U.S. v. Bohl, s. 91-5180

• Citation: 25 F.3d 904
• Decision Date: 20 May 1994
• Docket Number: Nos. 91-5180,91-5181,s. 91-5180
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George L. BOHL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Richard R. BELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 904

25 F.3d 904

UNITED STATES of America, Plaintiff-Appellee, v. George L. BOHL, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Richard R. BELL, Defendant-Appellant.

Nos. 91-5180, 91-5181.

United States Court of Appeals, Tenth Circuit.

May 20, 1994.

John E. Dowdell of Norman & Wohlgemuth, Tulsa, OK, for defendant-appellant George L. Bohl.

James C. Lang of Sneed, Lang, Adams & Barnett, Tulsa, OK (G. Steven Stidham, with him on the brief), for defendant-appellant Richard R. Bell.

Neal B. Kirkpatrick, Asst. U.S. Atty. (Susan K. Morgan, Asst. U.S. Atty., with him on the brief), U.S. Atty., Tulsa, OK, for plaintiff-appellee.

Before SEYMOUR, Chief Judge, EBEL, Circuit Judge, and McWILLIAMS, Senior Circuit Judge.

EBEL, Circuit Judge.

In this appeal, we must consider whether the government violated the Due Process Clause of the Fifth Amendment by depriving the Defendants-Appellants, Richard R. Bell ("Bell") and George L. Bohl ("Bohl"), of pretrial access to potentially exculpatory evidence in violation of the standards set out in Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). We conclude that the government denied Bell and Bohl a meaningful opportunity to present a defense by intentionally disposing of potentially exculpatory and highly probative evidence in the face of Bell and Bohl's repeated requests for pretrial access to that evidence. Accordingly, we reverse. ¹

I.

The conviction of Bell and Bohl arose from their performance of a contract to build radar and radio transmission towers for the Federal Aviation Administration ("FAA"). Bell and Bohl serve as President and Vice-President, respectively, of Transmission Structures, Ltd. ("TSL"), an Oklahoma corporation. On June 30, 1986, the FAA awarded TSL Contract DTFA-02-86-D-86568 ("Contract") to design and fabricate numerous guyed and self-supporting radar and radio transmission towers.

Pursuant to a post-award amendment to the Contract, TSL agreed to construct the legs of the guyed towers using 50,000 pounds per square inch ("ksi") yield strength steel that "conform[s]" to American Society for Testing Material ("ASTM") A-618, an accepted industry standard for the chemical composition of a certain kind of steel. For the self-supporting towers, the parties did not alter the original Contract specification requiring the use of 36,000 ksi yield strength steel consistent with ASTM standards A-53 or A-501. After inspecting TSL's physical plant and approving the company's tower design plans, the FAA ordered seventy-two towers from TSL during 1987 and 1988. TSL had fabricated sixty towers for the FAA when this action commenced.

Ultimately, the FAA concluded that TSL was using nonconforming steel in the fabrication of the towers, and the government's ensuing criminal charges focused on three towers that allegedly contained carbon and manganese levels exceeding A-618 and A-501 standards: two self-supporting towers (one installed in Bangor, Maine and the other in Boise, Idaho) and one guyed tower erected in Luthersville, Georgia.

The FAA initially grew wary of the steel composition of one TSL tower in October, 1988, when a leg on the Bangor tower fractured. Although TSL replaced the deficient leg, an FAA contract officer requested University of Maine Arnold Greene Testing Laboratory scientists to analyze samples from the fractured leg. The University's test report revealed excess levels of carbon and manganese in the sampled steel. The government returned to TSL the portion of the Bangor tower leg from which the sample was extracted, which the parties estimated at oral argument to have been approximately eighteen inches in length. Subsequent to receiving this finding and reports about apparent inadequacies of other TSL towers, the FAA requested the inspection of every tower that TSL completed under the Contract. It also ordered TSL to cease fabrication of all additional towers called for under the Contract. FAA officials met with Bell and Bohl on November 21, 1988 to discuss the status of the Contract. At this time, TSL commenced an internal review to determine whether its steel suppliers failed to deliver to it the proper grade steel.

In direct response to the FAA's challenge to the quality of the steel--and in the hope of renewing its fabrication of towers under the Contract--TSL repeatedly and explicitly requested access to the allegedly nonconforming towers to conduct its own inspection of the steel. ² According to an uncontroverted affidavit filed by Bell, a specific request for access to and preservation of the towers was made to the FAA officials during the November 21, 1988 meeting. Bell additionally testified that he and Bohl conducted "numerous telephone conversations" with FAA officials between October 1988 and April 1989, during which Bell and Bohl demanded access to the allegedly nonconforming steel towers. In a letter dated July 13, 1989, Bell informed the FAA Contracting Officer that "TSL is particularly anxious to receive information from the FAA as to the current activities or disposition related to any of the towers we have manufactured," and the "fact that you have not answered questions concerning rumored irresponsible disposal of towers, causes us great concern." The government does not dispute that these requests were made, and it concedes that the FAA failed to respond to TSL's requests for access to the towers.

In January 1989, the FAA awarded Raytheon Corporation a contract to test the towers' chemical composition. In addition, the FAA awarded a contract in March 1989 for the removal and disposal of every TSL tower--including the Bangor, Boise, and Luthersville towers that provided the evidentiary basis for Bell and Bohl's convictions. Unbeknown to Bell and Bohl, but affirmed by the testimony of Jerry Martin, a special agent in the United States Department of Transportation ("DOT") Inspector General's Office, the DOT commenced a criminal investigation of Bell and Bohl's conduct in May 1989.

Knowing that the FAA had awarded a contract for the removal of the towers, Agent Martin requested FAA officials to "preserv[e] evidence before the towers are scrapped[,] ... particularly ... the towers that were not tested for chemical composition." He said the government needed to complete its investigation "to preclude loss of Government rights for remedy through either civil or criminal action." In a letter dated August 30, 1989, the DOT Inspector General's Office requested the FAA to refer any TSL communications to the office of the United States Attorney for the Northern District of Oklahoma. Despite this cooperation between the DOT Inspector General's Office and the FAA regarding the criminal investigation, and the government's recognition of the importance of the towers for purposes of developing its chemical tests as evidence against TSL or its officers, TSL's requests for access to, and the preservation of, the towers remained unanswered.

On September 6, 1990, a grand jury in the Northern District of Oklahoma charged Bell and Bohl with conspiracy to defraud the United States in violation of 18 U.S.C. Sec. 286 (Count 1); three counts of submitting false claims for payment from the United States and aiding and abetting in violation of 18 U.S.C. Secs. 287, 2(b) (Counts 2-4); and six counts of mail fraud in violation of 18 U.S.C. Sec. 1341 (Counts 5-10). In testimony before the grand jury on September 6, 1990, DOT Special Agent Martin testified that the TSL towers were being razed "as we speak."

In the wake of this indictment, Bell and Bohl renewed their request for access to and preservation of the towers. In a letter dated September 24, 1990 to Assistant United States Attorney Neal B. Kirkpatrick, Bohl's counsel wrote:

I would additionally appreciate the provision of information relating to all towers which are the subject of specific counts in the Indictment. Specifically, I would like i. to obtain copies of any tests conducted on any of these towers ... ii. to know the location (at this time) of the towers which are the subject of the Indictment; and iii. to have access to these towers.

As before, this request went unanswered. Accordingly, Bohl's counsel sent an additional letter on October 2, 1990, in which he explained that "[i]n view of the currently scheduled pretrial hearing (October 5) and the trial date (October 15), it is critical that the defendants be given access to the towers as soon as possible."

The government finally responded in a letter dated October 18, 1990, in which Assistant United States Attorney Kirkpatrick pledged to Bohl's counsel that "as soon as possible we [will] let you know the present condition and location of the towers." Instead, however, the only actual tower material the government ever provided to Bell and Bohl was the eighteen-inch portion of one leg from the Bangor tower and shavings extracted from legs on the Boise and Luthersville towers.

Arguing that this scant evidence precluded them from conducting their own tests on the towers' chemical composition, Bell and Bohl filed a pretrial motion to dismiss the indictment on November 5, 1990, due to the government's destruction, sale, and loss of essential evidence. The court convened a pretrial hearing on November 16, 1990, during which the government conceded that it failed to respond to repeated requests for information on the whereabouts of the towers and that the actual towers could not be located. The government said, however, that Bell and Bohl had access to comparable evidence in that the government provided them with photographs of the towers, small samples, and the government's test results. The court rejected Bell and Bohl's motion to dismiss.

At trial, Bell and Bohl renewed their argument by filing a motion for judgment of acquittal pursuant to F.R.Crim.P. 29, on the grounds that the government's destruction of the towers deprived them of the opportunity to conduct their own...