United States District Court, E.D. Washington
ORDER DENYING DEFENDANTS' MOTIONS TO DISMISS
ROSANNA MALOUF PETERSON, Chief District Judge.
Before the Court are Defendants' three Motions to Dismiss, ECF Nos. 389, 390 and 393. Defendant Louis Daniel Smith, who is appearing in this matter pro se, filed all three motions. Neither co-defendant Karis DeLong nor co-defendant Tamara Olson have filed an opt-out notice to the motions and thus are considered as having joined the motions pursuant to the Pretrial Order in this case. ECF No. 122 at 4.
A pretrial conference was held in this matter on October 7, 2014. Christopher E. Parisi appeared at the conference on behalf of the Government. Defendant Louis Daniel Smith appeared pro se, with standby counsel Terence M. Ryan also present. Roger J. Peven appeared on behalf of Defendant Karis Delong, and Nicholas V. Vieth appeared on behalf of Defendant Tammy Olson. The Court has considered: the motions; the opposition filed by the Government, ECF No. 399; all of Defendants' replies, ECF Nos. 405, 408, and 409; the Affidavit of Brent Westenfelt of Orange Legal Technologies, ECF No. 418; the Declaration of Tim McCann, the defense discovery coordinator, ECF No. 417; and the parties' arguments. The Court is fully informed.
The facts and procedural history of this matter are set forth in the Court's order at ECF No. 394, denying Defendants' motion to continue. Therefore, the Court does not repeat the facts here except where necessary for the following analysis.
In two of Defendants' motions, Mr. Smith claims violations of his Fifth Amendment rights. ECF Nos. 389 and 390. In the third motion, Mr. Smith claims a violation of his Sixth Amendment rights. ECF No. 393.
A. Fifth Amendment Claims
The Fifth Amendment Due Process Clause protects defendants from prosecutorial misconduct in the pre-indictment stage. United States v. Simmons, 536 F.2d 827, 830 n.9 (9th Cir. 1976) (citing United States v. Marion, 404 U.S. 307, 320, 324 (1971)). Under Federal Rule of Criminal Procedure 48, a court may dismiss an indictment pre-trial, sua sponte, "if unnecessary delay occurs in:... (3) bringing a defendant to trial." Id.
Additionally, the Ninth Circuit has held that a court may dismiss an indictment with prejudice either because of "outrageous government conduct" that "amounts to a due process violation, " or "under [the court's] supervisory powers." United States v. Chapman, 524 F.3d 1073, 1084 (9th Cir. 2008). However, "although courts have the power to dismiss an indictment..., the power is exercised sparingly." United States v. Busher, 817 F.2d 1409, 1411 (9th Cir. 1987) (citing United States v. De Rosa, 783 F.2d 1401, 1404 (9th Cir. 1986); United States v. Al Mudarris, 695 F.2d 1182, 1185 (9th Cir. 1983)). "[D]ismissing an indictment with prejudice encroaches on the prosecutor's charging authority, " and therefore "this sanction may be permitted only in cases of flagrant prosecutorial misconduct." Chapman, 524 F.3d at 1085 (quoting United States v. Simpson, 927 F.2d 1088, 1091 (9th Cir..1991)) (internal quotation marks omitted) abrogated on other grounds by United States v. W.R. Grace, 526 F.3d 499, 511 n.9 (9th Cir. 2008). Moreover, "[a] court may dismiss an indictment under its supervisory powers only when the defendant suffers substantial prejudice." Chapman, 524 F.3d at 1087 (quoting United States v. Jacobs, 855 F.2d 652, 655 (9th Cir. 1988)).
1. ECF No. 389: Motion to Dismiss or Alternatively Compel Production and Continue
Mr. Smith alleged in his motion that the Government had failed to turn over all electronic discovery to Defendants in violation of his Fifth Amendment right to due process. ECF No. 389 at 6. He contended that dismissal of the indictment was an appropriate remedy. ECF No. 389 at 6.
Prior to the hearing on this matter, Mr. Smith submitted two affidavits in support of his motion: one from Brent Westenfelt of Orange Legal Technologies, and one from Tim McCann, the discovery coordinator in this case. ECF Nos. 417 and 418. Mr. Westenfelt stated that Orange Legal Technologies received only one of five files listed on the Google, Inc. warrant return. ECF No. 418 at 3. The missing files include: ".fseventsd;" ".Spotlight-V100;" ".Trashes;" and "._.Trashes." ECF No. 418 at 3. Mr. Westenfelt also indicated that Orange Technologies did not receive any e-mails generated from two e-mails addresses: email@example.com and firstname.lastname@example.org. ECF No. 418 at 3-4.
In his affidavit, Mr. McCann stated that the discovery hard drive that the Government provided to him did not include four of the five files listed on the Google, Inc. warrant return. ECF No. 417 at 2. In particular, Mr. McCann noted the missing ".Trashes" folder. ECF No. 417 at 3.
Since the hearing on this matter, AUSA Parisi has confirmed that four of the five files listed on the Google, Inc. warrant return, namely, ".fseventsd;" ".Spotlight-V100;" ".Trashes;" and "._.Trashes.", were in fact inadvertently left off the discovery hard drive disclosed to Defendants. ECF No. 430 at 3-4. AUSA Parisi assures this Court that the mistake was simply a computer error that was unintentional. ECF No. 430 at 3-4.
Moreover, the Government recently filed an Affidavit by Alexandra McCombs, the Lead Project Manager for Labat-Anderson Incorporated, the Government's electronic discovery contractor. ECF No. 443. In that affidavit, Ms. McCombs declares under penalty of perjury that the four missing folders "do not contain any e-mails.... they contain only system files and other data which is unrelated to the e-mail files." ECF No. 443 at 4. Ms. McCombs further states that the metadata associated with the ".mbox" files contained within these four folders "does not contain information which would show whether an email was opened, how long it might have been open, or whether a particular person reviewed an email." ECF No. 443 at 4.
Nevertheless, Mr. Smith contends that the Government's initial failure to provide these missing files warrant dismissal of this case. ECF No. 389. Mr. Smith cites United States v. Chapman in support of his request that this Court dismiss the indictment with prejudice. ECF No. 389 at 4-6. However, Chapman requires the presence of "flagrant prosecutorial misconduct." Chapman, 524 F.3d at 1085 (citing United States v. Simpson, 927 F.2d 1088, 1090 (9th Cir. 1991) abrogated on other grounds by W.R. Grace, 526 F.3d at 511 n.9). In Chapman, the court found flagrant prosecutorial misconduct where the government failed to produce material required by Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). Chapman, 524 F.3d at 1085. The government also failed to keep a log ...