United States v. Lightbourne

104 F.3d 1172, 97 Daily Journal DAR 627, 97 Cal. Daily Op. Serv. 394, 1997 U.S. App. LEXIS 611, 1997 WL 13689
CourtCourt of Appeals for the Ninth Circuit
DecidedJanuary 16, 1997
DocketNos. 96-30002, 96-30003, 96-30012
StatusPublished
Cited by6 cases

This text of 104 F.3d 1172 (United States v. Lightbourne) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Lightbourne, 104 F.3d 1172, 97 Daily Journal DAR 627, 97 Cal. Daily Op. Serv. 394, 1997 U.S. App. LEXIS 611, 1997 WL 13689 (9th Cir. 1997).

Opinion

OPINION

NOONAN, Circuit Judge:

In these consolidated cases Jon Lightb-ourne (Jon), Richard Lightboume (Richard) and Valerie Lightboume (Valerie) appeal their convictions of conspiracy to manufacture and distribute N, N-dimethylampheta-mine in violation of 21 U.S.C. §§ 841(a)(1) and 846. All three defendants challenge the sufficiency of the search warrant underlying the discovery of their conspiracy. Richard and Valerie, who are husband and wife, argue that while they chose to have a single lawyer represent them at trial, .their interests were in conflict and they should have had different counsel. Valerie challenges her sentence which is based on all drags attributable to the conspiracy and enhanced by the presence of a firearm on the headboard of her bed.

Holding that the search warrant was based on an adequate showing of probable cause, that husband and wife freely and knowingly waived any conflict of interest on the part of their counsel, and that Valerie was responsible for all the drags and for the gun, we affirm the judgment of the district court.

FACTS

On September 27, 1990 Deputy Sheriff Kenneth D. Sukert sought the assistance of the appropriate county attorneys to prepare, and then ,file, an affidavit in support of a search warrant. We summarize its contents:

Deputy Jerry Baker of the Oak Harbor Police Department had made controlled buys of methamphetamine (meth) on Au[1174]*1174gust 20, August 31, and September 6,1990 from Joseph S. Trujillo. Trujillo stated that he was employed by Richard Lightb-oume, the owner and operator of Ludlow Lawn Care and Landscaping Company in Port Ludlow, Jefferson County. Baker asked Trujillo if he needed front money to obtain the drugs. Trujillo said no because he was employed by those who supplied him with them.
On September 24, 1990, Deputy Sukert arranged for Deputy Baker to make a buy at the Port Townsend ferry terminal from Trujillo. Wearing a body wire with a transmitter Baker met Trujillo and discussed the deal. Trujillo then drove Baker to a gas station to get gas and then took him to the house where Trujillo lived with his girlfriend and her children. Trujillo now said he needed cash up front. Baker gave him eight $100s. These bills were marked. Trujillo reached under a nightstand and removed four or five $50s to supplement this sum which it was agreed would go for the purchase of one ounce of meth. The price was to be $1,250. Baker agreed to hand over $450 more on delivery. In Trujillo’s bedroom Baker observed three different scales and a small silver pipe he knew could be used to ingest drugs. Trujillo told Baker that he had to meet a guy who would take the money to get the dope from another guy. Trujillo identified the recipient of the money as a relative of the source of the drugs. He said he’d be back in fifteen minutes.
Leaving Baker at his home, Trujillo then re-entered his gold Matador and drove into a private drive at 3320 Oak Bay Road. Surveillance officers led by Deputy Peter Piccini observed him and also observed a brownish 1970 Chevrolet they believed driven by Jon or Richard Lightbourne on the way to 3320 Oak Bay Road. (They later confirmed that the car was registered to Jon at 450 Sentinel Firs Road.) The car was soon parked at the Oak Bay address, which the officers knew from a prior burglary investigation to be the home of Marlene Nowak. The officers observed her speaking to Trujillo in front of the house.
Trujillo then drove the gold Matador south from 3320 Oak Bay Road and turned on to Sentinel Firs Road, a street half a mile long ending in a cul-de-sac. Deputy Piccini, following Trujillo, stopped half way down the street. A confidential informant (Cl) was positioned near the Lightbourne residence at 450 Sentinel Firs Road and had earlier been enlisted in the investigation. The Cl was a former security guard with no criminal history. He was familiar with Richard and Valerie Lightbourne. From fear for his safety he did not wish to be identified. The Cl saw the driver of the gold Matador come from the house accompanied by Valerie. He saw Richard working on a flatbed truck. Earlier he had seen Jon drive from 450 Sentinel Firs Road;
Trujillo drove the Matador back to 3320 Oak Bay Road and was again observed there by the deputies as he talked to Marlene Nowak in front of her house. Trujillo then drove back to where he had left Baker. He had taken half an hour for his trip. He delivered two plastic bags of a yellow crystalline substance similar to what he had previously sold Baker. Trujillo weighed the bags to assure Baker of the quantity. Baker delivered the $450. He took the bags back to the sheriffs office where his purchase tested positive for meth.
In addition, the sheriffs office had information not in itself reliable enough to support a warrant: On April 18, 1990 Shawn Beggio, suspected of child molestation, told Deputy Randal Kelly that he bought crack and pot from a guy named John whose nickname was Sparky and who drove a brownish Chevrolet. Deputy Sukert knew that Jon Lightbourne went by the nickname Sparky. On September 21, 1989 Vernon Fossum, a felon involved in a custody dispute with his wife, told Deputy Kelly that his wife Kathy was using meth that she bought from Marlene Nowak, that Jon Lightbourne manufactured the meth, and that Richard Lightbourne delivered it.
Deputy Sukert had been a police officer for twelve years and' had been involved in numerous drug arrests. It was his experience that persons selling large amounts of drugs often used other residences or per[1175]*1175sons as go-betweens. Deputy Baker had been an officer for eight years and Deputy Piceini for nine; both had been involved in numerous drug investigations and arrests.

On the basis of this affidavit a district court judge for Jefferson County found “probable cause to believe that the crime(s) of manufacture, delivery and/or possession of controlled substance” had been committed in violation of RCW 69.50 and that evidence of that crime or contraband or the fruits of the crime or weapons would be found at 450 Sentinel Firs Road. The search warrant was executed. Ten ounces of a crystalline powder that tested positive for meth was pointed out to the police by Valerie. In the pants pocket of a pair of blue jeans found on the floor of the master bedroom were some of the eight marked $100 bills. In the same room in the headboard of the bed in a leather case was a semi-automatic 9mm pistol with a clip; there were also in the room in a case a semi-automatic .22 calibre rifle and an encased high velocity Winchester rifle illegal for hunting. In another room in the house was found a chemical catalogue and a copy of the Anarchist Cookbook containing a recipe for the production of meth. Keys to a van were found in the kitchen. A van was parked in a neighboring lot.

On the basis of the same affidavit, a district judge of the county issued a warrant for the search of 3320 Oak Bay Road. The warrant was executed. Jon Lightboume and Marlene Nowak were arrested in the course of the search. More of the marked buy money was found in Marlene’s purse and in Jon’s wallet.

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Bluebook (online)
104 F.3d 1172, 97 Daily Journal DAR 627, 97 Cal. Daily Op. Serv. 394, 1997 U.S. App. LEXIS 611, 1997 WL 13689, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lightbourne-ca9-1997.