Free Mandate of 9th Circuit - District Court of Arizona - Arizona

.1 UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 05-10658
D.C. No. CR-04-00378-SRB
Plaintiff - Appellee,
V_ .
JUDGMENT
SCOTT SEGAL, A.K.A. Scott Emmanual
Segah
Defendant — Appellant. -
Appeal from the United States District Court for the District of Arizona
(Phoenix). l _
l This cause came onto be heard on the Transcript ofthe Record from the
United States District Court for the District of Arizona (Phoenix) and was duly
submitted.
On consideration whereof, it is now here ordered and adjudged by this
Court, that the judgment of the said District Court in this cause be, and hereby is
AFFIRMED.
Filed and entered 01/03/07
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Case 2:04-cr-00378-SRB Document 158 Filed O1/25/2007 age 0 4

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UNITED STATES COURT OF APPEALS O-$· OOORT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 05-10658
Plaintiff - Appellee, D.C. No. CR-04-378-SRB J
v.
MEMORANDUM"
SCOTT SEGAL, etc.
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona -
Susan R. Bolton, District Judge, Presiding
Argued and Submitted November 13, 2006
San Francisco, California
Before: SCHROEDER, Chief Circuit Judge, FARRIS and RAWLINSON, Circuit
. Judges.
The Defense argues that Segal never gave valid consent for ATF agents to
search the storage facility, as he was effectively forced to consent in order to win
pre-trial release. Under United States v. Scott, consent under these circumstances
* This disposition is not appropriate for publication and may not be
cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
l
Case 2:04-cr-00378-SRB Document 158 Filed O1/25/2007 Page 2 of 4

may support a warrantless search if the search is also "reasonable." Scott, 450
F.3d 863, 868 (9th Cir. 2006).
The search was reasonable, as it was supported by probable cause. The
ATF agents knew (based on testimony before the Massachusetts magistrate judge)
that Segal had transferred a number of firearms to the Arizona storage facility at
some unspecified time after he became a felon in 1992. This created probable
cause that Segal had either possessed or transported these firearms after he had
become a felon, in violation of 18 U.S.C. § 922(g)(1). The existence of probable
cause, combined with Segal’s consent, means that there are no grounds to suppress l
the weapons and explosives found in the search.
The Defense argues that the Govemment’s failure to timely disclose
exculpitory evidence was outrageous conduct that required dismissal of the
indictment on due process grounds or under the district court’s supervisory
powers.
. To violate due process, government conduct “must be so grossly shocking
· and so outrageous as to violate the universal sense of justice." United States v.
Barrera—M0reno, 951 F.2d 1089, 1092 (9th Cir. 1991). Disrnissals based on due
~ process are reserved for "the most intolerable government conduct." United States
v. Restrepo, 930 F.2d 705, 712 (9th Cir. 1991). We are satisfied that the
2
Case 2:04-cr-00378-SRB Document 158 Filed O1/25/2007 Page 3 of 4

Government’s two-day delay in turning over exculpatory evidence does not
warrant due process dismissal.
If government conduct is not outrageous enough to warrant due process
dismissal, a district court may nonetheless dismiss the case pursuant to its
supervisory powers. See Barreraglldoreno, 951 F.2d at 1091 and United States v.
Simpson, 927 F.2d 1088, 1090 (9th Cir. 1991).
To justify exercise of supervisory powers, the prosecution’s wrongful
conduct must have been flagrant and must have caused substantial prejudice to the
defendant. See United States v. Fernandez, 388 F.3d 1199, 1239 (9th Cir. 2004).
The Defense was offered, but rejected, opportunities to make Power available for
further interviews by Defense counsel, re-open the Government’s casein chief to
allow the Defense additional cross—examination, or declare a mistrial and start
anew. There was no prejudice. .
AFFIRMED.
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