United States District Court, E.D. Washington
ORDER DENYING DEFENDANT SMITH'S MOTION TO DISMISS INDICTMENT
ROSANNA MALOUF PETERSON, Chief District Judge.
BEFORE THE COURT is Defendant Louis Daniel Smith's "Motion to Dismiss [the Indictment] for Prosecutorial Misconduct Based Upon Prejudicial Public Pretrial Statements, " ECF No. 277. The motion was heard without oral argument. Defendant Smith is appearing pro se. Terrence M. Ryan has been appointed as standby counsel. Christopher Eric Parisi represents the Government. The Court has considered the briefing and the file and is fully informed.
Defendant was indicted in January of 2013 along with codefendants Karis Delong, Tammy Olson, and Chris Olson, and charged with one count of conspiracy in violation of 18 U.S.C. § 371; four counts of delivering misbranded drugs into interstate commerce in violation of 21 U.S.C. §§ 331(a) and 333(a)(2); and one count of smuggling in violation of 18 U.S.C. § 545. ECF No. 1. The Indictment alleges that the defendants engaged in a scheme to import, manufacture, and sell hazardous material that was marketed as a health product. Id. Specifically, the Indictment alleges that Defendant Smith misbranded sodium chlorite, a harmful chemical, as Miracle Mineral Solution ("MMS") and marketed it to the public for consumption to cure such ailments as malaria, HIV/AIDS, hepatitis, and various forms of cancer. Id. at 4, 7.
In February of 2013, the Department of Justice ("DOJ") issued a press release announcing the Indictment entitled Four Charged with Internet Sales of Industrial Bleach as Miracle Cure. ECF No. 277, Ex. A. The press release listed each count Defendant Smith was charged with, summarized the alleged conduct, and quoted a DOJ official, Stuart F. Delery, about the Indictment. Id. The press release quoted Mr. Delery as stating "[t]he Department of Justice is committed to protecting the health and safety of people with cancer and other serious medical conditions.... Our most vulnerable citizens need real medicine - not dangerous chemicals peddled by modern-day snake oil salesmen." Id. According to the press release, the Indictment alleged that a business operated by Defendants Smith and Delong "provided consumers directions to combine MMS with citric acid to create Chlorine Dioxide." Id. The press release further reported that "Chlorine Dioxide is a potent agent used to bleach textiles, among other industrial applications." Id.
The DOJ's press release ended with the caveat that "[c]harges contained in the indictment are simply accusations, and are not evidence of guilt, " and that "[e]vidence supporting the charges must be presented to a federal trial jury, whose duty it is to determine guilt or innocence." Id.
Defendant Smith filed a motion to dismiss the indictment for prosecutorial misconduct based upon the contents of the DOJ press release. ECF No. 277. Defendant Smith relies on the prejudicial connotation of the phrase "snake oil salesmen, " alleged inconsistencies between the Indictment and the press release, ABA and state rules of professional conduct, federal statutory and regulatory law, and the Universal Declaration of Human Rights. The Court will liberally construe Defendant Smith's motion because he is appearing pro se. See, e.g., United States v. Johnson, 988 F.2d 941, 943 (9th Cir. 1993).
Dismissal of an indictment with prejudice may be appropriate under one of two theories: first, the district court "may dismiss an indictment on the ground of outrageous conduct if the conduct amounts to a due process violations"; and second, the court may dismiss an indictment under its supervisory powers even where the conduct "does not rise to the level of a due process violation." United States v. Chapman, 524 F.3d 1073, 1084 (9th Cir. 2008) (quoting United States v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir. 1991)). Dismissal of the indictment constitutes a "drastic step" in either circumstance and is a "disfavored remedy." United States v. Rogers, 751 F.2d 1074, 1076-77 (9th Cir. 1985).
1. Dismissal of the Indictment for Due Process Violation
Governmental conduct violates due process when it "is so grossly shocking and so outrageous as to violate the universal sense of justice." Barrera-Moreno, 951 F.2d at 1092 (quoting United States v. Restrepo, 930 F.2d 705, 712 (9th Cir. 1991)). Generally such a violation will be found where entrapment is an issue and only where the governmental conduct is wrong in itself or "amount[s] to the engineering and direction of [a] criminal enterprise from start to finish." See, e.g., United States v. Smith, 924 F.2d 889, 897 (9th Cir. 1991).
Here, the relevant governmental conduct is the issuance of a press release about the Indictment in February of 2013. Defendant Smith generally claims that the press release violated his substantive and procedural due process rights because the "extrajudicial and subjective" statements were "disparaging and defamatory in nature." ECF No. 277 at 10. Defendant Smith centers this due process claim on the phrase "snake-oil salesmen" as articulated by Mr. Delery in the press release. ECF No. 277 at 10. To support this proposition, Defendant Smith offers seven pages of detailed and varied examples of the use of the phrase "snake-oil salesmen" in American culture. Id. at 3-10.
The Government's use of the phrase "snake oil salesmen" does not rise to the level of the outrage as required for a due process violation. As observed by the Ninth Circuit, outrageous government conduct is an extremely high standard, and "there are only two reported decisions in which federal appellate courts have reversed convictions under this doctrine." United States v. Black, 733 F.3d 294, 302 (9th Cir. 2013) (citing United States v. Twigg, 588 F.2d 373 (3d Cir. 1978); Greene v. United States, 454 F.2d 783 (9th Cir. 1971)). In both cases, the outrageous conduct at issue was the improper nature and extent of police involvement in the crime later prosecuted. See Twigg, 588 F.2d at 379-80 (direct and continuous government involvement in criminal case constituted outrageous conduct); Greene, 454 F.2d at 787 ("We do not believe the Government may involve itself so directly and continuously over such a long period of time in the creation and maintenance of criminal operations, and yet prosecute its collaborators.").
The press release at issue does not demonstrate conduct remotely similar to that which is necessary for establishing a due process violation. Therefore dismissal of the ...