[Ed. note -- I'm filling in for Jon for a couple of days while he's occupied with other business. As a reminder, I try to summarize the court's holding in the first paragraph, and give people enough information to decide whether to read on. And at the bottom is a link to the court's opinion.]

Keith Hilzendeger, Research & Writing Specialist, Federal Public Defender's Office - Dist. of AZ

United States v. Sivilla, No. 11-50484 (9th Cir. May 7, 2013) (Noonan, J.)

The Ninth Circuit vacated a criminal conviction and remanded for a new trial, holding that the district court should have given a remedial jury instruction to account for the government's negligent destruction of potentially exculpatory evidence. It also held that because there was no showing of bad faith in the destruction of the evidence, the district court properly denied the defendant's motion to dismiss the indictment.

This is a blind mule case. The defendant, a perfume retailer in Tijuana, Baja California, loaned his Jeep Cherokee SUV to his son-in-law. Two days later, while the defendant was driving it into San Diego to pick up more inventory, he was referred to secondary inspection, where CBP agents (with the help of a mechanic) discovered packages of cocaine and heroin hidden inside the engine manifold. (The son-in-law was killed shortly after the defendant was arrested.) Concealing the drugs in the engine manifold was an extremely complicated maneuver, and demonstrating that to the jury would bolster the defendant's blind-mule defense. Accordingly, counsel asked the government to preserve the SUV until he could have a chance to inspect it -- first by letter shortly after the defendant was arrested, and then later by formal court motion.

The district court ordered the government to preserve the SUV, but the government failed to do so. A snafu in communication between the prosecutor and CBP led to CBP selling the SUV at auction, after which it was stripped and sold for parts. By the time the defendant got around to asking to inspect the SUV, it had long been destroyed. The defendant therefore moved to dismiss the indictment, or in the alternative for a remedial jury instruction. The district court heard oral argument and denied both requests, finding no bad faith on the part of the prosecution. The complexity involved in hiding the drugs in the engine manifold was central to both parties' presentation. The defendant was represented by Federal Defenders of San Diego, Inc., which "has an investigator on staff who specializes in assessing secret compartments in vehicles." But neither the FDSDI investigator nor any other expert could assess the compartment in the SUV in this case, because the government allowed it to be destroyed well before trial. Having no way to rebut the government's evidence about the manifold (including some "indecipherable" photographs of the manifold taken by the case agent), the defendant was convicted and sentenced to 10 years in prison.

The Ninth Circuit accepted the district court's conclusion about a lack of bad faith on the prosecution's part in relation to the destruction of the SUV. That allowed the court to affirm the denial of the motion to dismiss the indictment under Arizona v. Youngblood, 488 U.S. 51 (1988). But the Ninth Circuit did characterize the government's conduct as negligent, which allowed it to vacate the conviction because the district court refused the remedial instruction. "The prosecutor promised to protect the evidence but failed to take any affirmative action to that end. The government attorney prosecuting the case participated in the events leading to the failure to preserve. In total, the government's conduct was poor." Clarifying the holding in United States v. Loud Hawk, 628 F.2d 1139 (9th Cir. 1979) (en banc), the court held that the holding in Loud Hawk was that a balance of the government's relative culpability in the destruction of evidence against the prejudice to the defendant stemming from the destruction determines whether a remedial instruction is required. Because the district court applied the wrong legal standard (bad faith), and there was no adequate substitute for the SUV that would have allowed the defendant to make his defense, the district court abused its discretion when it refused the remedial instruction, and the defendant was entitled to a new trial.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/05/07/11-50484.pdf