Sunday, May 12, 2013

Case o' The Week: Ninth Hears Loud Hawk's Cry - Evidence Lost by Gov't and Adverse Inference Instructions

Kennedy is a critical swing vote, and his concurring opinions have a way of becoming the controlling law of the land.

  (Even back in ’79). United States v. Sivilla, 2013 WL 1876649 (9th Cir. May 7, 2013), decision available here.

Players: Decision by Judge Noonan, joined by Judges Pregerson and Paez.

Facts: Sivilla owned a business selling perfume in Tijuana, and came to the U.S. a few times a week to buy supplies. Id. at *1. Sivilla loaned his Jeep Cherokee to the boyfriend of his sister-in-law. Id. Days later, Sivilla was stopped when he crossed the border in the Jeep. $160,000 worth of drugs were found hidden within a hand-cut area of the engine manifold. Id. The case agent took poor-quality photos of the engine. Id. Sivilla was arrested; a month later, the boyfriend was shot dead. Id. Soon after the arrest defense counsel asked that evidence from the Jeep be preserved and filed two motions to preserve and inspect evidence. Id. The court issued oral and written orders to preserve the Jeep. Id. Despite these requests and orders, the Jeep was sold at auction and stripped for parts. Id. at *1. “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 quality of the government's conduct was poor.” Id. at *5. The defense complained if its expert could have examined the modified manifold, he would have been able to evaluate whether it was readily accessible without lifts – a key fact for the “drug mule” theory. Id. at *2. The court found the government hadn’t acted in bad faith, denied the motion to dismiss, and refused to give a defense jury instruction on the destruction of the evidence. Id.

Issue(s): On appeal, Sivilla argued that “the trial judge erred in requiring a showing of bad faith in order to give a remedial jury instruction.” Id. at *3.

Held: This case allows us to clarify what a criminal defendant must show in order to receive relief when the government destroys evidence before trial. We hold that while Supreme Court precedent demands that a showing of bad faith is required for dismissal, it is not required for a remedial jury instruction. We therefore . . .
(Now Justice, then Judge) Anthony Kennedy
reverse the denial of a remedial jury instruction. We remand for a new trial with a remedial jury instruction.” Id. at *1. 
   “Bad faith is the wrong legal standard for a remedial jury instruction. Sivilla correctly identifies the appropriate legal standard in . . . Loud Hawk. Loud Hawk is an en banc decision with several opinions. The rule governing sanctions for destruction of evidence is found in Judge Anthony Kennedy’s 6–5 concurrence. Judge Trask's opinion in Loud Hawk, which announced the judgment of the court, suggests a bad faith requirement for sanctions when the government destroys or loses evidence. . . . However, that section of Judge Trask's opinion was not joined by any other members of the en banc panel. We clarify today that Judge Kennedy's concurring opinion, joined by a majority of the en banc panel, clearly controls this issue.” Id. at *4.   

Of Note: In the welcome Sivilla decision, Judge Noonan carefully parses the’79 Loud Hawk opinion and helpfully clarifies the rule for an adverse inference jury instruction when evidence is lost by government negligence. 
  Loud Hawk is a historically important case involving the conviction of fugitives from “that sorry affair” of the siege of Wounded Knee. Loud Hawk, 628 F.2d at 1141. Loud Hawk involved a remarkable en banc panel, including two jurists who would become respected Chief Circuit Judges, and a future Supreme Court justice – the opinion is an interesting read in its own right.

How to Use: When does the defense get this adverse inference instruction? Judge Noonan lays out the relevant factors from Loud Hawk, applying the Sivilla facts to the test. Id. at *4. Start with that analysis when hunting for an adverse inference instruction for evidence lost by the government.
For Further Reading: Law student Kenneth Stern, became involved in the Loud Hawk defense in 1975. Mr. Stern worked on the case until he appeared as lead counsel before the Supreme Court in 1985. Stern tells the story of the case in Loud Hawk: The United States versus the American Indian Movement, summary available here.

Image of hawk from Image of Justice Anthony Kennedy from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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