IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-40544
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
VICTOR ISAIAS LIMON-CASAS,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
September 24, 1996
Before HIGGINBOTHAM, DUHÉ, and BENAVIDES, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
The district court dismissed an indictment charging Victor
Limon-Casas with conspiracy to possess cocaine with intent to
distribute it and possession of cocaine with intent to distribute
it. Despite four appearances before the local magistrate judge,
Limon was denied bail and remained in jail in Neuces County, Texas.
Acting on information from a confidential informant that Limon was
plotting the slaying of the government’s key witness, the
government obtained a warrant to search Limon’s cell. The district
court conducted a hearing on the day following the search. It then
granted a defense motion to dismiss the indictment for perceived
government misconduct in the handling of the search of Limon’s cell
and ordered defendant’s release. He is now a fugitive. The
validity of the warrant is unchallenged. The search of the cell
produced photographs of the home and car of the target of the
suspected plot.
Defendant’s counsel on appeal is unable to identify any denial
of Limon’s rights, any wrongdoing by the government in conducting
the search, or any prejudice that Limon might have suffered in the
pending drug case had this search, whose validity was unchallenged
below, been illegal. Whatever the limited powers of a federal
trial judge to dismiss a lawful federal indictment for government
misconduct in preparing the case for trial, there was no basis for
this dismissal, and we reverse with instruction to reinstate the
indictment.
I
On February 15, 1995, three government agents watched Limon
remove approximately one kilo of cocaine from his 1993 Ford
Econoline van and deliver it to Guadalupe Ochoa, Sr., a member of
Limon’s drug organization, recently turned informant.1 Within a
few days the agents followed Limon and a Gilbert “Hamburger”
Hernandez to a suspected stash house. On February 22, agents
recovered two and one half kilos of cocaine from this house. The
1
We describe the facts as asserted in the indictment and as
developed at the detention hearings and the hearing on the motion
to dismiss. Limon, of course, has not been tried. The relevant
facts at the hearings proved to be undisputed.
2
wrappings and markings matched those on the cocaine Limon delivered
to Ochoa on February 15.
Ochoa had been arrested in Virginia for delivering two kilos
of cocaine and twenty pounds of marijuana. He told drug agents
that this delivery was made at Limon’s direction. Two days after
Ochoa’s arrest in Virginia, Limon was arrested for speeding in the
Ford Econoline van. He had ten thousand dollars in cash with him.
It is important, as we will explain, that Limon appeared
before magistrate judge Eduardo E. De Ases at his presentment on
February 23, at three detention hearings between February 27 and
March 2, and at his preliminary hearing on March 2. At each Limon
was represented by Robert A. Berg, his counsel throughout these
proceedings.2 At the detention hearing on March 2, 1995, Officer
Bussey, who worked with the DEA and headed drug enforcement for the
Corpus Christi Police Department, outlined the government’s
evidence of drug trafficking. He also described threats that Ochoa
and Ochoa’s son believed Limon had made on their lives. Ochoa
reported to Bussey that during the weekend of February 25 and 26
Limon had telephoned “Hamburger” Hernandez and told him that, “if
he [defendant] gets out he’s going to do away with Mr. Ochoa,” and
Hernandez passed this along to Ochoa. Bussey learned from Ochoa’s
son that, according to Hernandez, Limon said that he would also
kill Ochoa, Jr., if he found that he was cooperating with the
government. Officer Bussey testified at the detention hearing that
2
The district court appointed Mr. Berg to represent Limon on
this appeal when he advised that he no longer represented Limon,
who was by that time presumably a fugitive.
3
Limon furnished a false identification card to his common law wife,
who lacked legal status in the country.
James van Kirk was a friend of Limon. A registered
professional engineer whose business had recently collapsed in
bankruptcy, van Kirk arranged for Berg to represent Limon. In late
March Berg ask van Kirk to take photographs of certain property of
Ochoa, including his house, business, and Porsche automobile. Van
Kirk made two sets of photographs and furnished one set to Berg,
the lawyer. At the hearing on the motion to dismiss, van Kirk
testified that Limon asked for a set of pictures of the house and
car and that he furnished them to him in late March or early April.
On May 22, 1995, a confidential informant, also in the Nueces
County jail, told Officer Bussey that Limon “has recently hired an
individual to burn the properties and murder a government
cooperating witness.” Ochoa was the witness. The informant told
Bussey that Gilbert Lopez, another drug trafficker, had been paid
$2,500 to burn the property or kill Ochoa. Officer Bussey checked
the records and found that Lopez had a prior 1986 conviction for
aggravated assault. The informant was able to describe Ochoa’s
residence, business, and car as shown in pictures he said were in
Limon’s possession. Bussey also learned from Ochoa’s neighbors
that an individual had been taking pictures of the house and car.
Late on the afternoon of May 23, 1996, Limon was moved to another
cell, and his vacated cell was taped shut. Apparently through some
failure in communication, Limon’s new cell was also taped shut.
There is a suggestion that the taping of the second cell was to
4
prevent communication between Limon and guards feared to be on his
payroll, but there is no evidence that this was the reason or that
the officials in charge of the search had intended the taping of
the second cell. In any event, this was not the basis the
dismissal of the indictment and is not relevant to the issues
before us today.
Limon’s defense counsel, Berg, learned of the transpiring
events and telephoned an Assistant United States Attorney at his
home at midnight of the same day. Berg demanded an explanation but
was given none. The next morning he filed the motion prompting the
hearing and ultimate dismissal now before us. The motion mentioned
for the first time a concern that privileged communications between
Berg and Limon might be seized and requested a post-seizure
examination of any written materials by the court in camera. The
motion also asserted that the events were “calculated to retaliate
against the defendant’s attorney” for events in an unrelated case.
The motion did not ask that the search be stayed or that counsel be
present when it was conducted. The motion was “served” on the
United States Attorneys by slipping a copy under the door early in
the morning. Officer Bussey proceeded to obtain the warrant that
morning, unaware of the filed motion. The assistant assigned to
try the drug case did not obtain a copy until the afternoon because
he was in detention hearings before the magistrate judge. Bussey
conferred with AUSA Dowd about the warrant and intended search.
The application for the warrant specifically requested a search for
“photographs of 1726 Rhew, 1818 Baldwin, and 3333 Houston, all in
5
Corpus Christi, Texas.” Dowd, heeding routine procedures,
instructed Bussey not to examine attorney-client materials and to
isolate any materials with an attorney’s letterhead. He also
instructed Bussey that in executing the warrant he should not use
any persons involved in the drug case. The warrant issued at 3:48
that afternoon and authorized search of Limon’s cell.
Agents David Gonzalez and Ross Larrimore conducted the search.
Gonzalez had been involved in surveillance in the case and been
present when Bussey debriefed an informant, contrary to USA Dowd’s
instructions that the agents executing the search warrant were to
have had no prior involvement in the case. Bussey instructed
Gonzalez and Larrimore “that [they] were to search for such things
as photographs, exclusively photographs that show a residence of
some sort, vehicles, in particular a Porsche--a black Porsche
vehicle...and some phone numbers, names of people that may be
involved in [this] investigation.” The search took approximately
45 minutes. The agents seized only the photographs, van Kirk’s
business card, and a letter handwritten in Spanish to a “Lupe,” the
informal name of Ochoa. It later developed that the name referred
to Maria Guadalupe Medrano, Limon’s common-law wife. No
correspondence with counsel was seized, and there is no evidence
that any communication between attorney and client was disclosed by
the search and seizures.
6
II
The court conducted a hearing on Limon’s motion to dismiss and
for ex parte review of attorney-client material the next morning,
on May 25, 1995. It is important that before the hearing the
government had gained only a copy of the photographs and van Kirk’s
business card. None of this information was new to the government,
and none gave it any advantage in the drug case. The government
believed that the photographs were relevant to a possible
conspiracy to intimidate or harm a government witness.
The district court was concerned from the start of the hearing
about an interception of privileged communications between Berg and
Limon or possible “work product.” The district judge asked Berg,
“how do you know they went through [defendant’s] personal
correspondence, other than what [defendant] says?” Without
requesting any ex parte examination, Berg, avoiding the question of
privilege, turned to the photographs and offered his explanation of
his intended use of the photographs at trial. He explained that he
intended to display to the jury the different lifestyles of Limon
and Ochoa by the photographs of Ochoa’s property. This
explanation, while not answering the court’s question, offered an
innocent use of the photographs. As we will explain, Limon now can
point to nothing that the government learned by the search of
Limon’s cell that might be described as defensive strategy or work
product or that might be prejudicial to Limon’s defense of the drug
charge. The photographs disclosed no strategy. Their intended use
was volunteered in a transparent effort to blunt the inference that
7
Limon was engaged in a conspiracy to intimidate a witness
investigation.
The district court found that it “could only assume from these
facts that a complete examination of the Defendant’s correspondence
with his attorney....were calculated to and did, compromise the
Defendant’s Sixth Amendment right to a fair trial and his Fifth
Amendment right to be free from self-incrimination.” Among other
difficulties with this assumption, there was no evidence of any
such materials, and at the hearing Berg declined to offer any such
evidence. This telling unwillingness to offer any sworn evidence
in open court or in chambers in an ex parte proceeding left the
record barren of any supporting evidence. At oral argument before
this panel, Berg conceded that he knew of no written communications
between himself and Limon that were in the cell. He admitted that
he had delivered no documents to Limon but speculated that Limon
might have had notes Limon had taken in the course of various
visits with counsel in the jail. When the district court asked
Berg directly about legal materials, it got no answer.
III
The government has filed an extensive brief detailing the
limited circumstances under which a federal trial judge can
exercise the extraordinary power to dismiss a federal indictment.
We need not canvass that law. We need only remind that at the
least the conduct of the government must be outrageous and
prejudicial to the ability of a defendant to receive a fair trial.
8
Outrageous government conduct at the least must violate some legal
norm and must injure. We are at a loss to understand the basis of
the district court’s action. The seizure of the photographs was
supported by a warrant obtained from a federal magistrate judge and
was assumed to be valid by the district court. Indeed, it is by no
means clear that a warrant was required to search the cell of this
prisoner. The district court expressed concern in the hearing
about the need to proceed with haste and demanded to know why the
warrant was executed when defendant was represented by counsel.
Yet even Limon’s counsel did not request that he be present,
probably because there is no such right. The court’s underlying
concern, as best we can tell from reading the record, was the
gaining of access to privileged information. We have found no
evidence that this occurred. Nor can we find a basis for the
court’s written finding that the search and seizure was “calculated
to and did, compromise the Defendant’s Sixth Amendment right to a
fair trial....”
The district court also stated in its written order that
“[o]ne of the more unconscionable aspects of this case is the U.S.
Attorney’s refusal to make all information available to the
Magistrate-Judge.” At the hearing the district court expressed
concern that the Magistrate-Judge was not told that Limon was a
pre-trial detainee. The relevance of this information aside, Limon
had been before the issuing Magistrate-Judge represented by Berg on
four occasions, three of them detention hearings that ultimately
resulted in denial of bail. The judge thus deprived of this
9
information was the same judge whose order kept Limon in jail. In
sum, we have found no basis for concluding that the government
engaged in any conduct that was illegal and prejudicial to the
rights of Limon, the defendant. The findings of the district court
are vacated, and the order dismissing the indictment is reversed.
The case is remanded to the district court.
REVERSED and REMANDED.
10