475 U.S. 1120, 90 L. Ed. 2d 182, 106 S. Ct. 1636 (1986). Allen Dewbre's falsehoods simply minimized the roles played by himself and an unindicted co-conspirator. They were not material to the evidence against the defendants, and therefore do not supply a basis for dismissing the indictment.
Appellants rely on United States v. Basurto, 497 F.2d 781 (9th Cir. 1974), to support their claim that the prosecution was required to notify the grand jury, as well as defense counsel and the court, of Allen Dewbre's testimony. We have previously noted that Basurto 's statement that the prosecutor has an obligation immediately to inform the court and opposing counsel of any perjury was dictum. United States v. Bracy, 566 F.2d 649, 654-55 (9th Cir. 1977), cert. denied, 439 U.S. 818, 58 L. Ed. 2d 109, 99 S. Ct. 79 (1978). Even if the government had an obligation to inform the court and defense counsel of its Conclusion that Allen Dewbre had committed perjury, dismissal of the indictment would not be an appropriate remedy for violation of that obligation. Id. at 655-57.
We reject appellants' contention that Vasquez v. Hillery, 474 U.S. 254, 88 L. Ed. 2d 598, 106 S. Ct. 617 (1986), compels reversal when any perjured testimony is presented to the grand jury. Vasquez held that harmless error analysis did not apply to exclusion of blacks from the grand jury panel, because "discrimination in the grand jury undermines the structural integrity of the criminal tribunal itself." Vasquez, 474 U.S. at 263-64. Presentation of perjured testimony to the grand jury is not such a structural flaw. It is rather an error susceptible of quantitative assessment to determine its effect, and therefore suitable for harmless error analysis. See Arizona v. Fulminante, 113 L. Ed. 2d 302, 111 S. Ct. 1246, 1264 (1991). If the perjured testimony is not material to the guilt or innocence of the accused, its presentation to the grand jury is necessarily harmless and does not require reversal of a conviction or dismissal of the indictment. Cf. Smith v. Phillips, 455 U.S. 209, 220, 71 L. Ed. 2d 78, 102 S. Ct. 940 n.10 (1982) (noting that knowing use of perjured testimony by the prosecution at trial does not require reversal unless "the tainted evidence was material to the case").
Appellants raise a number of challenges to evidentiary rulings. They contend that certain evidence should have been suppressed because it was obtained in violation of their constitutional rights. Dewbre also objects to admission of his conversation with sheriff's deputies and exclusion of evidence concerning the search of his house. We review the denial of appellants' suppression motions first, turning thereafter to Dewbre's complaints.
Appellant Piantadosi contests the denial of his motion to suppress, arguing that his arrest was not supported by probable cause. We need not determine whether probable cause supported Piantadosi's arrest because we conclude that no evidence admitted at his trial was the fruit of that arrest.
Standing alone, "illegal arrest or detention does not void a subsequent conviction." Gerstein v. Pugh, 420 U.S. 103, 119, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975). While "physical evidence and statements obtained as a result of such an arrest must be suppressed," United States v. Alvarez, 810 F.2d 879, 884 (9th Cir. 1987), no evidence introduced at trial resulted from Piantadosi's arrest. Piantadosi made no post-arrest statements. The physical evidence found in the box canyon was lawfully seized pursuant to the arrest of Piantadosi's co-defendants, because it was in plain view, and through a search of federal property in which no defendant had a privacy interest. Nor did the search, pursuant to warrant, of Piantadosi's house and storage locker depend upon his arrest. Piantadosi's presence at the remote box canyon where a clandestine methamphetamine laboratory and large quantities of methamphetamine were found, his criminal history, the criminal history of his companions in the box canyon, the discovery of equipment used to manufacture methamphetamine at the Heltons' home, and information connecting ...