*1 America, UNITED STATES
Plaintiff-Appellee, STRUCKMAN,
David Defendant-
Appellant.
No. 08-30312. of Appeals, Court
Ninth Circuit.
Argued July and Submitted 2009. June
Filed *4 O’SCANNLAIN,
Before F. DIARMUID ANDREW J. KLEINFELD and BERZON, MARSHA S. Judges. Circuit BERZON, Judge: Circuit David Struckman was indicted for mas- sive tax hiding fraud and was out in Pana- ma. helped arrange expulsion sanctuary, from his chosen and he was handed over to federal officials prosecution. Struckman maintains government’s conduct, both in him bringing from abroad to stand trial in the United States and its criminal inves- him, tigation of warrants dismissal prejudice. indictment with painstak- In a *5 ingly 83-page order, careful pretrial Dis- Judge trict Court Takasugi1 determined engaged had in mis- conduct with regard to the investigation but not the expulsion from Panama. The District Court suppressed great deal of evidence aas result of its finding of mis- conduct but ruled that dismissal of the indictment against Struckman was not an appropriate remedy. agree We broad suppression of evidence before trial adequate was an remedy for the miscon- found, duct disturbing was, as some of it and therefore affirm. I. Bernhoft,
Robert G. The Bernhoft Law Firm, S.C., Milwaukee, WI, for the defen- David Struckman was indicted dant-appellant. Western District of Washington May Dicicco, John Alan Hechtkopf, Greg- 11, 2004, for conspiracy to defraud the Davis, ory Victor Depart- United States in violation of 18 U.S.C. Justice, D.C., ment of Washington, for the § 371. The U.S. later issued plaintiff-appellee. a superseding indictment, adding nine
counts of tax evasion under 26 U.S.C. § 7201.
The superseding alleged indictment that Struckman was a co-founder of an organization called the Institute of Global Judge Takasugi is now deceased. conduct as found Global ment’s From 1996 Prosperity. offered, through court. for a fee and
Prosperity Retailers,” an “Qualified called
middlemen series and seminars. These audiotape/CD Departure from A. Struckman’s Pana- illegal use of advocated the products ma tax, includ- paying income
means to avoid Panama, After Struckman went to U.S. the Unit- ing “voluntary withdrawal” from developed plan officials placement jurisdiction ed States’ O’Brien, Timothy at that his return. time foreign or common purported of assets regional security officer at the relinquishing law without control trusts Panama, Embassy City, in Panama alleged that them. indictment person the central involved the efforts trusts and purchased bogus bring Struckman back to the United accounts to fraudulently established bank trial. States for In a 2004 e-mail from Global profit distributions receive (“DOJ”) Department Justice trial attor- more than million Prosperity’s $40 ney, up plan O’Brien summed had gross receipts, Prosperity Global developed: been reported never these dis- and Struckman we’re to do is find hoping [Struck- What to the Internal Revenue Service tributions and have him deported man] vice [sic] (“IRS”) as income. provisional going arrest warrant Struckman, citi- point, At a U.S. some route. The reasons for this are sim- zen, Republic Panama on a went to [provisional ple warrant] arrest will —a stayed. tourist visa and The U.S. mean that proceedings extradition be- *6 sought re- vigorously ment Struckman’s .... gin There’s a Section of [Code trial. turn to the United States to stand Regulations] of Federal ... that allows government] pass- to revoke a [U.S. trial, Before Struckman filed motions port subject of an individual who is the alleged indictment on dismiss the based outstanding Felony of an Federal arrest due violations or the district process warrant —which has. Struckman We powers. The motions supervisory court’s got a [passport], know he’s and if U.S. illegalities on asserted and miscon- focused it we revoke he’s undocumented. Which during government’s efforts to duct immediately deportable. means he’s secure his return from Panama but also alleged during possibility also the that the Pan- relied on misconduct There’s can investigation criminal the United States. amanians decide he’s an undesirable evidentiary just court and revoke his .... We had The district held visa a meeting motions exten- hearing on the and issued Panamanian National ..., findings, which is con- Police and provided sive factual none of information appeal. hope We that we will them in finding tested on assist begin by describing him.... detail IV, treaty Article IV of the Extradition of Criminals art. Under the extradition U.S.- 25, 1904, Panama, Pan., May when Stat. 2851. Once the between the States and made, provisional seeks of a arrest is the United the United States the extradition Panama, fugitive proper "the within two make a formal course shall must months re- Office, produce "the apply Foreign quest which will for surrender and neces- be to sary immediately necessary steps [the defendant’s] cause the to be evidence of criminali- provisional ty,” secure arrest or else the defendant will be released. taken in order to fugitive.” Providing for Id. or detention of 25, 2004, August
On Panama’s National O’Brien had no factual making basis for Immigration Director for and Naturaliza- this statement. (“the Director”) tion issued two resolutions Shortly before Struckman was arrested regarding immigration Struckman’s status. authorities, by Panamanian O’Brien dis- One resolution denied pend- plan cussed the for the “expulsion” of ing request immigrant to obtain an visa. Struckman a trial attorney with DOJ via e- It that the Panamanian government stated mail. He stated that “[w]hat we have set had considered “note” it received from up, and still in place, [passport] is revo- District regarding Court cation letter to be served on Struckman charge conspiracy to defraud the Unit- gets whenever he arrested” and that “[w]e ed gave States.3 resolution Struck- also have a deportation/expulsion letter man thirty days to leave the country. Immigration Panamanian ready to The companion resolution stated that go.” delay, As to the O’Brien noted that judicial was “wanted the plan place while, had been “in for a it’s authorities of the United States of Amer- just putting grabbus the habeas ica, in virtue of the fact that he ha[d] holding up [Struckman] that’s executing warrant for his arrest pending for federal everything.” charges, result, being, as a a fugitive from 11, 2006, January On the Panamanian justice.” Relying on Pana- National Police contacted O’Brien to re- 30, 1960, manian Law No. 16 of June Arti- port that police officers had arrested a “[ijmmi- cle the resolution stated that man might who be David Struckman. gration country to the of a foreign national responded O’Brien that Struckman “[had prohibited ... persons all [for] been] sentenced and at this moment is a records, criminal such fugitives fugitive of the federal authorities and is those sentenced or defendant in common [awaiting] to serve his sentence.” The crimes.” The resolution ordered the ar- true; statement clearly Struck-
rest of Struckman “for security reasons of man yet had not been tried. and public order.” planned, As day, that same the U.S. 23, 2005, On June O’Brien sent an e-mail *7 Department of State revoked Struckman’s Special Agent IRS Michael D. Harda- passport and a Panamanian arrest order way quickly about how Struckman could issued for Struckman’s failure to “main- be obtained from Panama. He noted that his legal tain[ ] in documents the national “may Struckman get a lawyer able territory.” Struckman’s counsel in Pana- (but things slow down that’s a big reason ma immediately filed a corpus habeas law- we want to quickly move if we nab him— suit in Panamanian court. we give chance, don’t want to him that especially The following day, with that much O’Brien money available sent a fax to him).” Odulio, Mark In a prosecutor letter later that a federal summer to involved officials, Panamanian in the O’Brien Struckman case. stated He informed Odu- Struckman charged was lio that “defrauding lawyer with for “[a] Struckman came investors of sniffing over million” police and that he around [headquarters] $50 this was attempting to perpetrate morning, the “same begun[.][T]he the race has Pana- kind of fraud scheme that he used with manian] N[ational] Pfolice] ha[ve] turned such in success U.S.” Panama. immigration, Struckman over to they’ll so language suggests The of the resolution but arrest warrant the district court had issued does not establish that this "note” was the for Struckman. time tember 2000 and December Chinn today.” to them some lawyer refer found, rough, contemporaneous made notes about later, district court day One additional conversations with “Ted.” He Panama.” deported from was “Struckman contemporaneous did not Memo- generate Court of Justice is- Supreme Panama’s (“MOIs”), Investigation randa prop- of in Struckman’s habeas opinion an sued agents’ for documenting er format contacts was several months after Struckman case informants, to con- memorialize these country. opinion The from the removed tacts. The information attributed to “Ted” Director, forth information from set wide-ranging, including in the notes is So- “deportation including that Struckman’s Security cial for numbers members territory [was] the national made from family, plate Struckman’s license numbers (Emphasis January 2006.” effective home, for vehicles locations The Panamanian Court held original.) boxes, deposit of safe and Struckman’s pronounce regarding it could “not daughter’s plan move to new resi- ... arrest be- legality [Struckman’s] dence, including her new address. outside the then] cause [Struckman Panama, 2001, Hardaway In to the fact that March wrote jurisdiction of due detailing MOI compliance” with a conversation with deported he was confidential providing for such meas- same informant 2004 resolution had whom been in contact. Be- Chinn ures. April tween and December Investiga- B. The Government’s 2001, Hardaway wrote MOIs nineteen tion of Struckman contacts additional with “Ted.” In addition personal information about Struckman’s investigation criminal IRS’s family, rough the MOIs and notes used to to 2000. Struck- dates least produce grand them reaction to “include[d] government investigatory man’s claims of jury appearances by and his [Struckman on the actions of two IRS misconduct focus daughter], family reaction subpoenas by Agents, Keith L. and Mi- Special Chinn members, Numbers, Security Social ad- (the Hardaway D. latter chael mentioned residences, expenditures, phone dresses to earlier connection with Struckman’s numbers, funds, and fax transfer Panama), transfer as discussed be- problems among arguments marital low. family.” “Ted” Confidential informant 17, 2001, Hardaway On sent December “fi- assigned requesting in 2000 “to do an e-mail to Chinn that he Chinn was some nally regarding finish those memos” background information on” Struckman for *8 “Ted,” Prosperity of the Global information obtained from because investigation rough Septem- in was the at- Hardaway “being by asked[ ] He made notes program. year meeting torneys” about a with an for the memos. Chinn later testi- ber that anonymous designated eventually generated fied he after- informant he that *9 MOI, Hardaway represented that he had relationship Government with identity confirmed the of the informant as Dave Bowden Moritz, Gary D. who had indeed fallen from a and roof who the investigation, husband of In its the IRS also relied wife, Bowden, Struckman’s first Bonnie on operator Moritz. Dave aof car clean- business, day compelling in 1996 after the court’s order dis- who met Struckman ing day Hardaway’s cars to closure and the same brought several Struckman when prosecutors, gov- the last disclosure to the the told IRS cleaned. Bowden buy govern- its stance: The $30,000 changed in cash to ernment used it made “acknowledged that he sent ment had a ‘mis- from Bowden and boasted car concerning nearly every day to statement’ the existence of an to the bank his wife $10,000. and it had In a audit on Bowden” other an amount under withdraw concerning concerning exculpatory in 2003 information Bow- jury proceeding grand wife, Laura, agents. contact with IRS Bowden testified den’s Struckman’s taken from given that he had documents criminal Additionally, Bowden told IRS Hardaway. to car had investigation agents that he taken doc- uments from Struckman’s car 1996 or trial, Struckman to com- Before moved initiative, on his own and that he had concerning of Dave pel disclosure material documents, returns, given later those along with Bowden, including Bowden’s tax given directly had others Struckman to file, illegal bag “motivation for black audit Bowden, Hardaway. to Bowden also re- of at the behest the operations he telling Hardaway called how had ob- ment,” tax perjury on “past acts tained the documents. at first denied forms.” The IRS, by had been audited Bowden evidentiary hearing At the on the motion returns, tax produce did not Bowden’s dismiss, Hardaway continued recall given photocopies that Bowden had denied contact but some with IRS auditor papers that he had taken from Struck- by contrary testimony the IRS denied — any Hardaway or other IRS man’s car to assigned agent any to audit rec- Bowden— agents. meeting in-person ollection an with the or of giving auditor about Bowden’s audit out, in fact As it turned Bowden had the auditor access to records that Bowden civil notice of an audit from the received Hardaway. given initially had He also the IRS in 2004 and contacted division of any receiving denied recollection of soon Hardaway about it afterwards. by from documents taken Struckman’s car audi- Hardaway then had contact Only when Struckman’s counsel Bowden. audit, about but never me- tor Bowden’s Hardaway did demanded them “remem- either contact with Bowden morialized the existence a box of documents ber” time, wait- or that the auditor at inexplicably case that he had related ing days until the court-ordered two after kept apart from other case documents. compel nearly years af- motion to three — Hardaway as- ter contact—to do so. Struckman’s Motions to Dismiss C. prosecutors he had “on serted that told occasions,” evidentiary day hearing time After on the mo- several the last dismiss, court compelling after the court order disclosure tions issued audit, 83-page denying Bowden’s about order motions. of information about rejected court penal- his contacts. In declarations under The district first Struck- argument court submitted to the district man’s did ty perjury court, attorneys personal jurisdiction each have over him be- Wszalek Odulio Hardaway’s post-disclosure cause of the manner in which he was acknowledged them, Panama, relying brought he on the order but said that statement pro- That disclosure doctrine. doctrine did not recall earlier Ker/Frisbie generally that “the manner which Hardaway about audit contacts. One vides *10 570 trial brought is does not the source of all that information defendant Gary could been ability try him.” not have Moritz. government’s
affect the
Matta-Ballesteros,
71
Cir.1995)
754,
(citing Ker
762
v. While in
all
discrepancies
isolation
these
Illinois,
436, 444,
7
S.Ct.
very
could
be
to sloppy
well
attributed
Collins,
and Frisbie v.
L.Ed.
memories,
keeping, faulty
simple
record
522, 72
342 U.S.
S.Ct.
L.Ed.
omissions,
or minor
misstatements
denied,
1118, 117
(1952)),
cert.
519 U.S.
aggregate, they
nothing
the
add to
more
(1997).
S.Ct.
571 Instead, to brought is trial does not af the court defendant grounds. dy/Giglio “Ted,” ability try government’s to him.” to fect attributed excluded evidence Matta-Ballesteros, 71 762 (citing F.3d at appearing as Bowden from precluded Ker, 225, 119 at 7 and trial, U.S. S.Ct. all at excluded evidence witness 509). Frisbie, 342 72 car, S.Ct. We taken from Struekman’s Bowden had have, however, recognized exceptions to to assure required and (1) doctrine “if either: produced at trial was evidence Ker/Frisbie ap of the defendant violated the transfer suppressed “derived from evidence.” (2) treaty, or plicable extradition Unit make find- court did not in government engaged ed States ‘miscon prosecutors ing as to whether —as and shocking outrageous duct of most investigators-engaged opposed to the IRS Anderson, presence.” to kind’ obtain in affirmative misconduct. F.3d at (quoting Matta-Balleste O’Brien, proceeded to trial. Struckman (internal ros, 71 F.3d citations omit testify. and Chinn did not Hardaway, ted)). of one count was convicted Struckman conspiracy to defraud Violation of Extradition Trea- § three 871 and counts under 18 U.S.C. ty evasion under 26 U.S.C. income tax to come Seeking within first § to 70 months 7201. He was sentenced exception, main Struckman Ker/Frisbie pay and more imprisonment ordered taken from Panama to tains he was million in The trial than restitution. $2.9 in the United States violation extra inquiry made further into the court never treaty dition between the United States of the information attrib- actual sources Panama, and that dismissal there and the never uted required. Providing fore for the Ex See them. revealed Criminals, U.S.-Pan., May tradition now the district appeals (“Extradition Treaty”). 34 Stat. 2851 of his motions dismiss the court’s denial do not agree. We indictment.
The U.S.
indis
II.
to convince
putably involved
efforts
deport
authorities to
Struck-
Panamanian
Challenge
A. Jurisdictional
persua
But
man and facilitate his return.
first
whether the dis
We
consider
cooperation
necessarily
do not
sion
jurisdiction
lacked personal
trict court
up
deporta
“Neither
add
extradition.
over Struckman because of
manner
in response
tion nor surrender other than
brought
which he was
the United
Treaty
pursuant
to a demand
consti
issues
re
“Jurisdictional
are
States.
Yin-Choy v.
tutes extradition.” Oen
Rob
novo,
challenges
per
viewed de
are
(9th Cir.1988).
inson,
jurisdiction
alleged
on the
vio
sonal
based
process
may
practice
alter the
Nations
treaty
lation of an extradition
between
requests,
extradition
but
“[w]hile
country.”
another
United States
formalities
extradition
be waived
Anderson,
...,
one
a demand
some form
Cir.2006)
(internal citation omit
country upon
required,
the other is
in or
ted).
uni
extradition from the
distinguish
der to
country,
act
one
for its own
starting
is the venerable
lateral
point
Our
deporting
or otherwise unilater-
purposes,
“the manner
which
principle that
*12
here,
removing
sidering
aliens.”
whether
so
ally
unwelcome
Steven-
we
142,
States,
son
United
by looking to
Trea
begin
the Extradition
(internal
(9th Cir.1967)
omitted);
citation
Alvarez-Machain,
ty’s express terms. See
see also Michael
663, 112
Abbell,
in
Extradition
to
504 U.S. at
S.Ct. 2188. As
7-2(2)-(4)
§
AND FROM THE UNITED STATES
Alvarez-Machain,
Treaty
the Extradition
(2008) (describing alternatives to extradi-
provide
does not
that extradition is the
defendants,
of
tion
criminal
such as
re-
signatory
exclusive means for one
to ob
quest by the United
to another
States
tain
criminal
or
fugitive
defendant
country for formal or “informal” deporta-
territory
Compare
the
of the other.6
Pro
or,
citizens, passport
tion
for U.S.
revoca-
Criminals,
viding for the Extradition of
tion).
1904,
U.S.-Pan.,
25,
2851,
May
34 Stat.
did not demand Struck-
1978,
4,
Treaty, May
with Extradition
pursuant
man’s
Extradi-
surrender
the
U.S.-Mex.,
In
Treaty
31 U.S.T. 5059.
the
indeed,
Treaty;
tion
the record reveals
Panama,
signatories
the
“agree
the government
great lengths
went to
who,
up persons
deliver
having been
.
Moreover,
doing
to avoid
so.5
Pana-
the
charged
any
convicted of
manian
in its Resolutions ex-
specified
crimes and offenses
in
Ex
[the
on
pressly relied
its own
in de-
interests
Treaty]
asylum
tradition
...
seek
shall
...
Struckman,
porting
responsibilities
not its
or be found within the
territories of
Treaty.
under
Extradition
As Struck-
Providing
other.” See
for
Extradition
extradited,
argument
man was not
Criminals, U.S.-Pan.,
I, May 25,
art.
in compliance
his “extradition” was not
1904, 34 Stat. 2851.
what
coun
procedures
with the
set
in
But
treaty
forth
fails.
required
tries are
signato
do when one
ry invokes
Treaty
not limit what
does
Although
was not extra
they
agree to do cooperatively. No
dited, his transfer
to the United States
where does
Treaty
preroga
curtail the
prohibited
could still be
Extradition
citizens,
deport
tive
Panama to
nor
Treaty, see
United States Alvarez-Ma
it
signatories
does
“bar[]
from infor
chain,
655, 662,
2188,
504 U.S.
112 S.Ct.
mally cooperating
they
with each other as
(1992),if,
6. Struckman contends that Alvarez-Machain
follow
framework
Alvarez-Machain’s
precedential
any longer
is of "no
value”
be-
analyzing
permits
treaty
whether a
certain
issue,
treaty
cause
there at
between the
obtaining jurisdiction
methods of
over
de-
Mexico,
United States and
has been modified
See,
Anderson,
e.g.,
fendant located abroad.
prohibit
abductions such
occurred in
the Government’s
not
shocking
required
out-
dismissal was
under the
is so
and
presence
fendant’s
exception.
sense
Some of
to violate the universal
second
rageous “as
Ker/Frisbie
in Panama are
government’s
actions
justice,”
States Barrera-Mor-
United
(9th Cir.1991)
eno,
quite disturbing, particularly
flat mis
F.2d
(internal
omitted), the
to Panamanian authorities.
means
statements
quotations
in
comparison
But a
the circumstances
jurisdiction over
defendant
obtaining
violation,
outrageous
cases in which the
con
process
and other
amounts to a due
Anderson,
inapplicable
exception was held
472 duct
required.
See
dismissal
governmental
clear that the
conduct
conduct makes
government’s
at
F.3d
666.8
“extremely
standard,
high
meet
argues,
here does not
meets this
Struckman
required for dismissal under the
interfered
standard”
because the U.S.
right
outrageous
process
conduct due
defense.
to counsel
Sixth Amendment
/
result,
disapprove
Treaty
appeared
a footnote the sec-
under
As a
it is irrelevant
formally deported or
exception
whether Struckman was
doctrine for
ond
Ker/Frisbie
cooperatively by
conduct,”
other
was instead transferred
outrageous
"shocking
ex-
and
and
States,
pro-
United
as neither is
means to the
only
a basis for discre-
amined this defense
as
argument
that his “de-
hibited. Struckman’s
supervisory
tionary
under a court’s
dismissal
compliance
Pana-
portation” was not in
powers.
71 F.3d
763 n.
764. How-
See
unavailing.
we
deportation
As
manian
law is
later,
ever,
years
this Court examined a
eleven
deporta-
propriety
of the
need not review
“shocking
outrageous conduct” defense
and
law, we do not con-
tion under Panamanian
dismissal,
mandatory
citing
a basis
for
court,
sider,
implica-
as did the district
Anderson,
approvingly.
Matta-Ballesteros
doctrine.
tions of the act of state
we
666. As
find that
shocking
was not
and outra-
ment's conduct
less than clear about
8. Our
law has been
case
applied
geous
standard
under
"shocking
outrageous
vitality
of the
Anderson,
case law
tension in our
does
mandatory
this
as a basis for
conduct” defense
Matta-Ballesteros,
holding.
Court
not affect our
In
this
dismissal.
Smith,
Rica
believing [the
F.2d
897 Costa
into
defendant]
(9th Cir.1991).
prison
had an unserved
sentence.”
Here, similarly,
at 667.
Struckman
The involvement of U.S.
prejudice
has not demonstrated
from
facilitating
expulsion
misstatements,
O’Brien’s
so there was no
receiving
Panama
process
justifying
due
violation
dismissal
surely
him the
does not
charges.
previously
have
meet this standard. We
held,
example,
of a
that abduction
de-
Nor does it matter whether Struckman
from the defen-
fendant
U.S. Marshals
right
ap-
had a
under Panamanian law to
shocking
dant’s home was
so
out- peal
deportation
against
order
him or
warrant
rageous as to
dismissal. See
pursue
proceeding.
habeas
Anderson
*14
Mattar-Ballesteros,
761,
ernment to transfer a defendant to the United States when it otherwise not would rejection of Our shocking could never amount to conduct so outrageous process claim does conduct/due outrageous process to violate due our inquiry not end into the denial require dismissal criminal pending to motion dismiss because manner proceedings in the In United States. this brought which was Struckman to the Unit case, though, the district court found that ed “if States Panama. Even misrepresentations O’Brien’s came after [government’s] conduct not to does rise already the Panamanians had decided to violation, a process level of due court [a] cooperate with the United States in re- may nonetheless [an dismiss indictment turning Struckman and had issued the res- with prejudice] pow under supervisory its olutions. rely So the Panamanians not did Chapman, ers.” v. United States 524 F.3d misrepresentations on these pur- for that (9th (internal Cir.2008) 1073, quota 1084 Also, pose. was deported Struckman after omitted). may tions and brackets Courts revoked, passport provided which was dismiss indictment under their inherent separate deportation a reason for under “(1) supervisory powers implement to a law, Panamanian in addition to those cov- remedy recognized of a the violation in the ered resolutions. (2) statutory or right; constitutional to Anderson,
In
apply
preserve judicial
we declined to
integrity by ensuring
shocking and outrageous con-
a
on appropriate
conviction rests
Ker/Frisbie
consider
(3)
exception
duct
because Costa Rica’s
validly
jury;
deci-
ations
before
to
sion
extradite the
was
illegal
defendant
deter future
conduct.” Matta-Bal
lesteros,
dependent
“representations
on
made
71
(citing
F.3d
United
United
States
to Costa
v. Simpson,
States
927 F.2d
(9th Cir.1991)).9
may
Rican authorities [that]
have misled
The defendant must
9.
supervisory pow-
Matta-Ballesteros indicated that these three
for the exercise
aof
court's
"only
legitimate"
reasons were
...
(relying
Simpson,
bases
ers.
(a) Right to counsel argues Struckman next that dismissal is supervisory appropriate
O’Brien’s actions in Panama did under court’s violated right authority to counsel. because not violate Struckman’s law, counsel, of jus cogens who filed a norms international Struckman did retain namely right of the to habeas petition on Struckman’s behalf “violations habeas land, right to coun- corpus foreign More- in a shortly after Struckman’s arrest. 1090, Hasting, supervisory doing, we court's and United States so held F.2d authority powers 76 extended to the to issue a 461 U.S. L.Ed.2d (1983)). divulge a recently, pre-trial enforcement order to wit More in United States 96 Grace, exclusivity Id. We need not further disapproved we of ness list. at 513. W.R. supervisory power grounds scope consider "[t]here these concluded W.jR. Grace, however, nothing after because Struck- [Hasting that limits inherent ] only argued court powers 526 man before to these three areas.” F.3d Cir.2008) (en banc) (9th (internal recognized grounds three for dismissal n. 9 omitted). quotation In Matta-Ballesteros. marks alteration sel, right due process right provided any and the Struckman has not interna- of courts.” access to the tional concerning jus law materials asserts, cogens rights he much materi- less cogens norms Jus are subset als application of the as- address law”; “customary international “custom rights serted under the circumstances of ary international law” is as the defined “ this case. In complex this sensitive and ‘general practice and consistent of states area, we decline to create out of whole legal followed them from sense of ” cloth legal arguments, the detailed or dis- obligation.’ Repub Siderman de Blake v. cover our array on own the of international Argentina, lic materials, necessary that would be to sup- Cir.1992) (quoting Restatement (Third) port “bare assertion[s].” Foreign Law the Relations Admin., Greenwood v. Fed. Aviation 102(2) (1987)). norms, § These (9th Cir.1994).10 are which “derived from values taken to be fundamental the international communi judicial integrity Preservation of (internal ty,” omitted), quotation id. illegal govern- and deterrence of nations, all binding “are can ment conduct preempted by treaty,” Matta-Ballesteros, suggested F.3d at 764 n. 5. We have Having determined that dis jus that violation cogens norms could missal was not appropriate based on a provide a basis dismissal under a rights, violation of Struckman’s we next because, supervisory powers court’s like consider might whether dismissal be ap statutory laws, they and constitutional are propriate to preserve judicial integrity or justiciable in our Id. courts. illegal government deter conduct. While a *16 may court prosecution dismiss a pre “to
Although
general
he makes a
judicial integrity,”
serve
jus
assertion,
Matta-Balleste
cogens
Struckman has not
ros,
763,
71 F.3d at
it does not
developed
argument at
under this
all. “Courts
authority
rubric “have the
supervise
customary
ascertain
‘by
international
law
procedure
out-of-court executive
consulting
jurists,
in the ab
works of
writing
law;
sence of a
professedly
constitutional or
public
by
statutory
or
viola
gen
Barrera-Moreno,
usage
nations;
eral
tion.”
practice
of
by
or
951 F.2d
1092
judicial
1090);
(citing Simpson,
decisions
927
recognizing and enforc
F.2d at
see
”
law,’
Blake,
(“The
ing
Simpson,
also
Siderman de
suppressed, deprive would the defendant to sanction be- courts; Bagley, of a trial.” v. havior not lie with the we can fair does 675, 3375, 667, only 87 473 105 S.Ct. assure that the misconduct does not U.S. (1985). give conten advantage L.Ed.2d Struckman’s ob- respect taining tions with to his indictment and a conviction. The district court’s are, jurisdiction therefore, broad, extremely pre-trial suppression not personal or- properly Brady Giglio provide characterized as or der was sufficient to this assur- why violations.11 We discussed above ance here. challenge personal jurisdic reasons, For the foregoing we AF- require permit not or
tion does dismissal. FIRM. Moreover, assuming even the indictment
process
deficient
its reliance
BERZON,
Judge, concurring:
Circuit
evidence,
unlawfully
that deficien
obtained
Given the
of the
breadth
district court’s
cy was cured
Struckman was con
when
order,
suppression
the discretion accorded
by a
after
all
jury
victed
trial that excluded
devising
a district court in
remedies for
suppressed
evidence. See United
misconduct,
governmental
posi-
and the
Mechanik,
66, 70,
v.
States
475 U.S.
us,
tions the defendant
taken
has
before
938,
(1986);
S.Ct.
III.
pression order: Struckman disavowed in
We
prejudice
stress that our affirmance of the
his brief
trial
provided
rulings
remedy
district court’s careful
transcript
no trial
on which we could
in this
case in no
disturbing
way
judge
prejudice,
condones
such
complaining in his
Chinn, Hardaway,
actions of
or
only
brief
the suppressed evidence
prosecutors’
O’Brien
failure to dis-
have contributed to the indictment.
Any
cover and disclose the
mis-
misconduct and
such error
junc-
is harmless at this
representations Mechanik,
the government agents
ture. See United States v.
case,
in this
even
prose-
absent affirmative
in of the record situation, me, an is intolerable To this govern- continuing defiance challenging integrity of the severely court to of the district ment of an order of appearance justice, courts and the identity, after the produce “Ted’s” on remand requires inquiry so further be- not, knowingly or re- prosecutors, ment may lay fore this case rest. The we information peatedly provided false remedy its district court tailored provide requests then court and defied government’s based on the con- behavior identi- information about “Ted’s” sworn-to Mary- Brady stitutional violation under or what still don’t know who ty. We land, 83, 87, 373 U.S. and is posit was “Ted” is. (1963), that could otherwise L.Ed.2d must have been illegal wiretap
that an trial, treating case as involved, resulted at this and the evidence Struck- have registers daughter Brady and former wife man’s a traditional claim which tell, as I As far can government a similar concern. by the is information withheld specifically not denied government has gov- actually separate But the discovered. activity. Nor has such ernmental misconduct that occurred the district court’s appeal this contested gov- court and has continued to occur—the identity full remains that “Ted’s” finding continuing defiance of trial ernment’s finding court’s So the district unknown. discovery never been court’s orders —has told government has still not that the remedied, pain by insistence on either that, given story Given whole stands. government reveal its contempt that the history in this case it was additional sources after determined regard- previous assurances disavowals that it had not done so or otherwise. information, truth ing the sources therefore, would, I remand for dis- air, up in the whether the matter left trict court to order illegal was is that there truth the information the full source of reveal or more there were one wiretap light attributed And all of this occurred other informants. finding that court, court’s now-final Moritz relying on Roviaro
after the district
59-62,
States,
Only
sole
when this infor-
source.1
353 U.S.
v. United
*19
pursuing
passed away,
purposes
the remand
Judge Takasugi
I
counsel
has since
1. As
(If
contempt
proceedings
suggest.
criminal
to
I
this case would need
be
understand that
Also,
gov-
pursued,
prosecutor,
is
either for
judge.
court
to a new district
remanded
court,
appointed specially
unlikely
carry
or
to
to
ernment
as
defendant is
wish
affirmed,
occurring
mandatory
as to conduct
it would
would
his conviction is
on once
presence.
special
court’s
See Fed.
necessary
appoint a
outside the
probably be
court,
added).
(emphasis
mation is
can the district
available
S.Ct. 623
Roviaro was
we, accurately
and
whether a not decided “on the basis
determine
of constitutional
claims,”
remedy,
suppres-
subsequent Supreme
further
to the
but
addition
Court
order,
appropriate.
is
Should the
and Ninth Circuit case
sion
law makes clear
refuse to disclose the true
that
government
process
undergird
due
concerns
requirement.
of information attributed to “Ted” Roviaro
source
United
remand,
Valenzuela-Bernal,
858, 870,
I would instruct
the district
458 U.S.
3440,
separately
appropri-
court to consider
S.Ct.
73 L.Ed.2d
(citing
Illinois,
remedy
ongoing
McCray
300,
for the
ate
affront to
386 U.S.
87 S.Ct.
1056,
judiciary.
explain briefly
why
(1967));
I
I
below
viaro misconduct, govern- premises governmental go forward on the obliged (1) Brady a violation ha[d] attributed ment committed of the information some different, a in a violation process informant had that would result due the identified different, source, Yet, a whether at trial.”3 without additional discus- still unknown or, sug- as Struckman sion, individual the district court determined unknown (2) agents, the IRS wiretap; neu- gests, taint of the violation c[ould] “the least, of some of the by any lied about the source attrib- excluding evidence tralized “Ted”; and gov- information attributed at trial” unless the uted AI-l/Ted has not been determined although it independent an source “showfed] ernment in complicit prosecutors were whether by requiring for the information” also regarding misrepresentations proffer to make before “a un- they to submit statements failed twice introducing any trial estab- evidence at perjury from penalty der not proposed [was] lish that the evidence repeatedly although directed agents ment the suppressed evidence.” derived so, some providing to do the court Roviaro, noted, as authorizes Although they least troubled were at indication circumstances, the dismissal in similar dis- telling agents were about whether those trict court declined to dismiss the indict- the truth. ment, order viewing suppression the broad process adequate as for the due violation. gov this misbehavior
Indubitably, separate, explicit no discus- But there was prose perhaps ernment court’s order of the sion the district affirmatively prevented the cutors full identity to reveal the continued refusal required Rovi carrying court from out the of “Ted” or of whether additional sanction For, such unlike cases balancing. aro supervisory was merited under the court’s as and Valenzuela-Bernal2 —the Roviaro pro- opposed to under due powers continuing of the same for the use need —as account of that continued cess clause—on Roviaro, strong interest informants in refusal.4 illegal in Valen immigrants in deporting prof has
zuela-Bemal —the B. governmental interest competing no fered justification of its at all in this case I no case similar have been able to find discovery order. comply with the refusal to broad, one, pretrial which this adequately order remedied recognized, suppression court so The district any to the defen- process due violation the source of the by suppressing “that held dant,5 of a AI-l/Ted, governmental but defiance infor- attributed information Valenzuela-Bemal, Supreme has had access to the iden- Court informant but not 2. In provided deportation Brady tity of the informant or information to hold that relied him, operates process prejudice some- standard a defendant's due witnesses violates [by flexibly. de- "the lost their what more rights when evidence portation] and favor- would be both material argued in the district court and 4. Struckman 458 U.S. at to the defense." able justi- discovery 867-68, argues violations here 3440; see id. S.Ct. also supervisory under the court’s fied dismissal 3440. powers. earlier, Roviaro, 3. view albeit decided I technically Brady suppression order would essentially prescribing a subrule under situations, process violation aris- have remedied due the caveat that informant ing witness who was source if trial there has been where the defendant knows *21 entirely court order remained of penalty unremedied. ward with declarations under leaving asked; amI uncomfortable this affront to perjury when if one supposes even appearance to integrity court’s that it was who refused justice unaddressed. statements, provide the sworn that refusal put prosecutors should have on notice recognized investigatory We have that problem there was a led a a misconduct can be the basis of dismissal court, report repeated rather than supervisory under powers. our For exam- recalcitrance in the of a face court order. Blanco, ple, United States this Court if generously So even we describe the government held that had not dis- “unintentional,” prosecutors’ actions as dis- charged Brady/Giglio its obligations when might missal appropriate still have been an Drug Enforcement Administration re- remedy prejudice there was specifics fused to Struek- disclose a deal if informant, man. with an even to the Assistant case, Attorney prosecuting until But, primarily, for obvious reasons — after the informant had testified at trial. a avoiding windfall to the as defendant (9th Cir.2004). 392 F.3d 392-94 We well public as the affront to the interests remanded to the district court in- underlying the criminal law—our law case structions to order the all disclosure of requires that supervisory even under our Brady/Giglio materials and to conduct ad- powers, a may we dismiss as a case sanc ditional hearings appropriate. Id. governmental tion for only misconduct if a remand, upon 394. noted that We “[a] prejudice defendant can show to himself as range options w[ould] available to a result the misconduct. See United court, extreme, including, at one dismissal Chapman, States v. 524 F.3d for governmental indictment miscon- (9th Cir.2008); States Bar Thus, Id. at clearly duct.” Blanco rera-Moreno, (9th 1089, 1093 951 F.2d Cir. a contemplates agency’s 1991). said, As I on appeal have Struck- comply discovery refusal obli- man attempt makes no to demonstrate gations as ordered district court that he cognizable prejudice suffered after dismissal, might warrant even when the the district court’s order.
prosecutor kept in the dark. Moreover, question So remedy if only even remains what we focus on the case, will be prosecutors’ actions in this available on remand after a “uninten- demand tional is made for may misconduct be sufficient” to the concealed information? warrant dismissal of an Should the indictment for “fla- come forward with grant prosecutorial cases of regarding illegal misconduct.” information activity un- Rosa, See v. De derlying information attributed Cir.1986). Here, pros- there might be sanctions attached ecutors at minimum failed Also, to come for- activity. to that any- Struckman or the information attributed to "Ted” testified and the information testified to. But without something about transcript, attributed to "Ted.” In the trial we can't tell whether this instance, possible hypothetically it is possible. the true cir- scenario is even underlying cumstances the "Ted” information yielded remand, could have cross-examination materi- 6. On the district court of course example, illegal per- al—for if acts were provide divulge that the first such information, formed to obtain that protect if information in camera to the identities informant had secret deal with the real informants from whom informa- covering ment both the "Ted” information tion attributed "Ted” was obtained. *22 legal have recourse might else affected one CARLOS-BLAZA, Petitioner, Aurora illegal activi- regard to concealed exposed. it is
ty, once to re- government continue HOLDER, Jr., Attorney Should H. Eric with the forward come General, Respondent. fuse remand attributed of the information full source No. 07-70632. personal sanc- think that I would offending government Appeals, States Court of against tions and, prosecutors Ninth Circuit. appropriate, if available, a criminal including would be Argued and Submitted Dec. ... contempt for inquiry “[disobedience 30, 2010. Filed June ... order.” 18 U.S.C. lawful court’s] [the Galin, 401; § States v. see also United Cir.2000). Fur- 1127-28 Depart-
ther, judicial to both the referral Department
ment of Justice and of the individuals
Treasury discipline And appropriate. also be
involved would alternatives, such as
there be other
barring ap- involved the individuals in the court as witnesses
pearance cases. prosecutors other point it
I think our role at this do not available, precise remedies
determine the inquiry what further
as we do know that, I think even after But do
will show. conviction, should not we
affirming regard are with they
leave matters in this continuing defiance—continued valid order that the
court as well—of the identity
informant’s be revealed. except in the opinion,
I therefore concur stat- purpose
that I remand for would
ed. notes that MOIs for contacts with “Ted.” Chinn’s indicate “Ted” the-fact did not when so. divulged personal although specify information about he he did addresses, clear, however, Struckman, including pro- It is that Chinn never marital history, by a number duced additional for contact with bank account used MOIs occurring and “Ted” the December daughters, or his other Struckman after e-mail, only two family. Hardaway produced and information about Struckman’s On more, None- Sep- January later between dated 2002. eight at least occasions theless, Hardaway government continued The also from Gary Chinn submitted information, Moritz an that later-acquired in- unsworn statement he had attribute any no recollection of the information cluding information that was in government attributed him. there, Panama and about his activities January “Ted” well after filing Concerned that the not include did any penalty perjury under declarations existed, Suspicious as to “Ted” whether from who knew “Ted’s” identi- sought defense counsel before trial to dis- ty, court the district issued a order second identity, cover “that un- arguing “Ted’s” requiring government produce in very less relationship [‘Ted’] close regarding identity. declaration “Ted’s” defendant, government would not This time the filed document have been able to obtain such information by attorneys denominated Odulio and illegal wiretaps.” but for the use of filing “declaration,” Wszalek in their as a district court concluded that Struckman signed by Hardaway and Chinn but not requisite had made the minimal threshold penalty under of perjury. In the docu- showing identity that the of “Ted” would ment, Hardaway and Chinn stated that governmental be relevant to a defense of Gary “Ted” was Moritz and asserted that dismissal, requiring misconduct and so or- they Moritz believed received most of the produce dered the “Ted” information from family discussions at for an camera hearing with the district gatherings by listening to conversations But, judge. “Ted” proved catastrophe- wife, Moritz, between his Bonnie and her prone: Hardaway When tried to serve the daughters her ex-husband David putative subpoena “Ted” with a for the Struckman. hearing, was told he the informant In response, Struckman filed declara- had recently might fallen off a roof and penalty by tions under of perjury Gary be able to travel due problems. to medical Moritz, Moritz, Bonnie and one of Struck- Stymied in its attempt interview man’s daughters, Wininger. Jennifer “Ted,” the court ordered the Gary Moritz stated he did not recall to file “a declaration stating identity of giving information about Struckman to [‘Ted’],describing connection to de- his/her Hardaway and did not remember Struck- fendant Struckman and how informant man. Moritz’s wife and Struckman’s came about knowledge concerning his/her daughter denied ever much knowing [the] defendant.” The response, filed Also, information attributed to Moritz. Department of Justice Tax Division trial found, the district court Moritz “Bonnie attorneys Wszalek, Larry Mark Odulio and every single almost state- contradicted] came in the form of MOIs Chinn and ment attributed to her husband as [‘Ted’] Hardaway, not declarations Chinn ..., addition, and in statefd] she and Hardaway under penalty perjury. Jennifer over phone discussed much of The so-called MOIs were dated the same the private, family related information at- day government’s as response Gary tributed to and that she [‘Ted’] court, filed so were not ‘phones believed her tapped were some ” contemporaneous sense. In his manner during this time.’