United States v. Loud Hawk, CR No. 75-296-RE.

• Citation: 564 F. Supp. 691
• Decision Date: 20 May 1983
• Docket Number: CR No. 75-296-RE.
• Parties: UNITED STATES of America, Plaintiff, v. Kenneth Moses LOUD HAWK, et al., Defendants.
• Court: U.S. District Court — District of Oregon

564 F. Supp. 691

UNITED STATES of America, Plaintiff, v. Kenneth Moses LOUD HAWK, et al., Defendants.

CR No. 75-296-RE.

United States District Court, D. Oregon.

May 20, 1983.

COPYRIGHT MATERIAL OMITTED

Charles H. Turner, U.S. Atty., Kenneth C. Bauman, Asst. U.S. Atty., Portland, Or., for plaintiff.

Kenneth S. Stern, Michael Rose, Rose & Stern, Milwaukie, Or., Ronald P. Schiffman, Tolavana Park, Or., Michael Bailey, Portland, Or., S. Lynn Parkinson, Tom Steenson, Ed Jones, Parkinson & Steenson, Oregon City, Or., for defendants.

OPINION

REDDEN, District Judge:

Defendants Kenneth Loud Hawk, Russ James Redner, Dennis Banks, and KaMook Banks move to dismiss this action on the grounds that their Sixth Amendment right to a speedy trial has been violated. For the reasons set forth below, I grant defendants' motion and dismiss this action with prejudice.

I. Background

The facts leading to the arrest and ultimate indictment of the defendants in this case are fully set forth in United States v. Loud Hawk, 628 F.2d 1139 (9th Cir.1979), cert. denied, 445 U.S. 917, 100 S.Ct. 1279, 63 L.Ed.2d 602 (1980). Therefore, only a brief recitation of those facts is necessary here.

Defendants Loud Hawk, Redner, and KaMook Banks were arrested by Oregon state police officers on November 14, 1975. These officers impounded the vehicles the defendants were driving and on November 15, 1975 searched the vehicles pursuant to a search warrant. The search disclosed firearms, ammunition, an electric blasting cap, a large quantity of non-electric blasting caps, and material thought by state police to be dynamite. State authorities, without notice to the defendants, destroyed the alleged explosive material on November 16, 1975.

A federal grand jury returned a ten count indictment against defendants Loud Hawk, Redner, KaMook Banks, Dennis Banks,¹ and two other individuals on November 25, 1975, charging all defendants with one count of possession of an unregistered destructive device, eight counts of possession of firearms whose serial numbers had been removed, and charging Dennis Banks alone with one count of being a felon in possession of firearms. On December 22, 1975, a five count superceding indictment was filed. Two days later defendants filed a motion seeking dismissal of the indictment, or alternatively, suppression of any and all evidence relating to the destroyed dynamite. They argued that the destruction of the evidence constituted a denial of due process since there was no opportunity for defense analysis of the material and the evidence was destroyed before defendants had any chance to object or suggest alternatives.

On March 30, 1976, Judge Belloni granted this motion to suppress. He reasoned that destruction of the dynamite prejudiced defendants because "their inability to observe the destruction and to analyze samples of it deprived them of the opportunity to contest the government's conclusion that the substance destroyed was indeed explosive." He also found that defendants were prejudiced because destruction of the packaging material foreclosed the defense from determining by fingerprint analysis who had handled the boxes.

The government filed its notice of appeal from this order on April 19, 1976. At the same time, the government requested a continuance of the trial date of May 12, 1976, pending resolution of the interlocutory appeal. The government argued that the suppressed evidence was highly relevant to the firearms counts which were to be tried on May 12. Judge Belloni denied the motion for continuance on April 20, 1976. On April 23, 1976, the government moved the Court of Appeals for an order continuing the May 12 trial date. The government based its motion on the same grounds rejected by Judge Belloni. The Court of Appeals also denied the motion for continuance.

At a status conference on April 26, 1976, the government informed Judge Belloni that it would not proceed to trial on the firearms counts. When the case was called for trial on May 12, 1976, the government answered that it was not ready to proceed. All defendants answered that they were ready for trial. In fact, the defendants demanded that trial proceed or that the court dismiss the case with prejudice pursuant to Fed.R.Crim.P. 48(b). They argued that their rights under the Speedy Trial Act and the Constitution had been violated.

In response to the motion to dismiss, Judge Belloni stated:

I think everyone here realizes that this case will be dismissed against these defendants. Both this Court and the Court of Appeals has denied any postponement. I am ready to try this case commencing today. Both parties have had ample time to prepare. The defendants are ready to go to trial. For some reason, which I do not understand, the Government is not, even though two of the counts are not even concerned with the subject of previously suppressed evidence. I do not want to dismiss this case without a trial. The factual and legal dispute should be heard and decided, but there is no way the Court can force the Government to call its witnesses. My only recourse is to dismiss this case against these four defendants.

Clearly, there has been unnecessary delay in bringing these four defendants to trial. Clearly it is the fault of the Government.

Transcript of Proceedings, May 12, 1976, at 4-5. The government admitted that it could have tried the firearms counts without the suppressed evidence. Indeed, the government stated that if the Court of Appeals affirmed the suppression order, it would proceed to trial on the firearms counts. Transcript of Proceedings, May 12, 1976, at 15-16. Judge Belloni, pursuant to Fed.R.Crim.P. 48(b), dismissed the indictment with prejudice.

The government filed its notice of appeal from the dismissal in open court on May 12, 1976.² Transcript of Proceedings, May 12, 1976, at 12. On June 11, 1976, the appeals of the suppression order and the order dismissing the indictment were consolidated. The appeals were submitted to a panel of the Ninth Circuit on October 15, 1976. On July 26, 1977, the panel affirmed Judge Belloni's orders. The government petitioned for reconsideration en banc on September 7, 1977. The Court granted the government's petition on October 17, 1977.

On March 6, 1978, the Court en banc temporarily remanded to the district court for an evidentiary hearing. Judge Belloni held this hearing on May 9 and 10, 1978. At the end of the hearing, Judge Belloni ordered the parties to file proposed findings within two weeks. On June 16, 1978, Judge Belloni granted the government's motion to extend the filing date to July 14, 1978. The record does not indicate the reason why, but the parties did not file their proposed findings until August 1, 1978. Judge Belloni issued findings on the factual issues on August 23, 1978.³ On August 7, 1979, the Ninth Circuit en banc reversed the suppression order and the dismissal of the firearms counts of the indictment to the extent that the dismissal was with prejudice. Loud Hawk, supra, 628 F.2d 1139. The Court held that dismissal of the firearms counts was proper, but held that the court had failed to give the government the requisite "forewarning ... that dismissal with prejudice will result from a failure to proceed to trial." Id. at 1150. The Court of Appeals remanded with instructions to deny the motion to suppress, to reinstate the indictment, and to reconsider the dismissal with prejudice of the non-dynamite counts. After petitions for rehearing and certiorari were denied, the mandate issued on March 12, 1980.⁴

Upon remand, the case was assigned to me. I ruled that the firearms counts could not simply be reinstated. Therefore, the government obtained a superceding indictment from the Grand Jury on June 18, 1980. This indictment recharged defendants with the original firearms count and two of the three original destructive device counts. The new indictment recharged Dennis Banks with being a felon in possession of firearms. The superceding indictment also charged all defendants with two new destructive device counts and charged KaMook Banks with a new count of receiving firearms while under indictment for a felony.

This new indictment prompted motions to dismiss for vindictive prosecution. On August 8, 1980, I dismissed the superceding indictment as to KaMook Banks on the grounds of vindictive prosecution. I denied similar motions on behalf of the other defendants. In August 1980, defendants Loud Hawk, Redner, and Dennis Banks appealed the denial of their motions to dismiss for vindictive prosecution. On September 2, 1980, the government appealed the dismissal as to KaMook Banks. The appeals were consolidated in September 1980 and submitted to a panel of the Ninth Circuit in November 1980.

On July 29, 1982, a panel of the Ninth Circuit dismissed the appeals of Redner, Loud Hawk, and Dennis Banks for lack of jurisdiction on the grounds that the denial of a motion to dismiss for vindictive prosecution was not an appealable order.⁵ The Court vacated the dismissal of Counts I through V of the indictment as to KaMook Banks. The Ninth Circuit issued the mandate on January 31, 1983.⁶

By minute order on February 25, 1983, trial was set to commence on April 11, 1983. At the request of the government, and over objections by the defendants, I continued the trial date to May 3, 1983. On the court's own motion, trial was continued from May 3, 1983 to May 23, 1983 and finally set to begin on June 13, 1983. Defendants objected to each continuance.

II. Discussion

The government contends that this case presents issues of delay encompassing both the Fifth Amendment Due Process Clause and the Sixth Amendment Speedy Trial Clause. The government claims that the approximately four year period between the dismissal on March 12, 1976 and the return of the mandate — which reinstated the indictments — on May 17, 1980 should be scrutinized under the Due Process Clause. Likewise, for KaMook Banks, the...