MARIA E. STRATTON
Federal Public Defender
DAVID S. MCLANE
Deputy Federal Public Defender
Suite 1503, United States Courthouse
312 North Spring Street
Los Angeles, California 90012-4758
Telephone (213) 894-4104
Attorneys for Defendant
xxxxxxxxxxxxx,
t/n xxxxxxxxxxxxxxxxx
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
xxxxxxxxxxxxxxxx
Defendant.
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NO. CR 97-818-MRP
MOTION TO DISMISS INDICTMENT DUE TO DESTRUCTION OF EVIDENCE;
MEMORANDUM OF POINTS AND AUTHORITIES [DECLARATION OF COUNSEL, ANTHONY SCHMIDT, AND RICHARD FOX AND EXHIBITS FILED CONCURRENTLY HEREWITH].
Hearing Date: July 27, 1998
Hearing Time: 1:30 p.m.
MOTION
The defendant, xxxxxxxxxxxx, by and through his attorney of record, Deputy Federal Public Defender David S. McLane, hereby moves this Honorable Court for an order to dismiss the indictment on this case, based on the fact that the government has destroyed evidence critical to the defense of this case.
The government released the 1990 Ford Taurus that it alleges was used in the assault of INS Officer Larry Chacon. The car was located by the defense in La Paz, Mexico, and was transported to Tijuana, Mexico, for inspection. Because of the release of the evidence by the FBI, it has made it impossible for the defense based on the physical evidence to determine with any precision the location of INS Officer Larry Chacon during the assault in this case. The location of Officer Chacon is critical to determine whether Mr. xxxxxx in driving away from the scene of the July 29, 1997 incident, was attempting to assault Mr. Chacon or not.
This motion is based upon the attached Memorandum of Points and Authorities, the declarations David S. McLane, Anthony Schmidt and Richard Fox filed concurrently herewith, all files and records in this case, any matters in which the court may take judicial notice, and such further testimony, evidence and argument as may be presented by the defense at the hearing on this motion.
Respectfully submitted,
MARIA E. STRATTON
Federal Public Defender
DATED: July __, 2000 By______________________________
DAVID S. MCLANE
Deputy Federal Public Defender
MEMORANDUM OF POINTS AND AUTHORITIES
I.
STATEMENT OF FACTS
The defendant, xxxxxxxxxxx, is charged in a one count indictment with assault with a deadly weapon, namely a 1990 Ford Taurus, on Immigration and Naturalization Service ("INS") Officer Larry Chacon in violation of 18 U.S.C. § 111. In this case, the INS conducted a raid on the Panda Inn Restaurant on July 29, 1997, in order to arrest and detain undocumented workers working at the restaurant.
When the INS arrived at the restaurant the defendant, xxxxxx xxxxx, left through the back door and got in his car in order to leave the restaurant. The government contends that he intentionally tried to run over INS Officer Larry Chacon in order to leave the restaurant, while the defense contends that Mr. xxxxxxx intentionally avoided INS Officer Larry Chacon, and that Officer Chacon fired at Mr. xxxxxxx while he was leaving the restaurant.
The discovery indicates that Mr. Chacon discharged his weapon and it struck the hubcap of the left front wheel. The defense has consulted with a criminalist, Richard Fox who is an expert in crime scene reconstruction. (See Exhibit K, resume of Richard Fox filed concurrently herewith; see Fox decl., filed concurrently herewith). The defense expert opines that in order to determine the range of positions the shooter, Officer Chacon, was in at the time of discharging his weapon, he would need to examine the hubcap and the wheel for strike marks. (See Fox decl., ¶ 3). The defense has engaged in substantial efforts to retrieve the 1990 Ford Taurus in its original condition so that Mr. Fox could conduct the appropriate examinations. (See declarations of David S. McLane and Anthony Schmidt filed concurrently herewith). Unfortunately, since the car has passed through four hands, been driven thousands of miles, and there was no strike mark on the wheel to do the necessary testing, there is no way of knowing that the car was in the same condition when inspected by the defense as on the date of the incident.
Originally, on September 15, 1997, the defense requested discovery pursuant to Rule 16 of the Federal Rules of Criminal Procedure, (see McLane decl., ¶ 2; see Exhibit A, memorandum of Dave McLane, filed concurrently herewith), which would include a visual inspection of the car. On or about April 14, 1998, the defense requested inspection of the car, and asked the government to determine whether the car had been impounded or not. (See McLane decl., ¶ 3; see April 14, 1998 memo, filed concurrently herewith as Exhibit B). On April 27, 1998, the government produced discovery, which included a document indicating that the car had been impounded, and would be preserved as evidence until release was authorized by the investigating agent. (See McLane decl., ¶ 4; see FBI 302, filed concurrently herewith as Exhibit C). On May 4, 1998, at the hearing on the motion to suppress, the defense indicated it would need a continuance so that its expert could conduct a forensic examination to determine the location of the officer when his weapon was discharged. (See McLane decl., ¶ 5; see Exhibit D, excerpts of hearing on motion to suppress, filed concurrently herewith).
On May 8, 1998, the defense sent a follow up memorandum concerning the location of the car, (see McLane decl., ¶ 6; see Exhibit E, filed concurrently herewith), and the government informed the defense that the car had been mistakenly released by the FBI. (See McLane decl., ¶ 7 see FBI 302, Exhibit F, confirming fact car released even though previously FBI ordered car preserved as evidence).
On June 3, 1998, the defense informed the government of the name, address, and phone number of the new owner of the car, and specifically requested that the government arrange for the return of the car so that the parties did not have to go down to Mexico to inspect the car. (See McLane decl., ¶ 8; see Exhibit G, June 3, 1998 memorandum to the government). The defense requested immediate action from U.S. Attorney to prevent the disappearance of the car.
On June 4, 1998, the government through David Wright, the Assistant United States Attorney who had been previously assigned a case stated, that the government did not plan on taking any action with respect to the car, and the defense could do what it wanted to in terms in trying to retrieve the car in its own. (See Exhibit H, June 17, 1998 memorandum from defense counsel to Pamela Johnston; see McLane decl., ¶ 9).
Subsequently, the defense engaged in conservations with Assistant United States Attorney Pamela Johnson, who informed the defense initially that it was doubtful that they could do anything to retrieve the car since it was in Mexico. (See McLane decl., ¶ 9; see June 17, 1998 memo, Exhibit H). Later, Ms. Johnston informed the defense that it would reimburse Mr. Luis Salazar, the current owner of the car, for expenses in order to retrieve the car from La Paz Mexico and bringing it to Tijuana, Mexico. (See McLane decl., ¶ 10). Previously, in its June 17, 1998 memorandum to the government, the defense informed the government that if the car was lost and the defense could not inspect it, or the car if produced was not its original condition, the defense planned on seeking available remedies, including but not limited to a motion to dismiss. (See Exhibit H, filed concurrently herewith; see McLane decl., ¶ 9).
On July 2, 1998, Federal Public Defender Investigators Anthony Schmidt and Daniel Vazquez, went to Tijuana Mexico to inspect the car. (See McLane decl., ¶ 11, see Anthony Schmidt decl., ¶ ¶ 7, 8). Investigators Schmidt and Vazquez went at the earliest available opportunity. (See Schmidt decl., ¶ ¶ 5, 6). When Mr. Schmidt and Mr. Vazquez inspected the car, they located the hubcap with the hole, not on the left front tire which the photographs in discovery indicates, but on the right rear tire. (See Schmidt decl., ¶ 7). Investigator Vazquez took photographs of the car. (See Schmidt decl., ¶ 7). Mr. Schmidt inspected all four wheels on the car to determine if there was any strike mark on the wheels by visual inspection. Investigator Schmidt also cleaned the wheels with a rag, and felt the wheels with his hands, but he did not ascertain any strike marks. (See Schmidt decl., ¶ 7). Accordingly, they only purchased the hubcap with the hole in it, since there was no strike mark that they could ascertain on any of the four wheels. (See Schmidt decl., ¶ 8). Mr. Schmidt had been informed as well by Mr. Salazar, the owner of the car, that work had been performed on the car, including body work on the front of the car, that possibly the tires had been rotated, and it was possible the wheels were not the same ones on the car when he purchased it. (See Schmidt decl., ¶ 8).
On July 3, 1998, Richard Fox, an expert criminalist retained by the defense, inspected the hubcap and determined that it is impossible from the hub cap alone to determine the range of locations of Officer Chacon when he discharged the weapon. (See Fox decl., ¶ 3). While Mr. Fox states it might be possible to support or contradict the officer's testimony on Officer Chacon's position based on the photograph of the car, the turning radius of the left front wheel, and the testimony of the officers, his ability to render an opinion is drastically minimized without being able to inspect the wheel with a strike mark as well. (See Fox decl., ¶ ¶ 3-5).
II.
ARGUMENT
A. MR. xxxxx' DUE PROCESS RIGHTS WERE VIOLATED BY THE DESTRUCTION OF CRITICAL EVIDENCE IN THIS CASE.
The issue in this case involves "what might loosely be called the area of constitutionally guaranteed access to evidence." United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982). The government's duty to preserve evidence arises both at trial and at sentencing. See Brady v. Maryland, 373 U.S. 83, 87 (1963). In California v. Trombetta, 467 U.S. 479, 481 (1984), the Supreme Court addressed "the question whether the Amendment demands that the state preserve potentially exculpatory evidence on behalf defendants." The Supreme Court held that destroyed evidence is deemed constitutionally material if it (1) has any exculpatory value that was apparent before the evidence was destroyed; (2) is of such a nature that the defendant is unable to obtain comparable evidence by other reasonably available means. Id. at 489.
1. The car in its original condition had an exculpatory value apparent before it was destroyed, and Mr. xxxxxxx is unable to obtain comparable evidence by other reasonably available means.
Under the test set forth in United States v. Trombetta, supra, destruction of evidence violates due process if that evidence possesses "an exculpatory value that was apparent before the evidence was destroyed," and the evidence is "of such a nature that the defendant would be unavailable to obtain comparable evidence by other reasonably available means." 467 U.S. at 489.
In California v. Trombetta, the Supreme Court held that the evidence in question, breath samples which already had been tested for the presence of alcohol, had no exculpatory value, and that the defendant could have obtained comparable evidence by other reasonably available means. 467 U.S. at 489-90. The Supreme Court that "the chances are extremely low that preserved samples would have been exculpatory" because the Intoxilyzer, the machine used to test the breath samples, was extremely accurate and stated that the "preserved breath samples would simply confirm the Intoxilyzer's determination that the defendant had a high level of blood-alcohol". Id. at 489. Further, the Court stated that even "if one were to assume that the Intoxilyzer results in this case were inaccurate and that the breath samples might therefore have been exculpatory, it does not follow that respondents were without alternative means of demonstrating their innocence" without resort to the destroyed breath samples. Id. at 490.
Unlike the breath samples in California v. Trombetta, the car in its original condition is of extreme exculpatory value, and there are no other reasonable and comparable means that Mr. xxxxxxx could resort to conduct a crime scene reconstruction other than the preservation of the car in its original condition. It is obvious that a car, the alleged deadly weapon in this case, is of crucial evidentiary value. Otherwise, why would Agent Lannamann have ordered that the car would be preserved as evidence in the case. Once the car was released, as set forth in the declaration of Anthony Schmidt, the car went through four sets of owners, A & L Financing, California Auto Dealers, Econo Car Dealers, and Luis Salazar. The car went from Montclaire, California to La Paz, Mexico, back to Tijuana, Mexico, traveling thousands of miles. Mr. Salazar himself informed the defense that substantial work had been performed on the car, including body work, and possibly rotation of the wheels on the car and possible removal of one or more wheels of the car. (See Schmidt decl., ¶ 8). Thus, because the FBI released the car, it is impossible to determine if the car was in its original condition when inspected by Mr. Schmidt and Mr. Vazquez of the Federal Public Defender on July 2, 1998. Indeed, the hubcap with the bullet hole was located on the right rear tire, thereby affirming that critical evidence had been indeed been altered in the case.
Further, Mr. Fox states that without the strike mark on the wheel of the car, it is impossible to conduct a crime scene reconstruction based on the physical evidence alone. (See Fox decl., ¶ 4). If the strike mark was on the wheel, through comparison of the hole in the hubcap and the wheel, Mr. Fox could determine the path of the bullet, the possible positions Mr. Chacon was in, and preclude possible locations that may contradict Officer Chacon's anticipated testimony that he believed he was going to be hit and that is why he discharged his weapon. Without a strike mark on the wheel, Mr. Fox cannot determine precisely the locations of Officer Chacon. He is left to testify as to what he possible could have determined if he had access to the original evidence, (1) and also he might be able to testify depending on the testimony that the Officers give at trial, but the latter is no certainty. The defense cannot say with certainty that the discharged bullet left a strike mark on the wheel, but it is quite probable that it would have based on the hole in the hubcap. But that uncertainty is completely the government's fault. If the FBI had preserved the car in its original form, Mr. Fox could have inspected the car at Montclaire, California, inspect the left front wheel for a strike mark, and conduct the appropriately tests.
As soon as the government released the car it destroyed critical evidence for which the defense has no reasonable means of obtaining comparable evidence:
1. The critical evidence is the car in its original condition -- with the hubcap on the left front wheel. If the expert had access to the car in its original condition--we could have examined the hubcap and the wheel for strike marks, and thereby locate the path of the bullet and possible positions of Officer Chacon when the weapon was discharged. (See Fox decl., ¶ 3).
2. The reason why determining Officer Chacon's location when his weapon is discharged is critical to the defense is that it goes to heart of the case--did Officer Chacon shoot in self-defense because he was being assaulted or did Mr. xxxxxxx attempt to avoid Officer Chacon--no assault--and was driving past Officer Chacon when Officer Chacon fired his weapon in attempt to stop Mr. xxxxxxx from leaving the restaurant in his car.
3. The defense cannot obtain comparable evidence through other reasonably available means:
--the government by releasing the car destroyed the chain of custody-the car has gone through four owners.
--the government by releasing the car destroyed the ability to authenticate the evidence, ie., that the car is in the same condition. We know the hubcap was on the right rear wheel, not the left front wheel as at the time of the incident, and it is quite possible the wheel with a strike mark is no longer on the car. (See Schmidt decl., ¶ 7).
--the government by releasing the car destroyed the ability to determine the path of the bullet and location of the shooter because as Mr. Fox states his "ability to reach a forensic conclusion" without a wheel with a strike mark is "drastically diminished". (See Fox decl., ¶ 5). The reason why his opinion is drastically diminished is that he cannot rely on the objective physical evidence alone without the wheel with a strike mark. We do not know whether the left front wheel had a strike mark--but we would have determined it with certainty and because of government action we cannot.
4. Because there is no comparable evidence to the car in its original condition, and the defense has made good faith efforts to obtain comparable evidence by locating and inspecting the car, the defense as a result of government misconduct has been precluded from presenting exculpatory evidence at trial. If the expert examination corroborated the defense position--Mr. xxxxxxx would have independent, objective evidence to support him at trial, instead of having to rely on the jury believing him instead of the word of the officers. That is the prejudice--the government can retreat to the old saw that the jury will believe a police officer over a defendant, where the defense was confident that it would have physical evidence which would have corroborated Mr. xxxxxxx' position at trial.
Accordingly, under the test set forth in California v. Trombetta, the government violated Mr. xxxxxxxx due process rights by releasing the car Mr. xxxxxxx had an opportunity to examine the car.
2. A showing of bad faith is not a necessary prerequisite to dismiss the case.
In Arizona v. Youngblood, 488 U.S. 51, 58 (1988), the Supreme Court held that "unless a criminal defendant can show bad faith on the part of police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." As set forth below, for a variety of reasons the Youngblood decision does not control the outcome of this case.
Prior to the decision in Youngblood, there is a line of Supreme Court cases that did not impose any requirement of good or bad faith by the government in order hold that suppression of exculpatory evidence violated a defendant's due process rights. In Brady v. Maryland, 373 U.S. 83, 87, (1963) the Court ruled that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." In United States v. Agurs, 427 U.S. 97, 107 (1976), the Court required a prosecutor to turn over to the defense evidence that was "clearly supportive of a claim of innocence" even without a defense request. In its ruling, the Court explained that:
Nor do we believe the constitutional obligation is measured by the moral culpability, or the willfulness, of a prosecutor. If evidence highly probative of innocence is in his file, he should be presumed to recognize its significance even if he has actually overlooked it . . . . If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor."
Id. at 110. (Footnote omitted).
Brady and Agurs clearly hold that a prosecutor's bad faith in interfering with the defendant's access to material evidence is not an essential part of a due process violation. As is discussed in Section II.A.1., neither did the decision in California v. Trombetta create such a requirement.
The opinion in Arizona v. Youngblood, by requiring a showing of bad faith, deviates from the long line of Supreme Court authority that the analysis should focus on the character of the evidence not the intent of the government. As will be shown below, the opinion should be limited to the facts before the Court. (2)
In Youngblood, the Court stated that the Brady decision, making the good faith or bad faith of the State irrelevant, does not apply when "we deal with the failure of the State to preserve evidentiary material at which no more can be said that it could have been subjected to tests, the results of which might have exonerated the defendant." Id. at 57. The Court distinguished Brady on the grounds that whenever exculpatory evidence is permanently lost, the "courts face a treacherous task of divining the import of materials whose contents are unknown and, very often, disputed", and that the Court was unwilling to impose on the police an "undifferentiated and absolute duty to retain and preserve all material that might be of conceivable evidentiary significance in a particular prosecution." Id. at 57-58.
The basis for the Youngblood rationale distinguishing Brady and its progeny's rule not requiring bad faith does not exist here. First, there is no requirement of this court to divine the importance of preserving the car in its original condition. Mr. xxxxxxx is charged with assault with a deadly weapon. The deadly weapon is the car. Its critical importance to both the prosecution and the defense is apparent on its face. All parties know that the government is required to prove that Mr. xxxxxxx used a deadly weapon in assaulting Mr. Chacon. To prove that, what is more obvious than the car itself. Thus, preservation of the car is critical in the case, and the government knew that.
Moreover, any person with any basic knowledge of forensic science, or crime scene reconstruction, would know that the preservation the car in its original condition would be of the upmost critical importance in determining what happened at the scene of the crime. All we have now is the testimony of the INS agents, and the testimony of Mr. xxxxxxx, and it comes down to a swearing contest. The only objective, independent and critical evidence to decide the truth is the physical evidence, the car itself. Whether or not the FBI was familiar with scientific methods of crime scene investigation, which they should be, it is basic and fundamental to keep the weapon used in a alleged assault. They would have kept the knife in a prison assault case--what is the evidentiary difference? None. Both are critical pieces of evidence not only for the government's case, but also as a check on the witnesses as a piece of physical evidence from which certain conclusions--either corroborating the defense or government--can be drawn.
A forensic examination of the bullet hole in the hubcap and any strike mark on the wheel would reveal the possible locations of Officer Chacon, and would or would not be consistent with Mr. xxxxxxx' position that he did not assault Mr. xxxxxxx and attempted to avoid him. Further, unlike Youngblood, the car is not of "conceivable evidentiary significance", it is of critical importance in order to determine the facts of the case. Thus, the rationale behind imposing a bad faith requirement in Youngblood is not applicable to the instant case. Additionally, the facts of Youngblood and the basis for the Supreme Court's decision are clearly distinguishable. The Youngblood court reasoned that:
"[i]n this case, the police collected the rectal swab and clothing on the night of the crime; respondent was not taken into custody until 6 weeks later. The failure to refrigerate the clothing and to perform tests on the semen samples can at worst be described as negligent. None of this information was concealed from respondent at trial, and the evidence--such as it was--was made available to respondent's expert who declined to perform any test on the samples. Arizona Court of Appeals notes in its opinion--and we agree--that there is no evidence of bad faith on the part of the police."
Id. at 58.
Contrary to Youngblood, this is not a case where the defense was hoping that the evidence was lost or declined to do tests, and then have an expert testify at trial as to what he could have determined if the evidence had been preserved. The defense was trying in its upmost to retrieve the evidence in its original condition so that it could conduct the appropriate tests. (See Schmidt and McLane decl's.).
Further, unlike Youngblood, the FBI cannot be heard to protest that its "failure to preserve" the car was merely "negligent", where there was clearly gross negligence and recklessness in destroying a critical piece of evidence, the car in its original condition. That failure is a bad faith even if this Court believes such a standard applies.
The instant case involves much more than a "failure" to preserve evidence. The government acted with enough foresight to take pictures of the car and the hole in the hubcap with the car, which they plan on using at trial. But the evidentiary valve of the critical evidence, the car itself, which could corroborate Mr. xxxxxxx's position, was destroyed by releasing the car. It should have been clear to any reasonably experienced agent that the original car would be relevant in this case at trial.
Because the facts are distinguishable from Youngblood, the relevant test is the one established by Trombetta: where the government destroys evidence which holds a reasonable possibility of being exculpatory, and where comparable evidence is unavailable, it violates defendant's right to due process not withstanding good faith or bad faith on the part of the government. In this case--that test has been met. (3)
III.
CONCLUSION
For the foregoing reasons, Mr. xxxxxxx respectfully requests that this Court grant this motion and dismiss the indictment with prejudice.
Respectfully submitted,
MARIA E. STRATTON
Federal Public Defender
DATED: July __, 2000 By______________________________
DAVID S. MCLANE
Deputy Federal Public Defender
1. In the event this motion is denied, the defense will request that the court allow Mr. Fox to testify accordingly.
2. See Justice Stevens concurrence, 488 U.S. at 59-61, in which he states that he is concurring in the judgement because the government only "negligently" lost potentially valuable evidence which it had as great an interest in preserving as the defense, that the defense was not prejudiced because of a curative instruction allowing the jury to construe the facts against the government based on the loss of evidence, and the fact that there was no prejudice was demonstrated because no juror chose to draw the negative inference. Justice Stevens stated that "there may well be cases in which the defendant is unable to prove that the State acted in bad faith and in which the loss or obstruction of evidence is nonetheless so critical to the defense as to make a criminal trial fundamentally unfair." Id. at 61.
3. In addition, even if the government's loss or destruction of evidence falls short of violating a defendant's constitutional rights, a court may still order suppression or other protective rulings or sanctions. See United States v. Loud Hawk, 628 F.2d 1139, 1153-54 (9th Cir. 1979) (en banc) (Kennedy J., concurring)).
In Loud Hawk, Justice Kennedy indicated that the appropriateness of granting such sanctions must be evaluated by balancing the "quality of the conduct of the government and the degree of prejudice to the accused." Loud Hawk, 628 F.2d at 1152.
Judge (now Justice) Kennedy went on to point out that:
[G]overnment action may be so culpable that deterrence of future violations and protection of judicial integrity become the principal concern, and then only a plausible suggestion of prejudice, or none at all, would be required for suppression of evidence or the imposition of other sanctions, such as dismissal of the charges. In the more frequent case, the government's responsibility for loss of the evidence is caused by actions that are, alternatively, negligent in some degree, or inadvertent, or done intentionally but with an element of good faith, and in these instances a somewhat greater degree of prejudice may be tolerated. In cases of severe prejudice, suppression or other sanctions would be appropriate without regard to the good faith or culpability of the government.
Loud Hawk, 628 F.2d at 1152 (Emphasis added).
Also, the court could dismiss the indictment for a Rule 16 discovery violaation. See F.R.C.P. 16(d)(2).
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