U.S. v. Kimmel, 83-1149

• Decision Date: 28 August 1984
• Docket Number: No. 83-1149,83-1149
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. James David KIMMEL, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

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741 F.2d 1123

UNITED STATES of America, Plaintiff-Appellant, v. James David KIMMEL, Defendant-Appellee.

No. 83-1149.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 14, 1984.

Decided Aug. 28, 1984.

R. Michael Burke, Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff-appellant.

Benjamin B. Cassiday, III, Asst. Federal Public Defender, Honolulu, Hawaii, for defendant-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before WALLACE, FLETCHER and FERGUSON, Circuit Judges.

FERGUSON, Circuit Judge:

The government appeals the district court's dismissal of the indictment against James David Kimmel after this court reversed Kimmel's original conviction and remanded his case for a new trial. The government contends that the district court erred in concluding that retrial of Kimmel would violate Kimmel's due process rights and that the district court abused its discretion in using its supervisory powers to dismiss the indictment. We affirm the district court's dismissal on due process grounds.

FACTS

On February 22, 1980, James Kimmel was indicted on one count of conspiracy and four counts of distribution of LSD, under 21 U.S.C. Secs. 846 and 841(a)(1). Kimmel conducted his own defense in a nonjury trial with the assistance of a court-appointed advisor. At trial, the government's case was submitted entirely by way of stipulated testimony. Kimmel then took the stand and admitted every element of the crimes charged. Kimmel's theories of defense were (1) entrapment and (2) that as a citizen of the "sovereign nation of Hawaii," he was not subject to the jurisdiction of the United States. Kimmel was found guilty on all five counts and was sentenced to ten years' imprisonment.

Kimmel appealed his convictions. On appeal, this court held that Kimmel did not receive the benefit of his constitutional right to legal representation at his trial and that the trial record did not show that Kimmel had made a knowing and intelligent waiver of his right to counsel. See United States v. Kimmel, 672 F.2d 720 (9th Cir.1982). The case was remanded to supplement the record on the issue of waiver. Id. at 722-23. On remand, the government was unable to offer additional evidence that Kimmel's waiver was knowing and intelligent, and therefore this court reversed Kimmel's convictions and remanded for a new trial. Id. at 732. In the meantime, Kimmel had served over two years of his sentence.

On January 24, 1983, Kimmel, through court-appointed counsel, filed a motion in the district court to dismiss the indictment against him on due process and double jeopardy grounds. The government did not file an opposition to the motion to dismiss, but orally opposed the motion at the hearing. On April 29, 1983, the district court granted Kimmel's motion from the bench "[f]or the reasons and argument stated in [defendant's] motion." On May 16, 1983, the court denied the government's motion for reconsideration and entered the order dismissing the indictment. The government filed a timely appeal.

DISCUSSION:

1. Scope of Review

At the outset, we note that the government's opposition to Kimmel's motion to dismiss before the district court consisted of a cursory oral statement at the hearing on the motion. In a brief statement, the government noted that there was a question whether Kimmel had been prejudiced and contended that the appropriate time to ascertain whether Kimmel suffered any prejudice from the absence of counsel was at the conclusion of his retrial. The government did not file a written opposition to Kimmel's motion to dismiss, nor did it request an evidentiary hearing at which Kimmel would be required to prove his allegations of prejudice. Kimmel therefore contends that the government has waived its right to challenge the dismissal on appeal.

Rule 345-2(b) of the Rules of the District Court of the District of Hawaii provides that:

Each party opposing any motion shall serve the adverse party with and file a memorandum in opposition to the motion which includes a brief and complete statement of the facts and all points and authorities upon which he or she intends to rely. (emphasis added).

Rule 220-11 further provides that "[t]he Court need not consider motions, oppositions to motions, or briefs or memoranda that are not in compliance with Local Rules." Even though an opposition was not filed, the district court did allow the government to speak orally on Kimmel's motion to dismiss at the hearing.

The government contends on appeal that its failure to file a written opposition to Kimmel's motion is excused because Kimmel failed to set out a hearing date on the motion to dismiss the indictment at the time the motion was filed. Further, the government alleges that the assigned prosecutor never received the notice of motion that was eventually filed by Kimmel.

The government, however, raised neither of these contentions before the district court, the appropriate forum for doing so. Although the government asserts that the prosecutor made an informal attempt with the court clerk to have the hearing postponed, the prosecutor never made a request for a continuance of the hearing on the record on the ground that the prosecution was not properly served or was unprepared. Nor were these contentions raised in the government's motion for reconsideration of the order granting Kimmel's motion to dismiss. We therefore do not consider the government's allegations of excuse on appeal.

Thus, the initial question before us is whether the government's failure to file a written opposition to Kimmel's motion to dismiss forecloses its right to challenge the dismissal on appeal. In United States v. Warren, 601 F.2d 471 (9th Cir.1979), this court held that the district court did not abuse its discretion in dismissing indictments when the government had failed to respond to the motion to dismiss. The local rules of the district court in Warren were similar to the rules involved here in that they gave the court discretion to conclude that a failure to respond constituted consent to the motion. The difference between Warren and the present case is that in Warren the district court dismissed the indictments expressly on the ground that the government failed to comply with the local rules. Here, the district court allowed the government to orally oppose Kimmel's motion, and apparently, the motion was granted on the merits. The government's failure to file a written opposition, however, was one of the express reasons the district court referred to in denying the government's motion for reconsideration.

We do not decide here whether the government's conduct totally forecloses its right to review of the dismissal of the indictment because we find the record supports the district court's dismissal on due process grounds. In reviewing the due process claim, however, our review is limited to those issues actually raised by the government before the district court at the hearing on the motion to dismiss. See Steagald v. United States, 451 U.S. 204, 209, 101 S.Ct. 1642, 1646, 68 L.Ed.2d 38 (1981) ("The Government ... may lose its right to raise factual issues of this sort before this Court ... when it has failed to raise such questions in a timely fashion during the litigation."); United States v. Gonsalves, 675 F.2d 1050, 1055 n. 9 (9th Cir.), cert. denied, 459 U.S. 837, 103 S.Ct. 83, 74 L.Ed.2d 78 (1982) (government waived right to raise issue by waiting until after four days of hearings and the dismissal of the indictment).

2. Due Process

Kimmel's original conviction was reversed because he...