United States v. Struckman

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 08-30312
Plaintiff-Appellee, D.C. No.
v.  2:04-CR-00229-
DAVID STRUCKMAN, RMT
Defendant-Appellant.
 OPINION

Appeal from the United States District Court
for the Western District of Washington
Robert M. Takasugi, District Judge, Presiding

Argued and Submitted
July 7, 2009—Seattle, Washington

Filed June 29, 2010

Before: Diarmuid F. O’Scannlain, Andrew J. Kleinfeld and
Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon;
Concurrence by Judge Berzon

9365
 UNITED STATES v. STRUCKMAN 9369

COUNSEL

Robert G. Bernhoft, The Bernhoft Law Firm, S.C., Milwau-
kee, Wisconsin, for the defendant-appellant.

John Dicicco, Alan Hechtkopf, and Gregory Victor Davis,
United States Department of Justice, Washington, D.C., for
the plaintiff-appellee.
9370 UNITED STATES v. STRUCKMAN
OPINION

BERZON, Circuit Judge:

David Struckman was indicted for massive tax fraud and
was hiding out in Panama. United States agents helped
arrange his expulsion from his chosen sanctuary, and he was
handed over to federal officials for prosecution. Struckman
maintains that the government’s conduct, both in bringing
him from abroad to stand trial in the United States and in its
criminal investigation of him, warrants dismissal of the indict-
ment with prejudice. In a painstakingly careful 83-page pre-
trial order, District Court Judge Takasugi1 determined that the
government had engaged in misconduct with regard to the
investigation but not the expulsion from Panama. The District
Court suppressed a great deal of evidence as a result of its
finding of misconduct but ruled that dismissal of the indict-
ment against Struckman was not an appropriate remedy. We
agree that the broad suppression of evidence before trial was
an adequate remedy for the misconduct found, disturbing as
some of it was, and therefore affirm.

I.

David Struckman was indicted in the Western District of
Washington on May 11, 2004, for conspiracy to defraud the
United States in violation of 18 U.S.C. § 371. The U.S. gov-
ernment later issued a superseding indictment, adding nine
counts of tax evasion under 26 U.S.C. § 7201.

The superseding indictment alleged that Struckman was a
co-founder of an organization called the Institute of Global
Prosperity. From 1996 to 2002, Global Prosperity offered, for
a fee and through middlemen called “Qualified Retailers,” an
audiotape/CD series and seminars. These products advocated
the use of illegal means to avoid paying income tax, including
1
Judge Takasugi is now deceased.
 UNITED STATES v. STRUCKMAN 9371
“voluntary withdrawal” from the United States’ jurisdiction
and the placement of assets in purported foreign or common
law trusts without relinquishing control of them. The indict-
ment alleged that Struckman purchased bogus trusts and
fraudulently established bank accounts to receive profit distri-
butions from Global Prosperity’s more than $40 million in
gross receipts, and that Global Prosperity and Struckman
never reported these distributions to the Internal Revenue Ser-
vice (“IRS”) as income.

At some point, Struckman, a U.S. citizen, went to the
Republic of Panama on a tourist visa and stayed. The U.S.
government vigorously sought Struckman’s return to the
United States to stand trial.

Before trial, Struckman filed motions to dismiss the indict-
ment based on alleged due process violations or the district
court’s supervisory powers. The motions focused on asserted
illegalities and misconduct during the government’s efforts to
secure his return from Panama but also relied on alleged mis-
conduct during the criminal investigation in the United States.
The district court held an evidentiary hearing on the motions
and issued extensive factual findings, none of which is con-
tested by the government on appeal. We begin by describing
in detail the government’s conduct as found by the district
court.

A. Struckman’s Departure from Panama

After Struckman went to Panama, U.S. government offi-
cials developed a plan for his return. Timothy O’Brien, at that
time the regional security officer at the U.S. Embassy in Pan-
ama City, Panama, was the central person involved in the
efforts to bring Struckman back to the United States for trial.
In a 2004 e-mail to a Department of Justice (“DOJ”) trial
attorney, O’Brien summed up the plan that had been devel-
oped:
9372 UNITED STATES v. STRUCKMAN
What we’re hoping to do is find [Struckman] and
have him deported vice [sic] going the provisional
arrest warrant route. The reasons for this are simple
— a [provisional arrest warrant] will mean that
extradition proceedings begin . . . .2 There’s a Sec-
tion of the [Code of Federal Regulations] . . . that
allows the [U.S. government] to revoke a passport of
an individual who is the subject of an outstanding
Federal Felony arrest warrant — which Struckman
has. We know he’s got a U.S. [passport], and if we
revoke it he’s undocumented. Which means he’s
immediately deportable.

There’s also the possibility that the Panamanians
can decide he’s an undesirable and revoke his visa
. . . . We just had a meeting with the Panamanian
National Police . . ., and provided information that
we hope will assist them in finding him . . . .

On August 25, 2004, Panama’s National Director for Immi-
gration and Naturalization (“the Director”) issued two resolu-
tions regarding Struckman’s immigration status. One
resolution denied Struckman’s pending request to obtain an
immigrant visa. It stated that the Panamanian government had
considered a “note” it received from the U.S. District Court
regarding the charge for conspiracy to defraud the United
States.3 The resolution gave Struckman thirty days to leave
the country.
2
Under Article IV of the extradition treaty between the United States
and Panama, when the United States seeks the extradition of a fugitive in
Panama, “the proper course shall be to apply to the Foreign Office, which
will immediately cause the necessary steps to be taken in order to secure
the provisional arrest or detention of the fugitive.” Providing for the Extra-
dition of Criminals art. IV, U.S.-Pan., May 25, 1904, 34 Stat. 2851. Once
the provisional arrest is made, the United States must within two months
make a formal request for surrender and produce “the necessary evidence
of [the defendant’s] criminality,” or else the defendant will be released. Id.
3
The language of the resolution suggests but does not establish that this
“note” was the arrest warrant the district court had issued for Struckman.
 UNITED STATES v. STRUCKMAN 9373
The companion resolution stated that Struckman was
“wanted by the judicial authorities of the United States of
America, in virtue of the fact that he ha[d] a warrant for his
arrest pending for federal charges, being, as a result, a fugitive
from United States justice.” Relying on Panamanian Law No.
16 of June 30, 1960, Article 37, the resolution stated that
“[i]mmigration to the country of a foreign national is prohib-
ited . . . [for] all persons with criminal records, such as fugi-
tives and those sentenced or defendant in common crimes.”
The resolution ordered the arrest of Struckman “for reasons of
security and public order.”

On June 23, 2005, O’Brien sent an e-mail to IRS Special
Agent Michael D. Hardaway about how quickly Struckman
could be obtained from Panama. He noted that Struckman
“may be able to get a lawyer to slow things down (but that’s
a big reason we want to move quickly if we nab him — we
don’t want to give him that chance, especially with that much
money available to him).” In a letter later that summer to Pan-
amanian officials, O’Brien stated that Struckman was charged
with “defrauding investors of over $50 million” and that he
was attempting to perpetrate the “same kind of fraud scheme
that he used with such success in the U.S.” in Panama.
O’Brien had no factual basis for making this statement.

Shortly before Struckman was arrested by Panamanian
authorities, O’Brien discussed the plan for the “expulsion” of
Struckman with a DOJ trial attorney via e-mail. He stated that
“[w]hat we have set up, and still in place, is a [passport] revo-
cation letter to be served on Struckman whenever he gets
arrested” and that “[w]e also have a deportation/expulsion let-
ter from Panamanian Immigration ready to go.” As to the
delay, O’Brien noted that the plan had been “in place for a
while, it’s just putting the habeas grabbus on [Struckman]
that’s holding up executing everything.”

On January 11, 2006, the Panamanian National Police con-
tacted O’Brien to report that police officers had arrested a
9374 UNITED STATES v. STRUCKMAN
man who might be David Struckman. O’Brien responded that
Struckman “[had been] sentenced and at this moment is a
fugitive of the federal authorities and is [awaiting] to serve his
sentence.” The statement was clearly not true; Struckman had
not yet been tried.

As planned, that same day, the U.S. Department of State
revoked Struckman’s passport and a Panamanian arrest order
issued for Struckman’s failure to “maintain[ ] his legal docu-
ments in the national territory.” Struckman’s counsel in Pan-
ama immediately filed a habeas corpus lawsuit in Panamanian
court.

The following day, O’Brien sent a fax to Mark Odulio, a
federal prosecutor involved in the Struckman case. He
informed Odulio that “[a] lawyer for Struckman came sniffing
around police [headquarters] this morning, the race has
begun[.] [T]he P[anamanian] N[ational] P[olice] ha[ve]
turned Struckman over to immigration, so they’ll refer the
lawyer to them some time today.” One day later, the district
court found, “Struckman was deported from Panama.”

Panama’s Supreme Court of Justice issued an opinion in
Struckman’s habeas case several months after Struckman was
removed from the country. The opinion set forth information
from the Director, including that Struckman’s “deportation
from the national territory [was] made effective on January 13,
2006.” (Emphasis in original.) The Panamanian Court held
that it could “not pronounce regarding the legality of [Struck-
man’s] arrest . . . because [Struckman was then] outside the
jurisdiction of Panama, due to the fact that he was deported
in compliance” with a 2004 resolution providing for such
measures.

B. The U.S. Government’s Investigation of Struckman

The IRS’s criminal investigation of Struckman dates at
least to 2000. Struckman’s claims of government investiga-
 UNITED STATES v. STRUCKMAN 9375
tory misconduct focus on the actions of two IRS Special
Agents, Keith L. Chinn and Michael D. Hardaway (the latter
mentioned earlier in connection with Struckman’s transfer
from Panama), as discussed below.

(1) Confidential informant “Ted”

Chinn was assigned in 2000 “to do some background infor-
mation on” Struckman for an investigation of the Global Pros-
perity program. He made rough notes in September of that
year about a meeting with an anonymous informant he desig-
nated “Ted.” Chinn’s notes indicate that “Ted” divulged per-
sonal information about Struckman, including addresses,
marital history, a bank account number used by Struckman or
his daughters, and other information about Struckman’s fam-
ily. On at least eight later occasions between September 2000
and December 2001, Chinn made rough, contemporaneous
notes about additional conversations with “Ted.” He did not
generate contemporaneous Memoranda of Investigation
(“MOIs”), the proper format for documenting agents’ contacts
with informants, to memorialize these contacts. The informa-
tion attributed to “Ted” in the notes is wide-ranging, including
Social Security numbers for members of Struckman’s family,
license plate numbers for vehicles at Struckman’s home, loca-
tions of safe deposit boxes, and Struckman’s daughter’s plan
to move to a new residence, including her new address.

In March of 2001, Hardaway wrote an MOI detailing a
conversation with “Ted,” the same confidential informant
with whom Chinn had been in contact. Between April 17,
2001, and December 12, 2001, Hardaway wrote MOIs for
nineteen additional contacts with “Ted.” In addition to per-
sonal information about Struckman’s family, the MOIs and
rough notes used to produce them “include[d] reaction to
grand jury appearances by [Struckman and his daughter],
reaction to subpoenas by family members, Social Security
Numbers, addresses to residences, expenditures, phone and
9376 UNITED STATES v. STRUCKMAN
fax numbers, transfer of funds, and arguments and marital
problems among the family.”

On December 17, 2001, Hardaway sent an e-mail to Chinn
requesting that he “finally finish those memos” regarding the
information obtained from “Ted,” because Hardaway was
“being asked[ ] by the attorneys” for the memos. Chinn later
testified that he eventually generated after-the-fact MOIs for
his contacts with “Ted,” although he did not specify when he
did so. It is clear, however, that Chinn never produced addi-
tional MOIs for contact with “Ted” occurring after the
December 2001 e-mail, and Hardaway produced only two
more, dated January 3 and 8, 2002. Nonetheless, Hardaway
and Chinn continued to attribute later-acquired information,
including information that Struckman was in Panama and
about his activities there, to “Ted” well after January 8, 2002.

Suspicious as to whether “Ted” existed, defense counsel
before trial sought to discover “Ted”’s identity, arguing “that
unless [“Ted”] is in a very close relationship with defendant,
the government would not have been able to obtain such
information but for the use of illegal wiretaps.” The district
court concluded that Struckman had made the requisite mini-
mal threshold showing that the identity of “Ted” would be rel-
evant to a defense of governmental misconduct requiring
dismissal, and so ordered the government to produce “Ted”
for an in camera hearing with the district judge. But, “Ted”
proved catastrophe-prone: When Hardaway tried to serve the
putative “Ted” with a subpoena for the hearing, he was told
that the informant had recently fallen off a roof and might not
be able to travel due to medical problems.

Stymied in its attempt to interview “Ted,” the court ordered
the government to file “a declaration stating the identity of
[“Ted”], describing his/her connection to defendant Struck-
man and how the informant came about his/her knowledge
concerning [the] defendant.” The response, filed by Depart-
ment of Justice Tax Division trial attorneys Mark Odulio and
 UNITED STATES v. STRUCKMAN 9377
Larry Wszalek, came in the form of MOIs by Chinn and Har-
daway, not declarations from Chinn and Hardaway under pen-
alty of perjury. The so-called MOIs were dated the same day
as the government’s response was filed in the district court,
so were not contemporaneous in any sense. In his MOI, Har-
daway represented that he had confirmed the identity of the
informant as Gary D. Moritz, who had indeed fallen from a
roof and who was the husband of Struckman’s first wife, Bon-
nie Moritz. The government also submitted from Gary Moritz
an unsworn statement that he had no recollection of any of the
information that the government attributed to him.

Concerned that the filing did not include any declarations
under penalty of perjury from the agents who knew “Ted”’s
identity, the district court issued a second order requiring the
government to produce a declaration regarding “Ted”’s iden-
tity. This time the government filed a document denominated
by attorneys Odulio and Wszalek in their filing as a “declara-
tion,” signed by Hardaway and Chinn but not under penalty
of perjury. In the document, Hardaway and Chinn stated that
“Ted” was Gary Moritz and asserted that they believed Moritz
received most of the information from discussions at family
gatherings or by listening to conversations between his wife,
Bonnie Moritz, and her daughters with her ex-husband David
Struckman.

In response, Struckman filed declarations under penalty of
perjury by Gary Moritz, Bonnie Moritz, and one of Struck-
man’s daughters, Jennifer Wininger. Gary Moritz stated that
he did not recall giving information about Struckman to Har-
daway and did not remember Struckman. Moritz’s wife and
Struckman’s daughter denied ever knowing much of the infor-
mation attributed to Moritz. Also, the district court found,
“Bonnie Moritz contradict[ed] almost every single statement
attributed to her husband as [“Ted”] . . . , and in addition,
state[d] that she and Jennifer discussed over the phone much
of the private, family related information attributed to Gary as
9378 UNITED STATES v. STRUCKMAN
[“Ted”] and that she believed her ‘phones were tapped in
some manner during this time.’ ”

(2) Government relationship with Dave Bowden

In its investigation, the IRS also relied on Dave Bowden,
operator of a car cleaning business, who met Struckman in
1996 when Struckman brought in several cars to be cleaned.
Bowden told the IRS that Struckman used $30,000 in cash to
buy a car from Bowden and boasted that he sent his wife to
the bank nearly every day to withdraw an amount under
$10,000. In a grand jury proceeding in 2003 concerning
Struckman’s wife, Laura, Bowden testified that he had given
documents taken from Struckman’s car to Hardaway.

Before trial, Struckman moved to compel disclosure of
material concerning Dave Bowden, including Bowden’s tax
returns, audit file, “motivation for illegal black bag operations
at the behest of the government,” and “past acts of perjury on
tax forms.” The government at first denied that Bowden had
been audited by the IRS, did not produce Bowden’s tax
returns, and denied that Bowden had given photocopies of
papers that he had taken from Struckman’s car to Hardaway
or any other IRS agents.

As it turned out, Bowden had in fact received notice of an
audit from the civil division of the IRS in 2004 and contacted
Hardaway about it soon afterwards. Hardaway then had con-
tact with the auditor about Bowden’s audit, but never memori-
alized either his contact with Bowden or that with the auditor
at the time, waiting until two days after the court-ordered
motion to compel—nearly three years after the contact—to do
so. Hardaway asserted that he had told the prosecutors “on
several occasions,” the last time on the day after the court
order compelling disclosure of information about Bowden’s
audit, about his contacts. In declarations under penalty of per-
jury submitted to the district court, attorneys Wszalek and
Odulio each acknowledged Hardaway’s post-disclosure order
 UNITED STATES v. STRUCKMAN 9379
statement to them, but said that he did not recall any earlier
disclosure by Hardaway about the audit contacts. One day
after the court’s order compelling disclosure and the same day
as Hardaway’s last disclosure to the prosecutors, the govern-
ment changed its stance: The government “acknowledged it
had made a ‘misstatement’ concerning the existence of an
audit on Bowden” and that it had other exculpatory informa-
tion concerning Bowden’s contact with IRS agents.

Additionally, Bowden told IRS criminal investigation
agents that he had taken documents from Struckman’s car in
1996 or 1997, on his own initiative, and that he had later
given those documents, along with others Struckman had
given directly to Bowden, to Hardaway. Bowden also recalled
telling Hardaway how he had obtained the documents.

At the evidentiary hearing on the motion to dismiss, Har-
daway continued to recall some contact with the IRS auditor
but denied—contrary to testimony by the IRS agent assigned
to audit Bowden—any recollection of an in-person meeting
with the auditor about Bowden’s audit or of giving the auditor
access to records that Bowden had given to Hardaway. He
also initially denied any recollection of receiving the docu-
ments taken from Struckman’s car by Bowden. Only when
Struckman’s counsel demanded them did Hardaway “remem-
ber” the existence of a box of documents related to the case
that he had inexplicably kept apart from the other case docu-
ments.

C. Struckman’s Motions to Dismiss

After the evidentiary hearing on the motions to dismiss, the
district court issued an 83-page order denying the motions.
The district court first rejected Struckman’s argument that the
court did not have personal jurisdiction over him because of
the manner in which he was brought from Panama, relying on
the Ker/Frisbie doctrine. That doctrine provides generally that
“the manner by which a defendant is brought to trial does not
9380 UNITED STATES v. STRUCKMAN
affect the government’s ability to try him.” United States v.
Matta-Ballesteros, 71 F.3d 754, 762 (9th Cir. 1995) (citing
Ker v. Illinois, 119 U.S. 436, 444 (1886) and Frisbie v. Col-
lins, 342 U.S. 519, 522 (1952)), cert. denied, 519 U.S. 1118
(1997). Struckman maintained that Panama had actually
extradited, not deported him, and that the extradition did not
comply with the Extradition Treaty between Panama and the
United States, in which case the Ker/Frisbie doctrine would
not apply.

As to Struckman’s motion to dismiss the indictment on
grounds of misconduct in the investigation and in responding
to discovery, the district court declared that the government
had indeed committed serious Brady/Giglio violations.4 First,
as to the informant “Ted,” the district court found that infor-
mation regarding the identity of the informant submitted by
Hardaway and Chinn right before trial was “remarkably dif-
ferent from their previous statements when it comes to
details.” Disbelieving the agents’ ultimate submissions, the
court concluded that:

[T]he sheer volume of discrepancies in the testi-
mony of the agents who claim to have handled the
informant, the degree of irregularities in the record
concerning the alleged informant, as well as the
uncontested testimony of [Bonnie Moritz and Jenni-
fer Wininger] that Gary Moritz could not have been
the informant, lead the court to find that there was no
single source of information for all the information
attributed to “Ted,” and that the source of all that
information could not have been Gary Moritz.
4
Under Brady v. Maryland, prosecutors have a duty to divulge to the
defense before trial “evidence favorable to an accused.” 373 U.S. 83, 87
(1963). Giglio v. United States likewise requires prosecutors to disclose to
the defense any “understanding or agreement as to a future prosecution”
the government has made with a trial witness. 405 U.S. 150, 154-55
(1972).
 UNITED STATES v. STRUCKMAN 9381
....

While in isolation all these discrepancies could
very well be attributed to sloppy record keeping,
faulty memories, simple misstatements or minor
omissions, in the aggregate, they add to nothing
more than a house of cards built to support the illu-
sion of the existence of [“Ted”].

Regarding the Bowden information, the district court simi-
larly found that the government had been considerably less
than forthcoming. There was a “secret deal” between Har-
daway and Dave Bowden, the district court found, pursuant to
which “[n]ot only was Bowden not prosecuted [on tax-related
charges], but in return for his testimony in the Laura Struck-
man trial, and in the upcoming trial of David Struckman, . . .
Hardaway prevented a proper audit of Dave Bowden by the
civil branch of the IRS.” Also, the district court concluded
that “[w]hile it may be a coincidence that the box of docu-
ments Bowden gave to SA Hardaway [was] simply kept out
of the knowledge of the prosecutors, it is more likely that SA
Hardaway was trying to maintain those records separate from
the investigatory file in this case.” Because “the government
ha[d] yet to produce the documents Bowden took and copied
from defendant’s cars,” the court went on to declare that
“given the pattern of misconduct in the case, . . . the govern-
ment should not be allowed to introduce[ ] those documents
at trial.”

Despite its strong condemnation of the government and its
finding of Brady/Giglio violations, the district court rejected
Struckman’s motion to dismiss on Brady/Giglio grounds.
Instead, the court excluded evidence attributed to “Ted,” pre-
cluded Bowden from appearing as a witness at trial, excluded
all evidence Bowden had taken from Struckman’s car, and
required the government to assure that the evidence produced
at trial was not “derived from suppressed evidence.” The dis-
trict court did not make any finding as to whether the
9382 UNITED STATES v. STRUCKMAN
prosecutors—as opposed to the IRS investigators—engaged
in affirmative misconduct.

Struckman proceeded to trial. O’Brien, Hardaway, and
Chinn did not testify. Struckman was convicted of one count
of conspiracy to defraud the United States under 18 U.S.C.
§ 371 and three counts of income tax evasion under 26 U.S.C.
§ 7201. He was sentenced to 70 months imprisonment and
ordered to pay more than $2.9 million in restitution. The trial
court never made further inquiry into the actual sources of the
information attributed to “Ted,” and the government never
revealed them.

Struckman now appeals the district court’s denial of his
motions to dismiss the indictment.

II.

A. Jurisdictional Challenge

We first consider whether the district court lacked personal
jurisdiction over Struckman because of the manner in which
he was brought to the United States. “Jurisdictional issues are
reviewed de novo, as are challenges to personal jurisdiction
based on the alleged violation of an extradition treaty between
the United States and another country.” United States v.
Anderson, 472 F.3d 662, 666 (9th Cir. 2006) (internal citation
omitted).

Our starting point is the venerable principle that “the man-
ner by which a defendant is brought to trial does not affect the
government’s ability to try him.” Matta-Ballesteros, 71 F.3d
at 762 (citing Ker, 119 U.S. at 444, and Frisbie, 342 U.S. at
522). We have, however, recognized exceptions to the
Ker/Frisbie doctrine “if either: (1) the transfer of the defen-
dant violated the applicable extradition treaty, or (2) the
United States government engaged in ‘misconduct of the most
shocking and outrageous kind’ to obtain his presence.” Ander-
 UNITED STATES v. STRUCKMAN 9383
son, 472 F.3d at 666 (quoting Matta-Ballesteros, 71 F.3d at
764 (internal citations omitted)).

(1) Violation of the Extradition Treaty

Seeking to come within the first Ker/Frisbie exception,
Struckman maintains that he was taken from Panama to the
United States in violation of the extradition treaty between the
United States and Panama, and that dismissal is therefore
required. See Providing for the Extradition of Criminals, U.S.-
Pan., May 25, 1904, 34 Stat. 2851 (“Extradition Treaty”). We
do not agree.

[1] The U.S. government was indisputably involved in
efforts to convince Panamanian authorities to deport Struck-
man and facilitate his return. But persuasion and cooperation
do not necessarily add up to extradition. “Neither deportation
nor surrender other than in response to a demand pursuant to
Treaty constitutes extradition.” Oen Yin-Choy v. Robinson,
858 F.2d 1400, 1404 (9th Cir. 1988). Nations may in practice
alter the process for extradition requests, but “[w]hile the for-
malities of extradition may be waived . . ., a demand in some
form by the one country upon the other is required, in order
to distinguish extradition from the unilateral act of one coun-
try, for its own purposes, deporting or otherwise unilaterally
removing unwelcome aliens.” Stevenson v. United States, 381
F.2d 142, 144 (9th Cir. 1967) (internal citation omitted); see
also MICHAEL ABBELL, EXTRADITION TO AND FROM THE UNITED
STATES § 7-2(2)-(4) (2008) (describing alternatives to extradi-
tion of criminal defendants, such as a request by the United
States to another country for formal or “informal” deportation
or, for U.S. citizens, passport revocation).

[2] The government did not demand Struckman’s surren-
der pursuant to the Extradition Treaty; indeed, the record
reveals that the government went to great lengths to avoid
doing so.5 Moreover, the Panamanian government in its Reso-
5
It is unclear whether the United States could have had Struckman
extradited under the terms of the Extradition Treaty, which does not list
9384 UNITED STATES v. STRUCKMAN
lutions expressly relied on its own interests in deporting
Struckman, not its responsibilities under the Extradition
Treaty. As Struckman was not extradited, his argument that
his “extradition” was not in compliance with the procedures
set forth in the treaty fails.

[3] Although Struckman was not extradited, his transfer to
the United States could still be prohibited by the Extradition
Treaty, see United States v. Alvarez-Machain, 504 U.S. 655,
662 (1992), if, for example, the Extradition Treaty made
extradition the exclusive means to effect the cooperative
transfer of a criminal defendant. In considering whether that
was so here, we begin by looking to the Extradition Treaty’s
express terms. See Alvarez-Machain, 504 U.S. at 663. As in
Alvarez-Machain, the Extradition Treaty does not provide that
extradition is the exclusive means for one signatory to obtain
a criminal defendant or fugitive from the territory of the other.6
Compare Providing for the Extradition of Criminals, U.S.-
Pan., May 25, 1904, 34 Stat. 2851, with Extradition Treaty,
May 4, 1978, U.S.-Mex., 31 U.S.T. 5059. In the Treaty with
Panama, the signatories “agree to deliver up persons who,
having been charged with or convicted of any of the crimes

tax evasion or tax fraud among the offenses for which extradition is
proper. See Providing for the Extradition of Criminals, U.S.-Pan., art. II,
May 25, 1904, 34 Stat. 2851.
6
Struckman contends that Alvarez-Machain is of “no precedential
value” any longer because the treaty there at issue, between the United
States and Mexico, has been modified to prohibit abductions such as
occurred in Alvarez-Machain. See Treaty To Prohibit Transborder Abduc-
tions, Nov. 23, 1994, U.S.-Mex., reprinted in MICHAEL ABBELL, EXTRADITION
TO AND FROM THE UNITED STATES, at A-303 (2008). In fact, that 1994 agree-
ment is not in force. See UNITED STATES DEP’T OF STATE, TREATIES IN
FORCE: A LIST OF TREATIES AND OTHER INTERNATIONAL AGREEMENTS OF THE
UNITED STATES IN FORCE ON JANUARY 1, 2009, at 174-82 (2009), available
at http://www.state.gov/documents/organization/123747.pdf. In any event,
we are still bound to follow Alvarez-Machain’s framework for analyzing
whether a treaty permits certain methods of obtaining jurisdiction over a
defendant located abroad. See, e.g., Anderson, 472 F.3d at 666.
 UNITED STATES v. STRUCKMAN 9385
and offenses specified in [the Extradition Treaty] . . . shall
seek . . . asylum or be found within the territories of the
other.” See Providing for the Extradition of Criminals, U.S.-
Pan., art. I, May 25, 1904, 34 Stat. 2851. But what the coun-
tries are required to do when one signatory invokes the Treaty
does not limit what they may agree to do cooperatively.
Nowhere does the Treaty curtail the prerogative of Panama to
deport U.S. citizens, nor does it “bar[ ] the signatories from
informally cooperating with each other as they did in this
case.” United States v. Mejia, 448 F.3d 436, 443 (D.C. Cir.
2006), cert. denied, 127 S. Ct. 989 (2007).7

[4] We hold that the Treaty does not prohibit the use of
means other than extradition to obtain a defendant’s presence
in the United States and did not bar Struckman’s transfer to
the United States. In so doing, we join all other circuits to
have considered this issue concerning the reach of the Extra-
dition Treaty with Panama. See Mejia, 448 F.3d at 443;
United States v. Noriega, 117 F.3d 1206, 1213 (11th Cir.
1997); United States v. Cordero, 668 F.2d 32, 37-38 (1st Cir.
1981).

(2) Shocking and outrageous government conduct

[5] Struckman next attempts to fit his quest for mandatory
dismissal into the second exception to the Ker/Frisbie rule:
Where the Government’s conduct to obtain a defendant’s
presence is so shocking and outrageous “as to violate the uni-
versal sense of justice,” United States v. Barrera-Moreno, 951
F.2d 1089, 1092 (9th Cir. 1991) (internal quotations omitted),
the means of obtaining jurisdiction over the defendant
7
As a result, it is irrelevant under the Treaty whether Struckman was
formally deported or was instead transferred cooperatively by other means
to the United States, as neither is prohibited. Struckman’s argument that
his “deportation” was not in compliance with Panamanian deportation law
is unavailing. As we need not review the propriety of the deportation
under Panamanian law, we do not consider, as did the district court, the
implications of the act of state doctrine.
9386 UNITED STATES v. STRUCKMAN
amounts to a due process violation, and dismissal is required.
See Anderson, 472 F.3d at 666.8 The government’s conduct
meets this standard, Struckman argues, because the U.S. gov-
ernment interfered with his Sixth Amendment right to counsel
while in Panama and induced the Panamanian government to
deport him by making misrepresentations regarding his crimi-
nal status in the United States.

We review de novo the district court’s denial of Struck-
man’s motion to dismiss the indictment based on outrageous
government conduct in connection with the government’s
efforts to secure Struckman from Panama. See United States
v. Holler, 411 F.3d 1061, 1065 (9th Cir. 2003). “[W]e view
the evidence in the light most favorable to the government
and we accept the district court’s factual findings unless they
are clearly erroneous.” United States v. Gurolla, 333 F.3d
944, 950 (9th Cir.), cert. denied, 540 U.S. 995 (2003).

[6] We agree with the district court that dismissal was not
required under the second Ker/Frisbie exception. Some of the
government’s actions in Panama are quite disturbing, particu-
larly the flat misstatements to Panamanian authorities. But a
comparison to the circumstances in other cases in which the
outrageous conduct exception was held inapplicable makes
clear that the governmental conduct here does not meet the
“extremely high standard” required for dismissal under the
8
Our case law has been less than clear about the vitality of the “shock-
ing and outrageous conduct” defense as a basis for mandatory dismissal.
In Matta-Ballesteros, this Court appeared to disapprove in a footnote the
second exception to the Ker/Frisbie doctrine for “shocking and outrageous
conduct,” and examined this defense only as a basis for discretionary dis-
missal under a court’s supervisory powers. See 71 F.3d at 763 n.3, 764.
However, eleven years later, this Court examined a “shocking and outra-
geous conduct” defense as a basis for mandatory dismissal, citing Matta-
Ballesteros approvingly. Anderson, 472 F.3d at 666. As we find that the
government’s conduct was not shocking and outrageous under the stan-
dard applied in Anderson, this tension in our case law does not affect our
holding.
 UNITED STATES v. STRUCKMAN 9387
outrageous conduct / due process defense. United States v.
Smith, 924 F.2d 889, 897 (9th Cir. 1991).

The involvement of U.S. government agents in facilitating
the expulsion of Struckman from Panama and receiving him
in the United States surely does not meet this standard. We
have previously held, for example, that abduction of a defen-
dant by U.S. Marshals from the defendant’s home was not so
shocking and outrageous as to warrant dismissal. See Matta-
Ballesteros, 71 F.3d at 761, 763.

[7] The lies told by O’Brien to Panamanian officials are
considerably more troubling than other aspects of U.S. gov-
ernmental involvement in Panama. We are not prepared to say
that blatant lies to a foreign government that induce the for-
eign government to transfer a defendant to the United States
when it otherwise would not could never amount to conduct
so shocking and outrageous as to violate due process and
require dismissal of pending criminal proceedings in the
United States. In this case, though, the district court found
that O’Brien’s misrepresentations came after the Panamanians
had already decided to cooperate with the United States in
returning Struckman and had issued the resolutions. So the
Panamanians did not rely on these misrepresentations for that
purpose. Also, Struckman was deported after his passport was
revoked, which provided a separate reason for deportation
under Panamanian law, in addition to those covered in the res-
olutions.

[8] In Anderson, we declined to apply the Ker/Frisbie
shocking and outrageous conduct exception because Costa
Rica’s decision to extradite the defendant was not dependent
on “representations made by United States government agents
to Costa Rican authorities [that] may have misled Costa Rica
into believing [the defendant] had an unserved prison sen-
tence.” 472 F.3d at 667. Here, similarly, Struckman has not
demonstrated prejudice from O’Brien’s misstatements, so
9388 UNITED STATES v. STRUCKMAN
there was no due process violation justifying dismissal of the
charges.

Nor does it matter whether Struckman had a right under
Panamanian law to appeal the deportation order against him
or pursue a habeas proceeding. Anderson held in nearly iden-
tical circumstances that government behavior does not
become outrageous because a defendant is removed from a
foreign country pending his right of appeal. See id.

B. Dismissal Using Supervisory Powers

[9] Our rejection of Struckman’s outrageous conduct/due
process claim does not end our inquiry into the denial of the
motion to dismiss because of the manner in which Struckman
was brought to the United States from Panama. Even “if the
[government’s] conduct does not rise to the level of a due pro-
cess violation, [a] court may nonetheless dismiss [an indict-
ment with prejudice] under its supervisory powers.” United
States v. Chapman, 524 F.3d 1073, 1084 (9th Cir. 2008)
(internal quotations and brackets omitted). Courts may dis-
miss an indictment under their inherent supervisory powers
“(1) to implement a remedy for the violation of a recognized
statutory or constitutional right; (2) to preserve judicial integ-
rity by ensuring that a conviction rests on appropriate consid-
erations validly before a jury; and (3) to deter future illegal
conduct.” Matta-Ballesteros, 71 F.3d at 763 (citing United
States v. Simpson, 927 F.2d 1088, 1090 (9th Cir. 1991)).9 The
9
Matta-Ballesteros indicated that these three reasons were the “only . . .
legitimate” bases for the exercise of a court’s supervisory powers. 71 F.3d
at 763 (relying on Simpson, 927 F.2d at 1090, and United States v. Has-
ting, 461 U.S. 499, 505 (1983)). More recently, in United States v. W.R.
Grace, we disapproved the exclusivity of these grounds and concluded
that “[t]here is nothing in [Hasting] that limits the inherent powers to these
three areas.” 526 F.3d 499, 511 n.9 (9th Cir. 2008) (en banc) (internal
alteration and quotation marks omitted). In so doing, we held that a court’s
supervisory powers extended to the authority to issue a pre-trial enforce-
ment order to divulge a witness list. Id. at 513. We need not further con-
sider the scope of the supervisory power after W.R. Grace, however,
because Struckman argued before the district court only the three grounds
for dismissal recognized in Matta-Ballesteros.
 UNITED STATES v. STRUCKMAN 9389
defendant must demonstrate prejudice before the court may
exercise its supervisory powers to dismiss an indictment. See
Bank of Nova Scotia v. United States, 487 U.S. 250, 255
(1987); United States v. Ross, 372 F.3d 1097, 1110 (9th Cir.
2004) (citing United States v. Tucker, 8 F.3d 673, 674-75 (9th
Cir. 1993) (en banc)); United States v. Rogers, 751 F.2d 1074,
1077 (9th Cir. 1985).

We review for abuse of discretion the district court’s denial
of Struckman’s motion to dismiss based on the court’s super-
visory powers. Ross, 372 F.3d at 1109.

(1) Violation of a recognized statutory or
constitutional right

[10] “Dismissal is appropriate when the investigatory or
prosecutorial process has violated a federal constitutional or
statutory right and no lesser remedial action is available.”
Barrera-Moreno, 951 F.2d at 1092. This Court has also sug-
gested that a violation of jus cogens norms of international
law might serve as a basis for dismissal. Matta-Ballesteros,
71 F.3d at 764 n.5. Struckman argues that the government
violated his constitutional right to counsel and rights under jus
cogens norms. We disagree.

(a) Right to counsel

[11] O’Brien’s actions in Panama did not violate Struck-
man’s right to counsel. Struckman did retain counsel, who
filed a habeas petition on Struckman’s behalf shortly after
Struckman’s arrest. Moreover, O’Brien’s own e-mail to a
DOJ prosecutor, dated the day before Struckman’s removal
from Panama, stated that the Panamanian National Police had
“turned Struckman over to immigration, so [the Police will]
refer the lawyer to them some time today,” indicating that the
expectation was that Struckman would have a chance to con-
fer with counsel. Nor has Struckman introduced evidence that
he asked for and was refused the opportunity to consult with
9390 UNITED STATES v. STRUCKMAN
retained counsel with regard to any pending or possible future
proceedings, while he was in Panama or otherwise. Although
there was certainly an effort to get Struckman out of the coun-
try before he had a chance to obtain a ruling from a court pre-
venting his removal, that effort was not itself a denial of a
right to counsel.

In short, there simply is no evidence that O’Brien denied
Struckman’s asserted right to counsel, in the United States or
abroad. We therefore need not consider the extent to which an
individual outside the country enjoys federal constitutional
protection of a right to counsel with respect to civil proceed-
ings instituted by a foreign country in cooperation with the
United States.

(b) Jus cogens norms

Struckman next argues that dismissal is appropriate under
the court’s supervisory authority because the government vio-
lated jus cogens norms of international law, namely “viola-
tions of the right to habeas corpus in a foreign land, the right
to counsel, the right to due process and the right of access to
the courts.”

[12] Jus cogens norms are a subset of “customary interna-
tional law”; “customary international law” is defined as the
“ ‘general and consistent practice of states followed by them
from a sense of legal obligation.’ ” Siderman de Blake v.
Republic of Argentina, 965 F.2d 699, 714 (9th Cir. 1992)
(quoting RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW
OF THE UNITED STATES § 102(2) (1987)). These norms, which
are “derived from values taken to be fundamental by the inter-
national community,” id. at 715 (internal quotation omitted),
“are binding on all nations, and can not be preempted by trea-
ty,” Matta-Ballesteros, 71 F.3d at 764 n.5. We have suggested
that violation of jus cogens norms could provide a basis for
dismissal under a court’s supervisory powers because, like
 UNITED STATES v. STRUCKMAN 9391
statutory and constitutional laws, they are justiciable in our
courts. Id.

[13] Although he makes a general jus cogens assertion,
Struckman has not developed the argument at all. “Courts
ascertain customary international law ‘by consulting the
works of jurists, writing professedly on public law; or by the
general usage and practice of nations; or by judicial decisions
recognizing and enforcing that law,’ ” Siderman de Blake,
965 F.2d at 714-15 (quoting United States v. Smith, 18 U.S.
(5 Wheat.) 153, 160-61 (1820)), and must ask “whether the
international community recognizes the norm as one ‘from
which no derogation is permitted,’ ” id. at 715 (quoting
Comm. of U.S. Citizens Living in Nicaragua v. Reagan, 859
F.2d 929, 940 (D.C. Cir. 1988)). Despite this fairly exacting
standard, Struckman has not provided any international law
materials concerning the jus cogens rights he asserts, much
less materials that address the application of the asserted
rights under the circumstances of this case. In this sensitive
and complex area, we decline to create out of whole cloth the
detailed legal arguments, or discover on our own the array of
international materials, that would be necessary to support
Struckman’s “bare assertion[s].” Greenwood v. Fed. Aviation
Admin., 28 F.3d 971, 977 (9th Cir. 1994).10

(2) Preservation of judicial integrity and deterrence of
illegal government conduct

[14] Having determined that dismissal was not appropriate
based on a violation of Struckman’s rights, we next consider
whether dismissal might be appropriate to preserve judicial
10
In his opening brief, Struckman also makes passing references to vio-
lations of “treaties” providing a right to counsel, due process, and access
to the courts. Because he does not argue “specifically and distinctly in
[his] opening brief” which treaties so provide and were therefore violated,
we do not consider his vague assertion here either. Greenwood, 28 F.3d
at 977.
9392 UNITED STATES v. STRUCKMAN
integrity or deter illegal government conduct. While a court
may dismiss a prosecution “to preserve judicial integrity,”
Matta-Ballesteros, 71 F.3d at 763, it does not under this
rubric “have the authority to supervise out-of-court executive
procedure in the absence of a constitutional or statutory viola-
tion.” Barrera-Moreno, 951 F.2d at 1092 (citing Simpson, 927
F.2d at 1090); see also Simpson, 927 F.2d at 1091 (“The
supervisory power comprehends authority for the courts to
supervise their own affairs, not the affairs of the other
branches; rarely, if ever, will judicial integrity be threatened
by conduct outside the courtroom that does not violate a fed-
eral statute, the Constitution or a procedural rule.”). More-
over, to dismiss an indictment on this basis, a court must find
that the prosecutorial misconduct was “flagrant.” Id. at 1091.
Similarly, a finding that the government has broken the law
in the past is a necessary predicate to dismissal on the basis
of deterrence of illegal government conduct. See id.

[15] We have already concluded that the district court did
not abuse its discretion in holding that Struckman has not
established any violation of U.S. laws or jus cogens norms in
securing Struckman for trial. The court made no finding,
either, of prosecutorial misconduct with regard to the removal
from Panama on which dismissal could have hinged in the
absence of illegality, nor do we see a basis for such a finding
in the record. We therefore affirm the district court’s refusal
to dismiss on preservation of judicial integrity or deterrence
of illegal government conduct grounds.

C. Remedy for Brady/Giglio Violations

Finally, we turn to Struckman’s contention that the exclu-
sion of (1) all evidence attributed to “Ted,” (2) Dave Bowden
as a witness at trial, (3) evidence taken from Struckman’s car
by Bowden and not disclosed at the time of the district court’s
order, and (4) evidence “derived from” the suppressed evi-
dence was insufficient to cure the government’s Brady/Giglio
violations. We affirm the denial of dismissal as a remedy.
 UNITED STATES v. STRUCKMAN 9393
[16] “[R]emedies should be tailored to the injury suffered
from the constitutional violation and should not unnecessarily
infringe on competing interests.” United States v. Morrison,
449 U.S. 361, 364 (1981). “Because it is a drastic step, dis-
missing an indictment is a disfavored remedy.” United States
v. Rogers, 751 F.2d 1074, 1076-77 (9th Cir. 1985) (citing
United States v. Blue, 384 U.S. 251, 255 (1966)). Nonethe-
less, our circuit has recognized that dismissal with prejudice
may be an appropriate remedy for a Brady or Giglio violation
using a court’s supervisory powers where prejudice to the
defendant results and the prosecutorial misconduct is flagrant.
See United States v. Williams, 547 F.3d 1187, 1202 (9th Cir.
2008); Chapman, 524 F.3d at 1077, 1086. We review for an
abuse of discretion the district court’s decision whether to dis-
miss the indictment to cure prejudice resulting from such mis-
conduct. See Chapman, 524 F.3d at 1084.

[17] “The pivotal question under Brady and Giglio is
whether the evidence withheld from the jury is material,” Lib-
berton v. Ryan, 583 F.3d 1147, 1163 (9th Cir. 2009), i.e.,
whether there is a “ ‘reasonable probability of a different
result,’ ” id. (quoting Kyles v. Whitley, 514 U.S. 419, 434
(1995)) (internal quotation omitted). Struckman did not order
a trial transcript. It is, therefore, impossible for us to review
the efficacy of the district court’s suppression order to cure
any trial prejudice to Struckman. See Syncom Capital Corp.
v. Wade, 924 F.2d 167, 169 (9th Cir. 1991) (dismissing an
appeal for failure to provide a trial transcript because the peti-
tioner’s “main contentions . . . depend[ed] for their resolution
on an examination of the facts elicited at trial”).

[18] Struckman concedes as much, stating in his brief that
the “principal problem” was the use of “illicitly-procured and
falsely-attributed information . . . to obtain [his] indictment or
personal jurisdiction . . . rather than for evidence at trial.”
(Emphasis added.) But the “animating purpose of Brady is to
preserve the fairness of criminal trials.” Morris v. Ylst, 447
F.3d 735, 742 (9th Cir. 2006). Thus, a prosecutor’s duty is “to
9394 UNITED STATES v. STRUCKMAN
disclose evidence favorable to the accused that, if suppressed,
would deprive the defendant of a fair trial.” United States v.
Bagley, 473 U.S. 667, 675 (1985). Struckman’s contentions
with respect to his indictment and personal jurisdiction are,
therefore, not properly characterized as Brady or Giglio viola-
tions.11 We discussed above why Struckman’s challenge to
personal jurisdiction does not require or permit dismissal.
Moreover, even assuming the indictment process was defi-
cient for its reliance on unlawfully obtained evidence, that
deficiency was cured when Struckman was convicted by a
jury after trial that excluded all of the suppressed evidence.
See United States v. Mechanik, 475 U.S. 66, 70 (1986);
United States v. Navarro, No. 08-50365, 2010 WL 2331461,
*8 (9th Cir. June 11, 2010); United States v. Du Bo, 186 F.3d
1177, 1180 n.1 (9th Cir. 1999); People of the Territory of
Guam v. Muna, 999 F.2d 397, 399 (9th Cir. 1993).

III.

[19] We stress that our affirmance of the district court’s
careful rulings and remedy in this disturbing case in no way
condones the actions of Chinn, Hardaway, or O’Brien or the
prosecutors’ failure to discover and disclose the misconduct
and misrepresentations of the government agents in this case,
even absent affirmative prosecutorial misconduct. We are also
deeply troubled by defense counsel’s assertions at oral argu-
ment, not countered by government counsel then or since, that
even by the time of Struckman’s sentencing, the executive
branch had not investigated any of the misconduct docu-
mented by the district court. But, as described above and in
detail in the district court’s careful order, the authority
directly to sanction this behavior does not lie with the courts;
we can only assure that the misconduct does not give the gov-
11
Struckman also claims that interference with his “privacy rights” led
to the court’s personal jurisdiction over him and the indictment, and there-
fore requires dismissal. He provides no support, with appropriate citation
to the record, for this contention, so we do not consider it here.
 UNITED STATES v. STRUCKMAN 9395
ernment an advantage in obtaining a conviction. The district
court’s extremely broad, pre-trial suppression order was suffi-
cient to provide this assurance here.

For the foregoing reasons, we AFFIRM.

BERZON, Circuit Judge, concurring:

Given the breadth of the district court’s suppression order,
the discretion accorded a district court in devising remedies
for governmental misconduct, and the positions the defendant
has taken before us, the main opinion’s result—affirming
Struckman’s conviction—is correct. The defendant makes no
attempt to identify anywhere in the record any possible cogni-
zable prejudice to him from the government’s defiance of the
court’s discovery order that has not been cured by the sup-
pression order: Struckman disavowed in his brief any trial
prejudice and provided no trial transcript on which we could
judge such prejudice, complaining in his brief only that the
suppressed evidence may have contributed to the indictment.
Any such error is harmless at this juncture. See United States
v. Mechanik, 475 U.S. 66, 70 (1986); United States v.
Navarro, No. 08-50365, 2010 WL 2331461, *8 (9th Cir. June
11, 2010); People of the Territory of Guam v. Muna, 999 F.2d
397, 399 (9th Cir. 1993); see also United States v. Du Bo, 186
F.3d 1177, 1180 n.1 (9th Cir. 1999). The district court in the
order requiring suppression also required that the government
“make a proffer before introducing any evidence at trial to
establish that the proposed evidence is not derived from the
suppressed evidence,” (emphasis added), thereby incorporat-
ing a restriction on the use of fruits of “Ted”-derived evidence
as well. Moreover, the government did make a lengthy such
proffer, Struckman objected to it in detail, and the district
court ruled in the government’s favor after a hearing just
before trial.
9396 UNITED STATES v. STRUCKMAN
So where are we left? With no showing in the record of
prejudice to the defendant and continuing defiance by the
government of an order of the district court to produce
“Ted”’s identity, after the government prosecutors, knowingly
or not, repeatedly provided false information to the court and
then defied requests to provide sworn-to information about
“Ted”’s identity. We still don’t know who or what “Ted” is.
Struckman’s posit was and is that an illegal wiretap must have
been involved, and the evidence from Struckman’s daughter
and former wife registers a similar concern. As far as I can
tell, the government has not specifically denied any such
activity. Nor has the government in this appeal contested the
district court’s finding that “Ted”’s full identity remains
unknown. So the district court’s finding that the government
has still not told the whole story stands. Given that, and given
the history in this case of government disavowals of previous
assurances regarding the sources of information, the truth of
the matter is left up in the air, whether that truth is that there
was an illegal wiretap or that there were one or more other
informants. And all of this occurred after the district court,
relying on Roviaro v. United States, 353 U.S. 53, 59-62
(1957), concluded that Struckman had made a minimal
threshold showing that the identity of “Ted” could be relevant
to Struckman’s defense of governmental misconduct which, if
proven, could have led to dismissal at that juncture. That find-
ing of the degree of potential prejudice necessary to require
revelation of the sources of information has not been con-
tested by the government on this appeal either.

To me, this is an intolerable situation, severely challenging
the integrity of the courts and the appearance of justice, and
so requires further inquiry on remand before we may lay this
case to rest. The district court tailored its remedy for the gov-
ernment’s behavior based on the constitutional violation
under Brady v. Maryland, 373 U.S. 83, 87 (1963), that could
otherwise have resulted at trial, treating this case as a tradi-
tional Brady claim in which the information withheld by the
government is actually discovered. But the separate govern-
 UNITED STATES v. STRUCKMAN 9397
mental misconduct that occurred in court and has continued
to occur—the government’s continuing defiance of the trial
court’s discovery orders—has never been remedied, either by
insistence on pain of contempt that the government reveal its
additional sources after it was determined that it had not done
so or otherwise.

I would, therefore, remand for the district court to order the
government to reveal the full source of the information attri-
buted to “Ted,” in light of the district court’s now-final find-
ing that Moritz was not the sole source.1 Only when this
information is available can the district court, and we, accu-
rately determine whether a further remedy, in addition to the
suppression order, is appropriate. Should the government
refuse to disclose the true source of information attributed to
“Ted” on remand, I would instruct the district court to con-
sider separately the appropriate remedy for the ongoing
affront to the judiciary. I explain briefly below why I would
proceed in this way.

A.

Here, in review, are the facts pertinent to my concern:
Struckman sought to identify “Ted” before trial, arguing “that
unless [Ted] is in a very close relationship with defendant, the
government would not have been able to obtain such informa-
tion but for the use of illegal wiretaps.” The government
opposed revealing “Ted”’s identity and assured the district
court that “Ted” would not testify at trial. Despite the govern-
1
As Judge Takasugi has since passed away, I understand that this case
would need to be remanded to a new district court judge. Also, as the
defendant is unlikely to wish to carry on once his conviction is affirmed,
it would probably be necessary to appoint a special counsel for purposes
of pursuing the remand proceedings I suggest. (If criminal contempt is
pursued, a prosecutor, either for the government or appointed specially by
the court, would be mandatory as to conduct occurring outside the court’s
presence. See Fed. R. Crim. Proc. 42(a); see also Aradia Women’s Health
Ctr. v. Operation Rescue, 929 F.2d 530, 532 (9th Cir. 1991).)
9398 UNITED STATES v. STRUCKMAN
ment’s stipulation, and relying on Roviaro v. United States,
353 U.S. at 59-61, the district court concluded that Struckman
had made a minimal threshold showing that the identity of
“Ted” could be relevant to Struckman’s argument that gov-
ernmental misconduct required dismissal.

Roviaro is the seminal case in which the Supreme Court
held that “[w]here the disclosure of an informer’s identity, or
the contents of his communication, is relevant and helpful to
the defense of an accused, or is essential to a fair determina-
tion of a cause, the [government’s] privilege [to withhold the
informer’s identity] must give way.” Id. at 60-61. Moreover,
if the government does not comply with a disclosure order,
“the trial court . . . may dismiss the action.” Id. at 61 (empha-
sis added). Roviaro was not decided “on the basis of constitu-
tional claims,” but subsequent Supreme Court and Ninth
Circuit case law makes clear that due process concerns under-
gird the Roviaro requirement. United States v. Valenzuela-
Bernal, 458 U.S. 858, 870 (1982) (citing McCray v. Illinois,
386 U.S. 300 (1967)); see also United States v. Gonzalo Bel-
tran, 915 F.2d 487, 488-89 (9th Cir. 1990). Roviaro does not
establish any “absolute rule requiring disclosure of an inform-
er’s identity,” McCray, 386 U.S. at 311, and does require a
showing of materiality of the identity information, although,
as the district court here noted, a relatively minimal one,
given the fact that the defendant does not know the identity
of the informant. See Valenzuela-Bernal, 458 U.S. at 871.

As noted, the district court here found that there was an
adequate materiality showing to require in camera identifica-
tion of the source for the information attributed to “Ted,” and
the government has not challenged that conclusion on appeal.
To assess Roviaro claims, a trial court must “balanc[e] the
public interest in protecting the flow of information against
the individual’s right to prepare his defense.” Roviaro, 353
U.S. at 62. The district court attempted to engage in Roviaro
balancing by ordering the government to produce “Ted” for
an in camera hearing. But no useful hearing with the man
 UNITED STATES v. STRUCKMAN 9399
identified as “Ted” ever came to pass. The district court ulti-
mately found that IRS agents lied about Gary Moritz being
the sole source of the information attributed to “Ted,” and
affirmatively found that the court could not engage usefully
in Roviaro balancing as a result. We are, then, obliged to go
forward on the premises that (1) some of the information attri-
buted to the identified informant had a different, still
unknown source, whether a different, unknown individual or,
as Struckman suggests, a wiretap; (2) the IRS agents, at least,
lied about the source of some of the information attributed to
“Ted”; and (3) although it has not been determined whether
the prosecutors were complicit in the misrepresentations
regarding “Ted,” they failed twice to submit statements under
penalty of perjury from the government agents although
repeatedly directed by the court to do so, providing some indi-
cation that they were at least troubled about whether those
agents were telling the truth.

Indubitably, this misbehavior of the government agents and
perhaps of the prosecutors affirmatively prevented the district
court from carrying out the required Roviaro balancing. For,
unlike in cases such as Roviaro and Valenzuela-Bernal2—the
need for the continuing use of the same informants in
Roviaro, the strong interest in deporting illegal immigrants in
Valenzuela-Bernal—the government has proffered no com-
peting governmental interest in this case at all in justification
of its refusal to comply with the discovery order.

The district court so recognized, and held “that by sup-
pressing the source of the information attributed to AI-1/Ted,
information that would be material to a defense of govern-
mental misconduct, the government ha[d] committed a Brady
violation that would result in a due process violation at trial.”3
2
In Valenzuela-Bernal, the Supreme Court relied on Brady to hold that
deportation of witnesses violates a defendant’s due process rights when
“the evidence lost [by their deportation] would be both material and favor-
able to the defense.” 458 U.S. at 873; see also id. at 867-68.
3
I view Roviaro, albeit decided earlier, as prescribing essentially a sub-
rule under Brady for informant situations, with the caveat that where the
9400 UNITED STATES v. STRUCKMAN
Yet, without additional discussion, the district court deter-
mined that “the taint of the violation c[ould] be neutralized by
excluding any evidence attributed to AI-1/Ted at trial” unless
the government “show[ed] an independent source for the
information” and also by requiring the government to make “a
proffer before introducing any evidence at trial to establish
that the proposed evidence [was] not derived from the sup-
pressed evidence.” Although Roviaro, as noted, authorizes
dismissal in similar circumstances, the district court declined
to dismiss the indictment, viewing the broad suppression
order as adequate for the due process violation. But there was
no separate, explicit discussion in the district court’s order of
the continued refusal to reveal the full identity of “Ted” or of
whether additional sanction was merited under the court’s
supervisory powers—as opposed to under the due process
clause—on account of that continued refusal.4

B.

I have been able to find no case similar to this one, in
which a broad, pretrial suppression order adequately remedied
any due process violation to the defendant,5 but the govern-
mental defiance of a court order remained entirely unreme-

defendant knows there has been an informant but has not had access to the
identity of the informant or information provided by him, the prejudice
standard operates somewhat more flexibly.
4
Struckman argued in the district court and argues here that the discov-
ery violations justified dismissal under the court’s supervisory powers.
5
The suppression order would not technically have remedied any due
process violation arising if a trial witness who was the source of the infor-
mation attributed to “Ted” testified about something not attributed to
“Ted.” In that instance, it is possible that the true circumstances underly-
ing the “Ted” information could have yielded cross-examination material
—for example, if illegal acts were performed to obtain that information,
or if the informant had a secret deal with the government covering both
the “Ted” information and the information testified to. But without the
trial transcript, we can’t tell whether this scenario is even hypothetically
possible.
 UNITED STATES v. STRUCKMAN 9401
died. I am uncomfortable leaving this affront to the court’s
integrity and to the appearance of justice unaddressed.

We have recognized that investigatory misconduct can be
the basis of a dismissal under our supervisory powers. For
example, in United States v. Blanco, this Court held that the
government had not discharged its Brady/Giglio obligations
when the Drug Enforcement Administration refused to dis-
close the specifics of a deal with an informant, even to the
Assistant U.S. Attorney prosecuting the case, until after the
informant had testified at trial. 392 F.3d 382, 392-94 (9th Cir.
2004). We remanded to the district court with instructions to
order the disclosure of all Brady/Giglio materials and to con-
duct additional hearings as appropriate. Id. at 394. We noted
that upon remand, “[a] range of options w[ould] be available
to the court, including, at one extreme, dismissal of the indict-
ment for governmental misconduct.” Id. at 395. Thus, Blanco
clearly contemplates that a government agency’s refusal to
comply with discovery obligations as ordered by a district
court might warrant dismissal, even when the prosecutor is
kept in the dark.

Moreover, even if we focus only on the prosecutors’
actions in this case, “unintentional misconduct may be suffi-
cient” to warrant dismissal of an indictment for “flagrant
cases of prosecutorial misconduct.” See United States v. De
Rosa, 783 F.2d 1401, 1406 (9th Cir. 1986). Here, the prosecu-
tors at a minimum failed to come forward with declarations
under penalty of perjury when asked; even if one supposes
that it was the agents who refused to provide the sworn state-
ments, that refusal should have put the prosecutors on notice
that there was a problem and led to a report to the court, rather
than repeated recalcitrance in the face of a court order. So
even if we generously describe the prosecutors’ actions as
“unintentional,” dismissal might still have been an appropriate
remedy if there was prejudice to Struckman.

But, for obvious reasons—primarily, avoiding a windfall to
the defendant as well as the affront to the public interests
9402 UNITED STATES v. STRUCKMAN
underlying the criminal law—our case law requires that even
under our supervisory powers, we may dismiss a case as a
sanction for governmental misconduct only if a defendant can
show prejudice to himself as a result of the misconduct. See
United States v. Chapman, 524 F.3d 1073, 1077, 1087 (9th
Cir. 2008); United States v. Barrera-Moreno, 951 F.2d 1089,
1093 (9th Cir. 1991). As I have said, on appeal Struckman
makes no attempt to demonstrate that he suffered cognizable
prejudice after the district court’s order.

So the question remains what remedy will be available on
remand after a demand is made for the concealed information?6
Should the government come forward with information
regarding illegal activity underlying the information attributed
to “Ted,” there might be sanctions attached to that activity.
Also, Struckman or anyone else affected might have legal
recourse with regard to any concealed illegal activity, once it
is exposed.

Should the government continue to refuse on remand to
come forward with the full source of the information attri-
buted to “Ted,” I would think that personal sanctions against
the offending government agents and, if appropriate, the pros-
ecutors would be available, including a criminal contempt
inquiry for “[d]isobedience . . . to [the court’s] lawful . . .
order.” 18 U.S.C. § 401; see also United States v. Galin, 222
F.3d 1123, 1127-28 (9th Cir. 2000). Further, a judicial referral
to both the Department of Justice and the Department of the
Treasury for discipline of the individuals involved would also
be appropriate. And there may be other alternatives, such as
barring the individuals involved from appearance in the dis-
trict court as witnesses or prosecutors in other cases.
6
On remand, the district court may of course provide that the govern-
ment first divulge such information in camera to protect the identities of
any real informants from whom information attributed to “Ted” was
obtained.
 UNITED STATES v. STRUCKMAN 9403
I do not think it our role at this point to determine the pre-
cise remedies available, as we do not know what further
inquiry will show. But I do think that, even after affirming the
conviction, we should not leave matters as they are with
regard to the continuing defiance—continued in this court as
well—of the valid order that the informant’s identity be
revealed.

I therefore concur in the opinion, except that I would
remand for the purpose stated.