FLETCHER, Circuit Judge:
Appellants Janice Wallace and Elmore Penn were convicted, after jury trial, on both conspiracy and substantive counts of possession with intent to distribute heroin.
BACKGROUND
In 1984, local law enforcement officials in Anchorage, Alaska, investigated a multistate heroin trafficking operation run from the home of Doris Sterling, the "Queen Bee" of the heroin underworld in Anchorage. The investigation uncovered a network that apparently included individuals
The same day in Seattle, DEA agents executed a search warrant at Penn's residence, where they discovered and arrested both Penn and Wallace. The October 26 search of the Seattle residence yielded, among other items, $30,000 cash hidden in a ladies' size 9-C cowboy boot. Approximately $10,000 of the $30,000 was money previously "marked" and used by an undercover officer in a series of heroin purchases from Sterling. The boot apparently fits appellant Wallace and was found in the bedroom that was being used by her. The search of that bedroom also revealed a cocaine handbook, a heat tester, notes referring to cocaine prices in Seattle, an address book with an apparent reference to Doris Sterling, a hand scale, and other items that could be used in the processing or distribution of cocaine. The search, however, did not uncover any heroin, cocaine, or other illegal narcotics.
In return for the Government's promise not to prosecute her for federal narcotics offenses, Doris Sterling eventually agreed to be a cooperating government witness in the prosecution of Wallace and Penn.
DISCUSSION
I. The Wallace Indictments
Wallace was initially indicted on November 21, 1984, on one count of aiding and abetting the distribution of heroin. On December 20, 1984, the United States Attorney moved to dismiss the indictment without prejudice, asserting the initiation of an investigation into possible tax violations as the basis for the dismissal. Wallace's attorney consented to the dismissal.
Thirteen months later, in January of 1986, Wallace was reindicted on 26 counts involving various narcotics offenses, but no counts involving any tax violations. Wallace contends that the district court erred in denying her motion to dismiss the 1986 indictment, asserting that the government's bad faith in seeking the dismissal of the 1984 indictment violated Fed.R.Crim.P. 48(a) and that the thirteen month delay between dismissal of the 1984 indictment and her reindictment in 1986 violated the Sixth Amendment's speedy trial guarantee and the Fifth Amendment's due process clause.
A. Rule 48(a).
Rule 48(a) provides that the "United States attorney may by leave of court file a
Neither the Supreme Court nor our court has resolved the issue of whether a district court has discretion to deny a motion to dismiss consented to by the defendant. Rinaldi v. United States, 434 U.S. 22, 29 n. 15, 98 S.Ct. 81, 85 n. 15, 54 L.Ed.2d 207 (1977); United States v. Weber, 721 F.2d 266, 268 (9th Cir.1983). We need not reach this issue, however, because we find that Wallace has in any case failed to show any basis for the district court to deny the Rule 48(a) motion to dismiss.
While the prosecutor is "the first and presumptively the best judge of whether a pending prosecution should be terminated," United States v. Cowan, 524 F.2d 504, 513 (5th Cir.1975), a district court under Rule 48(a) has discretion to deny a government's dismissal motion if that motion is prompted by considerations clearly contrary to the public interest, see Rinaldi v. United States, 434 U.S. at 29 n. 15, 98 S.Ct. at 85 n. 15; United States v. Weber, 721 F.2d at 268, or if the dismissal would contribute to prosecutorial harassment by subjecting a defendant to "charging, dismissing, and recharging." Rinaldi, 434 U.S. at 29 n. 15, 98 S.Ct. at 85 n. 15; Weber, 721 F.2d at 268. A fundamental consideration in assessing the propriety of a prosecutor's dismissal motion is whether the motion is made in "good faith." United States v. Salinas, 693 F.2d 348, 351 (5th Cir.1982). Wallace contends that the Government's dismissal motion was in fact improperly motivated by its desire to gain a tactical advantage by selecting a more favorable time to reindict her and that its proferred reason for the dismissal was a sham. According to Wallace, dismissal of the 1984 indictment was improper and requires that her 1986 indictment be dismissed. Such motivations or misconduct on the Government's part, if proved, could establish that the dismissal was sought in "bad faith," such that granting the motion would be an abuse of discretion by the district court. See Salinas, 693 F.2d at 352-53 (dismissal motion to obtain a "better" jury constitutes prosecutorial bad faith).
The prosecutor stated that the government's desire to prosecute any potential tax code violations together with any narcotics violations was the basis for requesting a Rule 48(a) dismissal. At the time of the dismissal, the prosecutor had information that Wallace had failed to file tax returns in prior years and been previously involved in and convicted for heroin trafficking activities. It would have been reasonable to believe that Wallace had failed to report her income from the sale of narcotics.
Wallace also contends that the dismissal allowed the government to achieve an improper tactical advantage by reindicting her at a time when she had lost the testimony of a witness and the government had gained the testimony of Doris Sterling. In Salinas, the prosecutor moved for dismissal moments before trial, and then reindicted the defendant six days later on essentially identical charges. Under those circumstances, it was clear that the prosecutor sought the blatant tactical advantage of dismissing a jury perceived to be inhospitable to his case, despite his full participation in the selection of the empaneled jury. 693 F.2d at 348-49. Here, by contrast, the prosecutor moved for dismissal a full month in advance of appellants' trial date
As to the tactical advantage gained by obtaining Doris Sterling's testimony on Wallace's drug trafficking activities, it is not clear to us that the government's dismissal was motivated by its desire to get that testimony or even that such a desire would have been an improper motivation. "An initial [indictment] decision should not freeze future conduct.... [T]he initial charges filed by a prosecutor may not reflect the extent to which an individual is legitimately subject to prosecution." United States v. Goodwin, 457 U.S. 368, 382, 102 S.Ct. 2485, 2493, 73 L.Ed.2d 74 (1982); see also United States v. Lovasco, 431 U.S. 783, 792-93, 97 S.Ct. 2044, 2050, 52 L.Ed.2d 752 (1977) (rejecting in part any requirement of immediate indictment upon establishment of probable cause as impairing prosecutor's ability to continue investigation where multiple criminal transactions or actors exist). Once it became clear that Sterling would provide substantial evidence regarding appellants' extensive participation in the heroin distribution activities, it was not improper for the government to recharge Wallace more heavily in the 1986 indictment.
B. Sixth Amendment and Due Process Claims
Appellants also allege that the delay between their initial arrest in the fall of 1984 and the 1986 indictment violated the Sixth Amendment's speedy trial guarantee. We review a defendant's Sixth Amendment speedy trial claim de novo. United States v. Williams, 782 F.2d 1462, 1464 (9th Cir.1985). We may reject the district court's determination of the underlying facts, however, only if it is clearly erroneous. Id. at 1468.
The Sixth Amendment right to a speedy trial is intended "to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges." United States v. MacDonald, 456 U.S. 1, 8, 102 S.Ct. 1497, 1502, 71 L.Ed.2d 696 (1982). Of course, once Wallace's 1984 indictment was dismissed, since she was not subject to trial, her Sixth Amendment right to a speedy trial had no application to the delay between her initial arrest and the dismissal. Her Sixth Amendment right to a speedy trial reattached upon her rearrest pursuant to the 1986 indictment, but no undue delay following the 1986 arrest is claimed. See id. 456 U.S. at 7, 102 S.Ct. at 1501 ("Any undue delay after charges are dismissed, like any delay before charges are filed, must be scrutinized under the Due Process Clause, not the Speedy Trial Clause.") Appellants' Sixth Amendment claim, based on the delay between the initial arrest in 1984 and the return of the 1986 indictment, is without merit because it ignores the intervening dismissal.
Pre-indictment delay following dismissed charges may, however, be scrutinized under the Fifth Amendment's Due Process guarantee. MacDonald, 456 U.S. at 7, 102 S.Ct. at 1501. First, the defendant must show actual, non-speculative prejudice
Wallace's argument and proof fail the first prong of the test. She argues that she was prejudiced by the loss of a potential witness, Elmer Ray Penn, who she claims would have testified that she was not involved in any heroin trafficking with the Sterling operation. The assertion itself reveals its speculative nature. Elmer Ray Penn would have been a co-defendant of Wallace and Elmore Penn if he were not a fugitive from justice. Moreover, there is little indication in the record to suggest that Elmer Ray Penn, if available, would have testified favorably for Wallace, if he testified at all.
II. Jencks Act: Production of Witness's Notes
At trial, Doris Sterling revealed that she had referred to typewritten notes while testifying before the grand jury. Defense counsel questioned Sterling and various law enforcement officers about the content and present location of the notes. Sterling testified that she thought she had left the notes with her attorney, and the prosecutor asserted that the government had never had possession of the notes. After a brief discussion, the district court implicitly found that the government never had the requisite possession of the notes to require their delivery to defense counsel under the Jencks Act, 18 U.S.C. § 3500(b), and directed defense counsel to proceed to other matters. However, at oral argument before this court, the government now concedes that it was aware of Sterling's use of notes while testifying before the grand jury and, for the purposes of the Jencks Act, is "in possession" of the notes.
The Jencks Act requires the government to produce any written statements by a government witness that relate to the subject matter of any direct testimony by the witness. 18 U.S.C. § 3500(b). The Jencks Act defines a statement as "a written statement made by said witness and signed or otherwise adopted or approved by him." 18 U.S.C. § 3500(e)(1). Sterling's grand jury notes are clearly "statements" within this definition. Sterling referred to and used the notes while testifying before the grand jury, thus "adopting or approving" the notes as her own statements. See United States v. Goldberg, 582 F.2d 483, 487 (9th Cir.1978) (notes made by others may be "statements" by witness if read back to or otherwise approved by witness).
Production of Jencks Act statements, however, is not automatic: the defendant must submit a proper request to the district court for the government to produce the Jencks statements. 18 U.S.C. § 3500(b); United States v. Burke, 506 F.2d 1165, 1167-1168 (9th Cir.1974). However,
We therefore remand to the district court for a determination whether Sterling's grand jury notes should have been produced under the Jencks Act, and if so, whether the failure to produce them at trial resulted in harmless error. The appropriate harmless error standard is unclear at this time. Jencks violations are normally non-constitutional error, see United States v. Augenblick, 393 U.S. 348, 356, 89 S.Ct. 528, 533, 21 L.Ed.2d 537 (1969); United States v. Carrasco, 537 F.2d 372, 377 & n. 3 (9th Cir.1976), so that a conviction will be affirmed where a Jencks error is more likely than not harmless. Carrasco, 537 F.2d at 377 n. 3. However, "[i]t may be that in some situations, denial of production of a Jencks Act type of a statement might be a denial of a Sixth Amendment right." Augenblick, 393 U.S. at 356, 89 S.Ct. at 533. Where, as here, the appellant's conviction rests heavily on the credibility of a single accomplice, Sterling, the unproduced Jencks material may well implicate confrontation clause or compulsory process issues. Cf. Palermo v. United States, 360 U.S. 343, 362, 79 S.Ct. 1217, 1230, 3 L.Ed.2d 1287 (1958) (Brennan, J., concurring). We cannot answer this question, however, while the notes remain outside the record. In this case, the failure to produce Sterling's notes may have been harmless error because they were fully incorporated into her grand jury testimony, Carrasco, 537 F.2d at 377, or because they fail to contain any additional relevant material regarding Sterling's testimony at trial, United States v. Cowley, 720 F.2d 1037, 1045 (9th Cir.1983) (Jencks Act only requires production of statements related to the witness's testimony); but see United States v. Bibbero, 749 F.2d 581, 585 (9th.Cir.1984) (statements need only relate generally to events and activities testified to by the witness).
If Sterling's notes cannot be produced for the district court's review, then reversal may be warranted. Sterling's testimony was the critical evidence establishing appellant's participation in the heroin distribution network and appellants' defense
III. Other Alleged Errors at Trial
Appellant correctly points out three errors committed by the trial court, in addition to the Jencks error.
A. Admission of Prior Heroin Conviction
Before testifying on her own behalf, Wallace unsuccessfully moved to prohibit the government from impeaching her with evidence of a 1970 heroin trafficking conviction.
Although Wallace's 1970 heroin conviction was more than ten years old, her conviction in 1977 for perjury resulted in a revocation of her parole for the 1970 heroin conviction and her reconfinement in 1977, less than ten years before trial. The district court admitted the heroin conviction, apparently relying on our decision in United States v. McClintock, 748 F.2d 1278 (9th Cir.1984), to conclude that appellant's reconfinement in 1977 upon revocation of her parole was "confinement imposed for [the original] conviction" which tolled the ten-year limit of Fed.R.Evid. 609(b). In McClintock, the court affirmed the admission for impeachment purposes of a mail fraud conviction that was more than ten years old, because the defendant's subsequent confinement on probation revocation constituted confinement for the original conviction under Rule 609(b). The court relied on the fact that defendant's "probation was revoked for violation of a substantive condition — his failure to refrain from engaging professionally in charitable fund raising — that directly paralleled his original crime — engaging professionally in fraudulent charitable fund raising." 748 F.2d at 1288. The McClintock court conspicuously declined to endorse a broad rule that probation or parole revocations always constitute confinement for the original conviction for Rule 609(b) purposes, and we decline to extend McClintock here. Because Wallace's perjury conviction was not substantively related or parallel to the original heroin conviction, we conclude that the revocation
Additionally, we conclude that the district court abused its discretion in admitting the heroin conviction under the criteria of Rule 609(a). In balancing the probative value against the prejudicial effect of a prior conviction, this Circuit has stated five factors that the district court should consider.
772 F.2d at 488. That risk was clearly present in this case, especially where appellant Wallace's prior perjury conviction was already available for impeachment purposes.
B. Prosecutorial Vouching
Appellants contend that the prosecutor improperly vouched for the credibility of Doris Sterling, the chief government witness, on three separate occasions. Prosecutorial vouching may occur when the prosecutor either (1) "place[s] the prestige of the government behind the witness" through personal assurances of the witness's veracity, or (2) suggests that "information not presented to the jury supports the witness's testimony." United States v. Roberts, 618 F.2d 530, 533 (9th Cir.1980). Because Wallace and Penn failed to object to the prosecutor's alleged vouching, we review appellants' contentions for plain error. United States v. Gwaltney, 790 F.2d 1378, 1386 (9th Cir.1986), cert. denied, ___ U.S. ___, 107 S.Ct. 1337, 94 L.Ed.2d 187 (1987). Under the plain error doctrine, Fed.R.Crim.P. 52(b), we recognize only "those errors that `seriously affect the fairness, integrity or public reputation of judicial proceedings,'" United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (citation omitted), and we will reverse "`solely in those circumstances in which a miscarriage of justice would otherwise result.'" Id. We review the alleged error in the context of the entire record to determine whether it rises to the level of "plain error." Id. 470 U.S. at 16, 105 S.Ct. at 1047.
The first instance of alleged prosecutorial vouching occurred during the direct testimony of Doris Sterling when she testified that she had entered into a plea agreement with the government, part of which required her to testify truthfully.
Appellants contend that two other instances of prosecutorial vouching occurred during the prosecutor's closing and rebuttal arguments.
C. Admission of Post-Arrest Statement
During the October 26 search of the Seattle residence, Wallace was arrested and given a Miranda warning. Miranda v. Arizona, 384 U.S. 436, 473, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694 (1966). While Wallace was being transported to the Marshall's office, DEA agent Brehm explained to Wallace the potential benefits of her opportunity to cooperate with the government. Wallace, for a time, said nothing, but eventually, she responded: "I didn't sell no heroin to Doris." TT at 7, 38. The government introduced the statement into evidence at trial.
Wallace contends the district court erred in finding that she had waived her Miranda rights after arrest and that her post-arrest statements were admissible. We review the district court's finding that appellant Wallace waived her Miranda rights under the clearly erroneous standard. United States v. Bernard S., 795 F.2d 749, 751 (9th Cir.1986). To establish a valid waiver, the government must show that the defendant knowingly and voluntarily waived her Miranda rights. North Carolina v. Butler, 441 U.S. 369, 372-73, 99 S.Ct. 1755, 1756-57, 60 L.Ed.2d 286 (1979). Where the waiver of a fundamental constitutional right is at issue, the burden is a heavy one because this court must afford the defendant "every reasonable presumption against waiver." United States v. Heldt, 745 F.2d 1275, 1277 (9th Cir.1984) (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)).
There is no evidence of an express waiver of Miranda rights in this case.
D. Cumulative Error
Although each of the above errors, looked at separately, may not rise to the level of reversible error, their cumulative effect may nevertheless be so prejudicial to the appellants that reversal is warranted. See United States v. Berry, 627 F.2d 193, 200-01 (9th Cir.1980); United States v. McLister, 608 F.2d at 788. Our court is particularly sensitive to allegations of prejudice where, as here, the convictions are based on the largely uncorroborated testimony of a single accomplice or co-conspirator. See United States v. Hibler, 463 F.2d 455, 459 (9th Cir.1972). Given the
CONCLUSION
We REMAND to the district court for further proceedings consistent with this opinion. The district court should determine the prejudicial effect, if any, of the errors noted herein both separately and cumulatively. If appropriate, the district court may vacate either or both of appellants' convictions. Any further appeals in this action should be directed to this panel.
FootNotes
Mr. Fenster [defense counsel]: Now, if these aren't the notes, what notes were you looking at when you testified in front of the grand jury?
Ms. Sterling: I don't have them.
Mr. Fenster: What did you do with them?
Ms. Sterling: I think I left them in my attorney's office in Anchorage. I mean, I think I left them with him.
Mr. Fenster: Did Mr. Redkey [the prosecutor] know about those notes?
Ms. Sterling: I'm sure he did if I had them.
Mr. Fenster: May we approach, Your Honor?
The Court: Well, why don't you talk to Mr. Redkey first.
Mr. Fenster: I have, Your Honor.
The Court: Mr. Redkey, do you have the notes?
Mr. Redkey: I don't have them, Your Honor.
The Court: Were you ever aware of them?
Mr. Redkey: I was aware when she was testifying in front of the grand jury she had notes, but I don't have them.
The Court: Were they ever in your possession?
Mr. Redkey: No.
The Court: Were they ever in the possession of any other agency of the United States Government, to the best of your knowledge?
Mr. Redkey: Not to the best of my knowledge.
Mr. Fenster: So the notes have just disappeared, then. Is that —
The Court: No. She said she left them with her attorney.
Mr. Redkey: I just asked Special Agent Ford to check with the Alaskans, and they say, to the best of their knowledge, they don't have them, either.
The Court: All right. Proceed, Mr. Fenster.
TT at 291-292.
Q: So your agreement was to plead guilty and you'd get 10 years.
A: Yes.
Q: All right. And that was part of a plea agreement that you entered into?
A: Yes, and I also agreed that I would tell the truth about whatever happened.
Q: And are you testifying here today as part of that plea agreement?
A: Yes, and also with the state of — I mean, with the United States, or whatever.
Q: Can you tell the jury about your agreement with the United States?
A: It was that they wouldn't prosecute me and they would just — or wanted to know the truth about it. So I agreed to tell them.
TT at 215-16.
TT at 729. During his rebuttal argument, the prosecutor discussed Sterling's credibility several times:
TT at 771-72.
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