argued submitted san francisco california: May 14, 1993.
Appeals from the United States District Court for the District of Arizona. D.C. No. CR-91-277-RGS. Roger G. Strand, District Judge, Presiding.
Before: Stephen Reinhardt, Stephen S. Trott, and Pamela Ann Rymer, Circuit Judges. Opinion by Judge Reinhardt.
REINHARDT, Circuit Judge:
In 1989 Sergio and Rosemary Teran were arrested for possession of marijuana with intent to distribute. Sergio's parole was revoked and he was sent back to a federal penitentiary. However, Rosemary agreed in writing to "work off" the charges by acting as an informant for the Glendale (Arizona) Police Department. In prison, Sergio met appellant James Kearns, who was serving a life-sentence. James was often visited by appellee Catherine Kearns, his wife, and her son, and Sergio was visited by Rosemary. During these visits and afterwards, the Kearnses allegedly arranged a large drug transaction with the Terans. Rosemary informed Glendale police of the proposed deal. The Kearnses were indicted for possession of and conspiracy to distribute marijuana. James' and Catherine's cases were severed.
James' trial was set first. Just before trial the prosecutors told his attorney that no charges had been filed against either Sergio or Rosemary following their 1989 marijuana arrests. They also stated that Rosemary had orally agreed to be an informant in exchange for not being charged. After Rosemary had testified and been excused and Sergio's cross-examination had begun, the government informed James' counsel that charges had been filed against the Terans as a result of their marijuana arrests and that Rosemary had agreed to "work off" the charges. The district court denied James' motion for a mistrial but allowed additional cross-examination of the Terans. James was convicted.
Following James' trial, Catherine's began. On the morning of the last day of her trial the government turned over to the defense a copy of a written agreement between Rosemary and the Glendale police, which it had obtained from Rosemary's attorney the previous afternoon. Catherine then moved for dismissal of the indictment based on misrepresentations before and during trial as to the existence of a written agreement. At first the court denied Catherine's motion and suggested that Rosemary be brought back for additional cross-examination. However, the Judge stated that if he learned that a false statement as to the existence of the written agreement had been made, he would dismiss the charges. The prosecutor responded that the Glendale Police had originally informed him that no written agreement with Rosemary existed based on the fact there was no completed agreement in its files. He offered no further explanation. The court then, true to its word, dismissed the indictment.
Soon thereafter, James made a written post-trial motion to vacate the verdict in his case and to dismiss the indictment, on the same ground underlying the ruling in Catherine's case. The government submitted affidavits in opposition from Glendale police officers. The officers claimed that the failure to disclose the existence of the written agreement was a result of bad memories, miscommunication, inadvertence, misunderstanding, and the lack of a completed copy of the agreement in their files. They stated that department policy provided that records regarding confidential informants would not be retained, for the informants' safety. Although prior to James' trial an officer had found a draft agreement with Rosemary on the computer, he did not tell his sergeant about it, because he thought only completed documents were relevant. There was no indication that the United States attorney was aware that a written agreement existed until shortly before he received a copy of it. The district Judge denied James' motion to dismiss, finding neither flagrant misconduct nor prejudice, and concluding that the sanction of dismissal would not be proportionate to the misconduct involved.
The government then moved for reconsideration in Catherine's case, and attached the same affidavits that had been submitted in opposition to James' motion. The district Judge, without explanation, denied the reconsideration motion in a brief written order. The government then filed a timely appeal regarding the dismissal of the indictment against Catherine, and James timely appealed his convictions on the basis of the government's failure to disclose material information.
A. The District Court's Rulings on the Motions to Dismiss the Indictments
A district court may dismiss an indictment for a violation of due process or pursuant to its supervisory powers. United States v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir. 1991). To warrant dismissal on due process grounds, government conduct must be so grossly shocking and outrageous as to violate the universal sense of Justice. United States v. Green, 962 F.2d 938, 941 (9th Cir. 1992). We reject Catherine's suggestion that the government's conduct in this case rises to that level.
Dismissal under the court's supervisory powers for prosecutorial misconduct requires (1) flagrant misbehavior and (2) substantial prejudice. United States v. Jacobs, 855 F.2d 652, 655 (9th Cir. 1988) (per curiam). We conclude that the first prong was not met here. Although it is likely that the second was not met either, we need not reach that question. The Glendale Police Department's erroneous response appears to have to have been due to incompetence and other non-invidious factors rather than to intentional deception. Moreover, a written copy of the agreement was turned over to Catherine before the end of trial and within hours of the prosecution's receipt of it. This demonstrates that the federal officials involved did not engage in flagrant misbehavior. For these reasons, the dismissal of the indictment against Catherine on the ground of prosecutorial misconduct cannot stand. For these same reasons, the district court's denial of James' motion to dismiss the indictment for prosecutorial misconduct was not erroneous.
Catherine next argues that both the government's failure to provide a written agreement in a timely manner and the Glendale Police Department's policy of destroying informant agreements are violations of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), and, therefore, deprived her of due process. She also argues that Glendale's policy of destroying such agreements is in bad faith. The record does not support the latter contention.*fn1 As to the alleged Brady violations, even assuming that the failure to turn over the agreement in a timely fashion qualifies as such, our precedents make clear that dismissal of an indictment is an appropriate sanction for a constitutional violation only where less drastic alternatives are not available. Barrera-Moreno, 951 F.2d at 1093. That standard is not met here. A copy of the agreement was located prior to the end of trial. The district court could have granted a continuance and allowed additional cross-examination of Rosemary based upon the impeachment material in the written agreement. It also could have ...