                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 09 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S . CO UR T OF AP PE A LS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-30106

             Plaintiff - Appellee,               D.C. No. 4:08-CR-00096-BLW-1

  v.
                                                 MEMORANDUM *
ALFRED WAHTOMY,

             Defendant - Appellant.



                    Appeal from the United States District Court
                              for the District of Idaho
                  B. Lynn Winmill, Chief District Judge, Presiding

                           Submitted February 5, 2010**
                               Seattle, Washington

Before: ALARCMN, W. FLETCHER and RAWLINSON, Circuit Judges.

       Alfred Wahtomy was indicted on charges of aggravated sexual abuse in

violation of 18 U.S.C. y 2241(a), and assault resulting in serious bodily injury in

violation of 18 U.S.C. y 113(a)(6). In support of his pretrial motion to suppress,


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Wahtomy sought to compel the testimony of a tribal court judge who had signed

the search warrant in order to inquire into whether the judge was 'neutral and

detached' or 'capable of determining whether probable cause exists.' See

Shadwicµ v. City of Tampa, 407 U.S. 345, 350 (1972). The district court quashed

the subpoena and denied the motion to suppress. Wahtomy proceeded to trial and

was convicted. He appeals from the district court's order quashing the subpoena.

We have jurisdiction pursuant to 28 U.S.C. y 1291 and we affirm.

         We review a district court's order quashing a subpoena for abuse of

discretion. United States v. Bergeson, 425 F.3d 1221, 1224 (9th Cir. 2005). We

review de novo whether the defendant's due process or compulsory process rights

were violated. United States v. Bahamonde, 445 F.3d 1225, 1228 n.2 (9th Cir.

2006).

         To establish a violation of the constitutional right to compulsory process, a

defendant 'must maµe at least some plausible showing of how the[] testimony

would have been both material and favorable to his defense.' United States v.

Valenzuela-Bernal, 458 U.S. 858, 868 (1982). To establish a violation here,

Wahtomy needed to maµe a plausible showing that Judge Coby's testimony as to

her neutrality and qualifications would have been both material and favorable on

his Fourth Amendment claim.


                                             2
      With regard to whether Judge Coby was 'neutral and detached,' Wahtomy

failed to proffer any description of Judge Coby's testimony beyond stating that

Judge Coby was his former wife's daughter. He did not proffer even basic details

of the relationship that were within his personal µnowledge, such as whether

Wahtomy and Judge Coby were personally acquainted or the extent and frequency

of their interaction. He did not proffer any specific evidence of bias, nor why the

relationship might have made Judge Coby biased against him in his case.

Wahtomy also sought to inquire into Judge Coby's relationship to law

enforcement, but made no showing of any basis for so inquiring. Speculation

based on the fact of a relationship or relationships alone is not sufficient to maµe

out a showing of materiality. See Valenzuela-Bernal, 458 U.S. at 873-74; United

States v. Heffington, 952 F.2d 275, 279 (9th Cir. 1991). Moreover, this case arose

on an Indian reservation of several thousand people, where the liµelihood that the

on-call tribal judge has a relationship to the subject of a requested warrant is

greater than in a more populous jurisdiction. In the absence of concrete evidence

of partiality, we have expressed wariness to 'disqualify small-town judges on

demand' unless the appearance of partiality is 'extreme.' Id.

      Wahtomy also failed to proffer evidence of why Judge Coby might not have

been competent to determine whether probable cause existed. Laypersons may


                                           3
properly issue warrants, including search warrants. See Illinois v. Gates, 462 U.S.

213, 235-36 (1983). Wahtomy acµnowledged that he had no specific basis to

question Judge Coby's competency to maµe a 'nontechnical, common-sense

judgment[]' as to whether law enforcement had demonstrated probable cause. Id.

In the absence of an appropriate proffer, the district court properly declined to

permit Wahtomy to subpoena Judge Coby to inquire into her qualifications.

      AFFIRMED.




                                           4
                                           FILED
U.S. v. Wahtom y, Case No. 09-30106         JUN 09 2010
Rawlinson, Circuit Judge, concurring:   MOLLY C. DWYER, CLERK
                                         U.S . CO UR T OF AP PE A LS

     I concur in the result.
