U.S. v. Jacobs

• Decision Date: 31 August 1988
• Docket Number: No. 87-1082,87-1082
• Citation: 855 F.2d 652
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Wesley JACOBS and Santokh Singh Takhar, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 652

855 F.2d 652

UNITED STATES of America, Plaintiff-Appellant, v. Wesley JACOBS and Santokh Singh Takhar, Defendants-Appellees.

No. 87-1082.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 18, 1987.

Decided Aug. 31, 1988.

David F. Levi, U.S. Atty., Sacramento, Cal., for plaintiff-appellant.

Eric K. Fogderude, Fletcher & Fogderude, Fresno, Cal., for defendant-appellee Jacobs.

George A. McKray, San Francisco, Cal., for defendant-appellee Takhar.

Appeal from the United States District Court for the Eastern District of California.

Before ALARCON and O'SCANNLAIN, Circuit Judges, and STEPHENS, ^* District Judge.

PER CURIAM:

The government appeals the district court's dismissal for prosecutorial misconduct of an indictment against Wesley Jacobs and Santokh Singh Takhar. The government contends that (1) no prosecutorial misconduct occurred and therefore the district court lacked a legal or factual basis for its dismissal, and (2) if reversed the case should be reassigned to another judge. We agree and we reverse and remand with instructions.

FACTS AND PROCEEDINGS

The indictments at issue here result from the Food and Drug Administration's efforts to prevent the use of the drug chloramphenicol in animals that produce food. As part of this effort, in 1984 the FDA sent one of its agents, Robert Anderson, to investigate large purchases of chloramphenicol made by the animal hospital which Jacobs and Takhar owned and operated. Based on the evidence Anderson discovered, in 1986 the grand jury indicted Jacobs and Takhar for mislabeling and adulterating chloramphenicol in violation of 21 U.S.C. Secs. 331(k) and 333(a). In addition, the grand jury charged Jacobs with making false statements in violation of 18 U.S.C. Sec. 1001 because he allegedly lied to Anderson.

On February 10, 1987, just an hour before the scheduled start of open court proceedings before Judge Price, appellees served the government with a "Motion to Determine Admissibility of Evidence." The government objected to the motion's timeliness because the motion (1) should have been filed by the January 16th pretrial deadline for defense motions, and (2) would have the effect of a suppression motion due to its late filing. During an in-chambers conference held before the beginning of the public proceedings, Judge Price rejected the timeliness objection and deferred ruling on the motion's substance until the end of the government's case. At this conference, Judge Price also stated that if he granted the motion, he would also "grant a motion of acquittal."

During Takhar's counsel's opening statement, the government objected because contrary to Judge Price's pretrial orders, he discussed the background of the chloramphenicol. In the jury's presence, Judge Price responded:

This is testimony concerning the government's own inability to determine what they are going to do. I have got to hear this man out. I have got to hear the case. I'm frankly confused as to what the government's case is. I don't think you folks know. Please proceed.

Later the same day, Jacobs' counsel, Eric Fogderude, cross-examined Anderson. During this examination, Fogderude handed FDA inspector Anderson a copy of the first page of his notes, and asked if the copy was complete. When Anderson replied THE COURT: You will report to me tomorrow morning at 9:00 o'clock. Is that understood?

the copy was incomplete, Judge Price ordered government counsel, D. Bruce Pearson, to read through every document personally, after which he berated Pearson:

MR. PEARSON: Yes, your Honor, I believe--

THE COURT: Do you understand what I have told you?

MR. PEARSON: Yes.

THE COURT: Repeat it.

MR. PEARSON: I am to have all the filed checked--

THE COURT: You are not to have the files checked. You are to personally go through them and read every document.

MR. PEARSON: Your Honor, I have gone through the files myself already that were made available to me from the F.D.A.

THE COURT: Counsel, counsel, counsel, did you hear what I said?

MR. PEARSON: Yes, I did, your Honor.

THE COURT: Failure to do so will be punishable by a contempt order; is that understood?

MR. PEARSON: Yes, your Honor.

THE COURT: You may sit down.

On February 11th, during an in-chambers hearing held before the start of open court proceedings, Fogderude admitted that he had made a mistake and that the government had provided a complete copy of Anderson's notes. Despite Fogderude's admission, Judge Price continued to complain about government counsel: "Every U.S. Attorney that appears in my court [relies] on somebody else to do [his] work." After this complaint, Judge Price stated that he would hold the government to its representation of complete discovery production.

More important, during this in-chambers hearing, Judge Price told Takhar's counsel, George McKray, that his client should win. The judge remarked:

You have got a cinch in this case. They can't prove that Takhar did anything, and if you got off that horse that you are riding about for the veterinary profession, you might get an acquittal at the end of the government case. But if you keep screwing around, you are going to get him convicted.

(emphasis added).

After the in-chambers hearing, government counsel on redirect examination asked Anderson to identify a document. When Anderson stated that the document was incomplete, Judge Price invited and then granted a motion to dismiss "on the basis of misconduct of government counsel." Then Judge Price left the courtroom. Immediately after the dismissal, Anderson and government counsel di covered that Anderson was mistaken; in fact, the document was complete. The government informed the court's law clerk of the error within two minutes after Judge Price left the courtroom and asked for the Judge to return. However, the judge replied the trial was over and a motion to reconsider should be filed if the government had anything to say.

Later that day, the government filed a motion for reconsideration. On February 25, 1987 Judge Price denied the motion because government counsel should have known during trial "of the truth or falsity of Anderson's statement," and because "[t]he defendant's jeopardy has been attacked." On March 24, 1987 the government filed a notice of appeal. ¹

JURISDICTION

This court has jurisdiction under 18 U.S.C. Sec. 3731 over government appeals in criminal cases, except when the double jeopardy clause bars further prosecution. United States v. Schwartz, 785 F.2d 673, 677 (9th Cir.), cert. denied, 479 U.S. 890, 107 S.Ct. 290, 93 L.Ed.2d 264 (1986). When Here, no evidence shows that the prosecutor intended to "goad" the appellees into making a mistrial motion. Instead, the evidence indicates that appellees made the motion to dismiss because Judge Price invited them to do so. Thus, the double jeopardy bar does not apply. For this reason, this court has jurisdiction under 18 U.S.C. Sec. 3731.

                a defendant moves for a mistrial, double jeopardy attaches only where the prosecutor intended to "goad" the defendant into making a mistrial motion.   Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083, 2089, 72 L.Ed.2d 16 (1982)
                

STANDARD OF REVIEW

A district court may dismiss an indictment on any of three grounds: (1) due process, (2) inherent supervisory powers (protecting the integrity of the judicial process), and (3) statutory grounds. However, while we review a due process dismissal de novo, United States v. Simpson, 813 F.2d 1462, 1465 n. 2 (9th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 233, 98 L.Ed.2d 192 (1987), we review both an inherent supervisory dismissal and a statutory dismissal for an abuse of discretion. Id.; see United States v. Nat'l Medical Enters., Inc., 792 F.2d 906, 910 (9th Cir.1986).

Because of the different standards of review, we must decide as a preliminary matter on what grounds the district court granted the dismissal. We find that the district court grounded its dismissal on its inherent supervisory powers. Apparently, Judge Price dismissed this case on the basis of his perception that the government neglected to comply with his discovery order to produce complete copies of all documents. A dismissal rooted in a failure to obey a discovery order lies within a court's supervisory powers. See United States v. Gatto, 763 F.2d 1040, 1046 (9th Cir.1985) (noted that this court recognized supervisory power to dismiss for violation of discovery orders in United States v. Roybal, 566 F.2d 1109, 1110-11 (9th Cir.1977)).

DISCUSSION

A. Dismissal of the Indictment

The government argues that the district court erred when it dismissed the indictment for prosecutorial misconduct. We agree.

Because the drastic step of dismissing an indictment is a disfavored remedy, United States v. Rogers, 751 F.2d 1074, 1076-77 (9th Cir.1985), a district court may properly dismiss an indictment only if the prosecutorial misconduct (1) was flagrant, United States v. Carrasco, 786 F.2d 1452, 1455 (9th Cir.1986), and (2) caused substantial prejudice to the defendant. Rogers, 751 F.2d at 1077. In cases involving prosecutorial misconduct which is neither flagrant nor prejudicial, a district judge can still sanction the misconduct, but the sanction chosen must be proportionate to the misconduct. See generally United States v. Cadet, 727 F.2d 1453, 1470 (9th Cir.1984).

In short, absent flagrant and prejudicial prosecutorial misconduct, this court will find that the district court's dismissal of an indictment is an abuse of its discretion. For example, in Gatto, 763 F.2d at 1050, the district court dismissed an indictment because the government failed to abide by the court's discovery orders. However, this court held that the district judge abused his discretion in dismissing the indictment because it found neither violation of a discovery order pursuant to Fed.R.Crim. P. 16, nor any other violation. Id. at 1050-51. Similarly, in Cadet, the district court dismissed the...