Appendix — United States v. Loud Hawk

FILED

/

J

g4-13612) FEB 26 1985

No.

L. STEVAS

CLERK

In the Supreme Cont of the United States

OCTOBER TERM, 1984

UNITED STATES OF AMERICA, PETITIONER

Vv.

KENNETH MOSES LouD HAWK, ET AL.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REX E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

BRUCE N. KUHLIK

Assistant to the Solicitor General

KATHLEEN A, FELTON

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

Appendix A

Appendix B

Appendix C

Appendix D

Appendix E

Appendix F

Appendix G

Appendix H

Appendix I

Appendix J

Appendix K

Appendix L

TABLE OF CONTENTS

(Court of Appeals opinion dated 8/30/

84 as amended 1/29/85) ~......................

(Court of Appeals opinion dated 7/29/

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(District Court opinion dated 5/20/83) ..

(District Court amended order dated

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(District Court order dated 8/8/80)......

(District Court transcript of Motion to

Dismiss dated 5/12/76) _....000000000.

(District Court order Suppressing Evi-

dence dated 3/31/76) ...............000022200......

(Judgment dated 1/18/85) 00...

(Court of Appeals order dated 1/8/85) ..

(Chronology of Proceedings) ...................

Page

160a

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APPENDIX A

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

No. 83-3067

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

Vv.

KENNETH Moses Loup HAWK, RUSS JAMES REDNER,

DENNIS JAMES BANKS, and DARLENE PEARL NICH-

OLS, aka KAMOOK BANKS, DEFENDANTS-APPELLEES

Appeal from the United States District Court

for the District of Oregon

Argued and Submitted Jan. 4, 1984

Decided Aug. 30, 1984

[As Amended Jan. 29, 1985]

Before WALLACE and CANBY, Circuit Judges,

and CRAIG, District Judge.*

* The Honorable Walter Early Craig, Senior United States

District Judge for the District of Arizona, sitting by desig-

nation.

(la)

2a

CANBY, Circuit Judge:

This is the third interlocutory appeal arising from

the government’s efforts to prosecute these defendants.

Although it has been more than eight years since de-

fendants were originally arrested and indicted, they

still have not been brought to trial so that their guilt

or innocence may be determined. We are now asked

to decide whether the delay in bringing defendants to

trial has violated their constitutional right to a speedy

trial.

Z

The facts giving rise to the present charges and the

first two appeals in this case are adequately set forth

in our two previous opinions. See United States v.

Banks, 682 F.2d 841, 842-44 (9th Cir. 1982), cert.

denied, 459 U.S. 1117, 103 S.Ct. 755, 74 L.Ed.2d 972

(1983) ; United States v. Loud Hawk, 628 F.2d 1139,

1141-43 (9th Cir. 1979) (en banc), cert. denied, 445

U.S. 917, 100 S.Ct. 1279, 63 L.Ed.2d 602 (1980).

We merely summarize them here.

Defendants were arrested on November 14, 1975,

after being stopped by the Oregon State Police on the

basis of information supplied by the FBI. A search

of defendants’ vehicles pursuant to a valid search

warrant uncovered several firearms, a quantity of

what police believed to be dynamite, and apparatus

for the manufacture of time bombs. Rather than

preserving the dynamite or transferring it to a place

of safekeeping, the state authorities decided to destroy

it without notification to defendants.

On December 22, 1975, a federal grand jury re-

turned a five-count superseding indictment. The first

three counts related to defendants’ alleged possession

of dynamite (the dynamite counts), and the fourth

8a

and fifth charged defendants with unlawful posses-

sion of firearms (the nondynamite counts). Prior to

trial, defendants successfully moved for suppression

of any evidence relating to the destroyed dynamite.

The government sought immediate review of the sup-

pression order under 18 U.S.C. § 3731. The district

court, however, denied the government’s request for

a continuance to permit it to pursue its appeal of the

suppression order, and ordered that trial proceed as

scheduled on May 12, 1976. When the day for trial

arrived, the government announced it was not ready.

Because of the unwillingness of the government to

proceed to trial, the district court, acting pursuant to

Fed. R. Crim. P. 48(b), dismissed the indictment

with prejudice for unnecessary delay. The govern-

ment filed its notice of appeal in open court on the

same day.

We consolidated the two appeals, and a panel of

this court initially affirmed the dismissal. However,

at the instance of the government, we voted to take

the appeal en banc and reversed the suppression

order. In analyzing the propriety of the district

court’s order dismissing the indictment, we examined

the dynamite counts and the nondynamite counts sep-

arately. As to the former, we held that the delay

necessitated by the government’s appeal of the sup-

pression order had not been “unnecessary” for pur-

poses of Rule 48(b). United States v. Loud Hawk,

628 F.2d at 1149-50. Rather, we reasoned that the

delay was necessary to the meaningful exercise of

the government’s statutory right to appeal the sup-

pression order. As to the nondynamite counts, how-

ever, we held that the delay had been “unnecessary”

because the suppression of evidence relating to dyna-

mite had nothing to do with the nondynamite

4a

charges, which could have proceeded to trial. Jd. at

1150. Nevertheless, we decided that dismissal of the

nondynamite counts with prejudice was inappropriate

because the government had not been forewarned that

dismissal with prejudice would result from a failure

to proceed with the prosecution. Jd. at 1151. Ac-

cordingly, we ordered denial of defendants’ motion to

suppress, reinstatement of the dynamite counts, and

reconsideration of the dismissal of the nondynamite

counts insofar as the dismissal was with prejudice.

Following denial of certiorari, our mandate issued on

March 12, 1980, three years and ten months after

the indictment had been dismissed by the district

court and appeal taken therefrom by the government.

On remand, the district court, at the urging of

defendants, ruled that the nondynamite counts could

not simply be reinstated. Consequently, the govern-

ment was compelled to go back before the grand jury

and seek a second superseding indictment. The in-

dictment which resulted was returned on June 18,

1980. It again charged defendants with four of the

five original counts in the first superseding indict-

ment and in addition charged defendants with three

new counts. The addition of these new counts pre-

cipitated a defense motion to dismiss the indictment

for vindictive prosecution. On August 8, 1980, the

district court granted the motion as to KaMook Banks

and dismissed all counts in the indictment pertaining

to her. The motion as to the other defendants, how-

ever, was denied. The government appealed the dis-

missal as to KaMook Banks, and the other defendants

appealed the denial of the motion as to them. We re-

versed the dismissal as to KaMook Banks, except that

we upheld the dismissal of the added count; we

ordered all but the added count reinstated. United

5a

States v. Banks, 682 F.2d at 846. As to the other de-

fendants, we dismissed the appeal for lack of juris-

diction. Id. at 844. We denied defendant’s request

for rehearing, and the Supreme Court refused certio-

rari. Our mandate issued on January 31, 1983, two

years, five months after appeal was taken from the

district court’s order and seven years, two months,

and seventeen days after defendants were arrested.

Trial was rescheduled to being on April 11, 1983.

The government, however, successfully obtained a

continuance, over the objection of defendants, until

May 3, 1983. Subsequently, the court on its own mo-

tion continued the trial date until May 23, 1983. The

trial was then rescheduled for June 13, 1983, for

reasons not known to this court. Defendants objected

to each of these continuances.

On March 21, 1983, the defendants moved for dis-

missal on the ground that the delay in bringing them

to trial violated their right to a speedy trial guar-

anteed by the sixth amendment. By order of May 20,

19838, the district court granted defendants’ motion

and dismissed the indictment with prejudice. It con-

cluded that the appropriate period within which to

assess whether defendants had been denied their

speedy trial right was the entire ninety-one month

period between November 14, 1975 when defendants

were arrested and June 13, 1983 when trial was

finally set to begin. It reasoned that the entire period

of delay should be analyzed under the speedy trial

clause of the sixth amendment, rather than under the

due process clause of the fifth amendment, because at

all times during this period defendants were “ac-

cused” persons. Finding that the majority of the de-

lay in this case was attributable to the two interlocu-

tory appeals, the district court concluded that the

6a

seventy-five months consumed by the two appeals must

be weighed against the government. Moreover, it

found that defendants had adequately asserted their

right to a speedy trial, and that they had been prej-

udiced by having to live with unresolved criminal

charges for more than seven and one-half years and

by impairment of their ability to defend themselves.

II.

Although the right to a speedy trial asserted by de-

fendants is “one of the most basic rights preserved

by our Constitution,” Klopfer v. North Carolina, 386

U.S. 2138, 226, 87 S.Ct. 988, 995, 18 L.Ed.2d 1 (1967),

no per se test has been devised to determine when the

right has been violated. Instead, we must apply a

rather flexible “functional approach” that attempts

to give proper weight to the various interests at stake.

Barker v. Wingo, 407 U.S. 514, 522, 92 S.Ct. 2182,

2187, 33 L.Ed.2d 101 (1972). The primary factors

to be considered are the length of the delay, the rea-

sons for the delay, the degree to which defendants

asserted their right to a speedy trial, and the extent

of prejudice to the defendants caused by the delay.

Id. at 30-33, 92 S.Ct. at 2191-93.

A. Length of Delay

In order to determine the length of delay for sixth

amendment purposes, we must know when to begin

counting and when, if ever, to interrupt counting. It

is clear enough that the speedy trial clause does not

apply “before a defendant is indicted, arrested, or

otherwise officially accused.” United States v. Mac-

Donald, 456 U.S. 1, 6 (1982) (citing United States v.

Marion, 404 U.S. 307, 318, 92 S.Ct. 455, 459, 30 L Ed.

ctl Ra eS

Ta

2d 468 (1971)). We begin our count, theiefore, with

defendants’ arrest on November 14, 1975. The ques-

tion then is whether, and for what purposes, we

must interrupt it.

The government first contends that we must ex-

clude the periods during the interlocutory appeals

when the indictments had been dismissed and not yet

reinstated. During the first interlocutory appeal, the

indictment was dismissed as to all defendants on

May 12, 1976, and a superseding indictment was not

returned until June 18, 1980. During the second in-

terlocutory appeal, the superseding indictment was

dismissed as to KaMook Banks on*August 8, 1980,

and was not reinstated as to her until our mandate

issued on January 31, 1983.’ The government con-

tends that these periods must be excluded on the au-

thority of United States v. MacDonald, 456 U.S. 1,

102 S.Ct. 1497, 71 L.Ed.2d 696 (1982).

In MacDonald, the Supreme Court held that the

sixth amendment speedy trial clause did not apply to

delay during the period after charges were formally

dropped by the government and before renewed

charges were brought. It based this holding on the

purposes of the sixth amendment, in contrast to those

of the due process clause of the fifth amendment:

The Sixth Amendment right to a speedy trial

is ... not primarily intended to prevent preju-

dice to the defense caused by the passage of time;

that interest is protected primarily by the Due

Process Clause and by statutes of limitations.

The speedy trial guarantee is designed to mini-

1 The MacDonald rationale cannot be applied as far as the

second appeal concerns the other defendants because the

second superseding indictment remained pending as to them

during the time spent on their appeal.

8a

ibility of lengthy incarceration prior

rar ‘apawrons the lesser, but nevertheless sub-

stantial, impairment of liberty imposed on an

accused while released on bail, and to shorten the

disruption of life caused by arrest and the pres-

ence of unresolved criminal charges.

Id. at 8, 102 S.Ct. at 1502. Because the formal drop-

ping of charges by the government removes the dis-

abilities with which the sixth amendment is concerned,

it is no longer appropriate to apply that amendment.

Id. at 8-9, 102 S.Ct. at 1502. Delay while no charges

are pending is similar to delay prior to indictment,

and is to be measured by the due process standard

application to pre-indictment delay. Id. Due process

is not violated unless the delay has caused actual

prejudice to the conduct of the defense. United States

v. Marion, 404 U.S. 307, 325-26, 92 S.Ct. 455, 465-

66, 30 L.Ed.2d 468 (1971). No such prejudice need

be demonstrated as an essential prerequisite of a

sixth amendment claim. Moore v. Arizona, 414 U.S.

25, 26, 94 S.Ct. 188, 189, 38 L.Ed.2d 183 (1973)

curiam). ba

We sae of course, thece controlling principles,

but we do not find them applicable here because our

case is different from MacDonald. When the govern-

ment voluntarily dismisses pending charges, “a citizen

suffers no restraints on his liberty and is [no longer]

the subject of public accusation.” MacDonald, 456

U.S. at 9, 102 S.Ct. at 1502 (quoting Marion, 404

U.S. at 321, 92 S.Ct. at 464). The situation is quite

the contrary in the present case, where the indict-

ments were dismissed over the government's opposl-

tion and the government vigorously and successfully

sought to have them reinstated on appeal. While those

appeals were pending, the defendants were subject to

9a

precisely the burdens that the sixth amendment was

designed to protect against.

It is true that defendants were not incarcerated or

subjected to other restrictions on their liberty during

the time when the indictments had been dismissed.

They were, however, subject to the imposition of such

restraints at any time. Their freedom was far more

precarious than that of a person merely subject to

investigation but not indicted.

Most important, however, is the fact that defend-

ants’ interest in minimizing “the disruption of life

caused by arrest and the presence of unresolved crim-

inal charges,” id. at 8, 102 S.Ct. at 1502, continued

unabated during the interlocutory appeals. A formal

accusation, as by arrest, “may seriously interfere

with the defendant’s liberty, whether he is free on

bail or not, and . . . may disrupt his employment,

drain his financial resources, curtail his associations,

subject him to public obliquy, and create anxiety in

him, his family and his friends.” United States v.

Marion, 404 U.S. 320, 92 S.Ct. at 463. The public

accusation in this case clearly maintained its force

while the government prosecuted the appeals in order

to reinstate the charges against the defendants. The

appeals unequivocally stated the government’s inten-

tion to continue the prosecution and asserted its legal

grounds for doing so. Because the government’s ap-

peals after dismissal of the indictment bore the in-

dicia and imposed the disabilities of continued, for-

mal public accusation, we cannot escape the conclu-

sion that the defendants remained “accused” during

the periods when the government was appealing the

dismissals of their indictment

* United States v. Ciammitti, 720 F.2d 927 (6th Cir. 1983),

on which the government relies, is not contrary to our hold-

10a

The government next contends that, in any event,

the period consumed by the government’s own inter-

locutory appeals should be excluded, because other-

wise the government’s “absolute right” to appeal

would be impaired. The government grounds this

right in 18 U.S.C. § 3731, which authorizes appeals

by the government from district court orders dis-

missing indictments or granting motions to suppress

evidence.

Certainly the government is entitled to protection

of its statutory right of appeal. See United States v.

Booth, 669 F.2d 1231, 1241 (9th Cir. 1981). In our

view, however, it accords too little respect to the

right of speedy trial secured by the sixth amendment

to exclude entirely from consideration the time spent

on the government’s interlocutory appeals. If such

appeals are not even counted in the period of delay,

then “speedy” trials could be postponed for years or

decades, no matter how onerous the burdens borne

by the defendants in the meantime, and the sixth

amendment would not even be implicated. We reject

such a per se approach to the problem of delay caused

by interlocutory appeals.

It is true that two courts of appeals seem to have

adopted the government’s position. United States v.

Jackson, 508 F.2d 1001, 1004-05 (7th Cir. 1975) ;

United States v. Bishton, 463 F.2d 887, 890 (D.C.

Cir. 1972). Those cases did, however, admit of an

ing. There the government did not appeal the court-ordered

dismissal. During the period after dismissal and prior to

indictment, no charges were pending against defendants and

no appeal was being prosecuted. Defendants were therefore

not subject to the imposition of any restraints on their free-

dom and were not the subject of any public accusation of

guilt. r

lla

exception when the government’s appeal was taken

in bad faith, by neglect, or for purposes of delay.

Id.; see United States v. Saintil, 705 F.2d 415, 418-

19 (11th Cir. 1983). The periods of delay involved

were also much shorter than those present here. Even

so, it seems analytically more sound to count the time

taken by the government’s appeal within the period

of delay, and then to assess the justifications for that

appeal under the second step of the Barker v. Wingo

analysis: that dealing with “reasons for the delay.”

The importance of protecting the government’s statu-

tory right of appeal in a given cause can be weighed

and ultimately placed in the balance against the dam-

age to defendants’ sixth amendment interest. This

latter, more flexible methodology appears to have

been the one selected by the Fifth Circuit in United

States v. Herman, 576 F.2d 1139, 1146 (5th Cir.

1978), and we prefer it.*

We therefore calculate the delay in this case as

ninety months, the period from the arrest of defend-

ants until their indictment was last dismissed on

May 20, 1983,* some three weeks before their trial

was scheduled to begin. Ninety months is by any

account an extreme delay and by its very immensity

must weigh heavily in the ultimate balance. Since

’ This court seems to have applied the same approach as

the Fifth Circuit, without extended discussion, in United

States v. Cox, 475 F.2d 837, 841 (9th Cir. 1973) ; see United

States v. Osuna-Sanchez, 446 F.2d 566, 567 (9th Cir. 1971),

cert. denied, 404 U.S. 1022, 92 S.Ct. 698, 30 L.Ed.2d 672

(1972).

* We select May 20, 1983, as the ending date because it is

the date of the order of the district court that is the subject

of this appeal. We must review that order to determine

whether it was correct when made.

12a

this ninety-month delay is without question “pre-

sumptively prejudicial,” we proceed to the remaining

three steps of the Barker v. Wingo analysis.

B. Reasons for the Delay

Seventy-five months of the delay in this case can

be attributed to the two interlocutory appeals. The

first appeal taken by the government consumed forty-

six months; the second, in which both sides appealed,

consumed twenty-nine months. Our task is to ex-

amine the reasons for these delays and to determine

the degree to which they weigh against or in favor

of the government. Barker v. Wingo, 407 U.S. at

531, 92 S.Ct. at 2192.

In assessing the delay attending the first appeal,

we address the dynamite counts and the nondynamite

counts separately. With respect ‘to the nondynamite

counts, the delay for the interlocutcry appeal was

wholly unnecessary, as we pointed out in United

States v. Loud Hawk, 628 F.2d at 1150. The govern-

ment appealed to overturn the order of the district

court suppressing evidence relating to the dynamite;

there was no reason why the government could not

have gone forward with prosecution of the nondyna-

mite charges. While a single trial doubtless would

have been more convenient for the government, that

convenience must be judged a slight reason for in-

curring the substantial delay of forty-six months.

The postponement of trial of the nondynamite charges

during the first appeal consequently weighs heavily

against the government.

The government’s reasons for appealing the sup-

pression order relating to the dynamite charges are

substantial, in light of “the necessity of the appealed

question to the government’s case, the strength of the

13a

government’s position on that issue, and the serious-

ness of the crime.” United States v. Herman, 576

F.2d at 1146. The suppressed evidence was crucial

to the government’s case on the dynamite charges.

The strength of the government’s position was dem-

onstrated by its success in the appeal. The crimes

charged were serious. The government’s action in

taking the appeal was therefore clearly justified, and

would of itself support a reasonable delay. The prob-

lem is that this appeal took forty-six months.

While some of this appellate delay can be attrib-

uted to defendant’s unsuccessful petition for certio-

rari,” most of the delay must be attributed to the

processes of this court. Even in light of the heavy

docket and limited membership of this court at that

time, and of the fact that the difficult issues presented

were ultimately taken en banc, the appeal took an

extraordinarily long period of time. The government,

of course, could do nothing about that problem. It

is therefore a “neutral” reason for delay, similar to

congestion in the trial court. See Barker v. Wingo,

407 U.S. at 531, 92 S.Ct. at 2192. Such neutral rea-

sons, however, are to be weighed against the govern-

ment, although not as heavily as some others, “since

the ultimate responsibility for such circumstances

must rest with the government rather than with the

defendant.” Jd. In other words, courts can deprive

defendants of the right of speedy trial just as prose-

cutors can. The forty-six month delay attending the

government’s appeal of the suppression order conse-

quently weighs against the government.

5 Defendants’ petitions for rehearing and certiorari con-

sumed only six months. The delay attributable to this factor

is insignificant in the context of a total delay of forty-six

months.

14a

The second interlocutory appeal took twenty-nine

months. Three of the defendants appealed the dis-

trict court’s order denying their motion to dismiss

for vindictive prosecution. The government appealed

the dismissal! of the indictment as to KaMook Banks.

Again, the government’s appeal was justified and it

succeeded in obtaining the relief it sought.

Three of the defendants were themselves appellants

in the second interlocutory appeal. Authority pro-

vides little guidance for evaluation of delay caused by

defendants’ appeals, but the same elements appear

to be relevant. In applying them, however, care must

be taken to guard against defendants’ manufacturing

delay for purposes of a later speedy trial claim. Ap-

peals taken in bad faith or for purposes of delay must

weigh against defendants in the sixth amendment

balance, as should appeals taken with little merit

or hope of success. The interlocutory appeals taken

by defendants here have not been shown to have been

taken in bad faith or for delay. They were dismissed

ultimately as improper interlocutory appeals, but that

result was dictated by the intervening decision of

United States v. Hollywood Motor Car Co., 458 U.S.

263, 102 S.Ct. 3081, 73 L.Ed.2d 754 (1982). At the

time the appeals were taken, the law of this circuit

permitted appeals from an order denying dismissal on

grounds of vindictive prosecution. United States v.

Burt, 619 F.2d 831 (9th Cir. 1980). While defend-

ants were not compelled to appeal prior to trial un-

der the circuit law, they had a right to do so, and

that right is entitled to protection. The issue being

appealed was certainly important to their defense.

Their appeal was justifiable, and we conclude that

the delay attending it in this court should therefore

not be weighed against defendants.

ne ——

15a

We also conclude, however, that the time taken

for normal handling of the appeal that defendants

elect to pursue before trial ought not to weigh against

the government either. If the court’s own processes

unduly delay the appeal, that “neutral” reason must

weigh lightly against the government. There was no

such undue delay here in the twenty-three months

from notice of appeal to decision by this court. To

that point, therefore, the reasons for the delay caused

by defendants’ interlocutory appeal weigh for or

against neither side.

The additional delay of six months that occurred

as a result of the defendants seeking certiorari from

the judgment of this court dismissing the appeal can-

not be viewed as neutral. In light of the recent de-

cision of Hollywood Motor Car Co. by the Supreme

Court, and in light of this court’s total reliance on

it, the chances of defendants’ obtaining review by

certiorari were virtually nil. That portion of the de-

lay must be wholly excused.

C. Assertion of Speedy Trial Right

The district court found that the defendants ob-

jected to the delay as early as May 12, 1976, when

the government announced that it was not ready to

proceed to trial. After each remand from this court,

defendants moved the district court to dismiss the

indictment on the grounds of unnecessary delay and

violation of their speedy trial right. Finally, defend-

ants objected to every continuance of their trial date

after the last remand. These assertions of defendants

are “entitled to strong evidentiary weight” in deter-

mining whether their rights to a speedy trial have

been denied. Barker v. Wingo, 407 U.S. at 531-32,

92 S.Ct. at 2192-93.

16a

D. Prejudice to Defendants

The kind of prejudice that the speedy trial clause

is primarily intended to prevent is personal prejudice:

“lengthy incarceration prior to trial, . . . the lesser,

but nevertheless substantial impairment of liberty im-

posed on an accused while released on bail, and.. .

the disruption of life caused by arrest and the pres-

ence of unresolved criminal charges.” United States

v. MacDonald, 456 U.S. at 8, 102 S.Ct. at 1502. The

defendants here were incarcerated only for short peri-

ods, and were released without restriction during

almost all of the period of delay. They have had to

live for seven and one-half years with the anxiety of

unresolved criminal charges, and the social disruption

that accompanies that condition. They have therefore

suffered some personal prejudice.

The district court also found that defendants had

suffered prejudice to the conduct of their defense be-

cause of the inordinate delay. While prejudice to the

defense is not the primary concern of the speedy trial

clause, it is not irrelevant. See Barker v. Wingo, 407

U.S. at 532, 92 S.Ct. at 2193.° The district court

based its finding of prejudice on the fact that wit-

nesses had died and at least two others no longer

© We do not regard United States v. MacDonald, 456 U.S.

at 8, 102 S.Ct. at 1502, to have overruled sub silentio that

part of Barker v. Wingo that renders prejudice to the conduct

of the defense a relevant consideration. MacDonald empha-

sized that the sixth amendment is not “primarily intended to

prevent prejudice to the defense caused by passage of time.”

MacDonald, 456 U.S. at 8, 102 S.Ct. at 1502 (emphasis added).

MacDonald neither held nor, we think, intended that prejudice

to the defense could never be a factor in sixth amendment

speedy trial analysis. See id. at 23, 102 S.Ct. at 1509 (Mar-

shall, J., dissenting).

A ee. oD het Si YE AP

17a

recalled the events in issue. The government contends

that there is no showing that these witnesses would

have been favorable to the defense, and also argues

the defendants made no attempt to depose the wit-

nesses.

The showing of prejudice to the defense is some-

what speculative, partly because of the inherent diffi-

culty of predicting the effect of the death or loss of

memory of witnesses on a trial not yet held. See

United States v. MacDonald, 435 U.S. 850, 858-59,

98 S.Ct. 1547, 1551-52, 56 L.Ed.2d 18 (1978). We

therefore place little weight on this factor in the

Barker v. Wingo balance. We do not, however, dis-

count entirely the impairment of a fair trial that may

well result from the absence or loss of memory of

witnesses in this case. See Barker v. Wingo, 407 U.S.

at 532, 92 S.Ct. at 2193; United States v. Macino,

486 F.2d 750, 754 (7th Cir. 1973). We also note,

once again that prejudice to the defense is not an

essential element of a sixth amendment speedy trial

claim. Moore v. Arizona, 414 U.S. at 26, 94 S.Ct. at

189.

III.

Balancing the four Barker v. Wingo factors to de-

termine whether there has been a violation of the

sixth amendment is far from an exact science. None

of the factors is “either a necessary or sufficient con-

dition to the finding of a deprivation of the right.”

Barker v. Wingo, 407 U.S. at 533, 92 S.Ct. at 2193.

After weighing all four factors, however, we conclude

that defendants’ speedy trial right has been violated.

The most weighty factor by far is the length of

delay. We are confronted with a seven and one-half

year delay (which incidentally would become closer to

nine years if we remanded for trial). The Supreme

18a

Court in Barker v. Wingo described the five year de-

lay there as “extraordinary” and found the case to be

“close” even though there was a minimal showing of

prejudice and the defendant did not want a speedy

trial. The far longer delay here is more than enough

to tip the balance in the circumstances of this case.

It is manifest that prejudice, always a difficult

thing to ascertain, must, at some point, be pre-

sumed to result from an inordinate delay in

bringing a defendant to trial. Exactly where

that point lies on the spectrum of pretrial delay

is uncertain, but it is clear that the longer the

delay, the heavier the weight to be given it in

the balance.

United States v. Macino, 486 F.2d 750, 752 (7th Cir.

1973) ; see United States v. Holt, 448 F.2d 1108, 1109

(D.C. Cir.), cert. denied, 404 U.S. 942, 92 S.Ct. 292,

30 L.Ed.2d 256 (1971).

The other three Barker v. Wingo factors also con-

tribute, on balance, to our conclusion that defendants’

speedy trial rights have been violated in this case.

The reasons for a large part of the delay weigh

against the government, even though to a substantial

degree it was court delay. The defendants asserted

their rights to a speedy trial. Finally, personal preju-

dice, while minimal in comparison with that resulting

from lengthy incarceration, was nevertheless present.

Prejudice to the conduct of the defense is also likely,

but the balance tips sharply in defendants’ favor

without it.

The district court was correct in concluding that

trial would violate the sixth amendment rights of the

defendants. Its order dismissing the indictment with

prejudice is AFFIRMED.

/

{

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19a

WALLACE, Circuit Judge, dissenting:

I dissent. The majority has misconstrued United

States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71

L.Ed.2d 696 (1982) (MacDonald), which applies in

this case to exclude from the sixth amendment meas-

urement of speedy trial the periods between live in-

dictments against the defendants.

I

The majority observes that the speedy trial clause

did not apply in MacDonald between the government’s

good faith voluntary dismissal of military charges

and a subsequent civil indictment. This does not

mean, as the majority holds, that MacDonald fails to

apply to involuntary dismissals or dismissals from

which the government appeals. The Supreme Court,

in a general statement of its holding, said: “Any un-

due delay after charges are dismissed, like any delay

before charges are filed, must be scrutinized under

the Due Process Clause, not the Speedy Trial Clause.”

Id. at 7, 102 S.Ct. at 1501. Nowhere in the remainder

of its opinion is there any hint that the Court meant

only voluntary dismissals. See id. at 7-11, 102 S.Ct.

at 1501-1503. On the contrary, in a footnote it com-

mented “[o]ur holding agrees with . . . the Speedy

Trial Act of 1974, .. . that if charges are initially

dismissed and later reinstated, the period between the

dismissal and the reinstatement is not to be included

in computing the time within which a trial must com-

mence. 18 U.S.C. §§3161(d), 3161(h)(6).” 456

U.S. at 7 n.7, 102 S.Ct. at 1501 n.7. Section 3161 (h)

(6) applies only to voluntary dismissals by the gov-

ernment. Section 3161(d), however, applies to dis-

missals on the motion of a defendant, “any charge

20a

contained in a complaint filed against an individual

. . . dismissed or otherwise dropped,” and dismissals

“by a trial court and reinstated following an appeal.”

For the MacDonald holding to agree, as it says it

does, with section 3161(d), the theory of its holding

must include dismissals other than voluntary dis-

missals by the government.

Later in the same footnote, the Supreme Court cited

with apparent approval a number of Speedy Trial

Act cases that excluded the period after dismissal of

initial charges in counting time. See 456 U.S. at 7-8,

n.7, 102 S.Ct. at 1501-1502 n.7. Among them was

United States v. Bishton, 463 F.2d 887 (D.C. Cir.

1972), where the government charged the defendant

in the District of Columbia Court of General Sessions,

appealed and lost after dismissal of the charges, and

then brought the same charges in federal district

court. See id. at 889, 891. This citation reinforces

the clear meaning of MacDonald: delay after a dis-

missal of charges does not normally count for sixth

amendment speedy trial purposes.

Applying the MacDonald rule to this case, the

period from November 14, 1975 to May 12, 1976

counts for sixth amendment purposes for all defend-

ants. A live indictment stood against them during

that six-month period from arrest to dismissal of the

indictment with prejudice. The period from March

12, 1980 (for the dynamite matters) and June 18,

1980 (for the nondynamite matters) to May 30, 1983

counts for sixth amendment purposes for all defend-

ants except KaMook Banks. Live indictments stood

against those defendants during that roughly three-

year period from our reinstatement of the dynamite

counts and the superseding indictment’s reinstate-

ment of the nondynamite counts until dismissal of the

. ne wat 6

ee ee ee |

2la

indictment with prejudice again. The time between

1976 and 1980 when no live indictment stood against

the defendants after the first dismissal with prejudice

does not count for sixth amendment purposes under

the MacDonald rule. The time between August 30,

1980 and January 31, 1983, when no live indictments

stood against Kamook Banks does not count as to her

for sixth amendment purposes under MacDonald.

Thus, the speedy trial clause time for most of the

defendants totaled approximately three and a half

years. The speedy trial clause time for Kamook

Banks totaled slightly more than one year.

According to MacDonald, the sixth amendment

guarantee of a speedy trial “is designed to minimize

the possibility of lengthy incarceration prior to trial,

to reduce the lesser, but nevertheless substantial, im-

pairment of liberty imposed on an accused while re-

leased on bail, and to shorten the disruption of life

caused by arrest and the presence of unresolved crim-

inal charges.” 456 U.S. at 8. These concerns did not

apply to the defendants during the times after dis-

missals when no live indictments were outstanding

against them. They were not incarcerated then. They

were not hobbled by bail then. They were not under

arrest then. Had the district court imposed bail pend-

ing the appeals, see 18 U.S.C. § 3731, that restriction

might have triggered the running of time for purposes

of the speedy trial clause, but the defendants did not

have to post bail. These facts indicate that excluding

the times after dismissal when no live indictments

stood against the defendants in this case comports

both with the letter of the MacDonald rule and the

purposes of the sixth amendment.

The majority argues that because the defendants

“were ... subject to the imposition of such restraints

22a

at any time” during the appeals of the dismissed in-

dictments, the sixth amendment applies to those peri-

ods. That contention is inconsistent with MacDonald

where the Supreme Court distinguished Klopfer v.

North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.

2d 1 (1967) (Klopfer), on grounds that the prose-

cutor in that case could activate the charges and

restore the case for trial “ ‘without further order’ of

the court.” MacDonald, 456 U.S. at 8-9, n.8, 102 S.Ct.

at 1502, n.8, quoting Klopfer, 386 U.S. at 214, 87

S.Ct. at 989. Contrary to Klopfer, imposition of re-

straints pending appeal on the defendants in this case

would require “ ‘further order’ of the court.” They

were in essentially no worse position than before their

first arrest when the government had discovered prob-

able cause but not yet successfully acted on it.

The Constitution provides “the accused shall enjoy

the right to a speedy .. . trial.” U.S. Const. amend.

VI. The Supreme Court recently stated in United

States v. Gouveia, —— USS. : , 104 S.Ct.

2292, 2297, 81 L.Ed.2d 146 (1984) (citations

omitted) (Gouveia), that this right “may attach be-

fore an indictment and as early as the time of ‘arrest

and holding to answer a criminal charge.’” But even

Gouveia does not assist the defendants because the

most public investigation, promise to prosecute, or

government statement of criminal conduct does not

reach the required threshold; the government had not

imposed its formal power directly on any alleged

wrongdoer. As United States v. Marion, 404 U.S.

307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971)

(emphasis added) (Marion), holds: “it is either a

formal indictment or information or else the actual

restraints imposed by arrest and holding to answer a

criminal charge that engaged the particular protec-

rts hs —

23a

tions of the speedy trial provision ... .” Accord, e.g.,

United States v. Mills, 641 F.2d 785, 787 (9th Cir.),

cert. denied, 454 U.S. 902, 102 S.Ct. 409, 70 L.Ed.2d

221 (1981). The government’s public intent to prose-

cute and its efforts on appeal to cbtain the legal au-

thority to do so did not constitute an exercise of

formal power directly on the alleged wrongdoers. Be-

cause the government did not seek bail, no actual

restraints were imposed. * °° misreading MacDonald,

the majority has incorrectly extended the sixth amend-

ment beyond these limits imposed by the Supreme

Court.

II

Even after properly excluding part of the delay in

this case under the MacDonald rule, a clear sixth

amendment question remains. Three and a half years,

the relevant period for most of the defendants, is a

suspect delay. See Moore v. Arizona, 414 U.S. 25, 27,

94 S.Ct. 188, 190, 38 L.Ed.2d 183 (1973). One year,

the relevant period for Kamook Banks, is less sus-

pect but I will assume for purposes of this appeal that

it is also adequate to trigger the balancing test of

Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33

L.Ed.2d 101 (1972) (Barker). See id. at 530-31 &

n.31, 92 S.Ct. at 2191-92 & n.31.

In Barker, the Supreme Court identified four ma-

jor factors for resolving a constitutional speedy trial

claim. “Length of delay, the reason for the delay,

the defendant’s assertion of his right, and prejudice

to the defendant.” Jd. at 530, 92 S.Ct. at 2192. Since

Barker, the Supreme Court has reduced the last of

these factors—prejudice—to, at best, minimal im-

portance. See MacDonald, 456 U.S. at 8, 102 S.Ct.

at 1502. As foreshadowed as long ago as Marion, see

a

24a

404 U.S. at 324, 92 S.Ct. at 465, “prejudice to the

defense caused by passage of time . . . is protected

primarily by the Due Process Clause and by statutes

of limitations,” MacDonald, 456 U.S. at 8, 102 S.Ct.

at 1502. See also, e.g., United States v. Lovasco, 431

U.S. 783, 788-89, 97 S.Ct. 2044, 2047-48, 52 L.Ed.2d

752 (1977); Fed. R. Crim. P. 48(b).

The defendants in this case adequately asserted

their rights to a speedy trial. As a result, the length

of delay and reasons for delay amount to the most

important factors for speedy trial analysis. Of the

three and a half year period applicable to most of the

defendants, almost two years involved their own ap-

peal from the district court’s denial of their motion

to dismiss for vindictive prosecution. As the majority

must concede, this period should not weigh against

the government. The majority must also concede that

the six months wasted by the defendants seeking re-

hearing en bance and certiorari in the face of new,

directly controlling Supreme Court precedent, e.g.,

United States v. Hollywood Motor Car Co., 458 U.S.

263, 102 S.Ct. 3081, 73 L.Ed.2d 754 (1982), at least

cannot weigh against the government. Such essen-

tially frivolous petitions, see generally, é.g., Baker,

A Practical Guide to Certiorari, 33 Cath. U. L. Rev.

611, 616-21, 622-23 (1984), should weigh against the

defendants. But even considering that six month

period as neutral, only one year remains that might

possibly weigh against the government. Of that

period, forty-one days are attributable to a trial date

continuance ordered by the district court on its own

motion. Given the complexity of this case, the time

necessary to prepare all trial matters and the addi-

tional time necessary to prepare for trial again after

interlocutory appeal, I cannot say that, on balance,

— oom ao

Oe et eto tk

25a

this one year of delay violated the defendants’ sixth

amendment rights to a speedy trial.

Kamook Banks’s case is less close. Of the slightly

more than one year relevant to sixth amendment

analysis, she wasted a good portion seeking certiorari

along with the other defendants. I cannot say the

remaining period violated her sixth amendment right

to a speedy trial.

III

Because the district court failed to apply the Mac-

Donald rule to exclude for sixth amendment purposes

the periods between live indictments against the de-

fendants, we should at least remand for reconsidera-

tion. The district court abused its discretion, see

United States v. Mills, 641 F.2d at 787; United States

v. Simmons, 586 F.2d .827, 832 (9th Cir.), cert.

denied, 429 U.S. 854, 97 S.Ct. 148, 50 L.Ed.2d 130

(1976), by dismissing the last indictment on speedy

trial grounds based on such an erroneous calculation

of delay. Because I find the record sufficient to con-

clude that the remaining delays are largely excusabie

under the balancing test of Barker, I would prefer

not to delay the resolution of this case further but

to reverse and remand for trial.

26a

APPENDIX B

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

Nos. 80-1574, 80-1582, 80-1583 and 80-1630

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

Vv.

DENNIS JAMES BANKS, DEFENDANT-APPELLANT

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

v.

Russ REDNER, DEFENDANT-APPELLANT

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

Vv.

KENNETH Moses Loup HAWK, DEFENDANT-APPELLANT

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

Vv.

KA-MO0O0K BANKS, DEFENDANT-APPELLEE

Appeal from the United States District Court

for the District of Oregon

( ed & Geen —

rh eee Sey

|

:

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27a

Argued and Submitted Jan. 7, 1981

Decided July 29, 1982

Rehearing and Rehearing En Banc Denied

Oct. 5, 1982

Before KENNEDY, FERGUSON and REIN-

HARDT, Circuit Judges.

REINHARDT, Circuit Judge.

Defendants Dennis Banks, Russ Redner and Ken-

neth Moses Loud Hawk appeal from an order of the

district court denying their motion to dismiss their

indictment on the ground of vindictive prosecution.

The Government cross-appeals from the same order,

which dismissed the entire indictment as to defendant

Ka-Mook Banks. However, the Government does not

contest the district court’s dismissal of Count VII of

the indictment as to Ka-Mook Banks,’ see Opening

Brief of Plaintiff-Appellant 38 n.22;* rather, the

Government contends only that it was error for the

district court to dismiss the entire indictment against

Ka-Mook Banks where the court’s finding of an un-

dispelled appearance of vindictiveness was based solely

on the addition of one new count to a superseding in-

dictment. The events ‘eading to the initiation of this

1 Count VII of the indictment is applicable only to Ka-

Mook Banks and Count VI is applicable only to Dennis Banks.

Counts I through V of the indictment are applicable to all

defendants. See infra note 4.

2 The United States’ brief states that “the Government is

not appealing the district court’s ruling on the new gun

count.” The Government’s explanation for its decision is its

desire “to avoid further complicating this appeal and in the

interest of avoiding further delay in this already protracted

litigation... .”

28a

prosecution more than five years ago are recounted in

detail in the court’s previous en bance decision. United

States v. Loud Hawk, 628 F.2d 1139, 1141-44 (9th

Cir. 1979) (en banc), cert. denied, 445 U.S. 917, 100

S.Ct. 1279, 63 L.Ed.2d 602 (1980).

Loud Hawk, Redner, and Ka-Mook Banks were ar-

rested by Oregon state police in November of 1975,

after the FBI had notified Oregon authorities of their

possible presence in the state. The vehicles in which

the appellants were travelling were impounded and

subsequently searched pursuant to a state warrant.

The search disclosed firearms, ammunition, one elec-

tric blasting cap, a large quantity of non-electric

blasting caps, and material thought by state police

conducting the search to be dynamite. United States

v. Loud Hawk, 628 F.2d at 1142-46. State authori-

ties subsequently decided that the explosive material

should be destroyed, and this was done in the presence

of an FBI agent, who photographed the process.

A five count superseding indictment was brought

on December 22, 1975, charging all defendants with

three counts relating to possession and transportation

in commerce of an unregistered destructive device

and one count of transporting firearms, and charging

Dennis Banks alone with one count of being a felon

in possession of firearms. Two days later the defend-

ants filed a motion seeking dismissal of the indict-

ment, or alternatively, suppression of any secondary

evidence relating to the alleged destructive device, in

light of the destruction of the explosive material

which was a significant component thereof. Judge

Belloni initially denied this motion, but on recon-

sideration and after a hearing, he granted the mo-

tion to suppress. The Government filed a notice of

appeal from this order, and at the same time re-

quested a continuance of the trial date, at that time

29a

less than a month off. The Government argued that

a continuance was necessary in order to effectively

preserve its right to appeal the suppression order.

The motion for a continuance was denied. When the

case was called for trial on May 12, 1976, the Govern-

ment answered not ready; pursuant to Federal Rule

of Criminal Procedure 48(b), Judge Belloni dismissed

the indictment with prejudice.

The district court’s decision was affirmed by a panel

of this court. Application for an en banc considera-

tion was made and granted, and this court en banc

remanded to the district court for 45 days for an

evidentiary hearing on the nature and extent of the

federal government’s participation in the destruction

of the explosive material. This court retained juris-

diction of ae case. Order of Remand, March 6, 1978.

The district court held the evidentiary hearing and

made findings of fact, as directed in the order of

remand. This court, sitting en banc, then reviewed

the orders of the district court in light of the hearing

on remand and reversed both the suppression order

and the dismissal of the indictment with prejudice.

United States v. Loud Hawk, 628 F.2d at 1146-51.

In our opinion, we distinguished the counts relating

to the destructive device from those involving fire-

arms violations. As to the former, we concluded that

it was error to dismiss for “unnecessary delay” under

Federal Rule of Criminal Procedure 48(b) where the

delay was “necessary to permit the meaningful exer-

cise of [the Government’s] statutory right” to appeal

under 18 U.S.C. $3731. Id. at 1150. The district

court was instructed to reinstate these counts follow-

ing remand. We stated, however, that this rationale

did not encompass the firearms counts. As to those

counts, we said that dismissal was proper, but held

80a

that the district court had failed to give the Govern-

ment the requisite “forewarning . . . that dismissal

with prejudice will result from a failure to proceed

to trial.” Id. (emphasis added). We thus reversed

the dismissal with prejudice and remanded to the dis-

trict court “for further consideration of its dismissal

of these counts in light of this opinion.” Jd. at 1151.

Upon remand, the defendants urged, and the dis-

trict court subsequently held, that the firearms counts

could not simply be reinstated. The Government then

decided to obtain a new indictment from the grand

jury, which it did on June 18, 1980. The new indict-

ment re-charged Dennis Banks with being a felon in

possession of firearms. It also re-charged all of the

defendants with the original firearms count (al-

though it substituted “receiving” for “transporting” )

and two of the original three destructive device counts.

However, the new indictment also charged all of the

defendants with two new destructive device counts

relating to a different type of destructive device.’ It

also charged Ka-Mook Banks with an entirely new

count of receiving firearms while under indictment

for a felony, (Count VII).

It was this new indictment that prompted the mo-

tion to dismiss for vindictive prosecution which we

consider here. Judge Redden granted the motion as

to appellee Ka-Mook Banks, finding that the Govern-

ment had failed to dispel the appearance of vindic-

tiveness created by the addition of the new firearms

®The destructive device which was the subject of the

original indictment and which was recharged in the new

indictment was described as containing an “electrical blasting

cap,” while the destructive device added in the new indict-

ment was described as containing “150 Atlas non-electric

blasting caps.”

3la

count against her. He denied the motion as to the

remaining defendants, finding that the new counts

relating to the additional destructive device were “a

product of independent judgment of subsequent prose-

cutors,” a circumstance that he concluded dispelled

the appearance of vindictiveness.

The Government appeals the dismissal of counts I

through V of the indictment as to Ka-Mook Banks.

Redner, Loud Hawk and Dennis Banks appeal the

denial of their motion to dismiss the indictment as to

them. The Government contends that the appearance

of vindictiveness was dispelled in Ka-Mook Banks’

case because the new indictment was the product of

the independent judgment of subsequent prosecutors.

The other defendants argue that there was an un-

dispelled appearance of vindictiveness in their cases

for the same reason as there was in the case of Ka-

Mook Banks, and that the new indictment should be

dismissed as to them also.

I

This court does not have jurisdiction under 28

U.S.C. § 1291 to review the district court’s interlocu-

tory order refusing to dismiss the indictment on the

ground of vindictive prosecution. United States v.

Hollywood Motor Car Co., U.S. ——, 102 S.Ct.

3081, 73 L.Ed.2d 754 (1982) (per curiam). The

appeals of Dennis Banks, Russ Redner, and Kenneth

Moses Loud Hawk are dismissed.

II

The district court dismissed all six counts in the

indictment pertaining to Ka-Mook Banks because it

found that the Government’s action in adding an addi-

tional count (Count VII) against Ka-Mook Banks in

32a

the new indictment gave rise to the undispelled ap-

pearance of vindictiveness. The Government does not

contest the dismissal of Count VII, but rather only

the dismissal of the remaining counts in the indict-

ment. The Government argues that when the appear-

ance of vindictiveness results from the addition of a

new count to a superseding indictment, the proper

remedy is to dismiss only the added count and to

leave the remaining counts intact. The Government

therefore asks that we vacate the portion of the dis-

trict court’s order that dismisses Counts I through V

as to Ka-Mook Banks and that those counts be ordered

reinstated. We have jurisdiction over the Govern-

ment’s appeal pursuant to 18 U.S.C. § 3731, which

provides that “[i]n a criminal case an appeal by the

United States shall lie to a court of appeals from

a[n] .. . order of a district court dismissing an

indictment ... as to any one or more counts... .”

The Government raises the question of the appro-

priate scope of the remedy for vindictive prosecution

in a peculiar procedural setting—a setting that makes

it unnecessary for us to reach that troublesome and

important question. At the time the district court

dismissed the indictment as to Ka-Mook Banks, both

the district court and the parties assumed that a pre-

trial action of the prosecutor that increased the risk

of punishment after the exercise of a right by the de-

fendant gave rise, ipso facto, to an appearance of

vindictiveness, and that dismissal of the indictment

was required unless the prosecutor rebutted or dis-

pelled that appearance.‘ After the Government had

* The court and the parties properly relied on the law of

this circuit as it stood at the time. See, e.g., United States

v. Burt, 619 F.2d 831 (9th Cir. 1980) ; United States v. Griffin,

a Rl ei ine 5 taconite

33a

appealed, and the case had been argued, the Supreme

Court held in United States v. Goodwin, —— U.S.

, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982), that a

presumption of vindictiveness was not warranted

simply because, prior to an initial trial, the charge

against a defendant was increased from a misde-

meanor to a felony following the defendant’s request

for a jury trial.

In rejecting the defendant’s argument that a pre-

sumption of vindictiveness was warranted whenever

the Government had increased the risk of punishment

after the defendant had exercised a procedural right,

the Court in Goodwin emphasized that “[a] prose-

eutor should remain free before trial to exercise the

broad discretion entrusted to him to determine the

societal interest in prosecution. An initial decision

should not freeze future conduct. ... [T]he initial

charges filed by a prosecutor may not reflect the

extent to which an individual is legitimately subject

to prosecution.” Id. at , 102 S.Ct. at 2493

(emphasis added). The Court distinguished the two

cases in which it had applied a presumption of vin-

dictiveness, North Carolina v. Pearce, 395 U.S. 711,

89 S.Ct. 2072, 23 L.Ed.2d 656 (1968) and Blackledge

v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628

(1972), on the ground that both “involved the de-

fendant’s exercise of a procedural right that caused

a complete retrial.” Id. U.S. at ——, 102 S.Ct.

at 2490.

Although the Court in Goodwin refused to apply a

presumption of vindictiveness to the pretrial actions

of the prosecution in that case, the Court recognized

617 F.2d 1342 (9th Cir.), cert. denied, 449 U.S. 863, 101

S.Ct. 167, 66 L.Ed.2d 80 (1980).

34a

“that a defendant in an appropriate case might ob-

jectively prove that the prosecutor’s charging decision

was motivated by a desire to punish him for doing

something that the law plainly allowed hirn to do.”

Id. at , 102 S.Ct. at 2494. Following the Court’s

decision in Goodwin, we reversed an order dismissing

an indictment on the ground of pretrial prosecutorial

vindictiveness, United States v. Gallegos-Curiel, 681

F.2d 1164 (9th Cir. July 21, 1982), saying “there

must be a threshold showing of vindictiveness or the

likelihood of it before the court is justified in inquir-

ing into the prosecutor’s actual motives.” Id... at

1169. We held that “av: appearance of vindictiveness

results only where, as a practical matter, there is a

realistic or reasonable likelihood of prosecutorial con-

duct that would not have occurred but for hostility or

a punitive animus towards the defendant because he

has exercised his specific legal rights.” Jd. at 1169.

If, as in Goodwin and Gallegos-Curiel, there is not

a reasonable likelihood of vindictiveness when the

prosecutor decides to increase charges based on his

review of the evidence prior to trial because he has

simply come to realize that information possessed by

the State has a broader significance,” Goodwin,

U.S. at , 102 S.Ct. at 2493, there is even less

likelihood of vindictiveness when the prosecutor is

required by court order to obtain a new indictment.

In the latter case the prosecutor will necessarily have

to review the evidence and reconsider what charges

to present to the grand jury.

In this case the prosecutor clearly had a legitimate

reason to reconsider the scope and content of the new

pretrial indictment. Long after the original indict-

ment was obtained, but before any trial had been held,

the Government was compelled by court order to ob-

35a

tain a new indictment and to present witnesses and

evidence to a new grand jury. Under these circum-

stances, we cannot say that there is a “realistic or

reasonable likelihood of prosecutorial conduct that

would i.ot have occurred but for hostility or punitive

animus toward the defendant ....” Gallegos-Curiel,

at 1169.

We are aware that there have been many hotly con-

tested disagreements between the parties during the

lengthy proceedings that have marked the Govern-

ment’s thus far unsuccessful efforts to bring this case

to trial. However, our conclusion that the “reason-

able likelihood” requirement was not met is buttressed

by some of the findings made by the district court at

the time of the vindictive prosecution hearing. The

district court specifically said “there is no evidence

that the Government’s action was vindictive in fact

... nor did I find that the Government acted with a

malicious or retaliatory motive.” Amended Order,

August 12, 1980 (emphasis in original). In light of

the holdings in Goodwin and Gallegos-Curiel and the

statements of the district court, we conclude, with the

benefit of hindsight, that the dismissal of the indict-

ment as to Ka-Mook Banks was erroneous.

As noted above, the Government does not contest

the portion of the district court’s order dismissing

Count VII; rather, the Government asks only that

we order Counts I through V reinstated. That por-

tion of the order dismissing Counts I through V as to

Ka-Mook Banks is vacated and Counts I through V

are hereby ordered reinstated.

Order REVERSED IN PART as to Ka-Mook

Banks; appeals of Dennis Banks, Redner, and Loud

Hawk are DISMISSED for lack of jurisdiction.

86a

APPENDIX C

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

Nos. 76-1906, 76-2127

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

Vv.

KENNETH Moses Loup HAWK, RUSS JAMES REDNER,

LEONARD PELTIER, DENNIS JAMES BANKS, DAR-

LENE£ PEARL NICHOLS, who gives her true name as

KAMOOK BANKS, and ANNA MAE AQuasH, also

known as ANNIE May Pictou and NAGUSET EASK,

DEFENDANTS-APPELLEES

Appeal from the United States District Court

for the District of Oregon

Aug. 7, 1979

Rehearing Denied Oct. 1, 1979

Certiorari Denied March 3, 1980

See 100 S.Ct. 1279

a

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Before BROWNING, ELY, HUFSTEDLER, WRIGHT,

TRASK, CHOY, GOODWIN, WALLACE, KENNEDY, AN-

DERSON, and Hua, Circuit Judges. *

TRASK, Circuit Judge, files an opinion and the

judgment of the court. BROWNING, EUGENE A.

WriGHT, CHoy, WALLACE, J. BLAINE ANDERSON, and

KENNEDY, Circuit Judges, concur in the result and in

sections I, II, III and VI.

I

On November 13, 1975, Leonard Peltier and com-

panions were thought by the FBI to be traveling

across the State of Oregon. Peltier was then a fugi-

tive from the United States authorities and federal

officers were attempting to take him into custody. It

was thought that he might be traveling with a party

of five others and going east. One other who was be-

lieved to be in this party of six and thought to be

a federal fugitive was Dennis Banks. The events of

the siege of Wounded Knee had occurred a short time

before,’ and the government was still in the process

of tracking fugitives from that sorry affair.

Desiring to make Oregon State Police aware of this

information, the Portland, Oregon FBI office sent a

teletype message on that day to all Oregon law en-

forcement officers which stated that federal fugitives

might be traveling through Oregon in a motor home

and a station wagon. Both vehicles were described

* The Honorable Joseph T. Sneed has recused himself from

consideration of this matter.

1 The incident at Wounded Knee, involving a 71 day occu-

pation of the town, had ended May 8, 1973, but there were

apparently federal indictments outstanding for some partici-

pants, including Peltier and Banks.

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and the license number of the motor home was given.

The message then stated that if the vehicles were

sighted they should not be stopped, but the FBI noti-

fied. The next day, on November 14, at about 9:30 ~

p.m., Oregon State Trooper Griffiths sighted the ve-

hicles and verified their description and the license

number of the motor home. He proceeded to stop the

vehicles. Griffiths had not read the entire bulletin

and made the stop under the impression that the bul-

letin required it. Findings of Fact at 1.2 He then

2 Trooper Griffiths’ exact testimony at the remand hearing

was as follows:

“MR. TURNER: It’s an “all-points bulletin,” and it

was used by Trooper Griffiths to stop these two vehicles.

I might note for the Court that—

“THE COURT: You can read it. The objection is

overruled.

“MR. TURNER: Is the offer received, Your Honor?

“THE COURT: Yes, You can read it.

“MR. TURNER: Thank you. Did you—

“THE COURT: That’s what you asked him to do,

isn’t it?

“MR. TURNER: Yes, sir.

“MR. SCHIFFMAN: Just the final portion of it. My

objection is if he reads any of it, he read the entire

document.

“MR. TURNER: I have no objection to that, Your

Honor.

“THE COURT: All right. Well, read the part that

the lawyer asked you to read, and on cross-examination

if the lawyer wants to read some more, he can do it.

“Q (By Mr. Turner:) Would you read the last line,

sir.

“A If vehicle is sighted, do not stop but advise FBI,

Portiand, immediately for more details.”

“Q All right. Mr. Griffiths, did any Federal officer or

agent tell you to disregard that portion of the APB?

“A No.

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radioed for help and pulled in between the vehicles

with his overhead lights flashing. Both vehicles

stopped, with the station wagon about 100 yards be-

hind the trooper’s car. Trooper Griffiths got out of

his car and approached the motor home on the right.

He commanded the occupants of the motor home to

get out. An Indian male got out, followed by two

Indian women and a small child. Griffiths asked if

anyone else was inside and they replied “No.” At

approximately the same moment the motor home ac-

celerated swiftly forward and the man who had got-

ten out of it fled toward a fence along the highway.

As he jumped the fence about 15 yards from the road

he fired a shot in the direction of Trooper Griffiths.

The trooper returned two shotgun blasts. Both of

these shots missed.

As Trooper Griffiths was approaching the motor

home, Corporal Kramer, also of the Oregon State

Police, who had responded to the call for aid, got

out of his patrol car and shined his flashlight into

the rear window of the station wagon. Corporal

Kramer cautiously approached the left side of the

station wagon. When he reached the driver’s door

he ordered the driver (later identified as defendant

Russ James Redner) out of the vehicle and to the

“Q And could you explain to the Court why you felt

it was important to stop these vehicles?

“A The proximity to the state line was a major factor.

“Q Well, how close were you to the state—State of

Idaho, I take it?

“A Yes, Several miles.

“Q All right.

“A And it was my decision to stop the vehicles. I felt

it had to be done right then.

“Q Allright. Thank you very much.”

R.T. at 54, Evidentiary Hearing, May 9, 10, 1978.

40a

rear of the station wagon where he was ordered to

stand in the headlights of Kramer’s patrol car. On

request, the driver produced a Washington driver’s

license. The officer then approached the passenger’s

side and ordered the occupant to get out and also

stand in the front of the headlights of his patrol car.

The passenger was identified as defendant Loud

Hawk. Griffiths meanwhile had followed the direc-

tion of the motor home and found it on the highway

about one-half mile away from the initial stop. The

motor was running, the lights were on and the door

was shut. No occupants were found inside. Both

vehicles were then locked, towed away and impounded

by the Oregon State Police until a search warrant

was obtained.

On Saturday, November 15, 1975, state search war-

rants were obtained for the search of both vehicles.*

The Oregon State Police searched both vehicles on

Saturday, November 15, 1975, pursuant to their war-

rants. No federal agent participated in the decision

to obtain the state search warrant. Federal agents

observed the search of both vehicles but did not par-

ticipate directly except that federal agent Hancock

entered the motor home on one occasion. The find-

ings of the trial court on remand in part relate the

subsequent events:

“Firearms were found in the motor home,

which was searched first, and federal agents

were told of this fact.* Federal agents then sug-

% Federal search warrants were obtained the following day

and executed on the 16th after the Oregon State Highway

officers had completed their search. R.T. 1, 9.

*Among the firearms found were semi-automatic rifles,

police shotguns, handguns, more than 2,600 rounds of ammu-

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gested that the station wagon be searched for

firearms. State officers opened the station wagon

and found the dynamite immediately. Federal

agents did not participate physically in the

search of the station wagon, and no federal war-

rant had been obtained. Federal agents did ob-

serve the state search and photograph the dyna-

mite as it appeared in the station wagon.

“On November 16, the dynamite was trans-

ferred from the station wagon to a state police

car by state officers. Federal agents did not par-

ticipate physically but did observe and photo-

graph the dynamite as it appeared in the trunk

of the state police car. Federal agents did not

advise or direct any action with respect to the

removal or transportation of the dynamite. Fed-

eral agents made no request that any of the dy-

namite be preserved for their purposes. Had

such a request been made, state police would

have complied.

“The decision not to keep the dynamite was

made by Trooper Fettig of the state police, pur-

suant to an unwritten policy defined by his prac-

tice of six years before November 1975. Trooper

Fettig’s practice of destroying explosives was

based on the lack of state storage facilities, prob-

lems with chain of custody and public safety con-

siderations. Federal agents did not actively par-

ticipate in Trooper Fettig’s decision not to trans-

port the dynamite for safekeeping. Federal

agents were present and aware of Trooper Fet-

nition, 150 blasting caps, nine empty pineapple training hand

grenades, pocket watches with the faces drilled to permit

preparation of time bombs plus other bomb-making equip-

ment such as batteries, wire, cable, etc.

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tig’s intended destruction of the dynamite and

neither encouraged nor discouraged such action.

“The decision to destroy, like the decision not

to transport the dynamite, and containers was

made by Trooper Fettig, pursuant to state po-

lice policy and in his discretion. No federal agent

participated in this decision. Federal agent Mi-

lam, the only federal agent present at the de-

struction of the dynamite and containers, rode

with a state officer in a car following Trooper

Fettig’s to a gravel pit outside Ontario for the

purpose of observing and photographing the de-

struction. Agent Milam neither encouraged nor

discouraged the destruction of the dynamite and

containers.” Findings of Fact at 3.

II

A five count superseding indictment charged all of

the appellees with three counts relating to possession

of an unregistered and unnumbered destructive de-

vice

“consisting of a combination of parts designed

and intended for use in converting a device into

a destructive device; said combination of parts

consisting of: (a) six (6) pocket watches, each

with a hole drilled in the face with a metal screw

inserted into the hole in a position with the mov-

ing hands of the watch, with a soldered battery

connector and a ground wire attached with ex-

pended flash bulbs attached; (b) four (4) bat-

teries with wires attached; and (c) two (2) ex-

pended flash bulbs with wires attached; and said

device consisting of watches, timing devices, elec-

trical blasting cap leg wires, wires, electrical

blasting cap, detonating cord, batteries, and

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seven (7) cases of DuPont 70 percent dynamite,

and said destructive device had not been regis-

tered to them in the National Firearms Registra-

tion & Transfer Record as required by section

5841, Title 26, United States Code, in violation

of section 5861(j) and section 5871, Title 26,

United States Code.” C.T. at 113, 114, 115.

Count I charged the violation as above; Count II

again described the same destructive device and

charged violation of the provision requiring identi-

fication by serial number as required by section 5842

(c) of Title 26, and 27 CFR 179.102 and violation

of sections 5861(i) and 5871.

Count III again described the same destructive de-

vice but with violation of different registration re-

quirements.

Count IV charged Loud Hawk with wilfully trans-

porting weapons in interstate commerce which had

their serial numbers obliterated, to wit: four Valmet

semi-automatic rifles; one Colt AR-15 Cal. 223; three

Smith & Wesson .357 Magnums and a Swiss-made

7.5 mm handgun, in violation of Title 18, section

922(k), United States Code.

Count V charged only Dennis James Banks, who

was a fugitive when the indictment was returned.

Because the dynamite which was being transported

was destroyed by Oregon State Police who had appre-

hended the defendants, the district court dismissed

the dynamite counts with prejudice pursuant to Rule

48(b), Fed. R. Crim. P., on grounds of unlawful sup-

pression of evidence. When the government then de-

clined to proceed with the firearms count until it

could appeal the ruling on the dynamite counts, the

district judge dismissed the indictment with preju-

dice. The federal government then appealed the Or-

der Dismissing the Indictment. On June 11, 1976,

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the appeals of the suppression order and the order

dismissing the indictment were consolidated by this

court. Nos. 76-1906 and 76-2127, July 26, 1977.

A panel of this court considered the matter after

oral argument and by a divided vote affirmed the

judgment of the district court. Application for en

bane reconsideration was made and this court en

bane directed a remand to the district court for the

purpose of obtaining an evidentiary hearing and to

make findings of fact with respect to the following

matters:

“1. Did any agent of the federal government

participate in the destruction of the evidence?

The factual findings should include the nature

and extent of the federal participation, if any,

in:

“(a) The search for, and possession of, the

evidence destroyed ;

“(b) The decision not to transport the dy-

namite for safekeeping;

“(c) The decision to destroy, and the ac-

tual destruction of, the dynamite and con-

tainers;

“(d) Any other actions or inactions rele-

vant to the destruction of the evidence; and

“(e) Any other actions or inactions to pre-

serve samples or secondary evidence.

“2. What prejudice, if any, was suffered by the

defendants as a result of the destruction of the

evidence?

“Tn this order, the term ‘dynamite’ is used to

designate the material that was contained in the

cartons and that was destroyed.

wee

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“This court retains jurisdiction of this case

and requests the district court to hold hearings

and make findings pursuant to this limited re-

mand within 45 days of the date of this Order,

or as soon thereafter as practicable.” Order of

Remand, March 6, 1978.

The district court held an evidentiary hearing on

May 9 and 10, 1978, and made findings at its con-

clusion. Wherever possible in this opinion, matters

of fact are taken from the facts developed at that

remand hearing and noted in the district court’s

findings.

III

Throughout the consideration of the case there con-

tinues to be uncertainty voiced by the district court

and by the defendants as to the nature of the sub-

stance contained in the boxes which were destroyed.

The district court in its Order Suppressing Evidence

makes reference to the fact that “State Police Officers

discovered what appeared to be seven cases of DuPont

Gelex 2-70% dynamite.” Following the evidentiary

hearing on remand, the court refers to the explosive

as “[t]he substance at issue which I shall call dyna-

mite for the purpose of these findings... .” (Em-

phasis added).

Officer Fettig, the explosives expert of the Oregon

State Police, who was dispatched to investigate the

explosive problem, went to the impounded station

wagon and, in his words “opened the driver’s right

rear door and noticed in the inner compartment of

the station wagon, with the seats laid down, that in

a greenish black visquine bag there was dynamite.” *

5 Officer Fettig described himself as an explosives tech-

nician. He had at that time been with the Oregon State

46a

There was no doubt or equivocation in his judgment

or his statement of fact stating that “there was dy-

namite.” Each of the seven boxes was marked “High

Explosives Dangerous” and on the side had the fol-

lowing markings:

“50 lbs

Gelex 218

70% Strength

D73MAO 7B”

together with the logo of the DuPont company promi-

nently displayed. Inside were red cylindrical sticks

with heavy wrapping paper covering the contents and

marked:

“Explosives Dangerous

Gelex 2

70% Strength

E I Dupont De Nemours & Co. (Inc.).”

Police about six years. He had been in the military service for

25 years as an explosive ordnance disposal expert. He had

been an explosives disposal man in World War II overseas for

three and one-half years. Back in the United States he was

assigned to Aberdeen Proving Grounds. He was an instructor

in explosives and explosive devices, chemical and biological

warfare. From there he was sent on special assignment clear-

ing bomb ranges that were being returned to the owners after

use as practice bombing ranges. In 1950, he was reassigned

as an advisor to the Secret Service on bomb disposal pro-

cedures for the protection of the President and Vice President

of the United States. In 1953, he was assigned to the Far

East Command as an explosive ordnance technician on Oki-

nawa and more recently he retired from the Army and has

been employed by the Oregon State Police. He testified that

he had destroyed on the average between 7,500 and 9,000

pounds of dynamite every year since he has been with the

Oregon State Police.

47a

and again carrying the number D73MAO 7B, with a

last letter as Q or A, or Y.

There was no testimony or other evidence to prove

that it was not dynamite. Certainly it could be deto-

nated and would explode because it did. A witness

put on the stand by appellees, Ronald McCreary, quali-

fied as an expert on the basis of using dynamite in

.vad building, which was part of his occupation as a

civil engineer. He looked at the pictures of the ex-

plosion and stated that the substance did not seem to

have the explosive characteristics of the dynamite he

was familiar with. Yet, he stopped short when asked

the direct question whether he knew that it was dyna-

mite or not, and acknowledged that he did not know.’

Photographs were taken of the explosives in the

station wagon to show the cartons or boxes of Gelex 2

and the identity of the manufacturer with the serial

numbers of the individual sticks so that they could be

identified. They were in fact identified by employees

of DuPont, manufacturer of the dynamite, by wit-

nesses Bishop and Ursic. Bishop was a magazine

keeper of explosives manufactured by the DuPont

Company in the March 1973 trial period at its Wash-

ington plant. He identified a bill of lading, a cardex

® Testimony of defendant witness Ronald McCreary was as

follows:

“Q Now, did I understand your testimony that this

appeared to be an incomplete detonation of dynamite?

Is that a fair statement?

“A No, I said it was an incomplete combustion of

some materials. I do not know what they are.

“Q Oh, you don’t know whether it’s dynamite or not?

“A Oh, no. I wasn’t there.

“Q And you can’t tell from the photographs?

“A No.”

R.T. at 235, Evidentiary Hearing, May 9, 10, 1978.

48a

file showing the manufacture and shipment of dyna-

mite from the Washington plant and a pack report

showing where the material was manufactured and

sent to the magazine for storage. The witness testi-

fied that the documents reflected the manufacture of

46 cases of Gelex 2 dynamite in 1973. Most impor-

tant, he testified that those records “list the serial

numbers or identification numbers that appear on

those sticks of dynamite,” i.e., the sticks in the 46

cases. No questions were asked on cross-examination.

Anthony Ursic was the assistant manager of that

particular plant [at DuPont, Washington] in 1973.

That plant, he testified, manufactured explosives,

“dynamite essentially.” From exhibit 17, he testified

that “[t]he envelope contains paper that is used to

wrap dynamite. And it’s similar to the type we use

at our plant.” Evidentiary Hearing, R.T. at 177.

“Q. Looking at the records you have in Govern-

ment’s Exhibit 17, can you tell where the dyna-

mite which is contained in wrappers 1 through 7

was manufactured and when?

“A. Yeah. Actually, the code date here is—for

Gelax (sic) 2 is 974 MAO 7B, which is similar to

the code date on here.

“Q. And what does that—

“A. So this indicates that 46 cases were made

and shipped to a customer in Montana.

“Q. And when they were shipped, were they

full cases of dynamite? -

“A. Yes.”

Evidentiary Hearing, R.T. at 180-81.

When the DuPont employees testified, they referred

to the cartons, the wrappers, the substance inside the

wrappers, all in terms of “Gelex” or dynamite. They

49a

apparently had not been instructed to use a particular

name—‘“dynamite’’—as an artificial or symbolic term

for an unknown substance. They referred to the sub-

stance as “dynamite” or “Gelex” as a name for a

particular DuPont dynamite product.

Finally, neither the indictment nor the statute re-

quires that the explosive be “dynamite.” It is couched

in broader terms and refers to a “destructive de-

vice.”’ 7

It does not require that the parts be put together

and ready for ignition or detonation if the parts are

also available from which a destructive device may be

readily assembled. United States v. Shafer, 445 F.2d

579, 583 (7th Cir.), cert. denied, 404 U.S. 986, 92

S.Ct. 448, 30 L.Ed.2d 370 (1971). Under the cir-

cumstances in which it was being transported, with

firearms and bomb components and ammunition, the

explosive here belies any contention that the group

was on a peaceful agrarian mission, or that the ex-

plosive was to be used to dislodge stumps.

IV

The appellees have pointed to nothing in the cir-

cumstances we are concerned with that establishes

that the federal authorities participated with the

state authorities in destroying the dynamite. From

the very beginning, when the FBI sent out its all

points bulletin, the federal authorities made it plain

that they did not want state authorities to interfere.

The state trooper did not comply. He disregarded the

726 U.S.C. § 5845 (f) reads in part as follows:

“The term ‘destructive device’ means (1) any explo-

sive, incendiary, or poison gas (A) bomb, (B) grenade,

(C) rocket ...or (F) similar device.”

50a

admonition. When the vehicles were secure, they

were in state possession and not federal possession.

The State of Oregon obtained its own search warrant

from a state official and conducted its own search of

the vehicles. The state used its own fingerprint ex-

pert to examine the vehicles. It called in its own ex-

plosives expert, Officer Fettig, to determine what to

do with the explosives. That expert made his own

decision without calling upon the federal officers.

There is no evidence of any connivance or even con-

ference between the two groups of law enforcement

officers as to the handling of the problem.

The legal principles we are to look to for a solution

to the problem here are well established. When the

government loses or destroys tangible evidence prior

to trial, a motion to suppress secondary evidence such

as photographs, testimony of witnesses, etc., will be

granted by the trial court if the defendant can show

(1) bad faith or connivance on the part of the gov-

ernment, and (2) that he was prejudiced by the loss

or destruction of the evidence. United States v.

Sewar, 468 F.2d 236 (9th Cir. 1972), cert. denied,

410 U.S. 916, 93 S.Ct. 972, 35 L.Ed.2d 278 (1973) ;

see also United States v. Young, 535 F.2d 484, 488

(9th Cir.), cert. denied, 429 U.S. 999, 97 S.Ct. 525,

50 L.Ed.2d 609 (1976); United States v. Heiden,

508 F.2d 898, 902 (9th Cir. 1974); United States v.

Henry, 487 F.2d 912 (9th Cir. 1973).

Thus, returning to the specific questions asked on

the remand and commenting on them seriatim, the

first question addressed by this court to the trial court

on remand was whether any agent of the federal gov-

ernment participated in the destruction of the evi-

8 See Note 2, supra.

a are. Wee ie ten ee Sees we

5la

dence and the nature and extent of that federal par-

ticipation. There was no finding on remand that there

was any federal participation in that destruction.

(a) It was the state trooper who found the

defendants in their two vehicles, stopped them on

his own responsibility and took charge of the

evidence on behalf of the state. At this point

the only shred of argument to the contrary is

that the stop and impounding of the vehicles was

triggered by the teletype message put out by the

FBI. But that message directed the state police

not to take the persons or vehicles into custody.

State Police Officer Griffiths said simply but un-

equivocally that he made the stop because* he

thought that was the thing to do despite the

bulletin’s direction to the contrary. He was uct-

ing as an Oregon police officer and not as an

adjunct of the federal government, but contrary

to its admonition.

(b) The decision not to transport the dyna-

mite for safekeeping was made by Officer Fettig

of the Oregon State Police. He testified that it

was his responsibility what to do with the ex-

plosives and that he was guided solely by his

own judgment based on a six-year state policy.

(c) The decision to destroy the explosives was

again that of Officer Fettig. It was in accord-

ance with the state policy of long standing and

not a decision of the moment after consulting

the federai authorities. There was no evidence

to the contrary. No evidence or finding indi-

cated there was even any discussion with federal

authorities at the scene or elsewhere concerning

the manner of disposition of the explosives. Fettig

(with assistance of Griffiths, an Oregon State

Trooper) transferred the explosives to Fettig’s

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automobile and organized the three-car convoy

that took the dynamite away with one state car

leading, the second with Fettig and the explosive

and the last car affording protection from the

rear.

(d) There was no evidence or finding as to

the question of taking samples or preserving

other secondary evidence. Both a state police of-

ficer and a federal officer took photographs which

were made available to the court. Testimonial

evidence was available from the officers who wit-

nessed the destruction and the officers testified

and were cross-examined and the photographs

and dynamite wrappers were introduced.

(e) With respect to the last question ad-

dressed to the district court, it concerned “any

other actions or inactions” in regard to the de-

struction of the dynamite. The district court

here calls attention to the cross-examination of

John O’Rourke, Special Agent in Charge of

Oregon, who came to Ontario before the dyna-

mite was destroyed. The testimony of several

FBI agents makes it clear that their interest was

in locating federal fugitives and particularly

Leonard Peltier. O’Rourke was asked if he knew

whether Beverly Axelrod, an attorney for the

defendants, was in Ontario. He said that he did,

and then the inquiry was whether he made any

effort to inform her of the impending destruc-

tion of the dynamite. He replied that he had not.

Likewise, Axelrod never inquired of O’Rourke to

be allowed to witness the destruction.

The situation thus remains highly problem-

atical. It is also unclear whether Axelrod was at

this time and on this trip actually working for

Loud Hawk. She was not produced, nor did she

bien

eens

58a

testify at any of the hearings. Throughout the

entire proceedings, Loud Hawk was represented

by Schiffman and Jones, a law firm of Portland,

Oregon. At the trial, which took place in 1976,

the court inquired of Loud Hawk as it did of

the others, who their attorneys were, and Loud

Hawk then stated he was represented by Lawyer

Jones and was satisfied with his services. Axel-

rod does not appear of record as an attorney at

any place in the record we have been able to find.

Finally, the point that is attempted to be made,

that federal agents failed to have defendants’

attorneys examine the dynamite before its de-

struction, is even less convincing when we re-

member that O’Rourke was never shown to have

had any authority to stop or postpone the de-

struction of the evidence in the first place.

Neither would he have any reason to look for

Axelrod and invite her to witness the state’s de-

struction of the dynamite.

The appellees rely on Lustig v. United States, 338

U.S. 74, 69 S.Ct. 1872, 93 L.Ed. 1819 (1949), to

prove that there was federal participation in the

search and in the subsequent destruction. Lustig was

a principal in a counterfeiting operation which ap-

peared to be in operation in a hotel room. Greene, a

Secret Service agent, was suspicious of the activity

but apparently did not believe he had enough evidence

for a break-in or even to obtain a warrant. He gave

the information to the city police who proceeded to

obtain an arrest warrant but no search warrant. The

city officers entered the room illegally while Greene

remained at the police headquarters awaiting their

telephone call. As soon as a search warrant was ob-

tained the police officers called Greene who then

joined them in making the search. He helped the city

54a

police in the search, selecting evidence that would

help a federal prosecution and accepting other evi-

dence the local officers gave him. The Court said:

“The crux of that doctrine is that a search is

a search by a federal official if he had a hand in

it; it is not a search by a federal official if evi-

dence secured by state authorities is turned over

to the federal authorities on a silver platter.

“Though state officers preceded Greene in il-

legally rummaging through the bags and bureau

drawers in Room 402, they concerned themselves

especially with turning up evidence of violations

of the federal counterfeiting laws after Greene

joined them. He was an expert in counterfeiting

matters and had a vital share in sifting the evi-

dence as the search proceeded. He exercised an

expert’s discretion in selecting or rejecting evi-

dence that bore on counterfeiting. The fact that

state officers preceded him in breach of the rights

of privacy does not negative the legal significance

of this collaboration in the illegal enterprise be-

fore it had run its course. Greene himself ac-

knowledged such participation by his remark

about ‘leaving the room after we had gathered

all this evidence together.’” Lustig v. United

States, 338 U.S. 74, 78-79, 69 S.Ct. 1372, 1374,

93 L.Ed. 1819.

. In the case before us there was certainly not par-

ticipation in the Lustig manner. The federal officers

here did not have a part in the search of the car or

in the destruction of the dynamite. Their major con-

cern was with the whereabouts of Leonard Peltier

and they hoped to find him among the travelers.

f

55a

The opinions of this court in United States v. Hig-

ginbotham, 539 F.2d 17 (9th Cir. 1976), and United

States v. Trenary, 473 F.2d 680 (9th Cir. 1973), are

also of no assistance to appellees. In Higginbotham,

the appellant was convicted on a Dyer Act charge.

Shortly after appellant’s arrest, an officer of the

Boise, Idaho, Police Department put together a pho-

tographic display composed of 18 photographs, one

of which was that of appellant. During pretrial pro-

ceedings, appellant’s photograph was readily identi-

fied from among the pictures constituting the display.

At trial the display could not be produced because it

had been broken up and the pictures returned by local

police to their files. Before this court, appellant com-

plained that the failure to produce the display denied

him due process. The contention was rejected, Judge

Kilkenny stating:

“Here is a proper place to emphasize that the

fifteen photographs were never in the possession

of the prosecutor, the FBI or any other United

States Government agency. The Boise police, un-

der these facts, cannot be said to be acting on

behalf of the federal government but rather on

behalf of the State of Idaho. Cf. United States

v. Smith, 433 F.2d 1266 (CA5 1970). Under

such circumstances we should be reluctant to

impute to the federal government the mistakes,

particularly relatively innocent ones, committed

by local police. Moreover, the demand to produce

these photographs might well be likened to an

attempt to require production under the Jencks

Act of statements in the possession of state po-

lice. See Beavers v. United States, 351 F.2d 507

(CA9 1965), where the statements were never

in possession of the United States and production

56a

was not required. By analogy, it is evident that

the United States is in no way responsible for

the actions of the Boise police in disposing of

the fifteen photographs by inadvertence or other-

wise.” Id. at 21.

In Trenary there was a conviction for conspiracy

to import marijuana from Mexico. The marijuana

and duffle bags containing it had been destroyed by

the Mexican police before trial. There being no

charge of bad faith or negligence by the United

States, secondary evidence was admissible at the trial.

Trenary is another example of the refusal of this

court to impute to the federal government the loss or

destruction of evidence by other authorities over

whom it has no authority or control.

V

The final questions addressed to the trial court con-

cerned prejudice. Under the law of the circuit, even

if there should be a finding of participation in the

destruction, there must also be a showing by the de-

fendants that they have been prejudiced by the loss of

the evidence. United States v. Sewar, 468 F.2d 236

(9th Cir. 1972) and cases supra. Prejudice was suf-

fered by the defendants, the trial court says, “to the

extent that their inability to observe the destruction

and to analyze samples of it deprived them of the op-

portunity to contest the government’s conclusion that

the substance destroyed was indeed explosive.” We

have already noted the weakness of the testimony of

witness McCreary, who examined the photographs of

the explosion and who then declined to express any

opinion as to the question whether the explosion was

of dynamite or not.

57a

The last finding of the trial court was that the de-

fendants “were also prejudiced by the destruction of

the cartons and plastic bag which contained the dyna-

mite in that they were deprived of the opportunity to

determine by fingerprinting who might have handled

those items.”

We find the fingerprinting argument a little diffi-

cult to follow. Let us assume that X, Y and Z are

being prosecuted for possession of contraband and

that the fingerprints of X are found on the contra-

band. This evidence might be used against X, but it

does not affect Y and Z, whose prints were not found.

As to defendants here, lack of their fingerprints is

exculpatory, if anything. Absence of fingerprints has

little significance to prove or disprove handling. The

handlers might have worn gloves; they might have

removed their prints; or they might have employed

someone else to lift the dynamite. It is only where

there are fingerprints that such identification is help-

ful, and then helpful to the prosecutor, if to anyone,

in establishing an identity not otherwise discovered.

Here, there is no prejudice to the defendants in the

destruction of the boxes and the plastic covering or

any other part of the explosives as a result of possible

destruction of fingerprints.

VI

In its second assignment of error, the government

contends that the district court incorrectly dismissed

the indictment against appellees. The district court’s

order dismissing the indictment was founded on Rule

48(b) of the Federal Rules of Criminal Procedure.

That rule authorizes the court to dismiss an indict-

ment whenever there has been “unnecessary delay in

bringing a defendant to trial.” The government ar-

58a

gues that the delay in prosecuting appellees has not

been “unnecessary,” and consequently that the district

court abused its discretion in dismissing the indict-

ment. Assuming arguendo that the district court did

not err in dismissing the indictment, the government

contends that the court below did err in dismissing

the indictment with prejudice. While dismissal with

prejudice is authorized by Rule 48(b), the govern-

ment points out that such power is to be utilized with

caution and only after a forewarning to the prosecu-

tion that dismissal with prejudice will result from a

failure to proceed to trial. United States v. Simmons,

536 F.2d 827, 834 (9th Cir. 1976), cert. denied 429

U.S. 854, 97 S.Ct. 148, 50 L.Ed.2d 130, see also

United States v. Charnay, 577 F.2d 81, 84 (9th Cir.

1978). The government argues that the trial court

failed both to exercise the requisite caution and to

provide the required forewarning, and thus improp-

erly dismissed the indictment with prejudice.

In examining the government’s second assignment

of error, the merits of its arguments are best demon-

strated if the dynamite and nondynamite counts are

analyzed separately.

The dynamite counts. The delay in prosecuting ap-

pellees on the dynamite counts has not been unneces-

sary under Rule 48(b). The government had a statu-

tory right to appeal the suppression order as it ap-

plied to the dynamite counts. The delay has been

necessary to permit the meaningful exercise of that

statutory right.

The government has been granted the right by stat-

ute to appeal suppression orders entered by the dis-

trict court. That right is set forth in 18 U.S.C.

§ 3731. Section 3731 provides in pertinent part:

oe ates

59a

“An appeal by the United States shall lie to a

court of appeals from a decision or order of a dis-

trict courts suppressing . . . evidence. . . not

made after the defendant has been put in jeop-

ardy ... if the United States attorney certifies

to the district court that the appeal is not taken

for purpose of delay and that the evidence is a

substantial proof of a fact material in the pro-

ceeding.”

The government’s right to appeal is available con-

ditionally. First, the appeal is not available if the

defendant has been put in jeopardy. Second, the ap-

peal must not be taken for purpose of delay. Third,

the evidence suppressed must be substantial proof of

a fact material in the proceeding. Clearly, these con-

ditions were met in the context of the dynamite

counts. (1) Appellees have yet to be placed in jeop-

ardy. (2) The appeal was not taken for purpose of

delay. The delay in bringing appellees to trial was

necessary to permit the government to effectively ex-

ercise its statutory right to appeal. (3) The sup-

pressed evidence was critical in establishing a neces-

sary element of the alleged offenses, the existence of

an explosive device.

In summary, the government had a statutory right

to appeal the suppression order if certain conditions

were met. Those conditions were satisfied as to the

dynamite counts. Delay was necessary to permit the

government to effectively take its appeal. Clearly,

such a delay, necessary to give effect to a statutory

right, cannot be deemed “unnecessary” for purposes

of Rule 48(b). Therefore, we hold that the district

court erred in dismissing the dynamite counts pur-

suant to Rule 48(b); we reverse that portion of the

60a

district court’s order dismissing these counts; and

remand the cause to the district court with instruc-

tions to reinstate the indictment as to these counts.

The nondynamite firearms counts. The delay in

prosecuting appellees on the nondynamite counts of

the indictment has been unnecessary for Rule 48(b)

purposes. As previously discussed, the government’s

right (via section 3731) to appeal a district court’s

order suppressing evidence is conditional. One of the

conditions is that the evidence suppressec must be

substantial proof of a fact material in the proceeding.

This condition must be met before appeal of the sup-

pression order can properly be taken. Despite the

government’s protests to the contrary, the suppressed

evidence (dynamite) is not substantial proof of any

material fact in the nondynamite counts of the indict-

ment. The trial court found as much. Given the gov-

ernment’s failure to satisfy this condition, its appeal

of the suppression order as it relates to the nondyna-

mite counts was improper and the delay in prosecu-

tion occasioned by this appeal has been unnecessary

under Rule 48(b). Therefore, we find that the court

below properly dismissed these counts of the indict-

ment.

Having determined that the trial court properly dis-

missed the nondynamite counts of the indictment, we

turn now to the propriety of dismissing those counts

with prejudice. In United States v. Simmons, supra,

at 834, this circuit held that even though dismissal

with prejudice is authorized by Rule 48(b), trial

courts should utilize such power with caution and

only after a forewarning to the prosecution that dis-

missal with prejudice will result from a failure to

proceed to trial. The government argues that the

requisite caution and forewarning required by Sim-

6la

mons were absent in the trial court’s dismissal of the

nondynamite counts with prejudice. We agree.

We find the record devoid of any forewarning to

the prosecution that the nondynamite counts of the

indictment would be dismissed with prejudice. The

district court’s entry dismissing these counts con-

tains no reference to a forewarning of impending dis-

missal with prejudice. The remainder of the record

is equally as barren.

Any attempts to create the requisite forewarning

from a declaration made by the United States attor-

ney at a hearing conducted several days prior to dis-

missal must also fail. At the hearing the government

counsel observed: “[W]e will suffer a dismissal at

this time if the Court should choose to do so rather

than go to trial on the imperfect case that we would

have to present if we were forced to trial now.” 12

R.T. at 6. This statement cannot be a sufficient fore-

warning to satisfy the requirement of Simmons.

First, the statement was made by the government,

not the trial court. It is the trial court that is re-

quired to forewarn the prosecutor, not vice versa.

Second, and far more important, the government’s

statement indicates that it was prepared to suffer dis-

missal. ‘Nothing is said concerning its preparedness

to suffer dismissal with prejudice. As indicated in

Simmons, at 837, it is not enough to forewarn that

dismissal may result from a failure to proceed to

trial. Rather, the prosecution must be forewarned

that the dismissal will be with prejudice.

Given the failure of the trial court to provide the

forewarning mandated by Simmons, we reverse that

portion of the trial court’s order dismissing the non-

dynamite counts with prejudice and remand the cause

to the district court for further consideration of its

dismissal of these counts in light of this opinion.

62a

In conclusion, we reverse the orders of the district

court granting appellees’ motions to suppress and to

dismiss the indictment with prejudice. Further, we

remand the cause to the district court with instruc-

tions: (1) to deny appellees’ motion to suppress, (2)

to reinstate the indictment as to the dynamite counts,

and (3) to reconsider its dismissal of the nondyna-

mite counts with prejudice in light of this opinion.

SO ORDERED.

KENNEDY, Circuit Judge, files a separate con-

curring opinion in which BROWNING, EUGENE

A. WRIGHT, CHOY, WALLACE, and J. BLAINE

ANDERSON, Circuit Judges, concur.

KENNEDY, Circuit Judge, concurring:

This case presents the opportunity to state certain

controlling rules where evidence has been lost or de-

stroyed in a criminal case. Some of our earlier cases,

where the proper outcome was perhaps clearer than

in the present instance, did not provide extensive

analysis of the interests at stake or of the reasons

behind the adoption of a particular approach. Loss

or destruction of evidence probative in a criminal case

occurs in circumstances so variant that we cannot set

forth here the applicable rules for every case but cer-

tain principles of broad application may be stated

with assurance and serve to resolve this appeal.

When criminal evidence is lost or destroyed, the

court must protect a complex of interests, some con-

flicting. Our principal concern is to provide the ac-

cused an opportunity to produce and examine all rel-

evant evidence, to insure a fair trial. Absent special

circumstances, we do not reverse convictions or dis-

miss criminal charges based on events that do not

cause harm to the accused; and so the degree of prej-

68a

udice from loss or destruction of the evidence should

be weighed. Other considerations which bear upon

the right to a fair trial are also present if intentional

or culpable government action has caused the loss or

destruction. The significant interest in such cases is

to avoid the impairment of judicial integrity that

would occur if the prosecution were allowed to ma-

nipulate court processes, and protective rulings or

sanctions may be required both to insure a fair trial

in a specific case and to deter future violations. The

degree of government fault is relevant, for if sup-

pression of secondary evidence or other protective rul-

ings and sanctions were automatic in every case in

which the Government is responsible for the loss of

the evidence, then we would not give proper recogni-

tion to the responsibility of the Government to prose-

cute criminal cases. This right should not be for-

feited in every instance where a government official

has erred. In a rare case, government action may be

so culpable that deterrence of future violations and

protection of judicial integrity become the principal

concern, and then only a plausible suggestion of prej-

udice or none at all would be required for suppression

of evidence or the imposition of other sanctions, such

as dismissal of the charges. In the more frequent

case, the Government’s responsibility for loss of the

evidence is caused by actions that are, alternatively,

negligent in some degree, or inadvertent, or done in-

tentionally but with an element of good faith, and in

these instances a somewhat greater degree of prej-

udice may be tolerated. In cases of severe prejudice,

suppression or other sanctions would be appropriate

without regard to the good faith or culpability of the

Government. However, in other cases, preper recon-

ciliation of these competing interests requires us to

64a

resort to the familiar judicial process of balancing the

factors in a given case.

The proper balance is that between the quality of

the Government’s conduct and the degree of prejudice

to the accused. The Government bears the burden of

justifying its conduct and the defendant bears the

burden of demonstrating prejudice. See United States

v. Mays, 549 F.2d 670, 677, 678 (9th Cir. 1977). In

weighing the conduct of the Government, the court

should inquire whether the evidence was lost or de-

stroyed while in its custody, whether the Government

acted in disregard for the interests of the accused,

whether it was negligent in failing to adhere to es-

tablished and reasonable standards of care for police

and prosecutorial functions, and, if the acts were

deliberate, whether they were taken in good faith or

with reasonable justification. Federal courts have

greater authority and control over the actions of fed-

eral officers than over the officers of a state, and the

nature and degree of federal participation is relevant

although not dispositive. It is relevant also to inquire

whether the government attorneys prosecuting the

case have participated in the events leading to loss or

destruction of the evidence, for prosecutorial action

may bear upon existence of a motive to harm the

accused.

Against all this must be weighed the degree of

prejudice to the defendant. In analyzing prejudice,

the court must consider a wide number of factors

including, without limitation, the centrality of the

evidence to the case and its importance in establish-

ing the elements of the crime or the motive or intent

of the defendant; the probative value and reliability

of the secondary or substitute evidence; the nature

and probable weight of factual inferences or other

demonstrations and kinds of proof allegedly lost to

65a

the accused; the probable effect on the jury from

absence of the evidence, including dangers of un-

founded speculation and bias that might result to the

defendant if adequate presentation of the case re-

quires explanation about the missing evidence.

We adopted a fiexible approach, consistent with the

balancing test proposed here, in United States v.

Higginbotham, 539 F.2d 17 (9th Cir. 1976) (alter-

nate holding).' In that opinion the court stated that

in destruction of evidence cases, “the following fac-

tors should be considered: (1) the degree of negli-

gence or bad faith involved, (2) the importance of

the lost evidence, and (3) the sufficiency of the other

evidence adduced at the trial to sustain the convic-

uuon.”* Jd. at 21. The proposed test is also quite

1 The balance test of Higginbotham is helpful, but the same

cannot be said for the discussion in that case of federal partici-

pation. We cannot accept the implication that the destruction

of evidence by state officers acting alone, no matter how

egregious their conduct or how important the evidence de-

stroyed, could never be sufficient for a federal court to invoke

a protective rule to guard the rights of the defendant or the

integrity of the judicial process. In Higginbotham itself, the

particular evidence was of minimal importance and the con-

duct of the state police was at worst careless.

2 It appears that a type of balancing was used in this circuit,

even before Higginbotham. In United States v. Sewar, 468

F.2d 236 (9th Cir. 1972), cert. denied, 410 U.S. 916, 93 S.Ct.

972, 35 L.Ed.2d 278 (1973), the defendant had been sub-

jected to a blood alcohol test. After the test was performed

the sample was destroyed by a technician who thought the

sample was no longer necessary. The court stated that “[n]ot

every blunder by investigators should result in the exclusion

of relevant competent, important evidence,” 468 F.2d at 237,

and concluding that in the circumstances, using the remaining

secondary evidence would not be “so unfair as to require its

exclusion,” id. at 238.

66a

similar to the test which the First Circuit has

adopted. In United States v. Picariello, 568 F.2d 222

(1st Cir. 1978) the court articulated what it called

a three-pronged examination which considered “first,

was the evidence material to the question of guilt or

the degree of punishment; second, was defendant

prejudiced by its destruction; and third, was the gov-

ernment acting in good faith when it destroyed the

evidence.” Jd. at 227. The appropriate test as set

forth here is more detailed than in Higginbotham or

Picariello with the purpose to provide more guidance

when this question arises in later cases.*

In an analogous area, that of prearrest delay, this

circuit has adopted a balancing test similar to the

one proposed here. United States v. Mays, 549 F.2d

670, 677 (9th Cir. 1977). Where the police delay in

arresting a defondant or in otherwise notifying him

that he is under investigation, he may iater contend

he had no notice to preserve evidence such as records,

and that testimony of witnesses or his own recollec-

tion of the day in question may be blurred by the

passage of time. These cases present concerns which

closely parallel those in destruction of evidence cases,

including fairness to the defendant, the discouraging

of police or prosecutorial misconduct, preserving the

* We think this test is consistent with the result in United

States v. Heiden, 508 F.2d 898 (9th Cir. 1974). Heiden states

that where evidence has been lost or destroyed the conviction

will be reversed if the defendant can show “(1) bad faith

or connivance on the part of the Government, or (2) that he

was prejudiced by the loss of the evidence.” As the discus-

sion in Heiden demonstrates, “prejudice” as used there means

serious impairment of the accused’s ability to present his de-

fense. In cases of severe prejudice the Heiden formulation

would lead to the same result as under the test set forth in

this case.

67a

integrity of the judicial system, and protecting so-

ciety’s interest ii. the prosecution of criminal viola-

tions. In United States v. Mays, supra, this court re-

jected the two absolute approaches suggested by the

parties: that prejudice alone is sufficient or that both

prejudice and improper intentional delay must be

shown. It adopted instead a test which balances all

the circumstances, including the prejudice to the de-

fendant and the reason for the police delay. Such a

balancing test seems equally appropriate for the case

at hand.‘

The test proposed here is not of constitutional

dimensions. The Supreme Court in United States v.

Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d

537 (1969) has stated that destruction of evidence

becomes a problem of constitutional dimensions only

in the most extreme case:

The Court of Claims, in a conscientious effort

to undo an injustice, elevated to a constitutional

*A similar problem to the one faced here arises when the

Government intentionally deports potential witnesses before

the defendant has had an opportunity to interview them. See

United States v. Mendez-Rodriquez, 450 F.2d 1 (9th Cir.

1971). This circuit has held that despite good faith on the

part of the Government, the defendant need not show that

the testimony of the lost witnesses would have been favorable,

although he must demonstrate at least some possibility that

the testimony could have been of benefit. See United States

v. Orozco-Rico, 589 F.2d 483 (9th Cir. 1978) ; United States

v. McQuillan, 507 F.2d 30, 33 (9th Cir. 1974). In these cases,

even a small possibility of prejudice is sufficient despite good

faith government conduct. We do not believe, however, that

a similar approach is required in destruction of evidence

cases. Deportation of witnesses involves the fundamental

and specifically guaranteed right of compulsory process for

obtaining witnesses provided by the sixth amendment. The

sixth amendment is in no way implicated in the case at hand.

68a

level what it deemed to be an infraction of the

Jencks Act and made a denial of discovery which

“seriously impeded his right to a fair trial” a

violation “of the Due Process Clause of the Con-

stitution.” . .. But apart from trials conducted

in violation of express constitutional mandates,

a constitutionally unfair trial takes place only

where the barriers and safeguards are so relaxed

or forgotten . . . that the proceeding is more a

spectacle ... or trial by ordeal... than a dis-

ciplined contest.

Id. at 356, 89 S.Ct. at 534. Rarely will the unfair-

ness that might be caused by the destruction of evi-

dence rise to the level of making the proceedings “a

spectacle or trial by ordeal.” The rule advanced here

is simply a judicially-creaied rule designed to pre-

vent police misconduct and permit as fair a trial as

possible.

Turning to the facts of this case, we examine first

the reasonableness of the Government’s conduct. The

starting point is the findings of the district court.

In its initial decision, the court found as follows:

The police did not act in bad faith in destroying the

evidence. Dynamite is a dangerous substance that

should only be handled and stored by experts. The

Oregon State Police did not have adequate facilities

in which to store this dynamite. There was a com-

mercial magazine located about 60 miles away, how-

ever, and the dynamite could have been transported

there with relative safety. In its supplemental find-

ings on remand, the district court found that the

decision not to keep the dynamite was made by officer .

Fettig of the state police pursuant to an unwritten

policy. The practice of destroying explosives was

based on the lack of state storage facilities, problems

69a

with chain of custody, and public safety considera-

tions. The record indicates that Fettig’s principal

responsibility for the state police was as a bomb and

explosives expert, for which he was highly qualified.

He effected frequent and routine destruction of ex-

plosives, although it appears that in almost all such

cases the explosives were not relevant to any pending

criminal investigation. It is unclear the extent to

which the supplemental finding that the decision not

to transport was based on “public safety considera-

tions” negates the prior finding that the dynamite

could have been transported with “relative safety ;”

but, there were at least some safety considerations

which militated against transporting the dynamite.

It should be noted that in addition to destroying the

dynamite itself, the police also destroyed the con-

tainers in which the dynamite was stored when found.

This was apparently done because, as the defendants’

expert witness explained, when dynamite is im-

properly stored, nitroglycerin from the dynamite

sticks sometimes seeps into the container, making the

container itself highly explosive. Moreover, officer

Fettig testified that the reason fingerprints were not

taken was that the cartons were wet, and it was un-

likely identifiable fingerprints could have been

detected.

It is clear that accepted standards of police conduct

require that a sample should be obtained whenever

it is possible and safe to do so, and we think the en-

forcement officials, state and federal, erred in not

considering the possibility of taking a sample before

destroying all the evidence. However, in view of the

exigencies of the situation and the police policy of

destroying all explosives, this error in judgment

ought not be weighed too heavily against the Govern-

ment.

70a

In this case, the error is neither intensified nor

diminished by the actions of federal agents. The

dynamite was discovered during a search of the ve-

hicles pursuant to a state search warrant while the

vehicles were in the custody of the state police. The

district court found that the decision to destroy the

evidence was made by officer Fettig, pursuant to

state police policy and in his discretion. No federal

agent participated in this decision. The one federal

agent who was present at the destruction of the

dynamite and containers neither encouraged nor dis-

couraged the destruction. The court also found, how-

ever, that if the federal agent had requested that

a sample be preserved, the state police would have

complied. The federal agent was not responsible for

the decision, but neither can he be given full exonera-

tion from it. The practical necessity for a federal of-

ficer to maintain a good relationship with state po-

lice does tend to excuse the federal agent’s determina-

tion in this delicate situation to allow the state to pro-

ceed to render the area safe without requesting an

evidentiary sample. It is our conclusion that the ac-

tions of both the state police in destroying all the

evidence and the federal agent in not preventing that

destruction can be excused substantially, although it

cannot be recommended as the standard for future

cases.

We next consider the prejudice to the defendant.

The most important part of our analysis of the de-

gree of prejudice in this case is an evaluation of the

reliability or trustworthiness of the remaining sec-

ondary evidence. The evidence includes, among other

things, photographs and eyewitness descriptions of

the boxes which were found in the impounded ve-

hicle and the red cylindrical sticks contained in the

Tla

boxes. Each of the seven boxes was marked “High

Explosives Dangerous” and on the side had the fol-

lowing markings:

“50 lbs

Gelex 21 x 8

70% Strength

D73MAO 7B”

together with the logo of the DuPont company promi-

nently displayed. Inside were red cylindrical sticks

with heavy wrapping paper covering the contents

and marked:

“Explosives Dangerous

Gelex 2

70% Strength

E I DuPont De Nemours & Co. (Inc.).”

and again carrying the number D73MAO 7B, with

a last letter as Q or A, or Y. A representative from

The DuPont Co. was shown seven wrappers that had

been saved by the police before destroying the dyna-

mite. He identified the wrappers as having come

from a DuPont plant in Washington. By consulting

other records, he was able to determine that the code

numbers on the wrappers were the same as the num-

bers on dynamite shipped to a customer in Montana.

He confirmed that the shipment to Montana was of

full cases of dynamite, not just wrappers. In addi-

tion, a chemical analysis of the wrappers indicated

the presence of six of th» seven ingredients neces-

sary to make dynamite.

We consider this secondary evidence to be proba-

tive and reliable. The evidence also includes pho-

tographs taken by the police when several of the

sticks were detonated with blasting caps. The de-

fendants did produce an expert who on direct ex-

amination testified that in his opinion the photo-

72a

graphs did not show dynamite exploding and that

the pictures were completely consistent with an ex-

plosion of only the blasting caps themselves. The dis-

trict court found that this testimony “cast substan-

tial doubt on the assertion that the photographs

showed the detonation of dynamite.” Worded this

way, the finding seems to suggest that the testimony

of the expert raised substantial doubt as to whether

the substance seized was dynamite. To the extent

that the finding implies this, it must be deemed er-

roneous. On cross-examination the expert explained

that the photographs could also show an incomplete

detonation of dynamite. The testimony of this expert

simply demonstrates that the photographs of the

detonation are not completely reliable. A determina-

tion that the photographs are inconclusive evidence

is far different from a determination that there is

substantial doubt whether the substance seized was

dynamite. The testimony of the expert supports only

the former proposition, not the latter. In ascertain-

ing the degree of prejudice, it is necessary to eval-

uate all the secondary evidence, not just one piece

of it.

The trial court found further prejudice to the de-

fendants because they lost an opportunity to show

whose fingerprints were on the boxes. This too was

error. There is no question that the boxes were in

the defendant’s station wagon. And even if the prints

of third persons, and not the defendants’, were dis-

covered on the boxes such evidence would not be ex-

culpatory of necessity. Moreover, the testimony was

that fingerprints were not likely to be discovered on

the wet boxes in any event.

All must concede that the secondary evidence is

less reliable than chemical tests of the substance itself

and that, as the explosive quality or no of the sub-

stance is an essential element of the offense, the loss

a wee he em ee ee

73a

of the evidence does bear upon an issue that lies at

the core of the case. In view, however, of the convinc-

ing and probative value of the secondary evidence as

presented in the record at this point, it cannot be said

that the defendants have met their burden of show-

ing prejudice in any significant degree. The defend-

ants have not made any offer of proof from which

the trier of fact might infer the substance was other

than dynamite, and in this posture of the case the

secondary evidence is a satisfactory substitute for

a physical sample. If at trial the defendants can

make a plausible argument that the substance was

something other than from what all appearances it

must have been, the trier of fact can weigh the

credibility of such arguments against any perceived

defects in the Government’s proof by secondary

means. The prejudice in this case is slight or non-

existent, and the Government’s conduct, while con-

sisting in part of some errors in judgment, was on

the whole reasonable and taken in good faith.

The dissent complains that, having remanded the

case, we now accord no deference to the district

court’s findings. All of the subsidiary findings in the

record developed with care by the district judge have

put the case in the proper perspective. Perhaps the

remand should have stopped short of asking the trial

court to draw the ultimate conclusion as to whether

or not there is prejudice, absent a statement of its

definition and the factors that are to be considered

in making that determination. Having now stated at

some length the applicable rules for this case, we

reach the conclusion that secondary evidence offered

by the Government should not be suppressed.

The appropriate order now is to reverse the trial

court’s ruling suppressing the secondary evidence

and to remand the case for further proceedings.

74a

GOODWIN, Circuit Judge, specially concurring.

I concur generally in Judge Trask’s opinion. The

district court judgment must be reversed on both

points. The dismissal with prejudice was unwar-

ranted, and the “finding” that a federal officer par-

ticipated in a significant degree in the destruction of

the contents of the boxes taken from the station

wagon is clearly erroneous. The evidence was that

the agent of the Federal Bureau of Investigation was

an observer and nothing more. Accordingly, the dis-

cussion of the consequences of federal participation

is obiter.

HUFSTEDLER, Circuit Judge, dissenting, with

whom ELY and HUG, Circuit Judges, concur:

I regret that I cannot concur with the majority of

my brothers either in reversing the district court’s

suppression order or in reversing the dismissal of the

indictment upon the Government’s refusal to proceed

to trial after its motions for continuances were

denied.

I

The suppression order issue is very narrow: Are

the district court’s specific findings of prejudice from

the destruction of evidence clearly erroneous? The

simple answer is “no.” In seeking to avoid this re

sult, the majority has devised a hypothetical scale on

which it weighs non-competing interests against one

another, discovers that prejudice is not prejudice, and

thereby announces a resuit in favor of the Govern-

ment. I am unable to find any support for the ma-

jority’s rationale either in prior case law or, if we

were writing on a clean slate, in logic.

Three counts of the indictment were based on pos-

session of a “destructive device.” The material de

meta “tees ot

75a

stroyed included the very substance that the Govern-

ment charged was the “destructive device.” * None

of the material was saved to permit independent

testing of the substance. The district court found

that the destruction of the substance was prejudicial

to the defendants because it prevented them from ex-

amining the primary evidence. The majority opinion

concedes that the defendants did suffer prejudice

from the destruction of the primary evidence, and

it observes that “the secondary evidence is less reli-

able than chemical tests of the substance itself and

that, as the explosive quality or no of the substance

is an essential element of the offense, the loss of the

evidence does bear upon an issue that lies at the core

of the case.” In short, the district court’s finding of

prejudice on this point is fully supported by the

record. Under United States v. Heiden (9th Cir.

1974) (50€ F.2d 898, which the majority acknowl-

edges is undiminished as authority in this Circuit

(Kennedy, J., Op’n at 1153 n.3), all appellate inquiry

should end with “affirmed.”

That result is unsatisfactory to the majority, and

therefore, it is required to explain why the fact of

prejudice is nevertheless not prejudice justifying

1 Thus, this case is unlike those in which corroborating,

impeaching, or collateral evidence was destroyed. (EF.¢.,

United States v. Harris (9th Cir. 1976) 543 F.2d 1247 (FBI

agent’s rough notes destroyed; violation of Jencks Act) ;

United States v. Carrasco (9th Cir. 1976) 537 F.2d 372 (in-

former’s diary destroyed).)

* This iacet distinguishes Loud Hawk from those cases

where a sufficient sample was retained. (E.g., United States

v. Young (9th Cir. 1976) 535 F.2d 484 (bulk of drug seizure

destroyed but samples retained); United States v. Heiden,

supra, 508 F.2d 898 (semble).

76a

suppression. The majority opinion tells us that the

prejudice is inadequate because the defendants did

not make “any offer of proof from which the trier

of fact might infer the substance was other than

dynamite, and in this posture of the case the sec-

ondary evidence is a satisfactory substitute for a

physical sample.” As I translate this elliptical state-

ment, the majority says that the defendants had the

burden of proving that the substance destroyed was

not dynamite, and if they failed to carry that burden,

they could not claim prejudice from the destruction

of the evidence. The reasoning is upside down. The

defendants made a prima facie showing of prejudice

and it is the Government’s burden to show that the

loss of the primary evidence was harmless. The

destruction of the evidence, for which the Govern-

ment is responsible, is the very act that makes iden-

tification of the substance impossible and thus creates

the prejudice to the defendants. Thus, the majority

opinion has inexplicably required the defendants to

come up with proof that the Government itself has

destroyed.

The majerity opinion suggests that the defendants

ean nevertheless carry this impossible burden.

“TS]econdary evidence is a satisfactory substitute for

a physical sample” because it can be weighed against

whatever defense argument can be made “that the

substance was something other than from what all

appearances it must have been.” I do not know how

to weigh this smoke, and I do not understand how

either the defendants or the district court could have

been expected to do so.

The district court found that “[d]efendants were

also prejudiced by the destruction of the cartons and

plastic bag which contained the dynamite in that

77a

they were deprived of the opportunity to determine

by firzerprinting who might have handled these

items.” (Findings of Fact at 5). The majority says

that this finding is clearly erroneous because the

fingerprint evidence “would not be exculpatory of

necessity.” (Kennedy, J., Op’n at 1155.) I am un-

able to follow the majority’s reasoning. The presence

or absence of fingerprints on the cartons would have

been relevant to the issues. The destruction of the

evidence prevented the defendants from being able to

prove the absence of their fingerprints. The destruc-

tion also foreclosed the possibility of proving that

persons other than the defendants handled the car-

tons and bays. The fact that fingerprint evidence

would not “necessarily” have been exculpatory is ir-

relevant. The fact is inescapable that relevant evi-

dence was destroyed, and the very act of destruction

prevents anyone from determining how helpful that

evidence might have been to the defendants.’

Prejudice stems from the fact that the Government

prevented defendants from finding out for them-

selves. (United States v. Tsutagawa (9th Cir. 1974)

500 F.2d 420, 423 (“The thrust of Mendez-Rodriquez

is to prevent the basic unfairness of allowing the

government to determine which witnesses will not

help either side and then to release those witnesses,

for all practical purposes, beyond the reach of the

*’ The Oregon State Police and the FBI attempted to take

fingerprints from both vehicles and many of the objects with-

in them. However, they did not attempt to discover finger-

prints on either the plastic bags or the cardboard boxes, and

the destruction therefore prevented those defendants not

traveling in the station wagon from rebutting the dynamite

counts with evidence that their fingerprints were not on the

dynamite containers.

78a

defendant. The vice lies in the unfettered ability of

the government to make the decision unilaterally.”

(citation omitted)); United States v. Mendez-

Rodriguez (9th Cir. 1971) 450 F.2d 1; United States

v. Bryant (1971) 142 U.S. App.D.C. 132, 138, 439

F.2d 642; 648 (“Where Brady and its progeny ap-

plicable only when the exact content of the non-

disclosed materials was known, the disclosure duty

would be an empty promise, easily circumvented by

suppression of evidence by means of destruction

rather than mere failure to reveal.” Cf. Brady v.

Maryland (1963) 373 U.S. 838, 838 S.Ct. 1194, 10

L.Ed.2d 215.)

As we held in Heiden, supra, we will reverse a con-

viction when there has been a loss or destruction of

evidence if the defendant can show “(1) bad faith

or connivance on the part of the Government or (2)

that he was prejudiced by the loss of the evidence.”

(508 F.2d at 902.) A fortiori, in reviewing an order

to suppress, rather than a conviction, a showing of

prejudice to the defendant from the destruction of

evidence will sustain a suppression order, regardless

of the nurity of the governmental motives in destroy-

ing the evidence.

The majority opinion correctly recognizes that we

are pursuing separate and distinctive interests in

situations of this kind: deterring governmental mis-

conduct, protecting a defendant’s right to a fair trial,

and preserving the integrity of the judicial process.

None of these interests is appropriately protected by

balancing one of these interests against the other.

Each of these interests is independently important,

and none of them can be weighed against the others.

Thus, for example, we have no interest whatever in

to ne ane

79a

injuring a defendant’s right to a fair trial to reward

government innocence in destroying evidence.*

The district court, on remand, particularly decided

the facts implicating the Government’s involvement

in the investigation and apprehension of the defend-

ants as well as governmental participation in the

destruction of evidence. It specifically found that the

Government acted in good faith, and it also found

that the defendants were prejudiced by the destruc-

tion of the evidence. All of those findings are fully

supported by the record, and we cannot reach a con-

trary conclusion unless we forthrightly admit that we

are substituting our judgment for the judgment of

the district court on these factual questions.*

*I am unable to find support for the majority’s balancing

formulation from any of the cases cited from our Circuit

or elsewhere. (United States v. Higginbotham (9th Cir. 1976)

539 F.2d 17 (negligent loss of photographs by state officers, in

which federal officers played no part, did not deny due

process) ; United States v. Mays (9th Cir. 1977) 549 F.2d 670

(insufficient showing of prejudice justifying dismissal of in-

dictment for pretrial delay) ; United States v. Picariello (1st

Cir. 1978) 568 F.2d 222 (citing Heiden in listing factors to

consider without weighing any of them).)

5 Brother Trask, in his separate opinion, argues that the

federal Government was not sufficiently implicated in the

aestruction of evidence to warrant suppression. Both the

facts as found by the district court specifically and the under-

lying record reveal that the investigation was a cooperative

venture between federal and state law enforcement agencies

from the start. To be sure, the search was physically con-

ducted by state officers, and state officers undertook the physi-

cal destruction of the evidence. The FBI agents, who had ad-

vance notice of the destruction, were not simply bystanders

during the event. The FBI’s hands were displayed promi-

nently throughout the transactions from the search through

the destruction of the evidence, thus invoking the principles

80a

IT

The district court correctly dismissed with prej-

udice both the dynamite and firearms counts. I agree

with the majority opinion that delay in prosecuting

the defendants on the dynamite counts was not un-

necessary under Rule 48(b), because the Government

had a statutory right to appeal the suppression order

as it applied to the dynamite counts. However, dis-

missal of the dynamite counts was appropriate on

other grounds. Suppression of the secondary evidence

was tantamount to a dismissal of the dynamite counts

because, without that evidence, proof of the existence

of the charged offense was lacking. Thus, outright

dismissal of those counts would also have been appro-

priate. (Cf. United States v. Roviaro (1957) 353

U.S, 53, 77 S.Ct. 23, 1 L.Ed.2d 39 (trial court should

have entered dismissal when Government suppressed

information that was important to certain counts) ;

United States v. Reynolds (1953) 345 U.S. 1, 12, 73

S.Ct. 528, 97 L.Ed. 727.)

As the majority recognizes, the non-dynamite fire-

arms counts were properly dismissed because delay in

prosecution had been unnecessary under Rule 48(b).

The majority nevertheless reverses the district court’s

order on the ground that the Government had not

been adequately warned that the dismissal would be

with prejudice. The record shows that the prosecu-

tion had ample forewarning, and it made its own

choice not to go forward on the non-dynamite counts.

The Government deliberately decided to submit to

dismissal of the firearms counts, rather than to go to

of Lutig v. United States (1949) 338 U.S. 74, 78, 69 S.Ct.

1372, 93 L.Ed. 1819; Byars v. United States (1927) 273 U.S.

28, 47 S.Ct. 248, 71 L.Ed. 520; United States v. Bryant (1971) ;

142 U.S.App.D.C. 132, 141, 489 F.2d 642, 651.

8la

trial, because it erroneously believed that it had a

right to appeal the suppression order as it related to

the non-dynamite counts. The suppression order was

entered on March 3, 1976. On April 19, 1976, the

Government filed a notice of appeal and a motion re-

questing a continuance of the trial date, May 12,

1976. The district court denied the Government’s mo-

tion for a continuance on April 20, 1976. On April

23, 1976, the Government informed the court that it

would refuse to go to trial on May 12. On April 26,

1976, we denied the Government’s motion for a con-

tinuance of the trial date. The Government then told

the district court that it would suffer a dismissal,

rather than go to trial, because it believed it would

win the appeal. A government attorney told the

court: we will take our chances on getting this Court

reversed by the Ninth Circuit with respect to that evi-

dence and . . . will suffer a dismissal at this time

if the Court should choose to do so rather than go to

trial on the imperfect case that we would have to

present if we were forced to trial now.” (12 R.T. at

6 (April 26, 1976).) More than two weeks later,

on the scheduled trial date, the case was called for

trial and the Government refused to proceed. The

district court then entered a dismissal with prejudice.

The crucial issue is whether the Government knew,

or should have known, the consequences of its refusal

to proceed to trial on the scheduled trial date. The

record unmistakably establishes the prosecutor’s

knowledge that dismissal with prejudice was one of

che consequences of a Rule 48(b) dismissal. (United

States v. Simmons (9th Cir. 1976) 536 F.2d 827.)

The prosecutor told the district court: “We believe

the court lacks jurisdiction to dismiss this indictment

with or without prejudice in view of the Govern-

82a

ment’s good faith intent [to appeal].” The majority

opinion’s conclusion that a dismissal with prejudice

is an abuse of the district court’s discretion under the

circumstances is in conflict with our decision in

United States v. Charnay (9th Cir. 1978) 577 F.2d

81.°

Nothing in United States v. Simmons, supra, sup-

ports the majority’s view that a dismissal cannot be

made with prejudice unless the district court gives

the prosecutor formal on-the-record warning that a

Rule 48(b) dismissal includes a dismissal with prej-

udice. On the contrary, Simmons itself indicates that

the forewarning can come from sources other than

the district court. Such sources include the district’s

speedy trial plan (536 F.2d at 837) or federal legis-

lation (536 F.2d at 836 (“the [Speedy Trial] Act

clearly forewarns the United States Attorney that he

must comply with the applicable time limits or face

the possibility that the indictment or information will

be dismissed with prejudice.”’) ).

®In Charnay, we held that the district court did not abuse

its discretion in dismissing with prejudice an indictment

under Kule 48(b). The first continuance was requested by

the Government to try to locate a missing witness. The court

had told government counsel that if the witness was not

located at the time the case was scheduled for trial, the in-

dictment would be dismissed. Nothing was said about a dis-

missal with prejudice. On the date set for trial, the witness

still had not been located and the Government renewed its

request for a continuance to locate the witness. The court

denied the motion and dismissed the indictment with preju-

dice. In upholding the district court, we said: “In these

circumstances the court exercised all the requisite caution,

and it was entirely proper for it to dismiss the indictment

pursuant to Rule 48(b). Indeed, on thi: record, we doubt that

any other prudent course was open to the trial judge.” (577

F.2d at 84.)

83a

The prosecutor knew that if he did not proceed to

trial on the scheduled trial date, the case would be

dismissed and that the district court had authority to

dismiss it with prejudice. The prosecution’s choice

was both knowing and intelligent. To be sure, the

strategy misfired because government counsel labored

under a misapprehension of law relating to the right

to appeal the suppression order affecting the non-

dynamite counts. These events provide no legal

foundation for relieving the Government of the con-

sequences of the Government’s exercise of prosecu-

torial discretion.

I would affirm.

ELY, Circuit Judge (dissenting) :

I respectfully dissent.

While I thoroughly share all of the views of my

Sister Hufstedler, my conscience impels that I set

forth a few comments of my own. I do this reluc-

tantly, even sorrowfully.

When our full court originally reviewed this ap-

peal, all the judges then involved applied their dedi-

cated efforts to the end that the difficult issues be

correctly and justly resolved. The majority concluded

that the district judge had not made critical findings,

and had not reached critical conclusions, with re-

quired specificity. I disagreed, believing that the facts

then before us proved, indubitably, that the chal-

lenged incriminatory evidence should have been sup-

pressed. I repeat a portion of that which I wrote in

dissenting from the majority’s original unpublished

en banc decision that the cause should be remanded:

As I see it, the fact of the Government’s active

participation [in the destruction of critical evi-

84a

dence] is beyond doubt. I say this for the follow-

ing reasons:

1. The original apprehension of the vehicles

was made by Oregon police upon notification

by federal agents, pursuant to a federal

warrant.

2. Federal agents attended the search for,

and the removal of, the dynamite from one

of the vehicles.

3. The instruction to destroy the material

was issued by a state officer, one McCollum,

and McCollum was not produced as a wit-

ness at the suppression hearing. From this

the district judge could fairly draw the in-

ference that McCollum had received this di-

rections from federal officers.

4. At least one federal authority was present

when the alleged explosive was destroyed,

and there was no evidence whatsoever that

he gave instructions, or made any rquest,

that any samples be retained for analysis by

the accuseds.

The last point, above enumerated, is of particu-

lar significance because of the defense contention

that the substance had been extensively exposed

to moisture and could not be detonated without

the utilization of additional explosive material.

We do not know whether such was necessary or

utilized, and this failure of proof most certainly

cannot be attributed to the appellees. In the cir-

cumstances therefore, I submit that the critical

finding of active federal participation, uncon-

tested, was supported by substantial evidence

and, in fact, could not properly have been other-

ee ee

85a

wise. I should add that warrants were executed

by federal officers and that no state charges were

instituted.

In any event, the majority’s original decision to

remand the cause so as to allow the district judge to

engage in a more intricate exploration and issue the

required determinations indicates to me that the ma-

jority then felt that, from the evidence relating to

the issue of suppression, the ultimate conclusions

could be either in favor of the appellants or in favor

of the prosecution.

The district judge, after further review, supplied

us with the guidance the majority originally thought

to be desired. Now before us is a finding of fact

which reads:

Federal agents were present and aware of [Ore-

gon State] Trooper Fettig’s intended destruction

of the dynamite and neither encouraged nor dis-

couraged such action.

Another critical finding is as follows: John

O’Rourke, Special Agent in Charge of Oregon,

was in Ontario before ‘the dynamite was de-

stroyed. He new [sic] that Beverly Axelrod,

counsel for defendants was also in Ontario before

the destruction of the dynamite. O’Rourke made

no effort to inform Axelrod of the impending de-

struction of the dynamite, of which he was

aware. Axelrod never asked O’Rourke to be al-

lowed to witness the destruction of the dynamite.

No representative of defendants witnessed the

destruction.

And, of what ought to be of paramount signifi-

cance, we now have the district judge’s critical legal

conclusion that:

86a

Defendants were prejudiced to the extent that

their inability to observe the destruction of the

dynamite or to analyze samples of it deprived

them of the opportunity to contest the govern-

ment’s conclusion that the substance destroyed

was indeed explosive. Defendants’ only argument

on this point is now limited to analysis of the

photographs of the destruction of the dynamite.

The testimony of witness McCreary concerning

the photographs of the destruction of the dyna-

mite cast substantial doubt on the assertion that

the photographs showed the detonation of dyna-

mite. The fact that defendants were denied the

opportunity to witness the destruction or to ex-

amine samples of the dynamite therefore appears

to have prejudiced defendants substantially on

the issue of the nature of the substance de-

stroyed.

Defendants were also prejudiced by the destruc-

tion of the cartons and plastic bag which con-

tained the dynamite in that they were deprived

of the opportunity to determine by fingerprinting

who might have handled these items.

And now, what happens? Not only does the ma-

jority disregard the critical determinations of the

district judge, but also it holds that the judge was

clearly wrong in making a determination based upon

conflicting testimony. In sum, the majority now does

no more in affirming the convictions that it might

have done upon the record before us in the original

en banc proceedings. In fact it does less, for it ac-

cords absolutely no weight or deference to the careful

review of the district judge upon remand and the

guidance with which the district judge has now

en eee | inn BN Sir re CONE Setters nes Be

ee ee ee ee

87a

favored us, and which, in the first en banc disposi-

tion, the majority wrote that it wanted. I do not

asperse the good faith or the motives of any of my

colleagues. All of them know that I hoid each in the

highest esteem. Notwithstanding, I record my belief

that the proceedings in this appeal, with two hearings

before the full court, and all the deliberations that

followed, reflect a futile exercise.

88a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 76-1906

76-2127

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

Vv.

KENNETH MosEs Loup HAWK; Russ JAMES REDNER;

LEONARD PELTIER; DENNIS JAMES BANKS; DAR-

LENE PEARL NICHOLS, who gives her true name as

Kamook Banks; and ANNA MAE AQUASH, also

known as Annie May Pictou and Naguset Eask,

DEFENDANT-APPELLEES

Appeal from the United States District Court

for the District of Oregon

[Filed July 26, 1977]

Before: ELY, HUFSTEDLER, and TRASK, Circuit

Judges

OPINION

HUFSTEDLER, Circuit Judge:

The Government appeals from orders suppressing

evidence and dismissing with prejudice an indictment

ee ee ee ee eee ee

89a

against the appellees.’ The district court suppressed

secondary evidence because the Government partici-

pated in the deliberate destruction of primary evi-

dence which, under the circumstances, deprived the

appellees of due process of law. The district court

dismissed the indictment because the Government re-

fused to proceed to trial after the Government’s mo-

tion to continue was denied.

The backdrop of this case is the battle of Wounded

Knee and the heritage of violence and death that fol-

lowed in its wake.? Banks and Peltier were active in

the American Indian Movement, and both were fugi-

tives when the events occurred from which this in-

dictment stems. In early November 1975, an inform-

ant told the FBI about the fugitives’ whereabouts and

their travel plans. On November 13, 1975, the FBI’s

Portland office sent a teletype to all Oregon law en-

forcement officers stating that federal fugitives might

be traveling through Oregon in a described motor

home and a station wagon, the license numbers of

which were given. The teletype also requested that,

if sighted, the vehicles should not be stopped, but the

FBI should be notified. On November 14, 1975, at

10 p.m., Oregon State trooper Griffiths saw the vehi-

cles. He confirmed by radio that the license numbers

1 Defendant Anna Mae Aquash was killed while the case

was pending below. Defendant Leonard Peltier was first

a fugitive and then a prisoner in Canada resisting extradition

during the time of the proceedings below. Thus, this appeal

involves only defendants Loud Hawk, Redner, Nichols, and

Banks.

? See, e.g., United States v. Banks (D.S.D. 1973) 368 F.

Supp. 1245; United States v. Banks, (D.S.D. 1974) 3874 F.

Supp. 321; United States v. Banks (D.S.D. 1974) 388 F.

Supp. 389, appeal dismissed, (8th Cir. 1975) 518 F.2d 1329.

90a

matched the teletype, askec for help, and stopped the

motor home. When Griffitns pulled over the motor

home, the station wagon stopped about 100 yards be-

hind the trooper’s car. Griffiths ordered the occu-

pants of the motor home to step out, and, in response,

an Indian man, two Indian women, and a small child

emerged. In answer to Griffiths’ inquiry, the Indians

said that no one else was inside. Thereupon, the

motor home sped forward, and the Indian male who

was outside the vehicle ran toward a fence and fired

a shot at Griffiths.

Meanwhile, the two occupants of the station wagon,

Loud Hawk and Redner, were arrested by the backup

officer, who had earlier arrived. The motor home was

later found abandoned about one half mile from the

site of the initial stop. Both vehicles were towed

away and impounded in a commercial garage in On-

tario, Oregon.

On the next day, November 15, 1975, state search

warrants were obtained for the search of the two

vehicles, and a search of the station wagon was be-

gun. FBI agents were present during the search.

Shortly after the start of the search, they discovered

what appeared to be seven, fifty-pound cases of com-

mercial dynamite. At this point the search was termi-

nated pending the arrival of an Oregon State Police

(“OSP”) explosives expert. That evening Trooper

Fettig, an OSP explosives expert, was told by his

supervisor, Lieutenant McCollum, to remove and to

dispose of the allegedly explosive material * found in

8 The defendants stipulated, solely for the purpose of the

motion to suppress, that the material was dynamite. We

shall also refer to it as dynamite for the purpose of simplicity,

recognizing that it was never established whether the ma-

terial was or was not dynamite.

9la

the station wagon. Fettig arrived in Ontario the

next afternoon, November 16, 1975, inspected and

disposed of the material. First, the garage was

cleared of people except for Fettig and the FBI and

OSP personnel who photographed the material lo-

cated in the car. The seven cases were removed from

the station wagon and placed in the trunk of Fettig’s

patroi car. The trunk was tied down and the mate-

rial was placed on blankets. Two of the cardboard

cases were quite wet, and one fell apart as it was

being placed into the patrol car. Fettig transported

the material to a pistol range 5 miles from Ontario.

Fettig removed two sticks from each case, removed

their wrappers, scraped the wrappers clean, and re-

tained the wrappers as evidence. The wrappers were

handed to the FBI agent on the scene, and both OSP

and FBI personnel photographed the process. Fettig

detonated first one stick and then three additional

sticks. The detonations were witnessed and photo-

graphed. The rest of the material—the cardhoard

cases, the plastic liners, and the remaining wrap-

pers—was burned. This, too, was photographed.

Part of the residue was buried, and part was hauled

away by the Oregon Highway Department.

The superseding indictment charged all of the ap-

pellees with three counts relating to unregistered and

unnumbered “destructive devices”* (the “dynamite

counts”) and with one count of interstate transporta-

tion of firearms bearing altered or obliterated serial

* They were charged with violations of 26 U.S.C. § 5861 (d)

(Count I); 26 U.S.C. §5861(i) (Count II); and 26 U.S.C.

3 5861(j) (Count Il). The “firearms” in these counts were

26 U.S.C. § 5845(f) “destructive devices.”

92a

numbers’ (the “firearms” count’). Evidence sup-

porting the firearms count was discovered in the mo-

tor home; the evidence supporting the dynamite

counts was discovered in the station wagon.’

On March 22, 1976, appellees moved to suppress all

photographs, testimony, and other evidence relating

to the destroyed dynamite. Both sides presented ex-

pert witnesses who testified about the handling of ex-

plosives. The Government’s expert was Trooper Fet-

tig. The person who made the decision and ordered

the destruction of the dynamite, Lt. McCollum, did

not testify. The Government also presented the pho-

tographs taken of the disposal process. Nichols, an

FBI laboratory scientist, testified that his chemical

analysis of the retained wrappers revealed all but one

of the ingredients of the type of dynamite alleged in

the indictment. The missing ingredient was the nitric

ester, indicating nitrated ethylene glycol or its deriv-

ative, nitroglycerine.

After some further procedural skirmishing, the

district court, on March 31, 1976, granted the sup-

5 Count IV charged a violation of 18 U.S.C. § 922(k).

® Count V charged Banks only with possession of firearms

by one previously convicted of a felony; it alleged a violation

of 18 U.S.C. App. § 1202(a).

7 The federal search warrant, granted on November 16,

1975, applied to both vehicles. The federal search occurred

subsequent to the state search, although FBI agents were

present at both. The inventories attached upon return were

not as clear as they could have been, but they indicate the

components alleged to have been intended to be combined

into a destructive device were in the station wagon. Besides,

any uncertainty must be resolved against those executing the

warrant and in favor of supporting the findings of the district

court.

93a

pression motion on due process grounds. The Gov-

ernment filed its appeal from the suppression order

on April 19, 1976, and simultaneously sought a con-

tinuance of the May 12, 1976, trial date pending the

determination of the appeal. The district court de-

nied the continuance on the following day. When the

case was called for trial on May 12, 1976, the Govern-

ment answered not ready and advised the court that

it was unwilling to proceed to trial. The district court

thereupon dismissed the indictment with prejudice,

pursuant to Rule 48(b) (Fed. R. Crim. P. 48(b)),

and the Government filed its appeal from the order

dismissing the indictment.

I

The Government first contends that it cannot be

charged with responsibility for the destruction of the

evidence because it did not have possession or control

of it. “The Government,” it says, “had nothing to

do with the disposal process and could do little but try

and record as much of the process as circumstances at

the time would allow.” The Government’s modesty

was not revealed to the district court, nor is it sup-

ported by the record. We could ignore the Govern-

ment’s argument because it is presented for the first

time on appeal. However, we choose to address the

question. The record reveals that the FBI was an

active participant in all of these proceedings. The

whole process was a cooperative federal-state effort.

FBI agents were present during the searches and

during the destruction of the evidence. They were

neither disinterested bystanders nor casual reporters

of the events that they witnessed; rather, they acted

with the state officers in the destruction venture. The

94a

district court’s implicit finding of federal involve-

ment is amply sustained by the record.°

Although the facts evidencing federal participation

in the search and in the subsequent destruction of evi-

dence are far stronger in this case than the activity

of the federal official who was involved in the search

considered in Lustig v. United States (1949) 338

U.S. 74, the language of Lustig is nevertheless in-

structive. In Lustig, the federal officer did not re-

quest the search nor was he the “moving force of the

search, and that search was not undertaken by the

police to heip enforcement of a federal law. But

search is a functional, not merely a physical, process.

. . . Had Greene [the federal officer] accompanied

the city police to the hotel, his participation could not

be open to question even though the door of Room 402

had not been opened by him... . [A] search is a

search by a federal official if he had a hand in it... .”

(Id. at 78.) The FBI’s hands were prominently dis-

played throughout the transactions from the search

through the destruction of the evidence. Federal par-

ticipation in the destruction of evidence should not be

measured by a standard any different from that ap-

plied to the search for evidence considered in Lustig.

8 United States v. Higginbotham (9th Cir. 1976) 539 F.2d

17, and United States v. Trenary (9th Cir. 1973) 473 F.2d

680, are inapposite. In the former case, the Government did

not enter the picture until after photographs, used by local

police in an identification display, had vanished. In the latter,

marijuana was destroyed by the Mexican police in Mexico.

An American custom

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