The opinion of the court was delivered by: Hayes, Judge
The matter before Court is the motion for order dismissing indictment for outrageous government misconduct (Doc. # 40) filed by Defendant Danielle Schoonover.
The charges in this case are based upon an incident on August 7, 2008 in which three individuals, including Defendant Danielle Schoonover, were traveling in a 1998 Chevy Malibu entered the United States at the Calexico West Port of Entry. A Customs and Border Patrol Officer referred the vehicle to secondary for further inspection. At secondary inspection, a narcotics dog alerted to the front of the vehicle. Further inspection resulted in the discovery of 22 packages wrapped in carbon paper and clear plastic hidden within the front fender of the vehicle. The packages tested positive for marijuana. The total weight of the packages was 34.40 kilograms.
On September 10, 2009, the grand jury returned an indictment charging three defendants including Defendant Schoonover with one count of importing marijuana in violation of 21 U.S.C. § 952 and 960 and one count of possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1).
On September 11, 2008, Defendants were arraigned and entered pleas of not guilty. On October 10, 2008, Defendant Schoonover filed a motion for severance, discovery, leave to file additional motions, and joinder. (Doc. # 24). Defendant Schoonover requested the preservation of evidence including all physical evidence which relates to the arrest or the events leading to the arrest.
On October 15, 2008, the Government filed a Response to Defendant's motion to compel discovery. (Doc. # 28). The Government stated that it will "make every effort to preserve evidence it deems to be relevant and material to the case." (Doc. # 28 at 5). The Government stated that it "will continue to comply with Rule 16(a)(1)(E) in allowing Defendant an opportunity, upon reasonable notice, to examine, inspect, and copy all tangible objects that is within its possession, custody or control, and that is either material to the preparation of Defendant's defense, or is intended for use by the Government as evidence during its case-in chief at trial or was obtained from or belongs to Defendant." (Doc. # 28 at 6).
On October 20, 2008, the Court held a hearing and addressed discovery matters.
On November 3, 2008, Counsel for Defendant Schoonover wrote a letter to Counsel for the Government requesting an opportunity to inspect all physical evidence in the case including in part the "vehicle and any and all contraband sized (sic)." (Doc. # 39-3 at 1).
On November 21, 2008, the Court held a hearing and addressed discovery matters. On January 12, 2009, the Court held a motion hearing and addressed discovery matters. On January 14, 2009, Counsel for Defendant Schoonover wrote a letter to Counsel for the Government stating in part "it is imperative that I have the opportunity to view all physical evidence obtained by the government." (Doc. # 39-3 at 2).
On February 4, 2009, Counsel for the Government wrote a letter to Counsel for Defendant Schoonover stating in part "[i]n response to your letter dated January 14, 2009, this letter is to advise you that the case agent has informed me that the bulk evidence . . . was destroyed on January 8, 2009 and the vehicle was sold for scrap on December 12, 2008. Accordingly, there will be no opportunity available for you and your investigator to review the evidence. However, there are color photographs of the bulk evidence and vehicle that I will make available to you." (Doc. # 39-3 at 3).
Defendant Schoonover contends that this Court should dismiss the indictment against her on the grounds that the government destroyed material exculpatory evidence. Defendant contends that she need not demonstrate bad faith on the part of the government because the evidence was material exculpatory evidence. In the alternative, Defendant requests dismissal of the indictment pursuant to the Court's supervisory powers based upon a violation of due process. In the event that the Court views the evidence as only potentially exculpatory, Defendant requested an evidentiary hearing to determine whether the agents decision to destroy the evidence was an act of bad faith.
The Government contends that there are no grounds to dismiss the indictment in this case. The Government asserts that there are no facts to support the Defendant's assertion that the destruction of the bulk marijuana and the vehicle in this case is a Brady violation or a due process violation. The Government asserts that the marijuana was destroyed pursuant to a routine procedure because there was not signed court order provided to the case agent to preserve the evidence. ...