Government of Virgin Islands v. Fahie

• Decision Date: 16 August 2005
• Docket Number: No. 04-1567.,04-1567.
• Citation: 419 F.3d 249
• Parties: GOVERNMENT OF THE VIRGIN ISLANDS, v. Jareem FAHIE Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 249

419 F.3d 249

GOVERNMENT OF THE VIRGIN ISLANDS, v. Jareem FAHIE Appellant.

No. 04-1567.

United States Court of Appeals, Third Circuit.

Argued December 14, 2004.

Decided August 16, 2005.

Charles S. Russell, Jr. (Argued), Moore, Dodson, & Russell, Charlotte Amalie, St. Thomas, United States Virgin Island, for Appellant.

Richard S. Davis (Argued), Office of Attorney General of Virgin Islands, Department of Justice, Charlotte, Amalie, St. Thomas, United States Virgin Islands, for Appellee.

Before: SLOVITER, FUENTES, and GREENBERG, Circuit Judges.

OPINION OF THE COURT

FUENTES, Circuit Judge.

This appeal concerns when, if ever, dismissal with prejudice is an appropriate remedy for a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The Territorial Court of the Virgin Islands dismissed a charge against Defendant-Appellant Jareem Fahie for possession of an unlicensed firearm after finding that the government failed to disclose a firearms trace summary in violation of Brady and Federal Rule of Criminal Procedure 16(a)(1)(F). The District Court of the Virgin Islands, Appellate Division, reversed, concluding that, although the government had violated its obligation under Brady, the Territorial Court erred in dismissing the case with prejudice. Because we conclude that dismissal with prejudice is appropriate only under exceptional circumstances not present here, we will affirm the judgment of the Appellate Division.

I. Facts and Procedural History

On the evening of July 8, 2001, Jareem Fahie was shot while sitting in his mother's car. Although he sustained numerous gunshot wounds, he was able to drive himself to the hospital where he was interviewed by a Virgin Islands police officer. Fahie informed the officer that he had dropped off two friends and was in the vicinity of a local hotel when a passenger from another car exited his car, approached Fahie and shot him. When asked if the car parked outside the hospital was his, Fahie told the officer that it was. When the officer went out to search the car for evidence of the shooting, she observed part of a sawed-off shotgun, about two-feet long, sticking out of a black nylon bag in the backseat. She reentered the hospital to ask Fahie if he had a license for the weapon; when he responded that he did not, the officer arrested Fahie for possession of an unlicensed weapon.

Fahie was charged with possession of an unlicensed firearm (the sawed-off shotgun) in violation of 14 V.I.C. § 2253(a). He pled not guilty and the case went to trial in the Territorial Court on October 24, 2001. At trial, Detective David Monoson was called to testify as to the results of a test firing of the weapon. In the course of cross-examination, Monoson revealed that he had run a trace of the gun based on its serial number through the Bureau of Alcohol, Tobacco, and Firearms and had received a report (the "ATF Report") over three months before the trial that contained the name of the gun's registered owner, an individual living in Virginia. According to the ATF Report, the gun had not been reported stolen. Defense counsel immediately objected and argued that the ATF Report was exculpatory, material evidence that had been withheld in violation of Brady¹ and Rule 16(a)(1)(F).² The government argued that the ATF Report was not Brady material and was exempt from discovery under Rule 16(a)(2).³ In an oral opinion, the trial court held that the information relating to the gun ownership constituted Brady material, and that nondisclosure prejudiced Fahie's due process rights. The trial court also ruled that nondisclosure was a violation of Rule 16(a)(1)(F), which requires, upon request, disclosure to the defendant of certain "Reports of Examinations and Tests." The Government filed a timely appeal in the Appellate Division of the District Court.

The Appellate Division affirmed the trial court's ruling that withholding of the ATF Report constituted a Brady violation. However, the Appellate Division disagreed with the trial court that dismissal with prejudice was a proper sanction for the Brady violation, and thus reversed the trial court on that issue. Based on this ruling, the Appellate Division determined that the question whether dismissal was an appropriate sanction for a Rule 16(a)(1)(F) violation was moot. Nonetheless, the Appellate Division went on to decide that the trial court's dismissal based on the Rule 16 violation was also an abuse of discretion. Finally, the Appellate Division rejected Fahie's motion to dismiss on Double Jeopardy grounds.

On appeal, Fahie argues that dismissal was an appropriate remedy for either the Brady violation or the Rule 16(a)(1)(F) violation. The Government argues that there was no Brady violation and that the firearms trace summary was exempt from disclosure under Rule 16(a)(2); it also argues that dismissal with prejudice was, in any event, an improper remedy for either violation.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction over the Government's appeal pursuant to 48 U.S.C. § 1493. We exercise jurisdiction over this appeal under 28 U.S.C. § 1291 and 48 U.S.C. § 1613.

In reviewing a trial court's remedy for an alleged Brady violation, we review conclusions of law de novo and review any findings of fact, where appropriate, for clear error. See United States v. Thornton, 1 F.3d 149, 158 (3d Cir.1993) (citing United States v. Perdomo, 929 F.2d 967, 969 (3d Cir.1991)).

III. Remedy for Brady Violation

A. Legal Background

As noted previously, the Supreme Court held in Brady that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S.Ct. 1194. The issue we must determine is when, if ever, dismissal with prejudice is an appropriate remedy for a Brady violation.⁴ Fahie argues that dismissal is an appropriate remedy for due process violations where the defendant demonstrates prejudice or a substantial threat of prejudice. The Government contends that dismissal of a case during trial violates the separation of powers that gives only the prosecutor the right to try the case.

We have not yet decided when, if ever, dismissal with prejudice is a proper response to a Brady violation, or if retrial is the most severe remedy available. Nor has the Supreme Court directly addressed the issue. While the Court has assumed that Brady violations that have affected the judgment of a jury normally will be remedied by a new trial, it has left open the possibility of barring retrial in response to particularly egregious due process violations. Compare Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) ("A new trial is required if [the Brady violation] could ... in any reasonable likelihood have affected the judgment of the jury."); United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973) ("[W]e may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction."). We too have left open the possibility that "the government's conduct in withholding Brady materials could ... be sufficiently egregious to bar prosecution of a defendant on due process grounds." United States v. Coleman, 862 F.2d 455, 460 n. 8 (3d Cir.1988).

In deciding when dismissal might be appropriate, we find instructive the Supreme Court's decision in United States v. Morrison, which discussed whether dismissal was proper in a case where prosecutors attempted to deprive a defendant of her right to an attorney. 449 U.S. 361, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981). Because their attempt failed, there was no prejudice to the defendant. Id. After discussing a number of cases involving violations of defendants' constitutional right to counsel, the Supreme Court in Morrison observed that "[n]one of these deprivations ... resulted in the dismissal of the indictment. Rather, the conviction in each case was reversed and the Government was free to proceed with a new trial." Id. at 365, 101 S.Ct. 665. The Court discussed the appropriate remedy for a pretrial violation of defendant's rights as follows:

[W]hen before trial but after the institution of adversary proceedings, the prosecution has improperly obtained incriminating information from the defendant in the absence of his counsel, the remedy characteristically imposed is not to dismiss the indictment but to suppress the evidence or to order a new trial if the evidence has been wrongfully admitted and the defendant convicted ... [A]bsent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate.

Id. Thus, the Supreme Court has expressed a preference for suppression of evidence or retrial as a more appropriate remedy for a pre-trial constitutional violation. Id. In Morrison, however, because there was no prejudice — indeed, not even a "claim of any discernible taint" — the Court determined that "even the traditional remedies were beside the point." Id. at 365 n. 2. Morrison therefore clearly precludes dismissal absent a showing of prejudice to the defendant. Id. at 365; see also Bank of Nova Scotia v. United States, 487 U.S. 250, 254, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988) (holding that an indictment should be dismissed for errors in grand jury proceedings only if they prejudiced the defendants).

Morrison also teaches that the intentional character of the government's misconduct affects the appropriate remedy.⁵ The Court noted, for example, that a "pattern of recurring violations by investigative officers ... might warrant the imposition of a more extreme remedy in order to deter further...