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United States v. Debord


June 28, 2005


The opinion of the court was delivered by: Fern M. Smith United States District Judge


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 in September of 1999. Id. Defendants did not delay trial for reasons independent from their interest in securing all pertinent discovery, conducting proper investigation and litigating relevant pretrial motions including the instant motion to dismiss.


1. Federal Rule of Criminal Procedure 48(b)

Federal Rule of Criminal Procedure 48(b) authorizes the Court to dismiss the indictment, information or complaint due to unnecessary delay. The rule is a means of enforcing the Sixth Amendment right to a speedy trial, see Pollard v. U.S., 352 U.S. 354, 361 n.7 (1957), but independently asserts the inherent power of the Court to dismiss a case for lack of prosecution. 3B Wright & Miller, Federal Practice and Procedure § 814 at 340-41. Pursuant to the Rule, a court may dismiss a case with prejudice when there has been an unnecessary delay, even if the defendant's Sixth Amendment right has not been impinged. United States v. Hattrup, 763 F.2d 376, 377 (9th Cir. 1985); see also United States v. Simmons, 536 F.2d 827, 233-34 (9th Cir. 1976) ("[W]e hold that under Rule 48(b) it is within the court's inherent power to dismiss a case with prejudice for want of prosecution, whether or not there has been a Sixth Amendment violation.").

An indictment should be dismissed pursuant to Rule 48(b) only in "extreme circumstances." U.S. v. Sears, Roebuck and Co., Inc., 877 F.2d 734, 737 (9th Cir. 1989) (citation omitted). Not every delay provides adequate grounds for dismissal, only unnecessary delay. Thus, before a court dismisses an indictment, it must exercise caution and be satisfied that the following conditions have been met: 1) that the Government has been fairly forewarned that further delay may result in a dismissal with prejudice; 2) there must be prosecutorial misconduct that was related to the unnecessary delay which was both "purposeful and oppressive," Sears, 877 F.2d at 738-39; and 3) there must be demonstrable prejudice or evidence thereof due to the unnecessary delay. Id. (citations omitted).

2. Speedy Trial Violations Pursuant to the Sixth Amendment

Pursuant to the Sixth Amendment, "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." This right is considered necessary in order to minimize the pre-trial incarceration of the defendant and the anxiety that often accompanies a criminal indictment. Further, it is important in minimizing the delays that may prevent a defendant from adequately defending himself when the case is eventually tried. See Wright & Miller, § 813 at 332-33. It is impossible, however, to strictly determine when this right has been violated. Barker v. Wingo, 407 U.S. 514, 521 (1972). Instead, the right is "relative" and is dependent on specific circumstances. Id.

The Court is not without guidance, however. Four factors are relevant in determining whether a defendant's right to a speedy trial has been denied. These factors are: 1) the length of the delay; 2) the reasons for the delay; 3) whether the defendant has asserted his right to a speedy trial; and 4) the prejudice to the defendant. Id. All factors must be considered together along with relevant evidence of the circumstances. Id. at 533. Although no one factor is determinative, the length of delay is a "threshold" factor. Sears, 877 F.2d at 739. In the Ninth Circuit, eight months is generally considered a threshold minimum to demonstrate a presumptively prejudicial delay. See United States v. Gregory, 322 F.3d 1157, 1161 (9th Cir. 2003); see also Doggett v. United States, 505 U.S. 647, 651-52 (1992). As for the second factor, the weight given to the reasons for the delay vary. For instance, if the Government deliberately stalls, this would weigh against them strongly, whereas more neutral reasons would weigh less heavily. Barker, 407 U.S. at 531. The Government, however, has the ultimate duty to bring the case to trial within a reasonable time. Id. Third, the Court may review what efforts, if any, the defendant has made to assert his right to a speedy trial. The methods used by the defendant in securing this right, and the weight attributed to those efforts, will be determined by the facts and circumstances of the case. Barker, 417 U.S. at 531-32. A defendant's assertion of his right will be entitled to significant weight, whereas his failure will make it more difficult for the defendant to prove that he was denied a speedy trial. Id. Last, the prejudice to the defendant is assessed in light of the policy goals underlying the Sixth Amendment, i.e. to prevent pretrial incarceration, minimize anxiety and to limit the impairment of the defense, with significant weight given to the final interest. Id.

3. Due Process Violation From the Destruction of the Evidence

Pursuant to the Due Process Clause, defendants in a criminal prosecution must be allowed a "meaningful opportunity" to present a defense. California v. Trombetta, 467 U.S. 479, 485 (1984). This right generally extends to allowing the defendant access to exculpatory evidence. Id. Not only does the Government have the affirmative duty to turn over any exculpatory evidence materially relevant to the guilt of the defendant or the sentence imposed, the Government must also take "affirmative steps to preserve the evidence on behalf of criminal defendants." Id. at 486. If the exculpatory value of the destroyed evidence is only possible, however, i.e. "evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant,"a defendant must show that the government destroyed the evidence in bad faith in order to preserve the balance of fundamental fairness. Arizona v. Youngblood, 488 U.S. 51, 57 (1988).


1. Federal Rule of Criminal Procedure 48(b)

a. Forewarning

This case crosses the cautionary threshold required. The defendants were first indicted in August of 1997, and have yet to be tried or given a trial date. As early as 2004, the Government was forewarned by the Court that it ran the risk of having the indictment against the defendants dismissed with prejudice due to both the delay and the Government's failure to provide adequate discovery.

On July 28, 2004, the Government was so warned. At the hearing, the Court expressed its concern with the significant delays in the case. Telephonic Conference, July 28, 2004, at 9-10.

Further, the Court issued an Order to Show Cause on August 20, 2004, in which the Court questioned "the seriousness with which the Government is litigating this important matter." Order to Show Cause at 1, Document # 211. In that Order, the Court found that the Government had provided "little of the missing discovery" and ordered the Government to explain its ongoing failure to comply with the defendants' discovery requests. Id. at 2-3. The Court also noted that the Government's dilatory approach was longstanding, citing to the defendants' previous motion to compel discovery which was granted on November 6, 2002. Id.

On March 22, 2005, the Court reiterated these concerns in a sealed proceeding. Transcript of Sealed Proceedings, March 22, 2005, at 220-222.

These occasions provided ample forewarning to the Government that the Court would dismiss the indictment, with prejudice, if the Government failed to proceed to trial in a timely manner.

b. Prosecutorial Misconduct

Second, the Court finds that there has been unnecessary delay which was both "purposeful and oppressive." In its Order to Show Cause dated August 20, 2004, the Court commented on the continuing discovery problems in the case, specifically that as late as April of 2004, the Government had not provided the defendants with their requested discovery. Order to Show Cause at 2. The Order to Show Cause was a response to the Government's ongoing failure to comply with these discovery requests. Id. This failure to comply with basic discovery was simply one manifestation of the Government's overall neglect in handling this case. For instance, Special Agent Stoltz testified that the discovery in the case "was never handled correctly." EH, June 13, 2005, at 205-206. SA Stoltz further explained that he and SA King attempted to organize the case in June of 2000. SA Stoltz testified that, at that point in time, the discovery had only been turned over to the defense "in dribs and drabs" and that some "had never been Bates-stamped." Id. at 172. In fact, SA Stoltz testified that even though he was an ATF Agent, he was given custody of the Customs' files shortly after Customs SA King left the case because of a concern that evidence would "get lost [or] misplaced," Id. at 208. Remarkably, ATF SA Stoltz held the Customs' case and work files from late in 1999, or early in 2000, until "mid-2001." Id. at 212-13. Stoltz testified that during the time he held the files, he had very little contact with any Customs agents. Id. at 212 ("As I understand, everything was given to me. But no one ever contacted me.").

Further, the first time the defense had heard of this unusual circumstance, of an ATF agent taking possession of Customs' files, was during the evidentiary hearing on June 13, 2005. Id. at 211 At that point, no evidence demonstrating this unusual circumstance had been produced. See id. at 212, 215 (ordering the property receipt signed by SA Stoltz be produced to the defense).

The Court finds that significant and unnecessary delays in providing discovery materials, and the intentional destruction of material evidence, were purposeful and oppressive to both the defendants' ability to defend themselvesand the defendants' right to be free of a protracted criminal litigation.

c. Prejudice

Nearly eight years have passed since the original indictment, critical evidence has been destroyed and memories have faded, resulting in demonstrable prejudice. Virtually all of the present and former government employees who testified had difficulties recalling many of the relevant events.

In light of this, the Court finds that the elements of Federal Rule of Criminal Procedure 48(b) have been satisfied.

2. Speedy Trial Violations Pursuant to the Sixth Amendment

Based on the specific circumstances of this case, there are also grounds for dismissing the Second Superseding Indictment with prejudice based on the defendants' Sixth Amendment arguments. Following the four factors outlined in Barker, the defendants have adequately demonstrated that their constitutional right to a speedy trial has been denied.

First, the defendants have demonstrated that, as a threshold issue, the delay in this case is more than eleven times the eight month delay generally presumed to be prejudicial in this circuit. See Gregory, 322 F.3d at 1161.

Second, given the excessive delays and problems with the Government supplying complete and timely discovery to the defendants, as well as its grossly negligent destruction of evidence, the Government was more to blame than the defendants as the primary cause of the delay. As Mr. Wong testified on June 14, 2005, defense counsel was reasonably required to review all discovery before completing a full investigation of the shipment containers and evidence. EH, June 14, 2005, testimony of G. Wong 13-14. Further, Mr. Wong testified that he did not believe he had all of the necessary discovery from the Government before he withdrew from the case in June of 2001. Id. at 14. This assertion is further supported by SA Stoltz who testified to the on-going discovery problems in the case. EH, June 13, 2005, testimony of SA Stoltz at 172, 211. Without this material evidence, the defense could neither adequately support a motion to dismiss, nor defend themselves fully at trial. The Court, therefore, finds that the cause of delay is primarily attributable to the Government.

Third, although the defendants may not have pressed their right to proceed to trial as forcefully as one might hope, the Government's duty to proceed to trial outweighs the defendants' lack of assertiveness because it is the Government's duty to bring the case to trial in a timely manner. See Barker, 407 U.S. at 531. A defendant's failure to assert his right to a speedy trial can weigh against his Sixth Amendment argument; however, the Court must look at the totality of the circumstances. See id. at 531-32. Based on the consistent failures of the Government to adequately provide necessary discovery materials, the defense was at a significant disadvantage in terms of pressing its speedy trial right. Thus, failure of the defendants to diligently assert their Sixth Amendment rights does not outweigh the Government's fundamental responsibility to deliver necessary discovery materials to the defense and move the case to trial within a reasonable time.

Fourth, the defendants have been significantly prejudiced by the extensive delays in this case. As discussed above, critical evidence has been destroyed and witnesses' memories have faded. Further, these significant and fundamental problems cannot be remedied. Neither the destroyed evidence nor lost time can be resurrected. The Court finds that the defendants have demonstrated a governmental violation of their Sixth Amendment right to a speedy trial.

3. Due Process Violation from the Destruction of the Evidence

The Court denies the defendants' request to dismiss the indictment based on violations of Due Process. Although defendants in a criminal prosecution must be allowed a "meaningful opportunity" to present a defense, this right generally extends to exculpatory evidence. See Trombetta, 467 U.S. at 485. Where the evidence is only arguably exculpatory, as it is here, the defendants cannot prevail unless they can demonstrate that the destruction was conducted in bad faith. No such demonstration can be supported on this record.

Although defense counsel have submitted colorable arguments pertaining to the possible exculpatory uses of the destroyed weapons parts, containers and container seals, these arguments are not presently buttressed by any evidentiary record. Further, although the record demonstrates gross negligence on behalf of the Government in failing to preserve the evidence, the defendants have not demonstrated bad faith. Thus, the defendants' motion to dismiss the Second Superseding Indictment on Due Process grounds is DENIED.


For the foregoing reasons, the Second Superseding Indictment is hereby dismissed with prejudice based on both Federal Rule of Criminal Procedure 48(b) and Sixth Amendment grounds.


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