76 L. Ed. 2d 96, 103 S. Ct. 1974 (1983); Carrasco, 786 F.2d at 1455.
The supervisory power has frequently been used by federal courts as a means of sanctioning and deterring prosecutorial misconduct.
"An important function of our supervisory power is to guarantee that federal prosecutors act with due regard for the integrity of the administration of justice." United States v. Basurto, 497 F.2d 781, 793 (9th Cir. 1974) (Hufstedler, J., concurring).
It is well-established that a federal court may use its supervisory power to dismiss an indictment on the basis of government misconduct. United States v. Owen, 580 F.2d 365, 367 (9th Cir. 1978). "As such, dismissal is used as a prophylactic tool for discouraging future deliberate governmental impropriety of a similar nature." Id.; see also United States v. Samango, 607 F.2d 877, 884 (9th Cir. 1979) (court exercising supervisory power to dismiss indictment where cumulative effect of errors and prosecutorial misconduct was to produce a biased grand jury); United States v. Isgro, 751 F. Supp. 846, 851 (C.D. Cal. 1990) (court dismissing indictment because of prosecutorial misconduct before grand jury).
While a court may use its supervisory power to dismiss an indictment, dismissal is, generally speaking, a disfavored remedy. Rogers, 751 F.2d at 1076-77. For this reason, a court may dismiss an indictment only in "flagrant" cases of prosecutorial misconduct. Jacobs, 855 F.2d at 655; Carrasco, 786 F.2d at 1455. However, since this standard is so vague that "it fails to illuminate the applicable legal principles, and provides district judges who are called upon to apply it precious little guidance," U.S. v. Sears, Roebuck & Co., Inc., 719 F.2d 1386, 1391 n.6 (9th Cir. 1983), courts must determine when to exercise their supervisory power to dismiss an indictment on a case-by-case basis. United States v. De Rosa, 783 F.2d 1401, 1406 (9th Cir.), cert. denied, 477 U.S. 908 (1986).
To warrant dismissal, the government's misconduct must not only be flagrant, but must also have prejudiced the defendant. Bank of Nova Scotia v. United States, 487 U.S. 250, 254, 101 L. Ed. 2d 228, 108 S. Ct. 2369, 62 A.F.T.R.2d (P-H) 5738 (1988). As the Supreme Court pointed out in Bank of Nova Scotia, "where the error is harmless, concerns about the 'integrity of the [judicial] process' will carry less weight." Id. at 255 (quoting United States v. Hasting, 461 U.S. at 506).
It is not necessary to review the government's conduct in this case yet again in order to determine whether it is appropriate for the court to exercise its supervisory power to dismiss the indictment against the defendant. The court invokes its supervisory power to dismiss the indictment in order to remedy the violation of the defendant's Fifth and Sixth Amendment rights, to preserve judicial integrity, and to deter future government misconduct.
The court's previous discussion makes clear the need to remedy the violation of the defendant's constitutional rights and to deter future government misconduct. With regard to the preservation of judicial integrity, the court notes that Rule 3-310 of the Rules of Professional Conduct of the State Bar of California provides in pertinent part:
(B) A member shall not concurrently represent clients whose interests conflict, except with their informed written consent.
. . .
(F) As used in this rule "informed" means full disclosure to the client of the circumstances and advice to the client of any actual or reasonably foreseeable adverse effects of those circumstances upon the representation.
This court, through its Local Rules, has adopted the State Bar's Rules of Professional Conduct as the applicable standards of professional conduct for the Northern District of California.
Rule 3-310 was violated in numerous instances by Ron Minkin. Judicial integrity is severely threatened when professional ethical and court rules such as those involved here are flouted by the government.
The court, therefore, DISMISSES the indictment in the exercise of its supervisory power.
The government in this case collaborated with the defendant's attorney in an effort to investigate, arrest and prosecute the defendant. This collaboration included using some of Minkin's other clients as government informants in the defendant's investigation. The government's misconduct in this case robbed the defendant of his right to effective assistance of counsel and his right to due process of law. The government's actions also displayed a complete disregard for the professional duty attorneys owe to their clients and for the ethical obligation prosecutors have as officers of the court.
For these reasons the court DISMISSES the indictment against the defendant on Fifth Amendment grounds, Sixth Amendment grounds and as an exercise of the court's supervisory power.
IT IS SO ORDERED.