1.1b.1.1.1.1.1.1.1.1.2.1.1.1.1.1.1.1.1.1.1.1.1.1.1.1a.1b.1b.1.1.1.1b.1.1.1c.1b.1b.1.1.1.2.2.2.1.2.1.1.2.1.1.1.1.1.1.1.1a.1.4.1 Vincent II Foster , White House Aid 
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Vincent Foster HomeVincent Foster's home,
Georgetown, Washington DC
Cambridge Place N.W. is a one block long street in the Georgetown neighborhood
of Washington. Mr. Foster's home is on the right side in the middle of the
block Senator Richard Shelby, Mr. Foster's neighbor, served on the 1994 and
1995 Banking Committee Hearings. Those Senate probes did not include any
determindation as to how or where Mr. Foster died.
______________________________________________
Was Foster's Car at Fort Marcy Park?
Independent Counsel Kenneth Starr recently issued a report on the death of
Vincent Foster concluding, along with all the other official reports, that
on July 20, 1993, Foster drove himself to Fort Marcy Park in a gray 1989
Honda, walked to the second cannon, and ended his life by firing a .38
revolver into his mouth.
The publicly available documentation of the case, however, does not
support the conclusion that Foster's gray Honda was at the park when he
lay dead by the cannon. Three civilian witnesses who were present in the
parking lot on the afternoon of Foster's death were interviewed by the
original Park Police investigators. Patrick Knowlton who stopped in the
park briefly at about 4:30 p.m. observed two cars in the lot: an
unoccupied brown older model Honda with an Arkansas license plate and a
blue car occupied by a single male. At about 5:00 p.m., a couple arrived
in a white Nissan. There was only one vehicle in the lot when they drove
in which they described as an older model brown car, corroborating
Knowlton's recollection. When Foster's body was discovered shortly after
6:00 pm, the paramedic who examined the body estimated that he had been
dead two to four hours. If we are to accept Starr's conclusion that Foster
drove himself to Fort Marcy Park in his gray 1989 Honda Accord, we have to
believe that all three civilian witnesses mistakenly remembered Foster's
1989 gray Honda as being old and brown.
And the suspension of disbelief doesn't stop there. Consider the Incident
Report prepared by the lead rescue worker who arrived with his unit ahead
of the Park Police. In his report, written on the evening of Foster's
death, Sergeant George Gonzalez describes three cars: a blue Mercedes with
Virginia tags at the entrance to the park, and, in the parking lot itself,
a white Nissan with Maryland tags and a brown Honda with Arkansas tags. To
accept Starr's conclusion we have to believe that this trained observer
correctly identified the color, make, and license of the other two cars
but mistakenly confused gray for brown on the third--the same error made
by three civilian witnesses. When questioned by Senate investigators a
year later, Gonzalez affirmed that what he wrote in his report was his
best recollection at the time, and added that Honda with the Arkansas
registration was an "older model."
The only evidence that Foster's gray 1989 Honda Accord was in the lot
comes from reports by Park Police investigators who arrived just as the
rescue workers were leaving. The photographic evidence is inconclusive.
Park Police identification technician Peter Simonella photographed the car
in the parking lot with a 35 mm camera. Oddly, despite eleven years of
experience and an FBI photography course, none of Simonella's photographs
came out. Investigator Braun, according to her depositon, took three to
four clear Polaroids of the exterior of the car in Fort Marcy Park. Of
these, only one survives and it is not clear at all. Is it fair to suspect
the Park Police of falsifying their reports regarding the car?
Curiously, the Starr Report provides a strong reason to doubt their
credibility. To people familiar with the details of the Foster case, the
most astonishing thing about the Starr Report was the introduction of an
oven mitt. Nowhere in the thousands of pages of publicly available
documentation is there any mention of this mitt. Yet this oven mitt,
supposedly found in the glove compartment of Foster's car, was turned over
to forensics expert Dr. Henry Lee who found traces of material linking it
to the gun found in Foster's hand. Investigators could not find any Foster
family member who could identify the gun, but they could find Foster
family members able to identify the oven mitt. Thus, Starr's report
succeeded in making a connection between gun and Foster via the oven mitt.
The evidence that Starr presents for the existence of the mitt is a
photograph of it in the glove compartment of the Foster car and the
statements by Park Police Investigators Braun and Rolla that they remember
seeing the oven mitt in the glove compartment of the car at Fort Marcy
Park.
But Starr has a major problem with this evidence. Braun and Rolla were
questioned under oath by Senate Investigators in the summer of 1994, and
were asked specifically what they found in the glove compartment of
Foster's car when they searched it at Fort Marcy Park. Neither make any
mention of an oven mitt. If Braun and Rolla have changed their story about
the contents of the glove compartment to fit the official conclusion, how
much weight can we put on the only evidence that Foster's car was in the
lot?
__________________________________________
GENE P. DENNISON, ET AL., PETITIONERS V. UNITED STATES OF AMERICA
No. 89-1572
In The Supreme Court Of The United States
October Term, 1989
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Tenth Circuit
Brief For The United States In Opposition
TABLE OF CONTENTS
Questions Presented
Opinion below
Jurisdiction
Statement
Argument
Conclusion
OPINION BELOW
The opinion of the court of appeals (Pet. App. B1-B11) is reported
at 891 F.2d 255.
JURISDICTION
The judgment of the court of appeals was entered on December 1,
1989. A petition for rehearing was denied on January 9, 1990. Pet.
App. C1. The petition for a writ of certiorari was filed on April 9,
1990. The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
QUESTIONS PRESENTED
1. Whether the government's violations of the district court's
discovery orders warranted the mid-trial dismissal of the indictment
with prejudice.
2. Whether the Double Jeopardy Clause or the government's alleged
failure to comply with 18 U.S.C. 3731 required dismissal of the
government's appeal.
STATEMENT
1. In August 1988, petitioners were indicted in the Eastern
District of Oklahoma on charges arising out of their scheme to defraud
Phoenix Federal Savings and Loan Association, located in Muskogee,
Oklahoma. /1/ Dan Stefanoff and petitioners Dana Wilkerson and Thomas
Herrmann, /2/ acting as the "Denver I-76" partnership, together with
petitioner Gene Dennison, successfully induced Phoenix to issue a $3.2
million loan for the purchase of a parcel of land that they had
secretly arranged to buy for only $2.15 million. Petitioners and
Stefanoff then misrepresented the actual purchase price to Phoenix by
orchestrating collusive closings and by submitting materially false
documents to the bank. Pet. App. B1-B2.
At petitioners' arraignment, the government provided petitioners
with a substantial number of documents in compliance with its
obligations under Fed. R. Crim. P. 16 and Brady v. Maryland, 373 U.S.
83 (1963). These documents related principally to the transactions
charged in the indictment, and included FBI 302 reports (reports of
interviews conducted by FBI agents) of some 25 witnesses, including
Stefanoff. Gov't C.A. Br. 7. The district court also entered
"several (pretrial) discovery orders requiring government counsel to
make available to defense counsel exculpatory evidence in their
possession." Pet. App. B2. Those orders, among other things, required
"disclosure * * * of material which may be used to impeach
substantially the credibility of key government witnesses." Gov't C.A.
Br. 7-8 (emphasis in original).
2. Trial began on October 3, 1988. Petitioners complained to the
district court that the government had withheld certain information
tending to impeach Stefanoff and another government witness, Bill
Walsh. At the court's direction, the government searched for and
provided petitioners with additional FBI 302 reports relating to
Stefanoff's and Walsh's involvement in other loan transactions at
Phoenix and another Muskogee bank, Victor Federal Savings and Loan
Association. Those transactions were not related to the transaction
that was the subject of the indictment. Gov't C.A Br. 11-16. /3/
Petitioners also complained that the government had not given them
impeachment material about Stefanoff and Walsh that had been acquired
by federal regulatory authorities. Petitioners referred to
information uncovered by the Federal Savings and Loan Insurance
Corporation and the Federal Home Loan Bank Board during investigations
of lending practices at both Phoenix and Victor. Gov't C.A. Br.
16-20. At the district court's direction, the government contacted
those agencies and obtained whatever information they had about those
banks' lending practices and any loans involving Stefanoff and Walsh.
Id. at 18-20. The government also made available to petitioners all
of Victor's loan files. Id. at 22-25. /4/
3. In light of the government's tardy and piecemeal compliance with
its discovery obligations, petitioners filed a motion to dismiss the
indictment with prejudice. Petitioners filed that motion during the
government's case-in-chief, well before the government had intended to
rest its case. Pet. App. B2.
On October 12, 1988, the district court granted petitioners' motion
and dismissed the indictment with prejudice. Pet. App. A1-A6.
Although characterizing the prosecutor as "green as a gourd," id. at
B2-B3, /5/ the court concluded that the government's failure to comply
with its discovery obligations had been "wholesale and ongoing" and in
"bad faith," id. at A4. Since a mistrial "would penalize
(petitioners) for being here and being ready to go to trial," the
court held that dismissal of the indictment with prejudice was "the
only appropriate sanction." Ibid.
4. On the government's appeal, the court of appeals reversed and
remanded to the district court for reinstatement of the indictment.
Pet. App. B1-B11. Petitioners moved to dismiss the appeal on two
grounds: the government had not diligently prosecuted its appeal as
required by 18 U.S.C. 3731, and the Double Jeopardy Clause barred
further proceedings. The court of appeals rejected petitioners'
statutory claim, noting that the government had filed its notice of
appeal within 30 days and had filed its brief in a timely manner. The
court recognized that the government had "obtained from (the court)
two extensions totalling sixty days within which to file its brief."
Pet. App. B4. The court, however, was "not prepared to hold that such
proves a lack of diligence on the part of the government." Ibid. "All
things considered," the court concluded, "the matter has been
diligently pursued by all concerned in this court." Ibid.
Addressing petitioners' constitutional claim, the court of appeals
determined that the "prosecutorial misconduct" at issue "was not a
calculated move by government counsel to provoke (petitioners) into
requesting dismissal." Pet. App. B5. In these circumstances, the
Double Jeopardy Clause did not bar the government's appeal. Ibid.
(citing United States v. Dinitz, 424 U.S. 600 (1976)).
Turning to the merits of the government's appeal, the court
accepted the government's concession that it had not fully and
promptly complied with the district court's discovery orders.
Nevertheless, the court of appeals determined that "the district
court's characterization of the prosecutor's conduct as being the
result of 'bad faith' is simply not borne out by the record." Pet.
App. B6. Rather, the government's lapses stemmed from the
prosecutor's "inexperience * * *, and perhaps carelessness." Ibid.
The court of appeals also found that petitioners "knew about many, if
not all, matters they were attempting to obtain from government
counsel," id. at B9, and that "at the moment that the indictment was
dismissed, it would appear the government counsel had substantially
complied with all discovery orders," id. at B9-B10. In other words,
petitioners "ha(d) not shown how they would have been prejudiced if
required to continue with the trial after receiving the requested
materials from the government." Id. at B10 n.2.
The court of appeals observed that petitioners did not cite "any
Tenth Circuit case where (the court) upheld a district court's
dismissal of an indictment because of prosecutorial misconduct." Pet.
App. B10. Since "there (was) nothing in the record to indicate bad
faith," id. at B9, and petitioners had not shown any prejudice from
the government's actions, the court of appeals held that the district
court "abused its discretion in dismissing the indictment because of
the government's failure to comply with discovery orders," ibid.
ARGUMENT
1. Petitioners principally contend (Pet. 6-9) that the government's
repeated violations of the district court's discovery orders warranted
dismissal of the indictment with prejudice. Dismissal of an
indictment for prosecutorial misconduct is an extraordinary sanction
reserved for extreme circumstances of flagrant government misconduct.
See, e.g., United States v. White, 846 F.2d 678, 693 (11th Cir. 1988);
United States v. Wiley, 794 F.2d 514, 515 (9th Cir. 1986); United
States v. Anderson, 778 F.2d 602, 606 (10th Cir. 1985). Moreover,
this Court has made plain that "a district court exceeds its powers in
dismissing an indictment for prosecutorial misconduct not prejudicial
to the defendant * * *." Bank of Nova Scotia v. United States, 487
U.S. 250, 255 (1988); see, e.g., United States v. Mechanik, 475 U.S.
66, 71-72 (1986); United States v. Hasting, 461 U.S. 499, 506 (1983).
The proper approach "has thus been to identify and then neutralize
the taint by tailoring relief appropriate in the circumstances to
assure the defendant * * * a fair trial." United States v. Morrison,
449 U.S. 361, 365 (1981); see, e.g., United States v. McClintock, 748
F.2d 1278, 1285 (9th Cir. 1984), cert. denied, 474 U.S. 822 (1985).
/6/
Here, as the court of appeals correctly determined, the district
court abused its discretion in imposing the draconian sanction of
dismissal of the indictment with prejudice. The record did not
support the district court's conclusion that the government
deliberately and in bad faith hid exculpatory information from
petitioners. At most, as the court of appeals concluded, the record
shows that the prosecutor's inexperience, and perhaps carelessness,
accounted for the government's lapses. Moreover, petitioners did not
suffer any prejudice from the government's piecemeal discovery
disclosures. As the court of appeals recognized, petitioners "knew
about many, if not all, matters they were attempting to obtain from
government counsel," Pet. App. B9, and "at the moment that the
indictment was dismissed, it would appear the government counsel had
substantially complied with all discovery orders," id. at B9-B10. In
these circumstances, a brief continuance -- a remedy far less drastic
than outright dismissal -- plainly would have enabled petitioners to
take full advantage of the additional impeachment material disclosed
by the government. /7/
2. Petitioners also contend (Pet. 12-15) that since the Double
Jeopardy Clause barred further proceedings in the case, the court of
appeals should have dismissed the government's appeal. In this case,
the district court dismissed the indictment with prejudice in response
to petitioners' joint motions for dismissal or a mistrial. As this
Court has made clear, when a defendant seeks to end the trial on
grounds unrelated to guilt or innocence, the Double Jeopardy Clause
does not bar the government from appealing that ruling. United States
v. Scott, 437 U.S. 82, 98-99 (1978). The Court, however, has carved
out a narrow exception to this rule: "Only where the governmental
conduct in question is intended to 'goad' the defendant into moving
for a mistrial may a defendant raise the bar of double jeopardy to a
second trial after having succeeded in aborting the first on his own
motion." Oregon v. Kennedy, 456 U.S. 667, 676 (1982); see United
States v. Dinitz, 424 U.S. 600, 611 (1976). Here, as the court of
appeals expressly concluded, the "prosecutorial misconduct * * * was
not a calculated move by government counsel to provoke defendants into
requesting dismissal." Pet. App. B5. Accordingly, the Double Jeopardy
Clause would not bar a retrial and therefore did not warrant dismissal
of the government's appeal.
Finally, petitioners contend (Pet. 15-17) that the government did
not diligently prosecute its appeal as required by 18 U.S.C. 3731.
The record shows that the district court dismissed the case on October
12, 1988, and the government filed a notice of appeal on November 10,
1988 -- within the 30-day period required by Fed. R. App. P. 4(a). On
January 20, 1989, the trial transcript was filed in district court,
which triggered the setting of a briefing schedule; the court of
appeals ordered the government to file its opening brief on March 1,
1989. Thereafter, the court of appeals, on the government's request,
granted two extensions of time -- ultimately to April 28, 1989 --
within which to file its brief. The government filed its brief on
that date. Pet. App. B3. Since the government complied with the
court of appeals' scheduling order, it plainly prosecuted the appeal
with the diligence contemplated by 18 U.S.C. 3731. /8/
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
EDWARD S. G. DENNIS, JR.
Assistant Attorney General
DEBORAH WATSON
Attorney
MAY 1990
/1/ Petitioners were each charged with one count of conspiracy to
defraud a savings and loan institution, in violation of 18 U.S.C. 371,
one count of bank fraud, in violation of 18 U.S.C. 1344, and one count
of wire fraud, in violation of 18 U.S.C. 1343. In addition, each
petitioner was charged with three counts of making false statements to
a bank, in violation of 18 U.S.C. 1014. Petitioner Herrmann alone
faced an additional bank fraud count. Gov't C.A. Br. 1-2 & n.1.
/2/ Stefanoff was charged as a co-defendant in the indictment.
Before trial, he entered into a plea agreement with the government.
In exchange for pleading guilty to certain charges, Stefanoff agreed
to testify as a government witness. Pet. App. B2.
/3/ The record showed that some of the information contained in
those FBI 302 reports was the same information contained in other
reports previously disclosed to petitioners. Petitioners already knew
of other information contained in the tardily disclosed reports. See
Gov't C.A. Br. 15-16 & n.4.
/4/ Shortly after the trial began, the government also provided
petitioners with banking records relating to Victor that the FBI had
obtained the previous year from the Federal Home Loan Bank Board. The
prosecutor had only recently learned of the existence of those
records. Gov't C.A. Br. 20-21.
/5/ That remark referred to the fact that the prosecutor was trying
his second federal criminal case. Pet. App. B6-B7.
/6/ A similar regime limits a court's discretion to impose
sanctions for discovery violations under Fed. R. Crim. P. 16(d)(2).
In those circumstances, a court must consider such factors as the
reason for the violation, the delay in providing the discovery, and
the feasibility of curing any prejudice with a continuance. See,
e.g., United States v. Fernandez, 780 F.2d 1573, 1576 (11th Cir.
1986). And any sanction imposed should be the "least severe sanction
that will accomplish . . . prompt and full compliance with the court's
discovery orders." United States v. Wicker, 848 F.2d 1059, 1060 (10th
Cir. 1988) (quoting United States v. Sarcinelli, 667 F.2d 5, 7 (5th
Cir. 1982)).
/7/ Petitioners suggest in passing (Pet. 10-12) that the decision
below conflicts with United States v. Wicker, supra. In that case,
the government disclosed the results of certain laboratory tests to
the defense several weeks after the district court's discovery
deadline; the district court therefore excluded that evidence from
the government's case as a sanction under Fed. R. Evid. 16(d)(2). 848
F.2d at 1060. The court of appeals affirmed, holding that the
district court properly considered, among other factors, the fact that
the "defendants were prejudiced by the government's noncompliance."
Id. at 1061. Here, by contrast, the court of appeals determined that
the government's tardy disclosure of impeachment material could not
have prejudiced petitioners. For that reason, the decision below is
consistent with Wicker.
/8/ Petitioners suggest (Pet. 17) that the government
misrepresented the facts when, in requesting the first extension of
time, it stated that additional time was needed because of the press
of business in the United States Attorney's Office in Muskogee,
Oklahoma. Petitioners point out that attorneys for the Department of
Justice in Washington, D.C., rather than attorneys in the Eastern
District of Oklahoma, prepared and filed the government's brief.
The record shows that when the United States Attorney's Office
received a copy of the trial transcript in late January 1989, it sent
a copy of that transcript to the Department of Justice in order to
assist the Solicitor General in his decision whether to authorize
further review. After a review of the record, the Solicitor General
authorized an appeal and recommended that the briefing be handled by
an attorney in the Criminal Division of the Department of Justice.
The Solicitor General therefore asked the United States Attorney's
Office to file a motion in the court of appeals for a second extension
of time in order to give that attorney adequate time to prepare the
government's brief. See Gov't Resp. to Appellees' Mot. to Dis. 5-7,
United States v. Dennison, No. 88-2802 (10th Cir. filed June 15,
1989). Accordingly, the fact that an attorney in the Justice
Department filed the government's brief is not at all inconsistent
with representations made by the United States Attorney in connection
with the first request for an extension of time. Moreover, since the
government disclosed all of these facts to the court of appeals, that
court was well aware of the circumstances surrounding the government's
need for additional time.
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