U.S. v. Doe
| Decision Date | 09 September 1997 |
| Docket Number | No. 97-50408,97-50408 |
| Citation | 125 F.3d 1249 |
| Parties | 97 Cal. Daily Op. Serv. 7243, 97 Daily Journal D.A.R. 11,704 UNITED STATES of America, Plaintiff-Appellee, v. John DOE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Appeal from the United States District Court for the Central District of California; Consuelo B. Marshall, District Judge, Presiding. D.C. No. CR-95-00000.
Before: BROWNING and SCHROEDER, Circuit Judges, and RESTANI, * United States Court of International Trade Judge.
Defendant-appellant John Doe ("Doe") challenges the district court's decision not to dismiss the criminal contempt information filed against him. Specifically, Doe claims that the government's outrageous conduct in connection with charging him with criminal contempt violated his constitutional right to due process and equal protection and, alternatively, that the district court failed to exercise its supervisory powers by dismissing the information. We affirm.
Doe, along with three others, conspired to commit several armed postal robberies. In 1993, Doe was arrested and charged with two counts of robbery of a postal service letter carrier in violation of 18 U.S.C. § 2114 and two counts of using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). In exchange for Doe's plea and cooperation in prosecuting his co-conspirators, the government moved to dismiss one count of using a firearm during a crime of violence and recommended a three level reduction in his sentencing guideline offense level. Doe pled guilty to both postal robbery counts and to one count of using a firearm during a crime of violence, and agreed to testify against other individuals involved in the robberies pursuant to a plea and cooperation agreement with the government. Specifically, the agreement with Doe provided that, "You After Doe was sentenced, Roe was indicted for his participation in the armed postal robberies. The government filed a writ to have Doe brought cross country to testify in the case against Roe, 1 and notified Doe's attorney that Doe was needed as a witness in the prosecution of Roe. While Doe was en route, his attorney informed the government that she doubted that Doe would be willing to testify in view of the hardships that he had endured and continued to suffer as the result of his previous cooperation. Doe's attorney stated that Doe might consider testifying if a motion to reduce Doe's sentence pursuant to Fed.R.Crim.P. 35 2 was filed contemporaneously with his testimony. The government refused to file a Rule 35 motion, taking the position that Doe was obligated to testify under the plea agreement without any additional incentive. Subsequently, the government informed Doe's attorney that it was willing to consider filing such a motion, but would not do so before Doe actually testified.
agree that you will cooperate fully with the government in its continuing investigation of this case." Doe was convicted and sentenced to 120 months incarceration after receiving a six level departure in his offense level. Two of Doe's co-conspirators pled guilty and agreed to cooperate against a third alleged co-conspirator, James Roe. Roe was not charged at that time
Doe then requested a status conference with the district court to resolve the difference of opinion surrounding the scope of the plea agreement. The district court found that Doe was not obligated to testify pursuant to the plea agreement. 3 Anticipating Doe's refusal to testify, the government obtained authority to apply for a court order of immunity pursuant to 18 U.S.C. §§ 6001-6003 (1994).
The court could order then that you be incarcerated until such time as you either express a willingness to answer questions, in which case you would be brought back to the courtroom and asked questions again, giving you an opportunity to answer, or until these proceedings were [sic] complete. Do you understand that?
In November 1995, the government filed an information charging Doe with criminal contempt pursuant to 18 U.S.C. § 401(3) 4 and Fed.R.Crim.P. 42(b). 5 The information charged that Doe disobeyed a lawful court order to testify during the criminal prosecution of Roe. In December 1996, Doe filed a motion to dismiss the information based on outrageous government conduct. Although the district court opined that the government's action in filing the information was "going further than the Government needs to go," the court refused to find that the government abused its discretion and denied the motion to dismiss. Following this ruling, Doe entered a conditional plea of guilty and was sentenced to one month imprisonment, to run consecutively to any undischarged period of custody. Doe has not yet begun to serve the term of imprisonment for the criminal contempt conviction and is currently in custody serving the prior term imposed for his robbery and weapon convictions.
The district court had jurisdiction over this case pursuant to 18 U.S.C. § 3231 as the information charged Doe with contempt pursuant to 18 U.S.C. § 401. We have jurisdiction pursuant to 28 U.S.C. § 1291 of this appeal from a final decision of a district court.
The district court's decision to deny a motion to dismiss an information based on constitutional issues raises questions of law subject to de novo review. United States v. Garza-Juarez, 992 F.2d 896, 903 (9th Cir.1993). We "view[ ] the evidence in the light most favorable to the government and accept[ ] the [district] court's factual findings unless clearly erroneous." United States v. Emmert, 829 F.2d 805, 810-11 (9th Cir.1987). We review the district court's refusal to dismiss the information in the exercise of its supervisory powers for abuse of discretion. United States v. Matta-Ballesteros, 71 F.3d 754, 763 (9th Cir.1995), amended, 98 F.3d 1100 (9th Cir.1996); Garza-Juarez, 992 F.2d at 903.
The district court may dismiss an information based on outrageous government conduct if the conduct amounts to a due process violation. United States v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir.1991). "If the conduct does not rise to the level of a due process violation, the court may nonetheless dismiss [an information] under its supervisory powers." Id. The court may exercise its supervisory powers "to remedy a constitutional or statutory violation; to protect judicial integrity by ensuring that a conviction rests on appropriate considerations ...; or to deter future illegal conduct." Id.; see also United States v. Hasting, 461 U.S. 499, 505, 103 S.Ct. 1974, 1978, 76 L.Ed.2d 96 (1983); United States v. Simpson, 927 F.2d 1088, 1090 (9th Cir.1991).
Improper governmental conduct warrants dismissal of an information only if it is " 'so grossly shocking and so outrageous as to violate the universal sense of justice.' " Garza-Juarez, 992 F.2d at 904 (quoting United States v. Ramirez, 710 F.2d 535, 539 (9th Cir.1983)). "This has been described as 'an extremely high standard.' " Id. (quoting United States v. Smith, 924 F.2d 889, 897 (9th Cir.1991)). The government retains significant discretion as to whom to prosecute. United States v. Carrasco, 786 F.2d 1452, 1455 (9th Cir.1986). "This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review." Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 1530, 84 L.Ed.2d 547 (1985). While prosecutorial discretion is broad, it is not "unfettered," and is subject to constitutional constraints. Id. at 608, 105 S.Ct. at 1531 (quoting United States v. Batchelder, 442 U.S. 114, 125, 99 S.Ct. 2198, 2204-05, 60 L.Ed.2d 755 (1979)).
In asserting a violation of constitutionally protected rights, Doe must show that the government's filing of the information was so shocking to due process values that it must be dismissed. See United States v. Montoya, 45 F.3d 1286, 1300 (9th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 67, 133 L.Ed.2d 29 (1995). Doe claims that the circumstances of this case demonstrate the outrageousness of the government's conduct. Doe asserts that the government did not need to call him as a witness against Roe as a conviction was obtained without Doe's testimony....
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