UNITED STATES of America, Plaintiff-Appellant,
vs.
Kenneth Moses LOUD HAWK, Russ James
Redner, Leonard Peltier, Dennis James Banks, Darlene Pearl Nichols, who
gives her true name as Kamook Banks, and Anna Mae Aquash, also known as
Annie May Pictou and Naguset Eask, Defendants-Appellees
Nos. 76-1906, 76-2127
United States Court Of Appeals, Ninth
Circuit
628 F.2d 1139, 1979 U.S. App. Decision
August 7, 1979
Appeal from the United States District
Court for the District of Oregon.
Sidney Lezak, U. S. Atty., Portland, Or., on brief; Charles H. Turner,
U. S. Atty., Portland, Or., for plaintiff-appellant. Schiffman & Jones
(argued), Steenson, Parkinson & Lea, Portland, Or., Dennis Roberts
(argued) Oakland, Cal., on brief; Ronald P. Schiffman, Portland, Or., for
defendants-appellees.
30 p. m., Oregon State Trooper Griffiths sighted the vehicles
and verified their description and the license number of the motor home.
He proceeded to stop the vehicles. Griffiths had not read the entire bulletin
and made the stop under the impression that the bulletin required it. Findings
of Fact at 1.2 {F.2d 1142}
He then radioed for help and pulled in between the vehicles with his overhead
lights flashing. Both vehicles stopped, with the station wagon about 100
yards behind the trooper's car. Trooper Griffiths got out of his car and
approached the motor home on the right. He commanded the occupants of the
motor home to get out. An Indian male got out, followed by two Indian women
and a small child. Griffiths asked if anyone else was inside and they replied
"No." At approximately the same moment the motor home accelerated swiftly
forward and the man who had gotten out of it fled toward a fence along
the highway. As he jumped the fence about 15 yards from the road he fired
a shot in the direction of Trooper Griffiths. The trooper returned two
shotgun blasts. Both of these shots missed. As Trooper Griffiths was approaching
the motor home, Corporal Kramer, also of the Oregon State Police, who had
responded to the call for aid, got out of his patrol car and shined his
flashlight into the rear window of the station wagon. Corporal Kramer cautiously
approached the left side of the station wagon. When he reached the driver's
door he ordered the driver (later identified as defendant Russ James Redner)
out of the vehicle and to the rear of the station wagon where he was ordered
to stand in the headlights of Kramer's patrol car. On request, the driver
produced a Washington driver's license. The officer then approached the
passenger's side and ordered the occupant to get out and also stand in
the front of the headlights of his patrol car. The passenger was identified
as defendant Loud Hawk. Griffiths meanwhile had followed the direction
of the motor home and found it on the highway about one-half mile away
from the initial stop. The motor was running, the lights were on and the
door was shut. No occupants were found inside. Both vehicles were then
locked, towed away and impounded by the Oregon State Police until a search
warrant was obtained. On Saturday, November 15, 1975, state search warrants
were obtained for the search of both vehicles.3The
Oregon State Police searched both vehicles on Saturday, November 15, 1975,
pursuant to their warrants. No federal agent participated in the decision
to obtain the state search warrant. Federal agents observed the search
of both vehicles but did not participate directly except that federal
agentHancock entered the motor home on one occasion.The findings
of the trial court on remand in part relate the subsequent events:
"Firearms
were found in the motor home, which was searched first, and
federal agents were told of this fact.4
Federal agents then suggested that the station wagon be searched for firearms.
State officers opened the station wagon and found the dynamite immediately.
Federal agents did not participate physically in the search of the station
wagon, and no federal warrant had been obtained. Federal agents did observe
the state search and photograph the dynamite as it appeared in the station
wagon.
"On November 16, the dynamite was transferred
from the station wagon to a state police car by state officers. Federal
agents did not participate physically but did observe and photograph the
dynamite as it appeared in the trunk of the state police car. Federal agents
did not advise or direct any action with respect to the removal or transportation
of the dynamite. [F.2d 1143] Federal agents made no request that
any of the dynamite be preserved for their purposes. Had such a request
been made, state police would have complied.
"The decision not to keep the dynamite
was made by Trooper Fettig of the state police, pursuant to an unwritten
policy defined by his practice of six years before November 1975. Trooper
Fettig's practice of destroying explosives was based on the lack of state
storage facilities, problems with chain of custody and public safety considerations.
Federal agents did not actively participate in Trooper Fettig's decision
not to transport the dynamite for safekeeping. Federal agents were present
and aware of Trooper Fettig's intended destruction of the dynamite and
neither encouraged nor discouraged such action.
"The decision to destroy, like the
decision not to transport the dynamite, and containers was made by Trooper
Fettig, pursuant to state police policy and in his discretion. No federal
agent participated in this decision. Federal agent Milam, the only federal
agent present at the destruction of the dynamite and containers, rode with
a state officer in a car following Trooper Fettig's to a gravel pit outside
Ontario for the purpose of observing and photographing the destruction.
Agent Milam neither encouraged nor discouraged the destruction of the dynamite
and containers." Findings of Fact at 3.
II
A five count superseding indictment
charged all of the appellees with three counts relating to possession of
an unregistered and unnumbered destructive device
"consisting of a combination of parts
designed and intended for use in converting a device into a destructive
device; said combination of parts consisting of: (a) six (6) pocket watches,
each with a hole drilled in the face with a metal screw inserted into the
hole in a position with the moving hands of the watch, with a soldered
battery connector and a ground wire attached with expended flash bulbs
attached; (b) four (4) batteries with wires attached; and (c) two (2) expended
flash bulbs with wires attached; and said device consisting of watches,
timing devices, electrical blasting cap leg wires, wires, electrical blasting
cap, detonating cord, batteries, and seven (7) cases of DuPont 70 percent
dynamite, and said destructive device had not been registered to them in
the National Firearms Registration & Transfer Record as required by
section 5841, Title 26, United States Code, in violation of section 5861(j)
and section 5871, Title 26, United States Code." C.T. at 113, 114, 115.
Count I charged the violation as above;
Count II again described the same destructive device and charged violation
of the provision requiring identification by serial number as required
by section 5842(c) of Title 26, and 27 CFR 179.102 and violation of sections
5861(i) and 5871.
Count III again described the same
destructive device but with violation of different registration requirements.
Count
IV charged Loud Hawk with wilfully transporting weapons in interstate commerce
which had their serial numbers obliterated, to wit: four Valmet semi-automatic
rifles; one Colt AR-15 Cal. 223;
three Smith & Wesson .357 Magnums and a Swiss-made 7.5 mm handgun,
in violation of Title 18, section 922(k), United States Code.
Count V charged only Dennis James Banks,
who was a fugitive when the indictment was returned.
Because the dynamite which was being
transported was destroyed by Oregon State Police who had apprehended the
defendants, the district court dismissed the dynamite counts with prejudice
pursuant to Rule 48(b), Fed.R.Crim.P., on grounds of unlawful suppression
of evidence. When the government then declined to proceed with the firearms
count until it could appeal the ruling on the dynamite counts, the district
judge dismissed the indictment with prejudice. The federal government then
appealed the Order Dismissing the Indictment. On June 11, 1976, the appeals
of the suppression order and the order dismissing the [F.2d 1144]
indictment were consolidated by this court. Nos. 76-1906 and 76-2127, July
26, 1977.
A panel of this court considered the
matter after oral argument and by a divided vote affirmed the judgment
of the district court. Application for en banc reconsideration was made
and this court en banc directed a remand to the district court for the
purpose of obtaining an evidentiary hearing and to make findings of fact
with respect to the following matters:
"1. Did any agent of the federal government
participate in the destruction of the evidence? The factual findings should
include the nature and extent of the federal participation, if any, in:
"(a) The search for, and possession
of, the evidence destroyed;
"(b) The decision not to transport
the dynamite for safekeeping;
"(c) The decision to destroy, and the
actual destruction of, the dynamite and containers;
"(d) Any other actions or inactions
relevant to the destruction of the evidence; and
"(e) Any other actions or inactions
to preserve samples or secondary evidence.
"2. What prejudice, if any, was suffered
by the defendants as a result of the destruction of the evidence?
"In this order, the term "dynamite'
is used to designate the material that was contained in the cartons and
that was destroyed.
"This court retains jurisdiction of
this case and requests the district court to hold hearings and make findings
pursuant to this limited remand within 45 days of the date of this Order,
or as soon thereafter as practicable." Order of Remand, March 6, 1978.
The district court held an evidentiary
hearing on May 9 and 10, 1978, and made findings at its conclusion. Wherever
possible in this opinion, matters of fact are taken from the facts developed
at that remand hearing and noted in the district court's findings.
III
Throughout the consideration of the
case there continues to be uncertainty voiced by the district court and
by the defendants as to the nature of the substance contained in the boxes
which were destroyed. The district court in its Order Suppressing Evidence
makes reference to the fact that "State Police Officers discovered what
appeared to be seven cases of DuPont Gelex 2-70% dynamite." Following the
evidentiary hearing on remand, the court refers to the explosive as "(t)he
substance at issue which I shall call dynamite for the purpose of these
findings. . . ." (Emphasis added).
Officer Fettig, the explosives expert
of the Oregon State Police, who was dispatched to investigate the explosive
problem, went to the impounded station wagon and, in his words "opened
the driver's right rear door and noticed in the inner compartment of the
station wagon, with the seats laid down, that in a greenish black visquine
bag there was dynamite."5
There was no doubt or equivocation in his judgment or his statement of
fact stating that "there was dynamite." Each of the seven boxes was marked
"High Explosives Dangerous" and on the side had the following markings:
[F.2d 1145] "50 lbs Gelex
2 1 X 8 70% Strength D73MAO 7B"
together with the logo of the DuPont
company prominently displayed. Inside were red cylindrical sticks with
heavy wrapping paper covering the contents and marked:
Explosives Dangerous Gelex 2 70% Strength
E I Dupont De Nemours & Co. (Inc.)."
and again carrying the number D73MAO
7B, with a last letter as Q or A, or Y.
There was no testimony or other evidence
to prove that it was not dynamite. Certainly it could be detonated and
would explode because it did. A witness put on the stand by appellees,
Ronald McCreary, qualified as an expert on the basis of using dynamite
in road building, which was part of his occupation as a civil engineer.
He looked at the pictures of the explosion and stated that the substance
did not seem to have the explosive characteristics of the dynamite he was
familiar with. Yet, he stopped short when asked the direct question whether
he knew that it was dynamite or not, and acknowledged that he did not know.6
Photographs were taken of the explosives
in the station wagon to show the cartons or boxes of Gelex 2 and the identity
of the manufacturer with the serial numbers of the individual sticks so
that they could be identified. They were in fact identified by employees
of DuPont, manufacturer of the dynamite, by witnesses Bishop and Ursic.
Bishop was a magazine keeper of explosives manufactured by the DuPont Company
in the March 1973 trial period at its Washington plant. He identified a
bill of lading, a cardex file showing the manufacture and shipment of dynamite
from the Washington plant and a pack report showing where the material
was manufactured and sent to the magazine for storage. The witness testified
that the documents reflected the manufacture of 46 cases of Gelex 2 dynamite
in 1973. Most important, he testified that those records "list the serial
numbers or identification numbers that appear on those sticks of dynamite,"
i. e., the sticks in the 46 cases. No questions were asked on cross-examination.
Anthony Ursic was the assistant manager
of that particular plant (at DuPont, Washington) in 1973. That plant, he
testified, manufactured explosives, "dynamite essentially." From exhibit
17, he testified that "(t)he envelope contains paper that is used to wrap
dynamite. And it's similar to the type we use at our plant." Evidentiary
Hearing, R.T. at 177.
"Q. Looking at the records you have
in Government's Exhibit 17, can you tell where the dynamite which is contained
in wrappers 1 through 7 was manufactured and when?
"A. Yeah. Actually, the code date here
is for Gelax (sic) 2 is 974 MAO 7B, which is similar to the code date on
here.
"Q. And what does that
"A. So this indicates that 46 cases
were made and shipped to a customer in Montana.
"Q. And when they were shipped, were
they full cases of dynamite?
"A. Yes."
Evidentiary Hearing, R.T. at 180-81.
When the DuPont employees testified,
they referred to the cartons, the wrappers, the substance inside the wrappers,
all in terms of "Gelex" or dynamite. They apparently had not been instructed
to use a particular name "dynamite" as an artificial or symbolic term for
an unknown substance. [F.2d 1146] They referred to the substance
as "dynamite" or "Gelex" as a name for a particular DuPont dynamite product.
Finally, neither the indictment nor
the statute requires that the explosive be "dynamite." It is couched in
broader terms and refers to a "destructive device."7
(1) It does not require that the parts
be put together and ready for ignition or detonation if the parts are also
available from which a destructive device may be readily assembled. United
States v. Shafer, 445 F.2d 579, 583 (7th Cir.), cert. denied, 404 U.S.
986, 92 S. Ct. 448, 30 L. Ed. 2d 370 (1971). Under the circumstances in
which it was being transported, with firearms and bomb components and ammunition,
the explosive here belies any contention that the group was on a peaceful
agrarian mission, or that the explosive was to be used to dislodge stumps.
IV
The appellees have pointed to nothing
in the circumstances we are concerned with that establishes that the federal
authorities participated with the state authorities in destroying the dynamite.
From the very beginning, when the FBI sent out its all points bulletin,
the federal authorities made it plain that they did not want state authorities
to interfere. The state trooper did not comply. He disregarded the admonition.8
When the vehicles were secure, they were in state possession and not federal
possession. The State of Oregon obtained its own search warrant from a
state official and conducted its own search of the vehicles. The state
used its own fingerprint expert to examine the vehicles. It called in its
own explosives expert, Officer Fettig, to determine what to do with the
explosives. That expert made his own decision without calling upon the
federal officers. There is no evidence of any connivance or even conference
between the two groups of law enforcement officers as to the handling of
the problem.
The legal principles we are to look
to for a solution to the problem here are well established. When the government
loses or destroys tangible evidence prior to trial, a motion to suppress
secondary evidence such as photographs, testimony of witnesses, etc., will
be granted by the trial court if the defendant can show (1) bad faith or
connivance on the part of the government, and (2) that he was prejudiced
by the loss or destruction of the evidence. United States v. Sewar, 468
F.2d 236 (9th Cir. 1972), cert. denied, 410 U.S. 916, 93 S. Ct. 972, 35
L. Ed. 2d 278 (1973); see also United States v. Young, 535 F.2d 484, 488
(9th Cir.), cert. denied, 429 U.S. 999, 97 S. Ct. 525, 50 L. Ed. 2d 609
(1976); United States v. Heiden, 508 F.2d 898, 902 (9th Cir. 1974); United
States v. Henry, 487 F.2d 912 (9th Cir. 1973).
Thus, returning to the specific questions
asked on the remand and commenting on them seriatim, the first question
addressed by this court to the trial court on remand was whether any agent
of the federal government participated in the destruction of the evidence
and the nature and extent of that federal participation. There was no finding
on remand that there was any federal participation in that destruction.
(a) It was the state trooper who found
the defendants in their two vehicles, stopped them on his own responsibility
and took charge of the evidence on behalf of the state. At this point the
only shred of argument to the contrary is that the stop and impounding
of the vehicles was triggered by the teletype message put out by the FBI.
But that message directed the state police not to take the persons or vehicles
into custody. State Police Officer Griffiths said simply but unequivocally
that he made the stop because he thought that was the thing to do despite
the bulletin's direction to the contrary. He was acting as an Oregon police
officer [F.2d 1147] and not as an adjunct of the federal government,
but contrary to its admonition.
(b) The decision not to transport the
dynamite for safekeeping was made by Officer Fettig of the Oregon State
Police. He testified that it was his responsibility what to do with the
explosives and that he was guided solely by his own judgment based on a
six-year state policy.
(c) The decision to destroy the explosives
was again that of Officer Fettig. It was in accordance with the state policy
of long standing and not a decision of the moment after consulting the
federal authorities. There was no evidence to the contrary. No evidence
or finding indicated there was even any discussion with federal authorities
at the scene or elsewhere concerning the manner of disposition of the explosives.
Fettig (with assistance of Griffiths, an Oregon State Trooper) transferred
the explosives to Fettig's automobile and organized the three-car convoy
that took the dynamite away with one state car leading, the second with
Fettig and the explosive and the last car affording protection from the
rear.
(d) There was no evidence or finding
as to the question of taking samples or preserving other secondary evidence.
Both a state police officer and a federal officer took photographs which
were made available to the court. Testimonial evidence was available from
the officers who witnessed the destruction and the officers testified and
were cross-examined and the photographs and dynamite wrappers were introduced.
(e) With respect to the last question
addressed to the district court, it concerned "any other actions or inactions"
in regard to the destruction of the dynamite. The district court here calls
attention to the cross-examination of John O'Rourke, Special Agent in Charge
of Oregon, who came to Ontario before the dynamite was destroyed. The testimony
of several FBI agents makes it clear that their interest was in locating
federal fugitives and particularly Leonard Peltier. O'Rourke was asked
if he knew whether Beverly Axelrod, an attorney for the defendants, was
in Ontario. He said that he did, and then the inquiry was whether he made
any effort to inform her of the impending destruction of the dynamite.
He replied that he had not. Likewise, Axelrod never inquired of O'Rourke
to be allowed to witness the destruction.
The situation thus remains highly problematical.
It is also unclear whether Axelrod was at this time and on this trip actually
working for Loud Hawk. She was not produced, nor did she testify at any
of the hearings. Throughout the entire proceedings, Loud Hawk was represented
by Schiffman and Jones, a law firm of Portland, Oregon. At the trial, which
took place in 1976, the court inquired of Loud Hawk as it did of the others,
who their attorneys were, and Loud Hawk then stated he was represented
by Lawyer Jones and was satisfied with his services. Axelrod does not appear
of record as an attorney at any place in the record we have been able to
find. Finally, the point that is attempted to be made, that federal agents
failed to have defendants' attorneys examine the dynamite before its destruction,
is even less convincing when we remember that O'Rourke was never shown
to have had any authority to stop or postpone the destruction of the evidence
in the first place. Neither would he have any reason to look for Axelrod
and invite her to witness the state's destruction of the dynamite.
The appellees rely on Lustig v. United
States, 338 U.S. 74, 69 S. Ct. 1372, 93 L. Ed. 1819 (1949), to prove that
there was federal participation in the search and in the subsequent destruction.
Lustig was a principal in a counterfeiting operation which appeared to
be in operation in a hotel room. Greene, a Secret Service agent, was suspicious
of the activity but apparently did not believe he had enough evidence for
a break-in or even to obtain a warrant. He gave the information to the
city police who proceeded to obtain an arrest warrant but no [F.2d 1148]
search warrant. The city officers entered the room illegally while Greene
remained at the police headquarters awaiting their telephone call. As soon
as a search warrant was obtained the police officers called Greene who
then joined them in making the search. He helped the city police in the
search, selecting evidence that would help a federal prosecution and accepting
other evidence the local officers gave to him. The Court said:
"The crux of that doctrine is that
a search is a search by a federal official if he had a hand in it; it is
not a search by a federal official if evidence secured by state authorities
is turned over to the federal authorities on a silver platter. . . .
"Though state officers preceded Greene
in illegally rummaging through the bags and bureau drawers in Room 402,
they concerned themselves especially with turning up evidence of violations
of the federal counterfeiting laws after Greene joined them. He was an
expert in counterfeiting matters and had a vital share in sifting the evidence
as the search proceeded. He exercised an expert's discretion in selecting
or rejecting evidence that bore on counterfeiting. The fact that state
officers preceded him in breach of the rights of privacy does not negative
the legal significance of this collaboration in the illegal enterprise
before it had run its course. Greene himself acknowledged such participation
by his remark about "leaving the room after we had gathered all this evidence
together.' " Lustig v. United States, 338 U.S. 74, 78-79, 69 S. Ct. 1372,
1374, 93 L. Ed. 1819.
In the case before us there was certainly
not participation in the Lustig manner. The federal officers here did not
have a part in the search of the car or in the destruction of the dynamite.
Their major concern was with the whereabouts of Leonard Peltier and they
hoped to find him among the travelers.
The opinions of this court in United
States v. Higginbotham, 539 F.2d 17 (9th Cir. 1976), and United States
v. Trenary, 473 F.2d 680 (9th Cir. 1973), are also of no assistance to
appellees. In Higginbotham, the appellant was convicted on a Dyer Act charge.
Shortly after appellant's arrest, an officer of the Boise, Idaho, Police
Department put together a photographic display composed of 18 photographs,
one of which was that of appellant. During pretrial proceedings, appellant's
photograph was readily identified from among the pictures constituting
the display. At trial the display could not be produced because it had
been broken up and the pictures returned by local police to their files.
Before this court, appellant complained that the failure to produce the
display denied him due process. The contention was rejected, Judge Kilkenny
stating:
"Here is a proper place to emphasize
that the fifteen photographs were never in the possession of the prosecutor,
the FBI or any other United States Government agency. The Boise police,
under these facts, cannot be said to be acting on behalf of the federal
government but rather on behalf of the State of Idaho. Cf. United States
v. Smith, 433 F.2d 1266 (CA5 1970). Under such circumstances we should
be reluctant to impute to the federal government the mistakes, particularly
relatively innocent ones, committed by local police. Moreover, the demand
to produce these photographs might well be likened to an attempt to require
production under the Jencks Act of statements in the possession of state
police. See Beavers v. United States, 351 F.2d 507 (CA9 1965), where the
statements were never in possession of the United States and production
was not required. By analogy, it is evident that the United States is in
no way responsible for the actions of the Boise police in disposing of
the fifteen photographs by inadvertence or otherwise." Id. at 21.
In Trenary there was a conviction for
conspiracy to import marijuana from Mexico. The marijuana and duffle bags
containing it had been destroyed by the Mexican police before trial. There
being no charge of bad faith or negligence by the United States, secondary
evidence was admissible [F.2d 1149] at the trial. Trenary is another
example of the refusal of this court to impute to the federal government
the loss or destruction of evidence by other authorities over whom it has
no authority or control.
V
The final questions addressed to the
trial court concerned prejudice. Under the law of the circuit, even if
there should be a finding of participation in the destruction, there must
also be a showing by the defendants that they have been prejudiced by the
loss of the evidence. United States v. Sewar, 468 F.2d 236 (9th Cir. 1972)
and cases supra. Prejudice was suffered by the defendants, the trial court
says, "to the extent that their inability to observe the destruction and
to analyze samples of it deprived them of the opportunity to contest the
government's conclusion that the substance destroyed was indeed explosive."
We have already noted the weakness of the testimony of witness McCreary,
who examined the photographs of the explosion and who then declined to
express any opinion as to the question whether the explosion was of dynamite
or not.
The last finding of the trial court
was that the defendants "were also prejudiced by the destruction of the
cartons and plastic bag which contained the dynamite in that they were
deprived of the opportunity to determine by fingerprinting who might have
handled those items."
We find the fingerprinting argument
a little difficult to follow. Let us assume that X, Y and Z are being prosecuted
for possession of contraband and that the fingerprints of X are found on
the contraband. This evidence might be used against X, but it does not
affect Y and Z, whose prints were not found. As to defendants here, lack
of their fingerprints is exculpatory, if anything. Absence of fingerprints
has little significance to prove or disprove handling. The handlers might
have worn gloves; they might have removed their prints; or they might have
employed someone else to lift the dynamite. It is only where there are
fingerprints that such identification is helpful, and then helpful to the
prosecutor, if to anyone, in establishing an identity not otherwise discovered.
Here, there is no prejudice to the defendants in the destruction of the
boxes and the plastic covering or any other part of the explosives as a
result of possible destruction of fingerprints.
VI
In its second assignment of error,
the government contends that the district court incorrectly dismissed the
indictment against appellees. The district court's order dismissing the
indictment was founded on Rule 48(b) of the Federal Rules of Criminal Procedure.
That rule authorizes the court to dismiss an indictment whenever there
has been "unnecessary delay in bringing a defendant to trial." The government
argues that the delay in prosecuting appellees has not been "unnecessary,"
and consequently that the district court abused its discretion in dismissing
the indictment. Assuming arguendo that the district court did not err in
dismissing the indictment, the government contends that the court below
did err in dismissing the indictment with prejudice. While dismissal with
prejudice is authorized by Rule 48(b), the government points out that such
power is to be utilized with caution and only after a forewarning to the
prosecution that dismissal with prejudice will result from a failure to
proceed to trial. United States v. Simmons, 536 F.2d 827, 834 (9th Cir.
1976), cert. denied 429 U.S. 854, 97 S. Ct. 148, 50 L. Ed. 2d 130, see
also United States v. Charnay, 577 F.2d 81, 84 (9th Cir. 1978). The government
argues that the trial court failed both to exercise the requisite caution
and to provide the required forewarning, and thus improperly dismissed
the indictment with prejudice.
In examining the government's second
assignment of error, the merits of its arguments are best demonstrated
if the dynamite and nondynamite counts are analyzed separately.
The dynamite counts. The delay in prosecuting
appellees on the dynamite counts [F.2d 1150] has not been unnecessary
under Rule 48(b). The government had a statutory right to appeal the suppression
order as it applied to the dynamite counts. The delay has been necessary
to permit the meaningful exercise of that statutory right.
The government has been granted the
right by statute to appeal suppression orders entered by the district court.
That right is set forth in 18 U.S.C. § 3731. Section 3731 provides
in pertinent part:
"An appeal by the United States shall
lie to a court of appeals from a decision or order of a district courts
suppressing . . . evidence . . . not made after the defendant has been
put in jeopardy . . . if the United States attorney certifies to the district
court that the appeal is not taken for purpose of delay and that the evidence
is a substantial proof of a fact material in the proceeding."
(2) The government's right to appeal
is available conditionally. First, the appeal is not available if the defendant
has been put in jeopardy. Second, the appeal must not be taken for purpose
of delay. Third, the evidence suppressed must be substantial proof of a
fact material in the proceeding. Clearly, these conditions were met in
the context of the dynamite counts. (1) Appellees have yet to be placed
in jeopardy. (2) The appeal was not taken for purpose of delay. The delay
in bringing appellees to trial was necessary to permit the government to
effectively exercise its statutory right to appeal. (3) The suppressed
evidence was critical in establishing a necessary element of the alleged
offenses, the existence of an explosive device.
(3) In summary, the government had
a statutory right to appeal the suppression order if certain conditions
were met. Those conditions were satisfied as to the dynamite counts. Delay
was necessary to permit the government to effectively take its appeal.
Clearly, such a delay, necessary to give effect to a statutory right, cannot
be deemed "unnecessary" for purposes of Rule 48(b). Therefore, we hold
that the district court erred in dismissing the dynamite counts pursuant
to Rule 48(b); we reverse that portion of the district court's order dismissing
these counts; and remand the cause to the district court with instructions
to reinstate the indictment as to these counts.
(4) The nondynamite firearms counts.
The delay in prosecuting appellees on the nondynamite counts of the indictment
has been unnecessary for Rule 48(b) purposes. As previously discussed,
the government's right (via section 3731) to appeal a district court's
order suppressing evidence is conditional. One of the conditions is that
the evidence suppressed must be substantial proof of a fact material in
the proceeding. This condition must be met before appeal of the suppression
order can properly be taken. Despite the government's protests to the contrary,
the suppressed evidence (dynamite) is not substantial proof of any material
fact in the nondynamite counts of the indictment. The trial court found
as much. Given the government's failure to satisfy this condition, its
appeal of the suppression order as it relates to the nondynamite counts
was improper and the delay in prosecution occasioned by this appeal has
been unnecessary under Rule 48(b). Therefore, we find that the court below
properly dismissed these counts of the indictment.
Having determined that the trial court
properly dismissed the nondynamite counts of the indictment, we turn now
to the propriety of dismissing those counts with prejudice. In United States
v. Simmons, supra, at 834, this circuit held that even though dismissal
with prejudice is authorized by Rule 48(b), trial courts should utilize
such power with caution and only after a forewarning to the prosecution
that dismissal with prejudice will result from a failure to proceed to
trial. The government argues that the requisite caution and forewarning
required by Simmons were absent in the trial court's dismissal of the nondynamite
counts with prejudice. We agree.
We find the record devoid of any forewarning
to the prosecution that the nondynamite counts of the indictment would
be dismissed with prejudice. The district [F.2d 1151] court's entry
dismissing these counts contains no reference to a forewarning of impending
dismissal with prejudice. The remainder of the record is equally as barren.
Any attempts to create the requisite
forewarning from a declaration made by the United States attorney at a
hearing conducted several days prior to dismissal must also fail. At the
hearing the government counsel observed: "(W)e will suffer a dismissal
at this time if the Court should choose to do so rather than go to trial
on the imperfect case that we would have to present if we were forced to
trial now." 12 R.T. at 6. This statement cannot be a sufficient forewarning
to satisfy the requirement of Simmons. First, the statement was made by
the government, not the trial court. It is the trial court that is required
to forewarn the prosecutor, not vice versa. Second, and far more important,
the government's statement indicates that it was prepared to suffer dismissal.
Nothing is said concerning its preparedness to suffer dismissal with prejudice.
As indicated in Simmons, at 837, it is not enough to forewarn that dismissal
may result from a failure to proceed to trial. Rather, the prosecution
must be forewarned that the dismissal will be with prejudice.
Given the failure of the trial court
to provide the forewarning mandated by Simmons, we reverse that portion
of the trial court's order dismissing the nondynamite counts with prejudice
and remand the cause to the district court for further consideration of
its dismissal of these counts in light of this opinion.
In conclusion, we reverse the orders
of the district court granting appellees' motions to suppress and to dismiss
the indictment with prejudice. Further, we remand the cause to the district
court with instructions: (1) to deny appellees' motion to suppress, (2)
to reinstate the indictment as to the dynamite counts, and (3) to reconsider
its dismissal of the nondynamite counts with prejudice in light of this
opinion.
SO ORDERED.
KENNEDY, Circuit Judge, files a separate
concurring opinion in which BROWNING, EUGENE A. WRIGHT, CHOY, WALLACE,
and J. BLAINE ANDERSON, Circuit Judges, concur.
KENNEDY, Circuit Judge, concurring:
This case presents the opportunity
to state certain controlling rules where evidence has been lost or destroyed
in a criminal case. Some of our earlier cases, where the proper outcome
was perhaps clearer than in the present instance, did not provide extensive
analysis of the interests at stake or of the reasons behind the adoption
of a particular approach. Loss or destruction of evidence probative in
a criminal case occurs in circumstances so variant that we cannot set forth
here the applicable rules for every case but certain principles of broad
application may be stated with assurance and serve to resolve this appeal.
(5) When criminal evidence is lost
or destroyed, the court must protect a complex of interests, some conflicting.
Our principal concern is to provide the accused an opportunity to produce
and examine all relevant evidence, to insure a fair trial. Absent special
circumstances, we do not reverse convictions or dismiss criminal charges
based on events that do not cause harm to the accused; and so the degree
of prejudice from loss or destruction of the evidence should be weighed.
Other considerations which bear upon the right to a fair trial are also
present if intentional or culpable government action has caused the loss
or destruction. The significant interest in such cases is to avoid the
impairment of judicial integrity that would occur if the prosecution were
allowed to manipulate court processes, and protective rulings or sanctions
may be required both to insure a fair trial in a specific case and to deter
future violations. The degree of government fault is relevant, for if suppression
of secondary evidence or other protective rulings and sanctions were automatic
in every case in which the Government is responsible for the loss of the
evidence, then we would not give proper recognition to the responsibility
of the Government to prosecute criminal [F.2d 1152] cases. This
right should not be forfeited in every instance where a government official
has erred. In a rare case, government action may be so culpable that deterrence
of future violations and protection of judicial integrity become the principal
concern, and then only a plausible suggestion of prejudice or none at all
would be required for suppression of evidence or the imposition of other
sanctions, such as dismissal of the charges. In the more frequent case,
the Government's responsibility for loss of the evidence is caused by actions
that are, alternatively, negligent in some degree, or inadvertent, or done
intentionally but with an element of good faith, and in these instances
a somewhat greater degree of prejudice may be tolerated. In cases of severe
prejudice, suppression or other sanctions would be appropriate without
regard to the good faith or culpability of the Government. However, in
other cases, proper reconciliation of these competing interests requires
us to resort to the familiar judicial process of balancing the factors
in a given case.
(6, 7) The proper balance is that between
the quality of the Government's conduct and the degree of prejudice to
the accused. The Government bears the burden of justifying its conduct
and the defendant bears the burden of demonstrating prejudice. See United
States v. Mays, 549 F.2d 670, 677, 678 (9th Cir. 1977). In weighing the
conduct of the Government, the court should inquire whether the evidence
was lost or destroyed while in its custody, whether the Government acted
in disregard for the interests of the accused, whether it was negligent
in failing to adhere to established and reasonable standards of care for
police and prosecutorial functions, and, if the acts were deliberate, whether
they were taken in good faith or with reasonable justification. Federal
courts have greater authority and control over the actions of federal officers
than over the officers of a state, and the nature and degree of federal
participation is relevant although not dispositive. It is relevant also
to inquire whether the government attorneys prosecuting the case have participated
in the events leading to loss or destruction of the evidence, for prosecutorial
action may bear upon existence of a motive to harm the accused.
(8) Against all this must be weighed
the degree of prejudice to the defendant. In analyzing prejudice, the court
must consider a wide number of factors including, without limitation, the
centrality of the evidence to the case and its importance in establishing
the elements of the crime or the motive or intent of the defendant; the
probative value and reliability of the secondary or substitute evidence;
the nature and probable weight of factual inferences or other demonstrations
and kinds of proof allegedly lost to the accused; the probable effect on
the jury from absence of the evidence, including dangers of unfounded speculation
and bias that might result to the defendant if adequate presentation of
the case requires explanation about the missing evidence.
We adopted a flexible approach, consistent
with the balancing test proposed here, in United States v. Higginbotham,
539 F.2d 17 (9th Cir. 1976) (alternate holding).1
In that opinion the court stated that in destruction of evidence cases,
"the following factors should be considered: (1) the degree of negligence
or bad faith involved, (2) the importance of the lost evidence, and (3)
the sufficiency of the other evidence adduced at the trial to sustain the
conviction."2
Id. at [F.2d 1153] 21. The proposed test is also quite similar to
the test which the First Circuit has adopted. In United States v. Picariello,
568 F.2d 222 (1st Cir. 1978) the court articulated what it called a three-pronged
examination which considered "first, was the evidence material to the question
of guilt or the degree of punishment; second, was defendant prejudiced
by its destruction; and third, was the government acting in good faith
when it destroyed the evidence." Id. at 227. The appropriate test as set
forth here is more detailed than in Higginbotham or Picariello with the
purpose to provide more guidance when this question arises in later cases.3
In an analogous area, that of prearrest
delay, this circuit has adopted a balancing test similar to the one proposed
here. United States v. Mays, 549 F.2d 670, 677 (9th Cir. 1977). Where the
police delay in arresting a defendant or in otherwise notifying him that
he is under investigation, he may later contend he had no notice to preserve
evidence such as records, and that testimony of witnesses or his own recollection
of the day in question may be blurred by the passage of time. These cases
present concerns which closely parallel those in destruction of evidence
cases, including fairness to the defendant, the discouraging of police
or prosecutorial misconduct, preserving the integrity of the judicial system,
and protecting society's interest in the prosecution of criminal violations.
In United States v. Mays, supra, this court rejected the two absolute approaches
suggested by the parties: that prejudice alone is sufficient or that both
prejudice and improper intentional delay must be shown. It adopted instead
a test which balances all the circumstances, including the prejudice to
the defendant and the reason for the police delay. Such a balancing test
seems equally appropriate for the case at hand.4
(9) The test proposed here is not of
constitutional dimensions. The Supreme Court in United States v. Augenblick,
393 U.S. 348, 89 S. Ct. 528, 21 L. Ed. 2d 537 (1969) has stated that destruction
of evidence becomes a problem of constitutional dimensions only in the
most extreme case:
The Court of Claims, in a conscientious
effort to undo an injustice, elevated to a constitutional level what it
deemed to be an infraction of the Jencks Act and made a denial of discovery
which "seriously impeded his right to a fair trial" a violation "of the
Due Process Clause of the Constitution." . . . But apart from trials conducted
in violation of express constitutional mandates, a constitutionally unfair
[F.2d
1154] trial takes place only where the barriers and safeguards are
so relaxed or forgotten . . . that the proceeding is more a spectacle .
. . or trial by ordeal . . . than a disciplined contest.
Id. at 356, 89 S. Ct. at 534. Rarely
will the unfairness that might be caused by the destruction of evidence
rise to the level of making the proceedings "a spectacle or trial by ordeal."
The rule advanced here is simply a judicially-created rule designed to
prevent police misconduct and permit as fair a trial as possible.
(10) Turning to the facts of this case,
we examine first the reasonableness of the Government's conduct. The starting
point is the findings of the district court. In its initial decision, the
court found as follows: The police did not act in bad faith in destroying
the evidence. Dynamite is a dangerous substance that should only be handled
and stored by experts. The Oregon State Police did not have adequate facilities
in which to store this dynamite. There was a commercial magazine located
about 60 miles away, however, and the dynamite could have been transported
there with relative safety. In its supplemental findings on remand, the
district court found that the decision not to keep the dynamite was made
by officer Fettig of the state police pursuant to an unwritten policy.
The practice of destroying explosives was based on the lack of state storage
facilities, problems with chain of custody, and public safety considerations.
The record indicates that Fettig's principal responsibility for the state
police was as a bomb and explosives expert, for which he was highly qualified.
He effected frequent and routine destruction of explosives, although it
appears that in almost all such cases the explosives were not relevant
to any pending criminal investigation. It is unclear the extent to which
the supplemental finding that the decision not to transport was based on
"public safety considerations" negates the prior finding that the dynamite
could have been transported with "relative safety;" but, there were at
least some safety considerations which militated against transporting the
dynamite. It should be noted that in addition to destroying the dynamite
itself, the police also destroyed the containers in which the dynamite
was stored when found. This was apparently done because, as the defendants'
expert witness explained, when dynamite is improperly stored, nitroglycerin
from the dynamite sticks sometimes seeps into the container, making the
container itself highly explosive. Moreover, officer Fettig testified that
the reason fingerprints were not taken was that the cartons were wet, and
it was unlikely identifiable fingerprints could have been detected.
It is clear that accepted standards
of police conduct require that a sample should be obtained whenever it
is possible and safe to do so, and we think the enforcement officials,
state and federal, erred in not considering the possibility of taking a
sample before destroying all the evidence. However, in view of the exigencies
of the situation and the police policy of destroying all explosives, this
error in judgment ought not be weighed too heavily against the Government.
In this case, the error is neither
intensified nor diminished by the actions of federal agents. The dynamite
was discovered during a search of the vehicles pursuant to a state search
warrant while the vehicles were in the custody of the state police. The
district court found that the decision to destroy the evidence was made
by officer Fettig, pursuant to state police policy and in his discretion.
No federal agent participated in this decision. The one federal agent who
was present at the destruction of the dynamite and containers neither encouraged
nor discouraged the destruction. The court also found, however, that if
the federal agent had requested that a sample be preserved, the state police
would have complied. The federal agent was not responsible for the decision,
but neither can he be given full exoneration from it. The practical necessity
for a federal officer to maintain a good relationship with state police
does tend to excuse the federal agent's determination in this delicate
situation to [F.2d 1155] allow the state to proceed to render the
area safe without requesting an evidentiary sample. It is our conclusion
that the actions of both the state police in destroying all the evidence
and the federal agent in not preventing that destruction can be excused
substantially, although it cannot be recommended as the standard for future
cases.
We next consider the prejudice to the
defendant. The most important part of our analysis of the degree of prejudice
in this case is an evaluation of the reliability or trustworthiness of
the remaining secondary evidence. The evidence includes, among other things,
photographs and eyewitness descriptions of the boxes which were found in
the impounded vehicle and the red cylindrical sticks contained in the boxes.
Each of the seven boxes was marked "High Explosives Dangerous" and on the
side had the following markings:
50 lbs Gelex 2 1 X 8 70% Strength D73MAO
7B"
together with the logo of the DuPont
company prominently displayed. Inside were red cylindrical sticks with
heavy wrapping paper covering the contents and marked:
Explosives Dangerous Gelex 2 70% Strength
E I Dupont De Nemours & Co. (Inc.)."
and again carrying the number D73MAO
7B, with a last letter as Q or A, or Y. A representative from The DuPont
Co. was shown seven wrappers that had been saved by the police before destroying
the dynamite. He identified the wrappers as having come from a DuPont plant
in Washington. By consulting other records, he was able to determine that
the code numbers on the wrappers were the same as the numbers on dynamite
shipped to a customer in Montana. He confirmed that the shipment to Montana
was of full cases of dynamite, not just wrappers. In addition, a chemical
analysis of the wrappers indicated the presence of six of the seven ingredients
necessary to make dynamite.
We consider this secondary evidence
to be probative and reliable. The evidence also includes photographs taken
by the police when several of the sticks were detonated with blasting caps.
The defendants did produce an expert who on direct examination testified
that in his opinion the photographs did not show dynamite exploding and
that the pictures were completely consistent with an explosion of only
the blasting caps themselves. The district court found that this testimony
"cast substantial doubt on the assertion that the photographs showed the
detonation of dynamite." Worded this way, the finding seems to suggest
that the testimony of the expert raised substantial doubt as to whether
the substance seized was dynamite. To the extent that the finding implies
this, it must be deemed erroneous. On cross-examination the expert explained
that the photographs could also show an incomplete detonation of dynamite.
The testimony of this expert simply demonstrates that the photographs of
the detonation are not completely reliable. A determination that the photographs
are inconclusive evidence is far different from a determination that there
is substantial doubt whether the substance seized was dynamite. The testimony
of the expert supports only the former proposition, not the latter. In
ascertaining the degree of prejudice, it is necessary to evaluate all the
secondary evidence, not just one piece of it.
The trial court found further prejudice
to the defendants because they lost an opportunity to show whose fingerprints
were on the boxes. This too was error. There is no question that the boxes
were in the defendant's station wagon. And even if the prints of third
persons, and not the defendants', were discovered on the boxes such evidence
would not be exculpatory of necessity. Moreover, the testimony was that
fingerprints were not likely to be discovered on the wet boxes in any event.
All must concede that the secondary
evidence is less reliable than chemical tests of the substance itself and
that, as the explosive quality or no of the substance is an [F.2d 1156]
essential element of the offense, the loss of the evidence does bear upon
an issue that lies at the core of the case. In view, however, of the convincing
and probative value of the secondary evidence as presented in the record
at this point, it cannot be said that the defendants have met their burden
of showing prejudice in any significant degree. The defendants have not
made any offer of proof from which the trier of fact might infer the substance
was other than dynamite, and in this posture of the case the secondary
evidence is a satisfactory substitute for a physical sample. If at trial
the defendants can make a plausible argument that the substance was something
other than from what all appearances it must have been, the trier of fact
can weigh the credibility of such arguments against any perceived defects
in the Government's proof by secondary means. The prejudice in the case
is slight or nonexistent, and the Government's conduct, while consisting
in part of some errors in judgment, was on the whole reasonable and taken
in good faith.
The dissent complains that, having
remanded the case, we now accord no deference to the district court's findings.
All of the subsidiary findings in the record developed with care by the
district judge have put the case in the proper perspective. Perhaps the
remand should have stopped short of asking the trial court to draw the
ultimate conclusion as to whether or not there is prejudice, absent a statement
of its definition and the factors that are to be considered in making that
determination. Having now stated at some length the applicable rules for
this case, we reach the conclusion that secondary evidence offered by the
Government should not be suppressed.
The appropriate order now is to reverse
the trial court's ruling suppressing the secondary evidence and to remand
the case for further proceedings.
GOODWIN, Circuit Judge, specially concurring.
I concur generally in Judge Trask's
opinion. The district court judgment must be reversed on both points. The
dismissal with prejudice was unwarranted, and the "finding" that a federal
officer participated in a significant degree in the destruction of the
contents of the boxes taken from the station wagon is clearly erroneous.
The evidence was that the agent of the Federal Bureau of Investigation
was an observer and nothing more. Accordingly, the discussion of the consequences
of federal participation is obiter.
HUFSTEDLER, Circuit Judge, dissenting,
with whom ELY and HUG, Circuit Judges, concur:
I regret that I cannot concur with
the majority of my brothers either in reversing the district court's suppression
order or in reversing the dismissal of the indictment upon the Government's
refusal to proceed to trial after its motions for continuances were denied.
I
The suppression order issue is very
narrow: Are the district court's specific findings of prejudice from the
destruction of evidence clearly erroneous? The simple answer is "no." In
seeking to avoid this result, the majority has devised a hypothetical scale
on which it weighs non-competing interests against one another, discovers
that prejudice is not prejudice, and thereby announces a result in favor
of the Government. I am unable to find any support for the majority's rationale
either in prior case law or, if we were writing on a clean slate, in logic.
Three counts of the indictment were
based on possession of a "destructive device." The material destroyed included
the very substance that the Government charged was the "destructive device."1[F.2d
1157] None of the material was saved to permit independent testing
of the substance.2
The district court found that the destruction of the substance was prejudicial
to the defendants because it prevented them from examining the primary
evidence. The majority opinion concedes that the defendants did suffer
prejudice from the destruction of the primary evidence, and it observes
that "the secondary evidence is less reliable than chemical tests of the
substance itself and that, as the explosive quality or no of the substance
is an essential element of the offense, the loss of the evidence does bear
upon an issue that lies at the core of the case." In short, the district
court's finding of prejudice on this point is fully supported by the record.
Under United States v. Heiden (9th Cir. 1974) 508 F.2d 898, which the majority
acknowledges is undiminished as authority in this Circuit (Kennedy, J.,
Op'n at 1153 n.3), all appellate inquiry should end with "affirmed."
That result is unsatisfactory to the
majority, and therefore, it is required to explain why the fact of prejudice
is nevertheless not prejudice justifying suppression. The majority opinion
tells us that the prejudice is inadequate because the defendants did not
make "any offer of proof from which the trier of fact might infer the substance
was other than dynamite, and in this posture of the case the secondary
evidence is a satisfactory substitute for a physical sample." As I translate
this elliptical statement, the majority says that the defendants had the
burden of proving that the substance destroyed was not dynamite, and if
they failed to carry that burden, they could not claim prejudice from the
destruction of the evidence. The reasoning is upside down. The defendants
made a prima facie showing of prejudice and it is the Government's burden
to show that the loss of the primary evidence was harmless. The destruction
of the evidence, for which the Government is responsible, is the very act
that makes identification of the substance impossible and thus creates
the prejudice to the defendants. Thus, the majority opinion has inexplicably
required the defendants to come up with proof that the Government itself
has destroyed.
The majority opinion suggests that
the defendants can nevertheless carry this impossible burden. "Secondary
evidence is a satisfactory substitute for a physical sample" because it
can be weighed against whatever defense argument can be made "that the
substance was something other than from what all appearances it must have
been." I do not know how to weigh this smoke, and I do not understand how
either the defendants or the district court could have been expected to
do so.
The district court found that "defendants
were also prejudiced by the destruction of the cartons and plastic bag
which contained the dynamite in that they were deprived of the opportunity
to determine by fingerprinting who might have handled these items." (Findings
of Fact at 5.) The majority says that this finding is clearly erroneous
because the fingerprint evidence "would not be exculpatory of necessity."
(Kennedy, J., Op'n at 1155.) I am unable to follow the majority's reasoning.
The presence or absence of fingerprints on the cartons would have been
relevant to the issues. The destruction of the evidence prevented the defendants
from being able to prove the absence of their fingerprints. The destruction
also foreclosed the possibility of proving that persons other than the
defendants handled the cartons and bags. The fact that fingerprint evidence
would not "necessarily" have been exculpatory is irrelevant. The fact is
inescapable that relevant evidence was destroyed, and the very act of destruction
prevents anyone from determining how helpful that evidence might have been
to the defendants.3
[F.2d 1158] Prejudice
stems from the fact that the Government prevented defendants from finding
out for themselves. ( United States v. Tsutagawa (9th Cir. 1974) 500 F.2d
420, 423 ("The thrust of Mendez-Rodriguez is to prevent the basic unfairness
of allowing the government to determine which witnesses will not help either
side and then to release those witnesses, for all practical purposes, beyond
the reach of the defendant. The vice lies in the unfettered ability of
the government to make the decision unilaterally." (citation omitted));
United States v. Mendez-Rodriguez (9th Cir. 1971) 450 F.2d 1; United States
v. Bryant (1971) 142 U.S.App.D.C. 132, 138, 439 F.2d 642, 648 ("Where Brady
and its progeny applicable only when the exact content of the non-disclosed
materials was known, the disclosure duty would be an empty promise, easily
circumvented by suppression of evidence by means of destruction rather
than mere failure to reveal.") Cf. Brady v. Maryland (1963) 373 U.S. 83,
83 S. Ct. 1194, 10 L. Ed. 2d 215.)
As we held in Heiden, supra, we will
reverse a conviction when there has been a loss or destruction of evidence
if the defendant can show "(1) bad faith or connivance on the part of the
Government or (2) that he was prejudiced by the loss of the evidence."
(508 F.2d at 902.) A fortiori, in reviewing an order to suppress, rather
than a conviction, a showing of prejudice to the defendant from the destruction
of evidence will sustain a suppression order, regardless of the purity
of the governmental motives in destroying the evidence.
The majority opinion correctly recognizes
that we are pursuing separate and distinctive interests in situations of
this kind: deterring governmental misconduct, protecting a defendant's
right to a fair trial, and preserving the integrity of the judicial process.
None of these interests is appropriately protected by balancing one of
these interests against the other. Each of these interests is independently
important, and none of them can be weighed against the others. Thus, for
example, we have no interest whatever in injuring a defendant's right to
a fair trial to reward governmental innocence in destroying evidence.4
The district court, on remand, particularly
decided the facts implicating the Government's involvement in the investigation
and apprehension of the defendants as well as governmental participation
in the destruction of the evidence. It specifically found that the Government
acted in good faith, and it also found that the defendants were prejudiced
by the destruction of the evidence. All of those findings are fully supported
by the record, and we cannot reach a contrary conclusion unless we forthrightly
admit that we are substituting our judgment for the judgment of the district
court on these factual questions.5
[F.2d 1159] II
The district court correctly dismissed
with prejudice both the dynamite and firearms counts. I agree with the
majority opinion that delay in prosecuting the defendants on the dynamite
counts was not unnecessary under Rule 48(b), because the Government had
a statutory right to appeal the suppression order as it applied to the
dynamite counts. However, dismissal of the dynamite counts was appropriate
on other grounds. Suppression of the secondary evidence was tantamount
to a dismissal of the dynamite counts because, without that evidence, proof
of the existence of the charged offense was lacking. Thus, outright dismissal
of those counts would also have been appropriate. (Cf. United States v.
Roviaro (1957) 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (trial court
should have entered dismissal when Government suppressed information that
was important to certain counts); United States v. Reynolds (1953) 345
U.S. 1, 12, 73 S. Ct. 528, 97 L. Ed. 727.)
As the majority recognizes, the non-dynamite
firearms counts were properly dismissed because delay in prosecution had
been unnecessary under Rule 48(b). The majority nevertheless reverses the
district court's order on the ground that the Government had not been adequately
warned that the dismissal would be with prejudice. The record shows that
the prosecution had ample forewarning, and it made its own choice not to
go forward on the non-dynamite counts.
The Government deliberately decided
to submit to dismissal of the firearms counts, rather than to go to trial,
because it erroneously believed that it had a right to appeal the suppression
order as it related to the non-dynamite counts. The suppression order was
entered on March 31, 1976. On April 19, 1976, the Government filed a notice
of appeal and a motion requesting a continuance of the trial date, May
12, 1976. The district court denied the Government's motion for a continuance
on April 20, 1976. On April 23, 1976, the Government informed the court
that it would refuse to go to trial on May 12. On April 26, 1976, we denied
the Government's motion for a continuance of the trial date. The Government
then told the district court that it would suffer a dismissal, rather than
go to trial, because it believed it would win the appeal. A government
attorney told the court: "we will take our chances on getting this Court
reversed by the Ninth Circuit with respect to that evidence and . . . will
suffer a dismissal at this time if the Court should choose to do so rather
than go to trial on the imperfect case that we would have to present if
we were forced to trial now." (12 R.T. at 6 (April 26, 1976).) More than
two weeks later, on the scheduled trial date, the case was called for trial
and the Government refused to proceed. The district court then entered
a dismissal with prejudice.
The crucial issue is whether the Government
knew, or should have known, the consequences of its refusal to proceed
to trial on the scheduled trial date. The record unmistakably establishes
the prosecutor's knowledge that dismissal with prejudice was one of the
consequences of a Rule 48(b) dismissal. ( United States v. Simmons (9th
Cir. 1976) 536 F.2d 827.) The prosecutor told the district court: "We believe
the court lacks jurisdiction to dismiss this indictment with or without
prejudice in view of the Government's good faith intent (to appeal)." The
majority opinion's conclusion that a dismissal with prejudice is an abuse
of the district court's discretion under the circumstances is in conflict
with our decision in United States v. Charnay (9th Cir. 1978) 577 F.2d
81.6
[F.2d 1160] Nothing in
United States v. Simmons, supra, supports the majority's view that a dismissal
cannot be made with prejudice unless the district court gives the prosecutor
formal on-the-record warning that a Rule 48(b) dismissal includes a dismissal
with prejudice. On the contrary, Simmons itself indicates that the forewarning
can come from sources other than the district court. Such sources include
the district's speedy trial plan (536 F.2d at 837) or federal legislation
(536 F.2d at 836 ("the (Speedy Trial) Act clearly forewarns the United
States Attorney that he must comply with the applicable time limits or
face the possibility that the indictment or information will be dismissed
with prejudice.")).
The prosecutor knew that if he did
not proceed to trial on the scheduled trial date, the case would be dismissed
and that the district court had authority to dismiss it with prejudice.
The prosecution's choice was both knowing and intelligent. To be sure,
the strategy misfired because government counsel labored under a misapprehension
of law relating to the right to appeal the suppression order affecting
the non-dynamite counts. These events provide no legal foundation for relieving
the Government of the consequences of the Government's exercise of prosecutorial
discretion.
I would affirm.
ELY, Circuit Judge (dissenting):
I respectfully dissent.
While I thoroughly share all of the
views of my Sister Hufstedler, my conscience impels that I set forth a
few comments of my own. I do this reluctantly, even sorrowfully.
When our full court originally reviewed
this appeal, all the judges then involved applied their dedicated efforts
to the end that the difficult issues be correctly and justly resolved.
The majority concluded that the district judge had not made critical findings,
and had not reached critical conclusions, with required specificity. I
disagreed, believing that the facts then before us proved, indubitably,
that the challenged incriminatory evidence should have been suppressed.
I repeat a portion of that which I wrote in dissenting from the majority's
original unpublished en banc decision that the cause should be remanded:
As I see it, the fact of the Government's
active participation (in the destruction of critical evidence) is beyond
doubt. I say this for the following reasons:
1. The original apprehension of the
vehicles was made by Oregon police upon notification by federal agents,
pursuant to a federal warrant.
2. Federal agents attended the search
for, and the removal of, the dynamite from one of the vehicles.
3. The instruction to destroy the material
was issued by a state officer, one McCollum, and McCollum was not produced
as a witness at the suppression hearing. From this the district judge could
fairly draw the inference that McCollum had received his directions from
federal officers.
4. At least one federal authority was
present when the alleged explosive was destroyed, and there was no evidence
whatsoever that he gave instructions, or made any request, that any samples
be retained for analysis by the accuseds.
The last point, above enumerated, is
of particular significance because of the defense contention that the substance
had been extensively exposed to moisture and could not be detonated without
the utilization of additional explosive material. We do not know whether
such was necessary or utilized, and this failure of proof most certainly
cannot be attributed to the appellees. In the circumstances therefore,
I submit that the critical finding of active federal participation, uncontested,
was supported by substantial evidence and, in fact, could not properly
have been [F.2d 1161] otherwise. I should add that warrants were
executed by federal officers and that no state charges were instituted.
In any event, the majority's original
decision to remand the cause so as to allow the district judge to engage
in a more intricate exploration and issue the required determinations indicates
to me that the majority then felt that, from the evidence relating to the
issue of suppression, the ultimate conclusions could be either in favor
of the appellants or in favor of the prosecution.
The district judge, after further review,
supplied us with the guidance the majority originally thought to be desired.
Now before us is a finding of fact which reads:
Federal agents were present and aware
of (Oregon State) Trooper Fettig's intended destruction of the dynamite
and neither encouraged nor discouraged such action.
Another critical finding is as follows:
John O'Rourke, Special Agent in Charge
of Oregon, was in Ontario before the dynamite was destroyed. He new that
Beverly Axelrod, counsel for defendants was also in Ontario before the
destruction of the dynamite. O'Rourke made no effort to inform Axelrod
of the impending destruction of the dynamite, of which he was aware. Axelrod
never asked O'Rourke to be allowed to witness the destruction of the dynamite.
No representative of defendants witnessed the destruction.
And, of what ought to be of paramount
significance, we now have the district judge's critical legal conclusion
that:
Defendants were prejudiced to the extent
that their inability to observe the destruction of the dynamite or to analyze
samples of it deprived them of the opportunity to contest the government's
conclusion that the substance destroyed was indeed explosive. Defendants'
only argument on this point is now limited to analysis of the photographs
of the destruction of the dynamite. The testimony of witness McCreary concerning
the photographs of the destruction of the dynamite cast substantial doubt
on the assertion that the photographs showed the detonation of dynamite.
The fact that defendants were denied the opportunity to witness the destruction
or to examine samples of the dynamite therefore appears to have prejudiced
defendants substantially on the issue of the nature of the substance destroyed.
Defendants were also prejudiced by
the destruction of the cartons and plastic bag which contained the dynamite
in that they were deprived of the opportunity to determine by fingerprinting
who might have handled these items.
And now, what happens? Not only does
the majority disregard the critical determinations of the district judge,
but also it holds that the judge was clearly wrong in making a determination
based upon conflicting testimony. In sum, the majority now does no more
in affirming the convictions that it might have done upon the record before
us in the original en banc proceedings. In fact it does less, for it accords
absolutely no weight or deference to the careful review of the district
judge upon remand and the guidance with which the district judge has now
favored us, and which, in the first en banc disposition, the majority wrote
that it wanted. I do not asperse the good faith or the motives of any of
my colleagues. All of them know that I hold each in the highest esteem.
Notwithstanding, I record my belief that the proceedings in this appeal,
with two hearings before the full court, and all the deliberations that
followed, reflect a futile exercise.
* The Honorable Joseph T. Sneed has
recused himself from consideration of this matter.
1 The incident at Wounded Knee, involving
a 71 day occupation of the town, had ended May 8, 1973, but there were
apparently federal indictments outstanding for some participants, including
Peltier and Banks.
2 Trooper Griffiths' exact testimony
at the remand hearing was as follows:
MR. TURNER: It's an "all-points bulletin,"
and it was used by Trooper Griffiths to stop these two vehicles. I might
note for the Court that
THE COURT: You can read it. The objection
is overruled.
MR. TURNER: Is the offer received,
Your Honor?
THE COURT: Yes, You can read it.
MR. TURNER: Thank you. Did you
THE COURT: That's what you asked him
to do, isn't it?
MR. TURNER: Yes, sir.
MR. SCHIFFMAN: Just the final portion
of it. My objection is if he reads any of it, he read the entire document.
MR. TURNER: I have no objection to
that, Your Honor.
THE COURT: All right. Well, read the
part that the lawyer asked you to read, and on cross-examination if the
lawyer wants to read some more, he can do it.
Q (By Mr. Turner:) Would you read the
last line, sir.
A If vehicle is sighted, do not stop
but advise FBI, Portland, immediately for more details."
Q All right. Mr. Griffiths, did any
Federal officer or agent tell you to disregard that portion of the APB?
A No.
Q And could you explain to the Court
why you felt it was important to stop these vehicles?
A The proximity to the state line was
a major factor.
Q Well, how close were you to the state
State of Idaho, I take it?
A Yes, Several miles.
Q All right.
A And it was my decision to stop the
vehicles. I felt it had to be done right then.
Q All right. Thank you very much."
R.T. at 54, Evidentiary Hearing, May
9, 10, 1978.
3 Federal search warrants were obtained
the following day and executed on the 16th after the Oregon State Highway
officers had completed their search. R.T. 1, 9.
4. Among the firearms found were semi-automatic
rifles, police shotguns, handguns, more than 2,600 rounds of ammunition,
150 blasting caps, nine empty pineapple training hand grenades, pocket
watches with the faces drilled to permit preparation of time bombs plus
other bomb-making equipment such as batteries, wire, cable, etc.
5 Officer Fettig described himself
as an explosives technician. He had at that time been with the Oregon State
Police about six years. He had been in the military service for 25 years
as an explosive ordnance disposal expert. He had been an explosives disposal
man in World War II overseas for three and one-half years. Back in the
United States he was assigned to Aberdeen Proving Grounds. He was an instructor
in explosives and explosive devices, chemical and biological warfare. From
there he was sent on special assignment clearing bomb ranges that were
being returned to the owners after use as practice bombing ranges. In 1950,
he was reassigned as an advisor to the Secret Service on bomb disposal
procedures for the protection of the President and Vice President of the
United States. In 1953, he was assigned to the Far East Command as an explosive
ordnance technician on Okinawa and more recently he retired from the Army
and has been employed by the Oregon State Police. He testified that he
had destroyed on the average between 7,500 and 9,000 pounds of dynamite
every year since he has been with the Oregon State Police.
6 Testimony of defendant witness Ronald
McCreary was as follows:
Q Now, did I understand your testimony
that this appeared to be an incomplete detonation of dynamite? Is that
a fair statement?
A No, I said it was an incomplete combustion
of some materials. I do not know what they are.
Q Oh, you don't know whether it's dynamite
or not?
A Oh, no. I wasn't there.
Q And you can't tell from the photographs?
A No."
R.T. at 235, Evidentiary Hearing, May
9, 10, 1978.
7 26 U.S.C. § 5845(f) reads in
part as follows:
The term "destructive device' means
(1) any explosive, incendiary, or poison gas (A) bomb, (B) grenade, (C)
rocket . . . or (F) similar device."
8 See Note 2, supra.
1 The balance test of Higginbotham
is helpful, but the same cannot be said for the discussion in that case
of federal participation. We cannot accept the implication that the destruction
of evidence by state officers acting alone, no matter how egregious their
conduct or how important the evidence destroyed, could never be sufficient
for a federal court to invoke a protective rule to guard the rights of
the defendant or the integrity of the judicial process. In Higginbotham
itself, the particular evidence was of minimal importance and the conduct
of the state police was at worst careless.
2 It appears that a type of balancing
was used in this circuit, even before Higginbotham. In United States v.
Sewar, 468 F.2d 236 (9th Cir. 1972), cert. denied, 410 U.S. 916, 93 S.
Ct. 972, 35 L. Ed. 2d 278 (1973), the defendant had been subjected to a
blood alcohol test. After the test was performed the sample was destroyed
by a technician who thought the sample was no longer necessary. The court
stated that "not every blunder by investigators should result in the exclusion
of relevant competent, important evidence," 468 F.2d at 237, and concluding
that in the circumstances, using the remaining secondary evidence would
not be "so unfair as to require its exclusion," id. at 238.
3 We think this test is consistent
with the result in United States v. Heiden, 508 F.2d 898 (9th Cir. 1974).
Heiden states that where evidence has been lost or destroyed the conviction
will be reversed if the defendant can show "(1) bad faith or connivance
on the part of the Government, or (2) that he was prejudiced by the loss
of the evidence." As the discussion in Heiden demonstrates, "prejudice"
as used there means serious impairment of the accused's ability to present
his defense. In cases of severe prejudice the Heiden formulation would
lead to the same result as under the test set forth in this case.
4 A similar problem to the one faced
here arises when the Government intentionally deports potential witnesses
before the defendant has had an opportunity to interview them. See United
States v. Mendez-Rodriquez, 450 F.2d 1 (9th Cir. 1971). This circuit has
held that despite good faith on the part of the Government, the defendant
need not show that the testimony of the lost witnesses would have been
favorable, although he must demonstrate at least some possibility that
the testimony could have been of benefit. See United States v. Orozco-Rico,
589 F.2d 433 (9th Cir. 1978); United States v. McQuillan, 507 F.2d 30,
33 (9th Cir. 1974). In these cases, even a small possibility of prejudice
is sufficient despite good faith government conduct. We do not believe,
however, that a similar approach is required in destruction of evidence
cases. Deportation of witnesses involves the fundamental and specifically
guaranteed right of compulsory process for obtaining witnesses provided
by the sixth amendment. The sixth amendment is in no way implicated in
the case at hand.
1 Thus, this case is unlike those in
which corroborating, impeaching, or collateral evidence was destroyed.
( E. g., United States v. Harris (9th Cir. 1976) 543 F.2d 1247 (FBI agent's
rough notes destroyed; violation of Jencks Act); United States v. Carrasco
(9th Cir. 1976) 537 F.2d 372 (informer's diary destroyed).)
2 This facet distinguishes Loud Hawk
from those cases where a sufficient sample was retained. ( E. g., United
States v. Young (9th Cir. 1976) 535 F.2d 484 (bulk of drug seizure destroyed
but samples retained); United States v. Heiden, supra, 508 F.2d 898 (semble).
3 The Oregon State Police and the FBI
attempted to take fingerprints from both vehicles and many of the objects
within them. However, they did not attempt to discover fingerprints on
either the plastic bags or the cardboard boxes, and the destruction therefore
prevented those defendants not traveling in the station wagon from rebutting
the dynamite counts with evidence that their fingerprints were not on the
dynamite containers.
4 I am unable to find support for the
majority's balancing formulation from any of the cases cited from our Circuit
or elsewhere. ( United States v. Higginbotham (9th Cir. 1976) 539 F.2d
17 (negligent loss of photographs by state officers, in which federal officers
played no part, did not deny due process); United States v. Mays (9th Cir.
1977) 549 F.2d 670 (insufficient showing of prejudice justifying dismissal
of indictment for pretrial delay); United States v. Picariello (1st Cir.
1978) 568 F.2d 222 (citing Heiden in listing factors to consider without
weighing any of them).)
5 Brother Trask, in his separate opinion,
argues that the federal Government was not sufficiently implicated in the
destruction of evidence to warrant suppression. Both the facts as found
by the district court specifically and the underlying record reveal that
the investigation was a cooperative venture between federal and state law
enforcement agencies from the start. To be sure, the search was physically
conducted by state officers, and state officers undertook the physical
destruction of the evidence. The FBI agents, who had advance notice of
the destruction, were not simply bystanders during the event. The FBI's
hands were displayed prominently throughout the transactions from the search
through the destruction of the evidence, thus invoking the principles of
Lustig v. United States (1949) 338 U.S. 74, 78, 69 S. Ct. 1372, 93 L. Ed.
1819; Byars v. United States (1927) 273 U.S. 28, 47 S. Ct. 248, 71 L. Ed.
520; United States v. Bryant (1971), 142 U.S.App.D.C. 132, 141, 439 F.2d
642, 651.
6 In Charnay, we held that the district
court did not abuse its discretion in dismissing with prejudice an indictment
under Rule 48(b). The first continuance was requested by the Government
to try to locate a missing witness. The court had told government counsel
that if the witness was not located at the time the case was scheduled
for trial, the indictment would be dismissed. Nothing was said about a
dismissal with prejudice. On the date set for trial, the witness still
had not been located and the Government renewed its request for a continuance
to locate the witness. The court denied the motion and dismissed the indictment
with prejudice. In upholding the district court, we said: "In these circumstances
the court exercised all the requisite caution, and it was entirely proper
for it to dismiss the indictment pursuant to Rule 48(b). Indeed, on this
record, we doubt that any other prudent course was open to the trial judge."
(577 F.2d at 84.)
| Copyright
© 1999-2000 Jurisline.com, LLC. All Rights Reserved. |