Free Order on Motion to Dismiss Counts (Less Than All) - District Court of Arizona - Arizona

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IN THE UNITED S TATES DIS TRICT COURT FOR THE DIS TRICT OF ARIZONA

United States of America, Plaintiff, vs. Robert J. Johnston, et al., Defendants.

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CR-03-1167-PHX-DGC ORDER

Defendants have filed a motion to dismiss based on the Government's failure to comply with its disclosure obligations. Doc. #1015. The Government has filed a response. Doc. #1075. Defendants have replied. Doc. #1093. The issues rais ed by t his motion were discussed w it h counsel at the thirteenth case management conference held on January 19, 2006. I. Background. Defendants' motion identifies a large number of omissions in the Government 's production of the Laughlin videotapes. Doc. #1015. The Government responds to each

alleged omission, arguing t hat the evidence in question was either produced to Defendants in February of 2004 and again in 2005, or that the omis s ions w ere corrected promptly when communicated t o couns el for the Government. Doc. #1075. The Government contends that a few of t he it ems were requested for the first time in Defendants' motion to dismiss and will be produced promptly. Id.

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Defendants' reply does not disagree with the Government's assertions regarding previous production. Defendants inst ead argue that the Government has repeatedly failed

to comply with Rule 16 and this Court's orders and that the charges therefore should be dismissed. Doc. #1093. The Court addressed outstanding discovery issues at the

thirteenth case management conference and ordered the Government to provide additional discovery by specific dates. II. Relevant Law. Ninth Circuit law ident ifies two sources of authority for dismissing criminal charges on the basis of Government misconduct . T he first arises from the Due Process Clause of

the Fifth Amendment and is warranted when the Government engages in outrageous conduct. "`The defense of outrageous government conduct is limited to extreme cases[.]'"

United States v . Fernandez, 388 F.3d 1099, 1238 (9th Cir. 2004) (citing United States v. Gurolla, 333 F.3d 944, 950 (9th Cir. 2003)). The G overnment 's misconduct must be "so grossly shocking and outrageous as to violate the universal sense of justice." United

States v. Kear ns , 5 F .3d 1251, 1253 (9th Cir. 1993); see Fernandez, 388 F.3d at 1238. Examples include cases where the Government has engineered and directed a criminal enterprise from start to finish or the p olice have used brutal physical and psychological coercion against a defendant. Id. In addition to shocking and outrageous Government See

misbehavior, a defendant must show that the misconduct prejudiced his defense. United States v. Rogers, 751 F.2d 1074, 1077 (9th Cir. 1985).

The second source of authority is t he Court 's supervisory powers. "A court may exercise its supervisory powers to dis miss an indictment in response to outrageous government conduct that falls short of a due process violation." United States v. Ross, 372 F.3d 1097, 1109 (9th Cir. 2004); see Fernandez, 388 F.3d at 1239. Dismissal on this basis requires " flagrant misbehavior" by the prosecutor and "substantial prejudice" to the defendant. Kearns, 5 F.3d at 1254; see Ross, 372 F.3d at 1010; Fernandez, 388 F.3d at 1239; Fed. R. Crim. P. 52(a); Bank of Novia Scotia v. United States, 487 U.S. 250, 255-56 (1988) ("[A] district court exceeds its powers in dismissing an indictment for prosecutorial
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misconduct not prejudicial t o the defendant.").

Negligence or incompetence by the

Government do not suffice. See Fernandez , 388 F.3d at 1239 (negligence); Kearns, 5 F.3d at 1254 (incompetence). In short, a defendant "bears a heavy burden" when seeking dismissal of criminal charges based on Government misconduct . United States v. Venegas, 800 F.2d 868, 869

(9th Cir. 1986). Dismissal "is an ext reme s anction which should be infrequently utilized." United States v. Owen, 580 F.2d 365, 367 (9th Cir. 1978). III. Analysis. The facts concerning the Government's conduct in this case generally are not in dispute. The dates, contents, and quality of Government disclosures are well known to the part ies and t he Court. It is no secret that the Court has been dissatisfied with the In an order entered

Government's performance of its Rule 16 disclosure obligations.

September 14, 2005, t he Court found that although "[t]he Government has made voluminous disclosures to defense counsel," "those disclosures have been sp oradic and delayed, often untimely under the Court's schedule, and . . . incomplet e." Doc. #813 at 1. The Court found that "[s]tatements made to the Court by counsel for the Government have been inaccurate, inconsistent, and sometimes legally incorrect." Id. Perhaps not unexpectedly, Defendants have seized upon this order, quot ing it repeatedly in briefs and hearings. But the Court's displeasure with the Government's The

disclosure efforts does not equate t o a finding of outrageous or flagrant conduct.

Court made clear that it "has not concluded, and does not intend to suggest, that attorneys for the Government have acted in bad faith." Id. at 2. M oreover, since the September 14, 2005 order was entered the Court has noticed a marked increas e in t he Government's diligence in addressing discovery issues. As recounted in the Government's response

(Doc. #1075) and not disputed by Defendants (Doc. #1093), counsel for the Government have sought to respond p romptly to production problems identified by Defendants since October. This does not excuse the Government's previous lapses, but it supports the

Court's conclusion that the Government has not engaged in outrageous or flagrant
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conduct. The Court will not hold an evidentiary hearing to evaluate the G overnment's misconduct as requested by Defendants. shortcomings in this case. most devoted to discovery The Court is well aware of the G overnment 's

The Court has held thirteen case management conferences, issues, has resolved literally hundreds of discovery

disagreements between the parties, and has entered scores of pages of discovery orders. T he Court's September 14, 2005 order was based on its experience in these proceedings and was entered sua sponte, without request by Defendants. The Ninth Circuit has held that a court should not impos e a s anct ion harsher than necessary to accomplish the goals of Rule 16. 1169 (9th Cir. 1983). See United States v. Gee, 695 F.2d 1165,

Rule 16(d)(2) authorizes the Court to take a number of actions in

respons e t o t he Government's failure to comply with its disclosure obligations, including ordering that discovery be provided (specifying the time, place, and manner of its disclosure) and granting continuances. done both in this case. Fed. R. Crim. P. 16(d)(2)(A)-(B). The Court has

The Ninth Circuit has not ed that other sanctions may be

appropriate, such as publicly noting the Government's errors and calling the prosecutor to account. Ross, 372 F.3d at 1111-12. The Court took this step in its September 14, 2005 order. Rule 16(d)(2)(C) further provides that the Court may preclude the Government from using evidence at trial, and Rule 16(d)(2)(D) authorizes the Court t o enter "any other order that is just under the circumstances." These remedies remain available if Defendants

demonstrate that they have been prejudiced by the Government's late disclosures. Although the Court has found errors in the G overnment's handling of this case and has taken appropriate actions , D efendants have not shown, and the Court does not find, that the Government 's conduct has been "so grossly shocking and outrageous as to violate the univers al sense of justice." Kearns, 5 F.3d at 1253. Nor does the Court find that the Government's has engaged in "flagrant misbehavior." Id. at 1254. Even if the

Government's disclosure efforts in this case might at times be characterized as negligent or incompetent, such conduct does not warrant dismissal under Ninth Circuit law.
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Fernandez, 388 F.3d at 1239; Kearns, 5 F.3d at 1254. M oreover, Defendants' motion and reply do not address the requirement of prejudice. Defendants instead focus solely on the Government's mis conduct. See Docs. As the law makes clear, however, misconduct without prejudice cannot

##1015, 1093.

result in dismissal. See Rogers, 751 F.2d at 1077; Fernandez, 388 F.3d at 1239; Fed. R. Crim. Pro. 52(a); Bank of Novia Scotia, 487 U.S. at 255-56. Because the criteria for dismissal under the Due Process Clause and the Court's supervisory powers have not been satisfied, the Court will deny Defendants' motion to dismiss. As stated at the thirteenth case management conference, this order will not

preclude Defendants from challenging the admis s ibility of evidence or seeking other relief on the basis of untimely Government disclosures. Such relief can be sought through t he

pretrial evidentiary procedures set forth in the Court's other orders.1 IT IS ORDERED that Defendants' motion to dismiss regarding Laughlin videotape evidence (Doc. #1015) is denied. DATED this 27th day of January, 2006.

On January 6, 2006, the Government filed a notice stating that its counsel recently had learned of recordings and documents that had not previously been known to counsel. See Doc. #1027. The Government has asked the Court, in an ex parte application, to grant a p rot ective order with respect to this information under Rule 16(d)(1) and order that it be disclosed with other informat ion already subject to protective orders. See Doc. #1056. The Court recognizes that Defendants are not familiar with these recordings and documents or the circumstances under which they were created, maintained, and discovered. When the recordings and documents are disclosed to Defendants, the Court also will require the Government to disclose the circumstances under which they were created, maintained, and discovered so Defendants may make appropriate motions, if any.
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