dissenting,
with whom ELY and HUG, Circuit Judges, concur:I regret that I cannot concur with the majority of my brothers either in reversing the district court’s suppression order or in reversing the dismissal of the indictment upon the Government’s refusal to proceed to trial after its motions for continuances were denied.
I
The suppression order issue is very narrow: Are the district court’s specific findings of prejudice from the destruction of evidence clearly erroneous? The simple answer is “no.” In seeking to avoid this result, the majority has devised a hypothetical scale on which it weighs non-competing interests against one another, discovers that prejudice is not prejudice, and thereby announces a result in favor of the Government. I am unable to find any support for the majority’s rationale either in prior case law or, if we were writing on a clean slate, in logic.
Three counts of the indictment were based on possession of a “destructive device.” The material destroyed included the very substance that the Government charged was the “destructive device.”1 *1157None of the material was saved to permit independent testing of the substance.2 The district court found that the destruction of the substance was prejudicial to the defendants because it prevented them from examining the primary evidence. The majority opinion concedes that the defendants did suffer prejudice from the destruction of the primary evidence, and it observes that “the secondary evidence is less reliable than chemical tests of the substance itself and that, as the explosive quality or no of the substance is an essential element of the offense, the loss of the evidence does bear upon an issue that lies at the core of the case.” In short, the district court’s finding of prejudice on this point is fully supported by the record. Under United States v. Heiden (9th Cir. 1974) 508 F.2d 898, which the majority acknowledges is undiminished as authority in this Circuit (Kennedy, J., Op’n at 1153 n.3), all appellate inquiry should end with “affirmed.”
That result is unsatisfactory to the majority, and therefore, it is required to explain why the fact of prejudice is nevertheless not prejudice justifying suppression. The majority opinion tells us that the prejudice is inadequate because the defendants did not make “any offer of proof from which the trier of fact might infer the substance was other than dynamite, and in this posture of the case the secondary evidence is a satisfactory substitute for a physical sample.” As I translate this elliptical statement, the majority says that the defendants had the burden of proving that the substance destroyed was not dynamite, and if they failed to carry that burden, they could not claim prejudice from the destruction of the evidence. The reasoning is upside down. The defendants made a prima facie showing of prejudice and it is the Government’s burden to show that the loss of the primary evidence was harmless. The destruction of the evidence, for which the Government is responsible, is the very act that makes identification of the substance impossible and thus creates the prejudice to the defendants. Thus, the majority opinion has inexplicably required the defendants to come up with proof that the Government itself has destroyed.
The majority opinion suggests that the defendants can nevertheless carry this impossible burden. “[Sjecondary evidence is a satisfactory substitute for a physical sample” because it can be weighed against whatever defense argument can be made “that the substance was something other than from what all appearances it must have been.” I do not know how to weigh this smoke, and I do not understand how either the defendants or the district court could have been expected to do so.
The district court found that “[djefendants were also prejudiced by the destruction of the cartons and plastic bag which contained the dynamite in that they were deprived of the opportunity to determine by fingerprinting who might have handled these items.” (Findings of Fact at 5.) The majority says that this finding is clearly erroneous because the fingerprint evidence “would not be exculpatory of necessity.” (Kennedy, J., Op’n at 1155.) I am unable to follow the majority’s reasoning. The presence or absence of fingerprints on the cartons would have been relevant to the issues. The destruction of the evidence prevented the defendants from being able to prove the absence of their fingerprints. The destruction also foreclosed the possibility of proving that persons other than the defendants handled the cartons and bags. The fact that fingerprint evidence would not “necessarily” have been exculpatory is irrelevant. The fact is inescapable that relevant evidence was destroyed, and the very act of destruction prevents anyone from determining how helpful that evidence might have been to the defendants.3
*1158Prejudice stems from the fact that the Government prevented defendants from finding out for themselves. (United States v. Tsutagawa (9th Cir. 1974) 500 F.2d 420, 423 (“The thrust of Mendez-Rodriguez is to prevent the basic unfairness of allowing the government to determine which witnesses will not help either side and then to release those witnesses, for all practical purposes, beyond the reach of the defendant. The vice lies in the unfettered ability of the government to make the decision unilaterally.” (citation omitted)); United States v. Mendez-Rodriguez (9th Cir. 1971) 450 F.2d 1; United States v. Bryant (1971) 142 U.S. App.D.C. 132, 138, 439 F.2d 642, 648 (“Where Brady and its progeny applicable only when the exact content of the non-disclosed materials was known, the disclosure duty would be an empty promise, easily circumvented by suppression of evidence by means of destruction rather than mere failure to reveal.”) Cf. Brady v. Maryland (1963) 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215.)
As we held in Heiden, supra, we will reverse a conviction when there has been a loss or destruction of evidence if the defendant can show “(1) bad faith or connivance on the part of the Government or (2) that he was prejudiced by the loss of the evidence.” (508 F.2d at 902.) A fortiori, in reviewing an order to suppress, rather than a conviction, a showing of prejudice to the defendant from the destruction of evidence will sustain a suppression order, regardless of the purity of the governmental motives in destroying the evidence.
The majority opinion correctly recognizes that we are pursuing separate and distinctive interests in situations of this kind: deterring governmental misconduct, protecting a defendant's right to a fair trial, and preserving the integrity of the judicial process. None of these interests is appropriately protected by balancing one of these interests against the other. Each of these interests is independently important, and none of them can be weighed against the others. Thus, for example, we have no interest whatever in injuring a defendant’s right to a fair trial to reward governmental innocence in destroying evidence.4
The district court, on remand, particularly decided the facts implicating the Government’s involvement in the investigation and apprehension of the defendants as well as governmental participation in the destruction of the evidence. It specifically found that the Government acted in good faith, and it also found that the defendants were prejudiced by the destruction of the evidence. All of those findings are fully supported by the record, and we cannot reach a contrary conclusion unless we forthrightly admit that we are substituting our judgment for the judgment of the district court on these factual questions.5
*1159II
The district court correctly dismissed with prejudice both the dynamite and firearms counts. I agree with the majority opinion that delay in prosecuting the defendants on the dynamite counts was not unnecessary under Rule 48(b), because the Government had a statutory right to appeal the suppression order as it applied to the dynamite counts. However, dismissal of the dynamite counts was appropriate on other grounds. Suppression of the secondary evidence was tantamount to a dismissal of the dynamite counts because, without that evidence, proof of the existence of the charged offense was lacking. Thus, outright dismissal of those counts would also have been appropriate. (Cf. United States v. Roviaro (1957) 353 U.S. 53, 77 S.Ct. 623,1 L.Ed.2d 639 (trial court should have entered dismissal when Government suppressed information that was important to certain counts); United States v. Reynolds (1953) 345 U.S. 1, 12, 73 S.Ct. 528, 97 L.Ed. 727.)
As the majority recognizes, the non-dynamite firearms counts were properly dismissed because delay in prosecution had been unnecessary under Rule 48(b). The majority nevertheless reverses the district court’s order on the ground that the Government had not been adequately warned that the dismissal would be with prejudice. The record shows that the prosecution had ample forewarning, and it made its own choice not to go forward on the non-dynamite counts.
The Government deliberately decided to submit to dismissal of the firearms counts, rather than to go to trial, because it erroneously believed that it had a right to appeal the suppression order as it related to the non-dynamite counts. The suppression order was entered on March 31, 1976. On April 19, 1976, the Government filed a notice of appeal and a motion requesting a continuance of the trial date, May 12, 1976. The district court denied the Government’s motion for a continuance on April 20, 1976. On April 23, 1976, the Government informed the court that it would refuse to go to trial on May 12. On April 26, 1976, we denied the Government’s motion for a continuance of the trial date. The Government then told the district court that it would suffer a dismissal, rather than go to trial, because it believed it would win the appeal. A government attorney told the court: “we will take our chances on getting this Court reversed by the Ninth Circuit with respect to that evidence and . . . will suffer a dismissal at this time if the Court should choose to do so rather than go to trial on the imperfect case that we would have to present if we were forced to trial now.” (12 R.T. at 6 (April 26, 1976).) More than two weeks later, on the scheduled trial date, the case was called for trial and the Government refused to proceed. The district court then entered a dismissal with prejudice.
The crucial issue is whether the Government knew, or should have known, the consequences of its refusal to proceed to trial on the scheduled trial date. The record unmistakably establishes the prosecutor’s knowledge that dismissal with prejudice was one of the consequences of a Rule 48(b) dismissal. (United States v. Simmons (9th Cir. 1976) 536 F.2d 827.) The prosecutor told the district court: “We believe the court lacks jurisdiction to dismiss this indictment with or without prejudice in view of the Government’s good faith intent [to appeal].” The majority opinion’s conclusion that a dismissal with prejudice is an abuse of the district court’s discretion under the circumstances is in conflict with our decision in United States v. Charnay (9th Cir. 1978) 577 F.2d 81.6
*1160Nothing in United States v. Simmons, supra, supports the majority’s view that a dismissal cannot be made with prejudice unless the district court gives the prosecutor formal on-the-record warning that a Rule 48(b) dismissal includes a dismissal with prejudice. On the contrary, Simmons itself indicates that the forewarning can come from sources other than the district court. Such sources include the district’s speedy trial plan (536 F.2d at 837) or federal legislation (536 F.2d at 836 (“the [Speedy Trial] Act clearly forewarns the United States Attorney that he must comply with the applicable time limits or face the possibility that the indictment or information will be dismissed with prejudice.”)).
The prosecutor knew that if he did not proceed to trial on the scheduled trial date, the case would be dismissed and that the district court had authority to dismiss it with prejudice. The prosecution’s choice was both knowing and intelligent. To be sure, the strategy misfired because government counsel labored under a misapprehension of law relating to the right to appeal the suppression order affecting the non-dynamite counts. These events provide no legal foundation for relieving the Government of the consequences of the Government’s exercise of prosecutorial discretion.
I would affirm.
. Thus, this case is unlike those in which corroborating, impeaching, or collateral evidence was destroyed. (E. g., United States v. Harris (9th Cir. 1976) 543 F.2d 1247 (FBI agent’s rough notes destroyed; violation of Jencks Act); United States v. Carrasco (9th Cir. 1976) 537 F.2d 372 (informer’s diary destroyed).)
. This facet distinguishes Loud Hawk from those cases where a sufficient sample was retained. (E. g., United States v. Young (9th Cir. 1976) 535 F.2d 484 (bulk of drug seizure destroyed but samples retained); United States v. Heiden, supra, 508 F.2d 898 (semble).
. The Oregon State Police and the FBI attempted to take fingerprints from both vehicles and many of the objects within them. However, they did not attempt to discover fingerprints on either the plastic bags or the cardboard boxes, and the destruction therefore prevented those *1158defendants not traveling in the station wagon from rebutting the dynamite counts with evidence that their fingerprints were not on the dynamite containers.
. I am unable to find support for the majority’s balancing formulation from any of the cases cited from our Circuit or elsewhere. (United States v. Higginbotham (9th Cir. 1976) 539 F.2d 17 (negligent loss of photographs by state officers, in which federal officers played no part, did not deny due process); United States v. Mays (9th Cir. 1977) 549 F.2d 670 (insufficient showing of prejudice justifying dismissal of indictment for pretrial delay); United States v. Picarielio (1st Cir. 1978) 568 F.2d 222 (citing Heiden in listing factors to consider without weighing any of them).)
. Brother Trask, in his separate opinion, argues that the federal Government was not sufficiently implicated in the destruction of evidence to warrant suppression. Both the facts as found by the district court specifically and the underlying record reveal that the investigation was a cooperative venture between federal and state law enforcement agencies from the start. To be sure, the search was physically conducted by state officers, and state officers undertook the physical destruction of the evidence. The FBI agents, who had advance notice of the destruction, were not simply bystanders during the event. The FBI’s hands were displayed prominently throughout the transactions from the search through the destruction of the evidence, thus invoking the principles of Lustig v. United States (1949) 338 U.S. 74, 78, 69 S.Ct. 1372, 93 L.Ed. 1819; Byars v. United States (1927) 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520; United States v. Bryant (1971), 142 U.S.App. D.C. 132, 141, 439 F.2d 642, 651.
. In Charnay, we held that the district court did not abuse its discretion in dismissing with prejudice an indictment under Rule 48(b). The first continuance was requested by the Government to try to locate a missing witness. The court had told government counsel that if the witness was not located at the time the case was scheduled for trial, the indictment would be dismissed. Nothing was said about a dismissal with prejudice. On the date set for trial, the witness still had not been located and the Government renewed its request for a continuance to locate the witness. The court denied the motion and dismissed the indictment with prejudice. In upholding the district court, we said: “In these circumstances the court exer*1160cised all the requisite caution, and it was entirely proper for it to dismiss the indictment pursuant to Rule 48(b). Indeed, on this record, we doubt that any other prudent course was open to the trial judge.” (577 F.2d at 84.)