Ritchie v. United States

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

WAYNE RITCHIE, 
Plaintiff-Appellant,
v. No. 05-16401
UNITED STATES OF AMERICA;
ROBERT V. LASHBROOK, in his  D.C. No.
CV-00-03940-MHP
individual and official capacities;
OPINION
IRA FELDMAN, in his individual and
official capacities,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, District Judge, Presiding

Argued and Submitted
May 18, 2006—San Francisco, California

Filed June 26, 2006

Before: Betty B. Fletcher, Alex Kozinski and
Raymond C. Fisher, Circuit Judges.

Opinion by Judge Kozinski

7121
 RITCHIE v. UNITED STATES 7125
COUNSEL

Sidney Bender, Leventritt Lewittes & Bender, New York,
New York, for the plaintiff-appellant.

Owen P. Martikan, Assistant United States Attorney, San
Francisco, California, for the defendants-appellees.

OPINION

KOZINSKI, Circuit Judge:

We consider what inferences a district judge may draw,
during a bench trial, in deciding a motion for judgment based
on partial findings under Federal Rule of Civil Procedure
52(c).

Facts

On December 20, 1957, Wayne Ritchie, then a Deputy
United States Marshal, attended a lunch-time Christmas party
at the United States Post Office Building1 in San Francisco.
Ritchie drank a bourbon and soda, and then returned to his
desk. Later that afternoon, with the party now in full swing,
Ritchie took a break to down three or four more bourbon and
sodas. When he returned to his office, he began to feel para-
noid and worthless.

Ritchie left work early and went home. There, an unpleas-
ant conversation with his live-in girlfriend from New York,
who complained about living in San Francisco, drove him to
leave the apartment in favor of the Vagabond Bar. He drank
two more bourbon and sodas; his feelings of restlessness and
paranoia continued. After about half an hour, he left the bar
1
Now known as the James R. Browning United States Courthouse.
7126 RITCHIE v. UNITED STATES
and began walking back to his office. As he walked, Ritchie
hatched a plan to rob a bar so he could buy his unhappy girl-
friend a plane ticket home to New York. According to Rit-
chie, he fully expected to get caught; in his paranoid state, he
figured that the robbery would be an act of self-destruction.

Ritchie retrieved two guns from his storage locker at work
and set out to put his plan into action. He decided to target the
Shady Grove Bar. Once there, Ritchie ordered another bour-
bon and soda. After finishing his drink, Ritchie went up to the
bartender, pulled out a gun and demanded money. A waitress
came up behind him and asked Ritchie what he was doing.
When Ritchie turned around, someone knocked him uncon-
scious.

Ritchie awoke with two officers standing over him. As a
result of his attempted robbery, he resigned from the Mar-
shal’s Office, pled guilty to attempted armed robbery, paid a
$500 fine and was sentenced to five years probation. Obvi-
ously, these were the days before sentencing guidelines.

Fast forward forty-two years. In 1999, Ritchie read the
newspaper obituary of Sidney Gottlieb, a doctor at the Central
Intelligence Agency. See Obituary, S. Gottlieb, directed mind-
control tests, San Jose Mercury News, Mar. 11, 1999, at 7B.
From this article, Ritchie learned that the CIA had been
administering LSD to unwitting subjects in the 1950s as part
of a Cold War project to study its effects.2 See generally
Kronisch v. United States, 150 F.3d 112, 116-19 (2d Cir.
1998) (describing the CIA’s drug-testing project). Based on
this article, as well as his own independent research into the
CIA’s drugging activity, Ritchie concluded that the CIA had
drugged him as part of a mind-control experiment. Ritchie
brought a timely suit under the Federal Tort Claims Act
2
The government admits that the CIA secretly tested LSD on U.S. citi-
zens during the 1950s and 60s. The government disputes, however, that
Ritchie was one of its subjects.
 RITCHIE v. UNITED STATES 7127
(“FTCA”), 28 U.S.C. §§ 2671-2680, against the United States
and its agents, claiming that his attempted robbery was set in
motion when someone surreptitiously slipped LSD into his
drinks at the 1957 Christmas party.

After denying the government’s motion to dismiss, Ritchie
v. United States, 210 F. Supp. 2d 1120, 1131 (N.D. Cal.
2002), and for summary judgment, the district court held a
four-day bench trial. Ritchie presented two live witnesses dur-
ing his case-in-chief: himself and a doctor who testified that
LSD was the cause of Ritchie’s attempted robbery of the
Shady Grove. Ritchie also relied heavily on the deposition
testimony of Ira “Ike” Feldman, a former agent involved with
both the Federal Bureau of Narcotics and the CIA’s surrepti-
tious LSD-doping project, who made a series of incriminating,3
contradictory4 and combative5 statements about his role in the
CIA’s LSD project.
3
[Ritchie’s attorney:] Now, all these people that you personally
drugged, you never did any follow-up on them, in the sense of
telling them that you had drugged them, did you?
[Government attorney:] Objection. Lacks foundation. Go ahead
and answer it, if you can.
[Feldman:] Not all the people that I drugged. I drugged guys
involved in about ten, twelve, period. I didn’t do any follow-up,
period, because it wasn’t a very good thing to go and say “How
do you feel today?” You don’t give them a tip. You just back
away and let them worry, like this nitwit, Ritchie.
[Ritchie’s attorney:] When you say “let them worry,” you mean
let them have a head full of LSD and let—
[Feldman:] Let them have a full head, like what happened, like
what happened with this nut when he got out and got drunk.
4
[Ritchie’s attorney:] Mr. Feldman, did you ever witness anybody slip-
ping LSD to another person?
[Feldman:] Never did.
[Ritchie’s attorney:] Did you ever slip LSD to another person?
[Feldman:] Never did. Never did.
5
[Ritchie’s attorney:] And were there ever prostitutes that you gave
7128 RITCHIE v. UNITED STATES
At the close of Ritchie’s case, the government moved for
judgment as a matter of law, which the district court con-
strued as a motion under Federal Rule of Civil Procedure
52(c) for judgment based on partial findings in a bench trial.
The district court granted the government’s motion, finding
that (1) Ritchie had not proven that he was administered LSD
by an agent of the federal government, or by anyone else, on
December 20, 1957; and (2) Ritchie had therefore failed to
prove that an LSD-induced6 psychotic disorder caused his
attempted robbery of the Shady Grove. The district court
rejected Ritchie’s arguments that he was entitled to a favor-
able evidentiary inference because the government destroyed
files related to the CIA’s drugging activity and that he should
be granted preclusive sanctions based on government miscon-
duct during Feldman’s depositions. Instead, the district court
awarded Ritchie “reasonable costs and attorneys’ fees”
incurred in taking Feldman’s second deposition.

Jurisdiction

The government argues that we lack jurisdiction over Rit-
chie’s appeal because the district court has yet to fix the
amount of its monetary sanctions award and the judgment
below is therefore not final. See Kennedy v. Applause, Inc., 90
F.3d 1477, 1483 (9th Cir. 1996); Jensen Elec. Co. v. Moore,

[LSD] to to give to other people?
[Feldman:] I imagine there were. I don’t remember what they
were doing off times.
[Ritchie’s attorney:] Didn’t you have a great reputation as having
a lot of whores?
[Feldman:] Whores, just like you too. You are a whore master,
too. I was working for Uncle Sam. I was doing more than you
were doing, Buster.
6
The parties stipulate that Ritchie “suffered a brief psychotic episode on
the night of December 20, 1957.” They do not agree as to the cause of that
episode.
 RITCHIE v. UNITED STATES 7129
Caldwell, Rowland & Dodd, Inc., 873 F.2d 1327, 1329 (9th
Cir. 1989). But Ritchie has expressly waived his right to mon-
etary sanctions based on the government’s misconduct during
Feldman’s depositions, leaving nothing for the district court
to decide. We have jurisdiction. See 28 U.S.C. § 1291.

Discussion

1. Ritchie argues that in ruling on a motion for judgment
based on partial findings, see Fed. R. Civ. P. 52(c), the district
court must draw all reasonable inferences in favor of the non-
moving party. According to Ritchie, the standard for entering
judgment on partial findings during a bench trial under Rule
52(c) is the same as for entering judgment as a matter of law
during a jury trial under Federal Rule of Civil Procedure
50(a).

[1] Rules 50(a) and 52(c), however, assign very different
functions to the district judge. Rule 50(a) provides that once
a party has been fully heard on an issue during a jury trial, the
court may grant a motion for judgment as a matter of law
against the non-moving party only if “there is no legally suffi-
cient evidentiary basis for a reasonable jury to find for that
party on that issue.” Fed. R. Civ. P. 50(a). The rationale is
obvious: During a jury trial, the jury—not the judge—is the
trier of fact. Because the district judge lacks the authority to
resolve disputed issues of fact under those circumstances,
judgment as a matter of law is appropriate only if no reason-
able jury could find for a party on that claim. This necessarily
means that the court must draw all reasonable evidentiary
inferences in favor of the non-moving party. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986) (“[O]n summary judgment the inferences to be drawn
from the underlying facts . . . must be viewed in the light most
favorable to the party opposing the motion.” (ellipsis in origi-
nal) (quoting United States v. Diebold, Inc., 369 U.S. 654,
655 (1962)) (internal quotation marks omitted)). When the
jury is the trier of fact, judgment as a matter of law is appro-
7130 RITCHIE v. UNITED STATES
priate only if no reasonable jury could find in favor of the
non-moving party. See id.

[2] By contrast, a motion for judgment on partial findings
under Rule 52(c) may be made only during a bench trial.
Under Rule 52(c), “the court may enter judgment as a matter
of law . . . with respect to a claim or defense that cannot under
the controlling law be maintained or defeated without a favor-
able finding on that issue.” Fed. R. Civ. P. 52(c). Rule 52(c)
expressly authorizes the district judge to resolve disputed
issues of fact. See Fed. R. Civ. P. 52(a) (“Findings of fact,
whether based on oral or documentary evidence, shall not be
set aside unless clearly erroneous.”). In deciding whether to
enter judgment on partial findings under Rule 52(c), the dis-
trict court is not required to draw any inferences in favor of
the non-moving party; rather, the district court may make
findings in accordance with its own view of the evidence.7

[3] Although Ritchie’s behavior on December 20, 1957,
may have been consistent with an LSD-induced psychotic epi-
sode, the district court reasonably found that “there are other
plausible explanations for the symptoms that Ritchie
described, including mild intoxication or some undiagnosed
organic condition.” The court concluded that it was “likely[ ]
that Ritchie’s behavior was caused by some organic factor,
7
The Supreme Court has held with respect to Rule 52(c)’s predecessor
that the district court need not give the non-moving party any favorable
inferences. See Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-55 (1990)
(“[A]lthough a court might, after reviewing the evidence, decide in favor
of the party moving for a dismissal under Rule 41(b) [Rule 52(c)’s pre-
decessor], that court might not take the same case away from the jury
because it might believe that the jury could reasonably find for the non-
moving party.”); see also Fed. R. Civ. P. 52 advisory committee’s note to
1991 amendment.
That the phrase “judgment as a matter of law” appears in both Rule
50(a) and Rule 52(c) may be confusing, but it is not dispositive. As
described above, the standard for entering judgment as a matter of law dif-
fers under each of these rules.
 RITCHIE v. UNITED STATES 7131
either alone or in combination with a modest degree of alco-
hol intoxication. It is also possible that Ritchie’s apparent
lapse of judgment was exactly what it appears to be.”
Although the court acknowledged that Ritchie’s behavior may
well have been consistent with an LSD-induced psychotic epi-
sode, the court noted that “[t]o take [this] inference . . . to its
logical conclusion” would compel the court “to find that LSD
intoxication is the likely cause of almost any unexplained and
superficially inexplicable behavior.” The district court’s find-
ing that Ritchie did not carry his burden of proof is supported
by the record.

[4] Although Feldman made a number of comments in his
depositions suggesting that he was involved in drugging Rit-
chie, the district court’s determination that Ritchie did not
prove Feldman’s involvement is not clearly erroneous. Feld-
man may have been lying to provoke defense counsel, trying
to be funny, or simply speaking imprecisely when he made
the purported admissions. Richie’s lawyer asked no follow-up
questions that might have elicited more detail about Feld-
man’s vague assertions. Because Ritchie failed to prove he
was drugged by the government (or by anybody else) on
December 20, 1957, he has also failed to establish that the
alleged drugging caused his misfortunes.8
8
This is a troubling case. Ritchie filed suit over four decades after the
events in question, and long after memories had grown stale, witnesses
had died and potentially relevant files had been destroyed. Despite that,
Ritchie has persevered for many years to vindicate his name, and to find
some measure of peace with the events of December 20, 1957.
Although we affirm the judgment against Ritchie, we think it is quite
possible that everything Ritchie says happened did happen—that Ritchie
was drugged by his own government, and suffered great personal and
financial hardships as a result. But, although it is possible that Ritchie was
drugged, the district court’s finding that he has not proved it is not clearly
erroneous. Yet we know some people were drugged; the government
admits as much. Ritchie’s allegations of Cold War drugging by the CIA
may thus be true, even though he could not prove them to the satisfaction
of the district court. If Ritchie’s claims are indeed true, he has paid a terri-
ble price in the name of national security.
7132 RITCHIE v. UNITED STATES
[5] 2. Ritchie claims that the district court erred in refus-
ing to draw an adverse inference against the government from
the fact that the CIA destroyed documents relating to its LSD
experiments on unwitting victims. Parties should not be able
to escape liability by destroying evidence of their own wrong-
doing. The intentional destruction of evidence relevant to an
issue at trial can therefore support an inference that the evi-
dence would have been unfavorable to the party that
destroyed the evidence. 2 John Henry Wigmore, Evidence in
Trials at Common Law § 291 (James H. Chadbourn rev. 1979).9

[6] This common law rule generally requires that the party
seeking the adverse inference make a showing of relevance
specific to the destroyed documents: The party must show
that the document in question directly pertained to the dis-
puted issue and could have supported its view of the facts. See
id. at 228 (requiring “some evidence tending to show that the
document actually destroyed or withheld is the one as to
whose contents it is desired to draw an inference” (emphasis
altered)). This standard makes sense when one party alleges
that the other has caused a specific document to disappear,
such as a contract or a deed. In this context, the parties to a
dispute are usually both aware of the relevant paperwork, and
can testify as to its contents. Kronisch, 150 F.3d at 128.

[7] The situation is different where one party destroys doc-
uments containing information gathered from unwitting sub-
jects; in such circumstances, the subjects have no information
as to the exact content of the destroyed documents. The
destruction thus prevents the victims from obtaining the proof
they need to support the adverse inference. Application of the
strict common law requirements in such circumstances would
9
The party requesting the inference must also show that the destroying
party had an obligation not to destroy the evidence. The district court
assumed without deciding that the government had such a duty here for
the reasons articulated in Kronisch, 150 F.3d at 127, and the issue is not
contested on appeal.
 RITCHIE v. UNITED STATES 7133
frustrate the adverse-inference rule and enable a party
engaged in underhanded behavior to escape liability by regu-
larly destroying documents.

[8] The Second Circuit confronted this conundrum in
Kronisch and held that triers of fact must carefully consider
whether the document destruction has made it more difficult
for a party to prove that the documents destroyed were rele-
vant. Kronisch, 150 F.3d at 128. If this is found to be the case,
the burden on the party seeking the adverse inference is
lower; the trier of fact may draw such an inference based even
on a very slight showing that the documents are relevant. Id.
We have cited Kronisch with approval, see Med. Lab. Mgmt.
Consultants v. Am. Broad. Cos., 306 F.3d 806, 825 (9th Cir.
2002), and to the extent we have not previously done so, we
adopt the Second Circuit’s careful and balanced approach for
dealing with this difficult problem.10

[9] Ritchie’s proof at trial would have been sufficient to
permit the district court to draw an adverse inference under
the Kronisch standard, had it chosen to do so.11 See 150 F.3d
10
In Kronisch, the issue was presented in a somewhat different proce-
dural posture, as it came up during review of a summary judgment motion.
150 F.3d at 116. The court considered whether the plaintiff had presented
proof that would be sufficient, if presented at trial, to support a jury infer-
ence that the destroyed documents could have supported plaintiff’s case.
Id. at 126. While our case arises much later in the proceedings, the inquiry
is the same: Was the evidence sufficient to permit a trier of fact to draw
an adverse inference against the defendant?
11
The proof in both cases was highly tenuous. The victim in Kronisch
had been served a drink in a Paris bar by a man with a club foot. Gottlieb,
the head of the CIA’s LSD project had a club foot and could have been
in Paris at the time. 150 F.3d at 129 & n.12. Even though the government
denied that it had conducted LSD experiments in Paris, or any experiments
at all on U.S. citizens abroad, the Second Circuit nevertheless concluded
that the plaintiff’s evidence was sufficient to allow a trier of fact to draw
an adverse inference against the government. Id. In our case, it is undis-
puted that LSD experiments on U.S. citizens were conducted in San Fran-
cisco. Ritchie’s evidence linking the CIA with the events of December 20,
1957, was a diary entry on that date by George White, Feldman’s superior,
reading: “home flu—xmas party Fed bldg Press Room.”
7134 RITCHIE v. UNITED STATES
at 129. That is very different, however, from saying that the
district court was required to draw an adverse inference
against the government as to what the missing documents
would have proven. The district judge here considered both
the lack of direct evidence linking Ritchie’s drugging with the
destroyed documents and “the manifest weakness of the cir-
cumstantial evidence that Ritchie presented at trial.” After
evaluating the evidence Ritchie presented, the district judge
determined that Ritchie was not entitled to a favorable eviden-
tiary inference on the issue of liability. We cannot say that the
district court was irrational in so concluding. See Kronisch,
150 F.3d at 129 (noting that despite surviving summary judg-
ment, circumstantial evidence regarding proof of the docu-
ments “may prove to be altogether vulnerable at trial”).

[10] 3. Ritchie argues that the district court should have
entered judgment against the United States on the question of
liability as a sanction for various discovery abuses. Ritchie’s
first claim is based on what he argues was the government’s
presentation of, and reliance on, what it knew was perjured
testimony (that of Feldman). The district court, however,
found that Ritchie had not carried his burden of showing that
the lawyer representing the government had knowingly pres-
ented perjured testimony. Feldman had been quoted in two
published sources making statements that were inconsistent
with some of his deposition testimony. But the district court
reasonably concluded that the government was not required to
accept those earlier statements as true; rather, it was entitled
to proceed on the assumption that Feldman had testified truth-
fully at his deposition. The district court’s finding that Ritchie
failed to prove by clear and convincing evidence that the gov-
ernment acted in bad faith in relying on Feldman’s deposition
testimony is supported by the record. Phoceene Sous-Marine
v. U.S. Phosmarine, Inc., 682 F.2d 802, 806 n.13 (9th Cir.
1982) (noting that bad faith must be proven by clear and con-
vincing evidence). Because no violation was found, the dis-
trict court’s decision not to impose sanctions was obviously
not an abuse of discretion.
 RITCHIE v. UNITED STATES 7135
The district court did find that the lawyer representing the
government had acted in an “obdurate” and “obstreperous”
fashion during Ritchie’s deposition, and this may well have
interfered with Ritchie’s ability to elicit helpful testimony
from Feldman. While terming the government lawyer’s con-
duct “unprofessional,” the district court refused to sanction
the United States by entering judgment against it on liability,
finding such sanctions to be “ ‘grossly out of proportion’ to
the harm” Ritchie had suffered from the lawyer’s conduct.
Instead, the district court selected a remedy that it considered
“more closely proportionate to the gravity” of the govern-
ment’s misconduct, namely, the payment of Ritchie’s reason-
able costs and expenses for taking Feldman’s second
deposition.

In reaching this conclusion, the court noted that Ritchie
would not, ultimately, be prejudiced by the government’s mis-
conduct because “at trial, plaintiff’s counsel will have the
opportunity to ask the follow-up questions that Feldman man-
aged to evade as a consequence of [the government’s] mis-
conduct.” And, indeed, Feldman was originally listed as a
witness on the parties’ Joint Pre-Trial Statement. Subse-
quently, however, the statement was amended, and Feldman
was removed from the live witness list and was listed, instead,
as testifying by way of deposition. There is no explanation in
the record for this change, and certainly no objection from plain-
tiff.12 Nor did plaintiff request that the district court extend the
discovery period and allow him to depose Feldman, yet again.
12
In his reply brief before us, Ritchie suggest that he could not subpoena
Feldman for trial, because he lived more than 100 miles away from the
courthouse. See Fed. R. Civ. Pro. 45(b)(2). But this matter was not raised
with the district court. Nor did Ritchie file a motion for reconsideration of
the district court’s discovery order, on grounds that the remedy the district
court envisioned—questioning Feldman at trial—was not viable in light of
plaintiff’s inability to subpoena Feldman. Not having been raised below,
at a time when the district court might have been able to deal with the
problem, this argument is waived.
7136 RITCHIE v. UNITED STATES
[11] District Courts have broad discretion in imposing dis-
covery sanctions. See Anheuser-Busch, Inc. v. Natural Bever-
age Distribs., 69 F.3d 337, 348 (9th Cir. 1995). Moreover,
preclusive sanctions, such as dismissal of a case or entry of
judgment against a party, are disfavored. See United States ex
rel. Lujan v. Hughes Aircraft Co., 67 F.3d 242, 247-48 (9th
Cir. 1995). When the district court chooses not to impose pre-
clusive sanctions, and gives sound reasons for its actions—as
the court did here—we must conclude that the court did not
abuse its discretion.

4. Because we affirm on other grounds, we need not
reach the government’s alternative argument that the Federal
Employees’ Compensation Act, 5 U.S.C. §§ 8101-8193, bars
Ritchie’s claims under the FTCA.

AFFIRMED.