U.S. v. Cooper
| Decision Date | 08 January 1993 |
| Docket Number | No. 91-10380,91-10380 |
| Citation | 983 F.2d 928 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Wayne R. COOPER and Vincent Gammill, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert M. Twiss, Asst. U.S. Atty., Sacramento, CA, for plaintiff-appellant.
Robert M. Holley, Dwight M. Samuel, Sacramento, CA, for defendants-appellees.
Appeal from the United States District Court for the Eastern District of California.
Before: CHAMBERS *, SCHROEDER and BEEZER, Circuit Judges.
Because of the government's bad faith actions, the laboratory equipment seized from Apotheosis Research lies broken and buried in a toxic waste dump. This equipment cannot be introduced at trial. It can neither support nor undermine Wayne Cooper and Vincent Gammill's repeated assertion that their lab lacked the physical capability to manufacture methamphetamine.
We consider here whether Cooper and Gammill have a comparable, alternative means to support their assertion of innocence. We conclude that no alternative matches the potentially powerful exculpatory evidence destroyed by the government. The appropriate remedy is dismissal of the indictment. Thus, we affirm the district court's judgment.
Vincent Gammill owned Apotheosis Research, a small chemical laboratory operating out of leased space. Wayne Cooper managed it. The two maintain that they ran a legitimate lab, making legal chemical products such as a fuel additive and naval jelly.
They say that the company obtained a contract to manufacture dextran sulfate and that Cooper configured the laboratory equipment to undertake that product's cool-reaction process. At the time, dextran sulfate was one of the most common underground AIDS treatments in the United States.
Cooper's parole officer visited the lab, which operated openly. While the Drug Enforcement Agency was conducting its investigation, the parole officer spoke to DEA Special Agent Richard Croslin about the lab's claim of legitimacy and Cooper's asserted involvement in dextran sulfate production. Apotheosis Research's landlord also reported to government investigators that the lab ostensibly made legitimate products, including dextran sulfate.
The DEA suspected Cooper and another man of participating in methamphetamine manufacture abroad. The agency obtained an arrest warrant for Cooper as well as a search warrant for the lab and Cooper's apartment. On December 7, 1988, DEA agents and a government chemist, Roger Ely, searched Apotheosis Research. They concluded that it was an operational methamphetamine lab.
The DEA agents found formulas for methamphetamine and substances used in its manufacture. Under a sink they found containers of sludge containing traces of methamphetamine. 1 The agents also found a patent for dextran sulfate, chemicals used to manufacture that substance, and materials relating to the production of naval jelly. The search of Cooper's apartment turned up nine pounds of ephedrine, which is used to manufacture methamphetamine, and some laboratory glassware. The agents found no traces of methamphetamine or precursor chemicals on any glassware or equipment.
A DEA policy authorized the destruction of hazardous materials which agents discovered when dismantling clandestine labs. The policy aimed to protect both the agents and the environment. Agent Croslin, acting on Ely's recommendation, determined that most of the glassware and equipment should be seized and destroyed because it might be contaminated. 2 There was no determination of actual contamination. Pursuant to DEA policy, removal and destruction was assigned to American Environmental Management Corporation, a waste disposal company under contract to the DEA.
American Environmental put smashed glassware and smaller equipment in two 55-gallon drums. Among the large vats which American Environmental removed intact was a 125-gallon stainless steel reaction vessel. This vessel apparently functioned in a distillation process with a stainless steel vacuum tank. American Environmental stored the 55-gallon drums and the large vats on its property pending disposal. As the DEA knew, the company generally stored seized items for only a short time unless the government requested that the items be held as evidence. If requested to hold certain items, the company would set them aside for long-term storage.
When arrested, Cooper said that he used the lab equipment to manufacture naval jelly and dextran sulfate. On December 8, the day after Cooper's arrest and the seizure, Gammill, the owner of the lab, called Agent Croslin. He told Croslin that the equipment was configured to make dextran sulfate, it was expensive equipment, and he needed it back. As he had done previously, Croslin discussed this claim with his supervisor and with Ely, the chemist.
On December 12, Gammill's attorney called Croslin, reiterated Gammill's claims and demanded the return of the vats. He also stressed that the reaction vessel was critically engineered to make dextran sulfate and could not withstand the high temperatures required to make methamphetamine. Even though he knew the equipment would be destroyed, Croslin responded that it was being held as evidence. Croslin again discussed with his supervisor the claim that Apotheosis Research was a legitimate lab.
Although nothing suggested that the reaction vessel presented an imminent hazard, no one told American Environmental to preserve it for evidence or inspection. On December 21, the large vats, including the reaction vessel, were shipped to a toxic waste dump for burial. Five days later, the 55-gallon drums containing the glassware and smaller equipment were also shipped away for burial. In early January, Gammill's attorney wrote to Agent Croslin expressing hope that the government had completed its analysis of the equipment and requesting that it be returned. The assistant United States attorney handling the case responded in a letter dated January 12, 1989. The letter stated that the equipment--which had been shipped out and presumably buried--was being held as evidence.
The government charged Cooper and Gammill with conspiracy to manufacture methamphetamine and maintaining a place to manufacture methamphetamine. The two moved to dismiss the indictment, arguing that the government violated their due process rights by its bad faith destruction of potentially exculpatory evidence.
Judge Ramirez heard testimony on a variety of issues, including the potential exculpatory value of the reaction vessel. Cooper testified that the reaction vessel was made of low grade stainless steel and had seven rubber gaskets. A defense expert agreed that if this description were true, the high temperatures required for methamphetamine manufacture would destroy the vat and the seals. Additionally, the defense questioned whether the attached heating element and vacuum system would be adequate for methamphetamine manufacture. The defense expert also testified that he could reach no firm conclusions without examining the equipment.
A government witness testified that he had designed this specific vessel while working for the Navy in the early 1960s. He had specified a high grade stainless steel and no rubber gaskets. He did not know, however, if the vessel was made to specifications or if it had been altered in the subsequent decades.
Shortly before he retired from the bench, Judge Ramirez denied the motion to dismiss. Cooper and Gammill moved for reconsideration. Judge MacBride, who took over the case, conducted an additional hearing and heard supplemental arguments. Judge MacBride granted the motion and dismissed the indictment. We have jurisdiction over the government's timely appeal.
We review de novo the district court's determination that the government's failure to preserve potentially exculpatory evidence violated Cooper and Gammill's due process rights. Paradis v. Arave, 954 F.2d 1483, 1488 (9th Cir.1992).
The government challenges the district court's determination that Cooper and Gammill could not reasonably obtain evidence comparable in value to the destroyed laboratory equipment. The government does not challenge the district court's finding that the equipment's potential exculpatory value was apparent before its destruction. The government also leaves unchallenged the district court's conclusion that the police acted in bad faith by allowing the equipment to be destroyed while assuring Gammill and his attorney that it was being held as evidence.
Two Supreme Court cases set out the test we apply to determine when the government's failure to preserve evidence rises to the level of a due process violation. In California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413 (1984), the Court held that the government violates the defendant's right to due process if the unavailable evidence possessed "exculpatory value that was apparent before the evidence was destroyed, and [is] of such a nature that the...
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