The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT
Currently before the Court is Defendant's Motion to Dismiss the Indictment. Following extensive briefing and oral argument, the Court took the matter under submission. The Court has now fully considered the submissions and argument of the parties, and applicable authorities, and concludes that the indictment should be dismissed. Accordingly, Defendant's Motion to Dismiss is GRANTED.
On January 27, 2006, Defendant was charged in a two count indictment alleging violations of 26 U.S.C. § 7206(2) (Aiding and Assisting in the Filing of a False Income Tax Return). The indictment arose from Defendant's work as a Certified Public Accountant for Dr. Glenn A. Kawesch ("Dr. Kawesch") for the calendar years 1998 and 1999.
Dr. Kawesch testified for the Government at Defendant's trial in January 1997. In fact, he was the prosecution's key witness. Dr. Kawesch died on March 26, 2007.
On January 26, 2007, a jury acquitted Defendant on count one (relating to Dr. Kawesch's 1998 tax return) and found him guilty on count two (relating to Dr. Kawesch's 1999 tax return). Thereafter, Defendant filed a motion for new trial. On June 11, 2007, the Court granted Defendant's motion on two grounds: 1) the introduction of extrinsic evidence concerning Jesse Cota and the Tax People prejudiced Defendant; and 2) the Government's failure to disclose, prior to trial, the transcripts of recorded conversations between Dr. Kawesch and Ernest Ryder (Dr. Kawesch's tax attorney) violated Brady v. Maryland, 373 U.S. 83 (1963).
The Government appealed and on May 16, 2008, the Ninth Circuit affirmed this Court's order granting Defendant a new trial. The Court of Appeals held this Court's decision to grant a new trial was proper based on the first ground. Therefore, the Ninth Circuit did not specifically address the Brady issue.
The new trial date is currently set for March 24, 2009.
A district court may dismiss an indictment under either of two theories. First, the court may dismiss an indictment "on the ground of outrageous government conduct if the conduct amounts to a due process violation." United States v. Chapman, 524 F.3d 1073, 1084 (9th Cir. 2008). Alternatively, "if the conduct does not rise to the level of a due process violation, the court may nonetheless dismiss under its supervisory powers." Id. The court's supervisory powers may be exercised "to remedy a constitutional or statutory violation; to protect judicial integrity by ensuring that a conviction rests on appropriate considerations validly before a jury; or to deter future illegal conduct." United States v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir. 1991). To justify dismissal under the Court's supervisory powers, the government's conduct must be (1) flagrant and (2) cause substantial prejudice to the defendant. United States v. Jacobs, 855 F.2d 652, 655 (9th Cir. 1988); Chapman, 524 F.3d at 1085. "[A]ccidental or merely negligent governmental conduct is insufficient to establish flagrant misbehavior. Chapman, 524 F.3d at 1085. However, a finding of "willful misconduct" in the sense of intentionality is not required. Rather, "reckless disregard" satisfies the standard for dismissal. Id. As the Ninth Circuit explained in Chapman: "We have never suggested  that 'flagrant misbehavior' does not embrace reckless disregard for the prosecutions's constitutional obligations." Id. In Chapman, the Ninth Circuit found the government's failure to produce Brady material until mid-trial, its failure to keep track of what had been produced, and its affirmative misrepresentations to the court of full compliance, "supported the district court's finding of 'flagrant' prosecutorial misconduct even if the documents themselves were not intentionally withheld from the defense." Id. (emphasis added). The Chapman court also noted that the government had "received several indications, both before and during trial, that there were problems with its discovery production and yet it did nothing to ensure it had provided full disclosure . . ." Id.
Upon finding flagrant conduct, the court may dismiss the indictment only if the defendant will suffer "'substantial prejudice' and where 'no lesser remedial action is available.'" Id. at 1087 (internal citation omitted). See also United States v. Ross, 372 F.3d 1097, 1110 (9th Cir. 2004) (stating "the proper prejudice inquiry is whether the government conduct 'had at least some impact on the verdict and thus redounded to [the defendant's] prejudice'" and noting "this is a less stringent standard than the Brady materiality standard").
A. The Government's Conduct Was Flagrant
As an initial matter, this Court has already found that the Government's failure to disclose the tape recorded conversations between Dr. Kawesch and Ernest Ryder constituted a Brady violation. See Order Granting Defendant's Motion for New Trial, at 6-8 ("The Court finds that the tapes constituted Brady material and thus should have been disclosed to the defense prior to trial."). Now, the Court further finds that although the Government may not ...