U.S. v. Wallace

• Decision Date: 08 June 1988
• Docket Number: 86-3147,Nos. 86-3146,s. 86-3146
• Citation: 848 F.2d 1464
• Parties: 25 Fed. R. Evid. Serv. 1192 UNITED STATES of America, Plaintiff-Appellee, v. Janice WALLACE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Elmore PENN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1464

848 F.2d 1464

25 Fed. R. Evid. Serv. 1192

UNITED STATES of America, Plaintiff-Appellee, v.Janice WALLACE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v.Elmore PENN, Defendant-Appellant.

Nos. 86-3146, 86-3147.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 7, 1987.

Decided May 26, 1988.

As Amended June 8, 1988.

John W. Lundin, Seattle, Wash., for defendant-appellant.

W.H. Redkey, Jr., Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before FLETCHER and NORRIS, Circuit Judges, and LYNCH, ^*District Judge.

FLETCHER, Circuit Judge:

AppellantsJanice Wallace and Elmore Penn were convicted, after jury trial, on both conspiracy and substantive counts of possession with intent to distribute heroin.¹They appeal their convictions, alleging the following errors: (1)the district court's denial of Wallace's motion to dismiss her indictment due to governmental bad faith and preindictment delay; (2) the government's failure to produce notes used by a government witness in her testimony before the grand jury under the Jencks Act;(3)the district court's admission of Wallace's prior heroin conviction to impeach her testimony under Fed.R.Evid. 609;(4)the prosecutor's vouching for a government witness's credibility; and (5)the district court's conclusion that Wallace had waived her Miranda rights and its subsequent admission of statements made by Wallace after her arrest.We remand to the district court for further proceedings.

BACKGROUND

In 1984, local law enforcement officials in Anchorage, Alaska, investigated a multistate heroin trafficking operation run from the home of Doris Sterling, the "Queen Bee" of the heroin underworld in Anchorage.The investigation uncovered a network that apparently included individuals in the states of California and Washington.It also revealed that Doris Sterling and Sandra Chandler, an Alaskan "courier" for Sterling, made several trips in 1984 to Los Angeles and Seattle.On her visits to Seattle, Doris Sterling was met at the airport by Elmore Penn and stayed at his residence, which was, in fact, owned by Janice Wallace, normally a resident of Los Angeles.On October 25, 1984, officers tracked Sterling from her Anchorage residence to the Seattle residence.The next day, Sterling was arrested at her Anchorage residence immediately following an undercover agent's purchase of heroin from her.

The same day in Seattle, DEA agents executed a search warrant at Penn's residence, where they discovered and arrested both Penn and Wallace.The October 26 search of the Seattle residence yielded, among other items, $30,000 cash hidden in a ladies' size 9-C cowboy boot.Approximately $10,000 of the $30,000 was money previously "marked" and used by an undercover officer in a series of heroin purchases from Sterling.The boot apparently fits appellant Wallace and was found in the bedroom that was being used by her.The search of that bedroom also revealed a cocaine handbook, a heat tester, notes referring to cocaine prices in Seattle, an address book with an apparent reference to Doris Sterling, a hand scale, and other items that could be used in the processing or distribution of cocaine.The search, however, did not uncover any heroin, cocaine, or other illegal narcotics.

In return for the Government's promise not to prosecute her for federal narcotics offenses, Doris Sterling eventually agreed to be a cooperating government witness in the prosecution of Wallace and Penn.²Sterling was the Government's star witness at trial.In lengthy testimony, she described nine trips by herself or others to Seattle or Los Angeles to obtain heroin for distribution in Anchorage.Sterling testified extensively regarding heroin purchases from Wallace and Penn.Parts of her testimony were corroborated by various documentary evidence, such as airline tickets and telephone-call records, and by testimony from several Alaskan law enforcement officers and Seattle DEA agents involved in the undercover and surveillance operations.However, Sterling's testimony by itself was the key to establishing the purpose of the trips to Seattle and Los Angeles and, thus, the participation, if any, of Wallace and Penn in the heroin trafficking operation.

DISCUSSION

I.The Wallace Indictments

Wallace was initially indicted on November 21, 1984, on one count of aiding and abetting the distribution of heroin.On December 20, 1984, the United States Attorney moved to dismiss the indictment without prejudice, asserting the initiation of an investigation into possible tax violations as the basis for the dismissal.Wallace's attorney consented to the dismissal.³The district court granted the government's motion under Fed.R.Crim.P. 48(a).

Thirteen months later, in January of 1986, Wallace was reindicted on 26 counts involving various narcotics offenses, but no counts involving any tax violations.Wallace contends that the district court erred in denying her motion to dismiss the 1986 indictment, asserting that the government's bad faith in seeking the dismissal of the 1984 indictment violated Fed.R.Crim.P. 48(a) and that the thirteen month delay between dismissal of the 1984 indictment and her reindictment in 1986 violated the Sixth Amendment's speedy trial guarantee and the Fifth Amendment's due process clause.

A.Rule 48(a).

Rule 48(a) provides that the "United States attorney may by leave of court file a dismissal of an indictment, information or complaint."Fed.R.Crim.P. 48(a).

Neither the Supreme Court nor our court has resolved the issue of whether a district court has discretion to deny a motion to dismiss consented to by the defendant.Rinaldi v. United States, 434 U.S. 22, 29 n. 15, 98 S.Ct. 81, 85 n. 15, 54 L.Ed.2d 207(1977);United States v. Weber, 721 F.2d 266, 268(9th Cir.1983).We need not reach this issue, however, because we find that Wallace has in any case failed to show any basis for the district court to deny the Rule 48(a) motion to dismiss.

While the prosecutor is "the first and presumptively the best judge of whether a pending prosecution should be terminated,"United States v. Cowan, 524 F.2d 504, 513(5th Cir.1975), a district court under Rule 48(a) has discretion to deny a government's dismissal motion if that motion is prompted by considerations clearly contrary to the public interest, seeRinaldi v. United States, 434 U.S. at 29 n. 15, 98 S.Ct. at 85 n. 15;United States v. Weber, 721 F.2d at 268, or if the dismissal would contribute to prosecutorial harassment by subjecting a defendant to "charging, dismissing, and recharging."Rinaldi, 434 U.S. at 29 n. 15, 98 S.Ct. at 85 n. 15;Weber, 721 F.2d at 268.A fundamental consideration in assessing the propriety of a prosecutor's dismissal motion is whether the motion is made in "good faith."United States v. Salinas, 693 F.2d 348, 351(5th Cir.1982).Wallace contends that the Government's dismissal motion was in fact improperly motivated by its desire to gain a tactical advantage by selecting a more favorable time to reindict her and that its proferred reason for the dismissal was a sham.According to Wallace, dismissal of the 1984 indictment was improper and requires that her 1986 indictment be dismissed.Such motivations or misconduct on the Government's part, if proved, could establish that the dismissal was sought in "bad faith," such that granting the motion would be an abuse of discretion by the district court.SeeSalinas, 693 F.2d at 352-53(dismissal motion to obtain a "better" jury constitutes prosecutorial bad faith).

The prosecutor stated that the government's desire to prosecute any potential tax code violations together with any narcotics violations was the basis for requesting a Rule 48(a) dismissal.At the time of the dismissal, the prosecutor had information that Wallace had failed to file tax returns in prior years and been previously involved in and convicted for heroin trafficking activities.It would have been reasonable to believe that Wallace had failed to report her income from the sale of narcotics.⁴The fact that tax violations were never charged does not necessarily make the stated reason a "sham."The prosecutor could have concluded subsequently that the government's investigative resources were more efficiently spent developing narcotics charges against Wallace, once Doris Sterling decided to become a government witness in early 1985.

Wallace also contends that the dismissal allowed the government to achieve an improper tactical advantage by reindicting her at a time when she had lost the testimony of a witness and the government had gained the testimony of Doris Sterling.In Salinas, the prosecutor moved for dismissal moments before trial, and then reindicted the defendant six days later on essentially identical charges.Under those circumstances, it was clear that the prosecutor sought the blatant tactical advantage of dismissing a jury perceived to be inhospitable to his case, despite his full participation in the selection of the empaneled jury.693 F.2d at 348-49.Here, by contrast, the prosecutor moved for dismissal a full month in advance of appellants' trial date and, though not required under Rule 48(a), requested and obtained the consent of Wallace's counsel to the dismissal.These circumstances do not, as in Salinas, clearly reveal improper tactical motivations on the prosecutor's part, and Wallace does not allege any other facts that would cause us to question the prosecutor's motive.Dismissal of an indictment would be improper if motivated by the prosecutor's intention that defense witnesses become unavailable.However, as noted above, the prosecutor's exploration of tax violations does not appear to be a sham, so that Wallace's loss of evidence is an incidental, rather than an intended, effect of the dismissal and reindictment.⁵We cannot...