# Appendix — United States v. Loud Hawk > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0194%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1986 - **Citation:** 474 U.S. 302 ## Text 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/ SUE sciiathisieslieabidialainiinceiniaiimmendtniinininininepedanssomen (District Court opinion dated 5/20/83) .. (District Court amended order dated ETS ee Ce (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 16la 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. / { | 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 | : | 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 37a 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. 88a 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. 89a 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- 4la 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. 42a 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 43a 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, 44a 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 45a “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 52a 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0194%3A03. Public record. Not legal advice.