Serious Government Misconduct Results In Suppression of Evidence for Tax Evader

July 5, 2010

United States v. Struckman, No. 08-30312 (available here)

In connection to involvement with the “Institute of Global Prosperity,” Defendant David Struckman was indicted on nine counts of tax evasion and one count of conspiracy in the Western District of Washington in 2004.  The Institute provided instructions on how to illegally avoid paying income taxes, hide your assets overseas and escape from U.S. jurisdiction.  After coordination with the Panamanian government, the U.S. was eventually able to secure Struckman’s return from Panama, where he had been hiding to avoid trial.  Struckman filed a MTD the indictment based on (a) alleged illegalities and misconduct during the government’s efforts to secure his return from Panama, and (b) alleged misconduct during the criminal investigation in the United States.  The district court found that misconduct had occurred during the investigation, and as a result suppressed a great deal of evidence from trial.  Judges O’Scannlain, Kleinfield and Berzon of the Ninth Circuit agreed that this was an appropriate remedy, and affirmed the denial.

The reach of the Extradition Treaty with Panama

Struckman first challenged personal jurisdiction, arguing that he was “returned” from Panama in violation of the U.S.-Panama Extradition Treaty.  He could win this argument by showing either a violation of the treaty, or by “shocking and outrageous” government misconduct.  Neither was shown. The district court found that the government took pains to ensure Struckman was deported by the Panamanian government, and not extradited – no “demand” for his return was ever made, therefore the treaty was not invoked.  The language of the treaty does not prohibit countries from cooperating and coordinating a removal in a way other than extradition, which is what happened to Struckman.

Furthermore, the “shocking and outrageous” prong, which was allegedly violated when the U.S. took steps to block defendant’s access to counsel, was not satisfied.  Both the district court and the Ninth Circuit condemn the actions of the government, but in comparison to the facts of other cases, this “extremely high standard” was not met.  Apparently, even if you are abducted from another country and returned to the U.S. the standard is not met, so I’m not sure what possible set of circumstances might be sufficient.

Judicial Remedy

The district court also had the option of granting Struckman’s MTD the indictment based on its supervisory powers.  Struckman made three arguments for dismissal under this power, although the Ninth Circuit points out that the supervisory powers are not limited in scope to only three areas: (1) to implement a remedy for the violation of a recognized statutory or constitutional right; (2) to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before a jury; and (3) to deter future illegal conduct.  The district court did not think any of the three arguments were persuasive, and the Ninth ruled that this was not an abuse of discretion.  In many of the holdings where the Ninth Circuit is affirming the district court, it relies on the extensive and detailed decision of Judge Takasugi.

Government Misconduct

Finally, Struckman argued that the misconduct by government officials during their investigation of him was so egregious as to require dismissal of the indictment.  The district court found the government had committed “serious Brady/Giglio violations” (for example, “forgetting” about a box of evidence, illegal wiretapping, improper documentation, likely fabrication of non-existent witnesses, etc.). [1]Evidence in relation to the investigation was suppressed, and Struckman was ultimately found guilty of conspiracy and tax evasion with a sentence of 70 months imprisonment and $2.9 million in restitution.

It was not an abuse of discretion by the district court to refuse dismissal based on the investigation misconduct – dismissal is a disfavored remedy, and the prupose of Brady and Giglio is to protect Struckman duringhis trial.  Assuming the indictment process was “deficient 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.”

Judge Berzon’s double decision

Judge Berzon writes the majority opinion as well as the concurring opinion.  Why the extra punch?  The concurring opinion is unsatisfied with the government’s conduct throughout, and the version of “truth” that the Ninth Circuit is left to decipher.  “[T]his 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.”  Understandably, Judge Berzon is annoyed at the government’s defiance of the courts and wants to know the real story behind the alleged confidential informant.  Even though she agrees that the result for Struckman is correct, consequences are in order for the government.

[1] In footnote 4 of the ruling, the Ninth Circuit explains the requirements: “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) (available here).  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) (available here).”

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