U.S. v. Bowen, s. 87-5156
| Decision Date | 22 September 1988 |
| Docket Number | 87-5180,Nos. 87-5156,s. 87-5156 |
| Citation | 857 F.2d 1337 |
| Parties | 26 Fed. R. Evid. Serv. 1324 UNITED STATES of America, Plaintiff-Appellant, v. William A. BOWEN, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. Kevin W. JARVIS, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Nancy L. Worthington, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellant.
Michael Pancer and Eugene G. Iredale, San Diego, Cal., for defendants-appellees.
Appeal from the United States District Court for the Southern District of California.
Before HUG, KOZINSKI and THOMPSON, Circuit Judges.
This is an interlocutory appeal by the Government. The district court granted a suppression motion made by the defendants to exclude evidence relating to a polygraph examination given to one of the defendants and other evidence relating to an alleged conspiracy by the defendants to cover-up the circumstances during and after the examination. This appeal presents the issue of whether results of a polygraph examination and other evidence of the surrounding circumstances of the examination were properly excluded from trial as too prejudicial when the purpose of the evidence was to show that the results of the polygraph examination were fabricated as a part of a conspiracy. We affirm.
The parties present two entirely different versions of the facts leading up to this interlocutory appeal.
The Government essentially alleges that a United States border patrol agent senselessly attacked and beat up a man who was out target practicing near the California-Mexican border. The Government describes the victim as a licensed doctor who is an American citizen of Mexican descent. In addition, the Government charges that the two border patrol agents conspired with a private polygrapher to cover-up the incident by falsifying the polygraph results and then when called on it, made it seem as if the graphs showing the results were lost in the mail.
The defendants--the two border patrol agents and the private polygrapher--tell a different story. They say that the initial incident was a legal arrest by the two border patrol agents and that the man arrested was a convicted marijuana smuggler who was firing shots near one of the agents. The reason that the man was hurt, say the defendants, was because he violently resisted arrest.
On May 5, 1985 at approximately 4:30 in the afternoon, Dr. Jose A. Cisneros was target practicing when he suddenly realized that someone was yelling at him. He looked around, but could not see anyone. He was afraid that there might be some trouble and so he got into his car and drove away.
Ken W. Jarvis, the border patrol agent who had yelled at Cisneros, called his partner, William A. Bowen. Bowen, driving his patrol car, caught up with Cisneros first. Bowen was standing beside his car with his gun pointed at Cisneros, when Jarvis arrived and blocked Cisneros' car. Jarvis got out of his car and began screaming at Cisneros to lie on the ground. Cisneros complied. While Cisneros was lying face down in the dirt, Jarvis screamed obscenities at him, handcuffed him behind his back, and kicked him several times. Bowen stood by and watched, still pointing his gun at Cisneros.
The local sheriff's deputies were called. The deputies arrived and helped Cisneros into their car. They drove to the sheriff's office.
Meanwhile, Bowen and Jarvis wrote a complaint, alleging assault on a federal officer by Cisneros. Additionally, they wrote a memorandum to their superior at the border patrol agency based on their version of the story. The sheriff's office did not file the complaint; instead, the deputies called the FBI. The FBI interviewed all three men. Cisneros told the FBI how he had been kicked; Bowen and Jarvis said that there was no kicking, that Cisneros was resisting arrest.
Jack Feemster, an agent from the Immigration and Naturalization Service, Office of Professional Responsibility ("INS"), investigated the complaint. He interviewed the three men, who repeated the same story that they had told to the FBI. Because of the conflicting accounts, Feemster asked the men if they would submit to a lie detector test. All three said that they would.
Feemster called Bonsall to conduct the polygraph examinations. Bonsall first tested Jarvis. After the examination, Bonsall called Feemster and told him that Jarvis had passed the polygraph test "with flying colors."
Cisneros wanted to be tested by someone other than Bonsall because he had heard that Bonsall's reputation as a polygrapher was poor. Cisneros was therefore tested by an FBI agent. At about this same time, Feemster learned that Bonsall and Bowen knew each other. Feemster arranged for Bowen to have an appointment with the same FBI agent who had tested Cisneros. Bowen failed this examination. However, when he admitted that he had seen Jarvis kick Cisneros, he passed.
Feemster, who was now curious as to how Jarvis had passed his lie detector test, immediately confronted Bonsall with Bowen's examination results. A meeting was arranged but Bonsall did not show up. He later claimed that he mailed the polygraph results to Feemster on September 29, 1985, which was the day before the meeting was scheduled. Feemster received no such results. A water soaked manila folder, which he did receive from Bonsall, contained only a conclusory report by Bonsall and some documents relating to the investigation which Feemster had given to Bonsall earlier.
On September 29, a postal worker noticed a large manila envelope addressed to a government office in the mail box. The envelope was torn. She searched the mailbox to see if anything had fallen out of the envelope. She found nothing loose in the box so she taped the envelope and stamped it "Received Unsealed at El Centro, CA 92244." The Government contends that Bonsall tried to make it look like the envelope was damaged in the mail and the graphs were therefore lost.
The defendants' version of the incident begins with Jarvis, who was on patrol near the Mexican border. Jarvis spotted fresh tracks near a canal, which indicated that aliens might have illegally entered the United States. He followed the tracks up into some brush where he heard gun shots. Several of the shots landed nearby. He identified himself as a border patrol agent and shouted to cease fire. Two more shots were fired in his direction. Jarvis shouted again, telling the perpetrator to cease fire and to stay where he was. Cisneros, who was firing the shots, ignored Jarvis, got into his car, and drove away. Jarvis followed Cisneros and, while driving, contacted Bowen, telling him to head off Cisneros.
After Jarvis caught up with Cisneros, he asked him to raise his hands, but Cisneros started to run instead. Since Cisneros was resisting arrest, Jarvis had to tackle and handcuff him in order to subdue him. Jarvis told Cisneros that he was under arrest and then read him his rights.
Jarvis took a polygraph examination by Bonsall and passed with flying colors, and there was no indication that the result was fabricated. Jarvis took a second polygraph examination by another polygrapher and passed. In this examination, Jarvis denied ever kicking Cisneros.
On April 30, 1986, a federal grand jury returned a nine-count indictment against Bowen, Jarvis, and Bonsall. The indictment essentially charged Jarvis with violating Cisneros' civil rights and all three men with conspiracy and making false statements to federal officers.
On June 26, 1986, Bowen and Jarvis moved to dismiss the counts in the indictment which charged them with making false statements to federal agents in violation of 18 U.S.C. Sec. 1001 (1982). The court dismissed all of the section 1001 counts against Jarvis and one against Bowen. United States v. Jarvis, 653 F.Supp. 1396, 1397 (S.D.Cal.1987). At the same time, Bowen, Jarvis, and Bonsall made a motion to sever their trials. The court granted the motion for severance of the defendants' trials on October 30, 1986.
In connection with the motion to sever and throughout the entire pretrial proceedings, the Government assured the court that the polygraph evidence would not be put into evidence and used against Bowen and Jarvis. On July 7, 1986, for example, the Government stated for the record that "certain polygraph evidence relevant and admissible as to Bonsall would not be admissible as to Jarvis and Bowen." On December 12, the Government stated to the court in even stronger terms that, "[t]here's been an agreement that mention of the polygraph will not be made...."
On April 29, 1987, the grand jury superseded the original indictment, adding two new charges of section 1001 violations, one against Bowen and one against Jarvis. As the case now stands, each defendant is charged in three counts.
Count 1 charges Jarvis with violating Cisneros' civil rights pursuant to 18 U.S.C. Sec. 242 (1982). Count 2 charges him with conspiracy to defraud the United States in violation of 18 U.S.C. Sec. 371 (1982). To support the conspiracy charge, the Government lists six overt acts. Among the listed acts are three which state that Jarvis met with Bonsall, who after the meeting, prepared a false polygraph examination report for the INS. The indictment next focuses on the alleged attempt to cover up the circumstances surrounding the polygraph examination....
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