The opinion of the court was delivered by: Fern M. Smith United States District Judge
ORDER DISMISSING INDICTMENT
An evidentiary hearing was held on March 21 and 22, and on June 13 and 14 which addressed the defendants' motion to dismiss the Second Superseding Indictment based on Federal Rule of Criminal Procedure 48(b), violations of the Sixth Amendment right to a speedy trial and the Fifth Amendment Due Process right. The Court GRANTS the defendants' motion pursuant to Rule 48(b) and the Sixth Amendment and dismisses the Second Superseding Indictment with prejudice.
The defendants, Curtis Lynn Debord and Peter Tran, were indicted for crimes relating to the illegal importation of weapons, weapons parts and other munitions on August 12, 1997.*fn1 Defendants were indicted on charges of conspiracy, smuggling, making false statements, violating the Arms Export Control Act, dealing in firearms without a license and witness tampering. 18 U.S.C. §§ 371, 545, 1001, 922, 1512 and 22 U.S.C. § 2778.
A Superseding Indictment was filed on November 17, 1998, and a Second Superseding Indictment was filed on November 29, 2001. Defendants pled not guilty to all charges in both the Superseding Indictments. Trial in this matter has not been set.
The charges alleged against the defendants focused on two shipments: 1) three containers purported to be from Vietnam and containing weapons parts, delivered in the Spring of 1996 to Mr. Debord's warehouse located in Roseville, California and 2) two containers shipped via Long Beach, California in January of 1997, destined for Tijuana, Mexico. Second Superseding Indictment at 3-4. The Government asserted that the shipments included bills of lading and manifests that falsely described the contents of the containers as sewing machine parts, cleaning tools, tools and hammers. Id. The Government asserted that the containers held weapons parts originating from Vietnam, intended to be smuggled into the United States in violation of federal law.
Four years after the property was seized from the defendant Debord's warehouse, the Government finally investigated the serial numbers of the M-1 receivers seized. The Government's investigation found that several of the weapons parts had entered the United States after 1975, and were thus not illegally transported pursuant to the federal law, and that many other parts could not be traced through the serial numbers. See United States' Motion to Dismiss, November 6, 2002. The Government dismissed the majority of counts related to these containers on November 6, 2002.
The second shipment of two containers, seized in 1997, was held in administrative forfeiture by the United States Department of Fines, Penalties and Forfeiture for 18.5 months, until the property was intentionally destroyed on September 28, 1999. In 1997, Bradford Bench was designated the Special Agent (SA) for United States Customs Service (USCS) San Diego, SA Matthew King for USCS San Francisco Office, and Special Agent Richard Stoltz for Alcohol, Tobacco and Firearms (ATF).
On several occasions from 1997 through January of 1999, the United States Department of Fines, Penalties and Forfeiture (FP&F) Paralegal Specialist Susan Mower contacted SA Bench to inquire about the continued retention or destruction of the weapons parts due to the expense of storage. When Ms. Mower would inquire, Bench would contact SA King for a recommendation. King would request that the materials not be destroyed, and Bench would convey this message to Ms. Mower. In 1999, however, King was transferred to Washington, D.C. and SA Bench was informed that he should contact United States Attorney (AUSA) Schaefer on any further inquiries regarding the retention or destruction of the materials. EH, March 21, 2005, testimony of SA King at 93, 106; June 13, 2005, testimony of SA Bench at 140. USCS SA Ed Owens replaced SA King in San Francisco on the case.
SA Bench followed SA King's suggestion and made several telephone calls to AUSA Schaeffer at the San Francisco United States Attorney's Office, leaving voicemail messages, asking for return calls, and stating that unless he (Schaefer) authorized continued retention of the evidence, FP&F would destroy it. EH, June 13, 2005, testimony of SA Bench at 144. At SA Bench's request, his Group Supervisor Jerry Barnett also called one or two times and left the same voicemail messages for AUSA Schaefer. EH, June 13, 2005, testimony of SA Bench at 141-42; 144-45. Neither SA Bench nor GS Barnett used email, telefacsimile or mail to contact AUSA Schaefer, nor were SA Owens or SA Stoltz contacted. Id. at 147-48. AUSA Schaefer testified that he never received the voicemail messages, that he always returned his telephone calls and that he had no information that the weapons parts were in jeopardy of being destroyed. Numerous present and former government employees, however, testified that Schaefer had an extremely poor reputation for returning phone calls. See EH, June 13, 2005, testimony of E. Leeat 68; testimony of SA Stoltz at 217-18. SA Bench did not receive any return call from AUSA Schaefer and Bench advised Ms. Mower in July of 1999 that the evidence could be destroyed, which occurred on September 28, 1999. EH, March 22, 2005, testimony of S. Mower at 13.
A written analysis of the weapons parts had been prepared by December 1, 1997, Defense Ex. OOO, but was not provided to the defense until November 2, 1999. Defense Ex. SS. During a trial preparation meeting in San Francisco between SA King and SA Stoltz in June of 2000, King called SA Bench to inquire about the status of the evidence in San Diego, and Bench responded that the containers and the container seals had been destroyed. Neither King nor Stoltz suspected that the actual weapons parts also had been destroyed, and made no inquiries about them. EH, March 21, 2005, testimony of SA King at 15, 125; EH, June 13, 2005, testimony of SA Stoltz at 173-74. AUSA Schaefer was also informed that the containers and seals had been destroyed. Neither SA Stoltz, SA King nor AUSA Schaefer informed the defense that the containers and seals were destroyed.
On March 9 and 13, 2001, SA Stoltz called and learned from SA Bench that the weapons parts also had been destroyed. He informed AUSA Schaefer, whose response was anger and bewilderment. EH, June 13, 2005, testimony of SA Stoltz at 170. SA Stoltz was equally shocked as he considered the weapons parts the most critical evidence in the case and the destruction the most unusual event in his thirty-one years with ATF. Id. at 169 (asserting that the destruction of the evidence was "probably, if not the most, one of the most unusual events in my entire career.") According to AUSA Schaefer, SA King and SA Stoltz, the loss of the weapons parts would have a significantly detrimental impact on the case, and Schaefer viewed the destruction as serious enough to trigger a possible dismissal. Id. at 169-175. Neither AUSA Schaefer nor any of the agents informed the defense or the Court that the evidence had been destroyed, despite a court appearance of all parties on March 21, 2001. EH, June 13, 2005, testimony of E. Lee at 54; Defense Ex. LLL. By letter, also dated March 21, 2001, AUSA Schaefer informed defense counsel about discovery, inviting examination of "the existing physical evidence" in the case. Defense Ex. KKK. Mr. Schaefer retired in September 2001 after several months of medical leave. Defense Exs. GGGG, HHHH. AUSA Nesbitt assumed the prosecution of the case, and wrote defense counsel on June 25, 2001, informing them for the first time that the 109,000 weapons parts had been destroyed. Mr. Nesbitt did not relate the status of the containers or the seals at that time. Defense Ex. NNN.
As noted earlier, AUSA Schaefer had a reputation among law enforcement agents, defense attorneys and members of the United States Attorney's Office in San Francisco, for extreme dereliction regarding returning telephone calls. SA Stoltz testified that when he wanted to contact Schaefer, it would typically require 50-60 calls and voicemail messages. EH, June 13, 2005, testimony of SA Stoltz at 217. In 2001, the United States Attorney's Office initiated an inquiry about AUSA Schaefer with the Office of Professional Responsibility (OPR), regarding a number of incidents in which his credibility and ethics in handling criminal cases with the Courts, defense counsel and members of his Office, were questionable. Mr. Schaefer retired from the Office before this inquiry could be acted upon. EH, June 13, 2005, testimony of E. Lee; Defense Exs. WWW, YYY-HHHH, inclusive.
From the inception of the case, defense counsel and defendants have employed a joint defense strategy for defending against the charges and, following the initial Indictment on August 27, 1997, defense counsel requested all discovery from AUSA Schaefer on various occasions. See EH, June 14, 2005, testimony of G. Wong at 10. Encountering difficulty, defense counsel filed a motion to compel discovery on February 16, 2000. The defense further requested an opportunity to examine the containers in San Diego, Defense Exs. V, TT, UU, WW, but delayed travel to examine the evidence until full discovery from the Government was both provided and reviewed. See EH, June 14, 2005, testimony of G. Wong at 13-14. Reviewing all relevant discovery prior to the examination of the containers was considered critical because CJA counsel likely would be limited to one trip only. Id. Defendants were not, however, provided all the discovery necessary for a complete review prior to the destruction of the evidence ...