Appeal from the United States District Court for the Eastern District of California. D.C. No. CR-88-00368-WBS. Thomas J. MacBride, District Judge, Presiding.
Before: Richard H. Chambers*fn* , Mary M. Schroeder and Robert R. Beezer, Circuit Judges. Opinion by Judge Beezer.
Because of the government's bad faith actions, the laboratory equipment seized from Apotheosis Research lies broken and buried in a toxic waste dump. This equipment cannot be introduced at trial. It can neither support nor undermine Wayne Cooper and Vincent Gammill's repeated assertion that their lab lacked the physical capability to manufacture methamphetamine.
We consider here whether Cooper and Gammill have a comparable, alternative means to support their assertion of innocence. We conclude that no alternative matches the potentially powerful exculpatory evidence destroyed by the government. The appropriate remedy is dismissal of the indictment. Thus, we affirm the district court's judgment.
Vincent Gammill owned Apotheosis Research, a small chemical laboratory operating out of leased space. Wayne Cooper managed it. The two maintain that they ran a legitimate lab, making legal chemical products such as a fuel additive and naval jelly.
They say that the company obtained a contract to manufacture dextran sulfate and that Cooper configured the laboratory equipment to undertake that product's cool-reaction process. At the time, dextran sulfate was one of the most common underground AIDS treatments in the United States.
Cooper's parole officer visited the lab, which operated openly. While the Drug Enforcement Agency was conducting its investigation, the parole officer spoke to DEA Special Agent Richard Croslin about the lab's claim of legitimacy and Cooper's asserted involvement in dextran sulfate production. Apotheosis Research's landlord also reported to government investigators that the lab ostensibly made legitimate products, including dextran sulfate.
The DEA suspected Cooper and another man of participating in methamphetamine manufacture abroad. The agency obtained an arrest warrant for Cooper as well as a search warrant for the lab and Cooper's apartment. On December 7, 1988, DEA agents and a government chemist, Roger Ely, searched Apotheosis Research. They concluded that it was an operational methamphetamine lab.
The DEA agents found formulas for methamphetamine and substances used in its manufacture. Under a sink they found containers of sludge containing traces of methamphetamine.*fn1 The agents also found a patent for dextran sulfate, chemicals used to manufacture that substance, and materials relating to the production of naval jelly. The search of Cooper's apartment turned up nine pounds of ephedrine, which is used to manufacture methamphetamine, and some laboratory glassware. The agents found no traces of methamphetamine or precursor chemicals on any glassware or equipment.
A DEA policy authorized the destruction of hazardous materials which agents discovered when dismantling clandestine labs. The policy aimed to protect both the agents and the environment. Agent Croslin, acting on Ely's recommendation, determined that most of the glassware and equipment should be seized and destroyed because it might be contaminated.*fn2 There was no determination of actual contamination. Pursuant to DEA policy, removal and destruction was assigned to American Environmental Management Corporation, a waste disposal company under contact to the DEA.
American Environmental put smashed glassware and smaller equipment in two 55-gallon drums. Among the large vats which American Environmental removed intact was a 125-gallon stainless steel reaction vessel. This vessel apparently functioned in a distillation process with a stainless steel vacuum tank. American Environmental stored the 55-gallon drums and the large vats on its property pending disposal. As the DEA knew, the company generally stored seized items for only a short time unless the government requested that the items be held as evidence. If requested to hold certain items, the company would set them aside for long-term storage.
When arrested, Cooper said that he used the lab equipment to manufacture naval jelly and dextran sulfate. On December 8, the day after Cooper's arrest and the seizure, Gammill, the owner of the lab, called Agent Croslin. He told Croslin that the equipment was configured to make dextran sulfate, it was expensive equipment, and he needed it back. As he had ...