Before Hunter, Weis and Garth, Circuit Judges.
The appellant, Leslie Schmidt, pled guilty to conspiracy to manufacture and distribute methamphetamine, 21 U.S.C. § 846 (1976), manufacturing methamphetamine, Id. § 841(a)(1), and possessing methamphetamine with intent to distribute. Id.*fn1 On this direct appeal,*fn2 Schmidt alleges that his motion for a suppression hearing was improperly denied*fn3 and that his guilty plea colloquy did not conform to the requirements of Rule 11 of the Federal Rules of Criminal Procedure. The district court's denial of the suppression hearing will be reversed. We need not reach the question of whether the guilty plea colloquy was conducted in conformity with Rule 11.*fn4
There are no disputed facts. On June 15, 1978 Schmidt and his wife were charged in a three count indictment. They initially decided to be represented by the same counsel, but later sought to secure separate counsel. This motion was denied. Prior to trial, Schmidt moved to suppress certain items of physical evidence which had been seized by DEA agents on June 29, 1976. After the denial of this motion, Schmidt entered a guilty plea. His wife went to trial and was subsequently acquitted.
Schmidt contends that the district court erred in denying his motion for a suppression hearing. The court's rationale was that it had previously denied a suppression motion by Schmidt's co-conspirators which challenged the same search to which Schmidt objected, and that Schmidt had no new evidence to offer. We believe, however, that it is elemental that a defendant may not be denied a suppression hearing solely on the basis of a previous hearing to which the defendant was not a party, unless there is a showing that the defendant had stipulated to or acquiesced in the trial court's reliance on the transcript of the prior hearing. The result we reach squares with the holding of the Ninth Circuit in United States v. Thoresen, 428 F.2d 654 (9th Cir. 1970). There, a husband and wife were indicted for transporting firearms in violation of the Federal Firearms Act. In pretrial proceedings they sought to suppress certain physical evidence. All counts of the indictment against Mrs. Thoresen were then dropped, so that the suppression hearing only involved her husband. The indictment was subsequently dismissed as to Mr. Thoresen. The defendants were later reindicted and again moved to suppress. The trial court denied this motion, stating that the issue had already been decided in the prior hearing. On appeal the court held that Mrs. Thoresen could not be denied a suppression hearing on the basis of the earlier hearing to which she had not been a party, unless there was a showing that she had agreed to be bound by that hearing.*fn5 Id. at 667.
Finally, Schmidt claims that any further proceedings in this case should be assigned to a different district court judge. In United States v. Grinnell Corp., 384 U.S. 563, 86 S. Ct. 1698, 16 L. Ed. 2d 778 (1966), the Court observed that there must be prejudice or bias on the part of the trial judge before he is obligated to recuse himself. "The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case." Id. at 583, 86 S. Ct. at 1710. Appellant Schmidt does not allege any bias or partiality which was acquired from an outside source. Indeed, there is no indication of bias of any sort. That the judge was involved in earlier stages of the case is, standing alone, an insufficient reason to require recusal. See Mayberry v. Maroney, 558 F.2d 1159, 1162 (3d Cir. 1977).
The court erred in denying Schmidt's request for a suppression hearing. Accordingly, the ruling of the district court on the motion to suppress will be reversed. This in turn ...