Appeal from the United States District Court for the Central District of California. Richard A. Gadbois, Jr., District Judge, Presiding. D.C. No. CV-89-2006-RG, D.C. No. CV-89-2006-RG
Before: Brunetti, O'scannlain, and T.g. Nelson, Circuit Judges
Eleanor Stone filed a Bivens action alleging violations of her fourth amendment rights when drug agents and police allegedly used excessive force in executing a search warrant in connection with the arrest of a tenant of Stone's. Despite a general discovery request, the Assistant United States Attorney (AUSA) failed to turn over photographs of Stone's residence. These photographs purported to show that her house was in disarray before the search. Stone moved for a new trial based on attorney misconduct and the AUSA's failure to supplement the discovery response after he discovered the photos. The district court denied the motion for a new trial, but sanctioned the AUSA for failing to supplement the discovery response. Both parties appeal. We affirm the denial of a new trial, but reverse the imposition of sanctions.
Eleanor Stone, is an elderly woman who sued various defendants (eight DEA agents, one customs agent and a postal inspector) after they allegedly "stormed [her] home, . . . smashed in the front door, . . . threw plaintiff to the ground, and used brutal and excessive force." They then proceeded to "ransack and destroy plaintiff's home and her belongings." The jury, however, returned a verdict in favor of defendants on all counts.
Seven months before trial, Stone requested "[a] complete description of all written or recorded materials, [of] whatever nature or description, . . . bearing upon . . . the incident." The definition of writing would appear to include photographs. The AUSA, James Sullivan, forwarded the interrogatories to the Drug Enforcement Administration's Office of Chief Counsel. The DEA's response did not include photographs one of the agents had taken of Stone's house. The photographs taken by one of the agents allegedly showed that the plaintiff's house was in a "'messy' and 'filthy' condition" before the search. AUSA Sullivan stated that he became aware of the photos six months after the response to the initial discovery request, about one month before trial. He planned to use them to rebut and impeach Stone's testimony at trial that the defendants ransacked her house.
When Stone objected to the use of the photos at trial, the district Judge excluded the photos. He ruled that the obligation to supplement discovery requests is a continuing one and that AUSA Sullivan should have informed the defense after he became aware of their existence. The Judge, however, said that he "didn't suggest" Sullivan tried to conceal them.
During the remainder of the trial, Stone's attorney often inferred that the excluded photographs were deliberately withheld so they could be sprung at trial. He said that the AUSA and defendants "concocted the story that they were before-pictures." Stone maintains that if she had the photographs earlier, she would have been able to investigate and establish that they were taken after a rampage by the searching agents, and not before.
In response to Stone's arguments, the AUSA during his closing argument stated that "[Stone's attorney] has tried to suggest that the photographs are supportive of his case. Well, I offer them to [him] right now, and if he wants to agree to them being in evidence they may be." Stone's attorney originally agreed, but at sidebar backed off his agreement complaining that the AUSA's tactic was improper.
Stone moved for a new trial and the imposition of sanctions on AUSA Sullivan. The Judge denied the motion for a new trial, but imposed sanctions on Sullivan. He called the AUSA's lawyering "low caliber" and "rancorous in the extreme." "The court [had] no doubt that interrogatories propounded required disclosure of the photographs in issue." A fine of $500 was assessed against AUSA Sullivan personally.
I. Stone Has Not Established that Any Alleged Attorney Misconduct ...