Volume 1 of 2
`
`PUBLISHED
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE FOURTH CIRCUIT
`
`UNITED STATES OF AMERICA,
`Plaintiff-Appellant,
`
`v.
`
`PAUL WAYNE DERRICK,
`Defendant-Appellee.
`
`DALE L. DUTREMBLE; E. BART
`DANIEL; RICHARD GREER,
`Amici Curiae,
`
`and
`
`CHARLESTON POST AND COURIER,
`Movant.
`
`UNITED STATES OF AMERICA,
`Plaintiff-Appellant,
`
`v.
`
`JEFFERSON MARION LONG, JR., a/k/a
`Bud,
`
`Defendant-Appellee.
`
`DALE L. DUTREMBLE; E. BART
`DANIEL; RICHARD GREER; ALVA
`TAYLOR BROWN, Personal
`Representative of the Estate of
`LUTHER LANGFORD TAYLOR;
`
`No. 97-4230
`
`No. 97-4231
`
`

`
`NATIONAL ASSOCIATION OF CRIMINAL
`DEFENSE LAWYERS,
`Amici Curiae,
`and
`
`CHARLESTON POST AND COURIER,
`Movant.
`
`UNITED STATES OF AMERICA,
`Plaintiff-Appellant,
`
`v.
`
`LARRY BLANDING,
`Defendant-Appellee.
`
`DALE L. DUTREMBLE; E. BART
`DANIEL; RICHARD GREER; ESTATE OF
`BENJAMIN J. GORDON, JR., a/k/a B. J.
`
`Gordon; ALVA TAYLOR BROWN,
`Personal Representative of the
`Estate of LUTHER LANGFORD TAYLOR;
`NATIONAL ASSOCIATION OF CRIMINAL
`DEFENSE LAWYERS,
`Amici Curiae,
`
`and
`
`CHARLESTON POST AND COURIER,
`Movant.
`
`Appeals from the United States District Court
`for the District of South Carolina, at Columbia.
`Falcon B. Hawkins, Chief District Judge.
`(CR-91-91-FBH, CR-91-384-FBH, CR-90-434-FBH)
`
`Argued: May 7, 1998
`
`Decided: November 23, 1998
`
` 2
`
`No. 97-4232
`
`

`
`Before WIDENER, NIEMEYER, and LUTTIG, Circuit Judges.
`
`_________________________________________________________________
`
`Vacated and remanded by published opinion. Judge Luttig wrote the
`opinion, in which Judges Widener and Niemeyer joined. Judge Wid-
`ener wrote a separate concurring opinion.
`
`_________________________________________________________________
`
`COUNSEL
`
`ARGUED: Elizabeth Dorsey Collery, Appellate Section, Criminal
`Division, UNITED STATES DEPARTMENT OF JUSTICE, Wash-
`ington, D.C., for Appellant. Dale L. DuTremble, Charleston, South
`Carolina; Gedney Main Howe, III, Charleston, South Carolina, for
`Amici Curiae DuTremble, Daniel and Greer. Joel Wyman Collins, Jr.,
`COLLINS & LACY, P.C., Columbia, South Carolina; Jack Bruce
`Swerling, Columbia, South Carolina, for Appellees. Marvin David
`Miller, Alexandria, Virginia; Lionel S. Lofton, Charleston, South Car-
`olina; Joel W. Collins, Jr., COLLINS & LACY, P.C., Columbia,
`South Carolina, for Amici Curiae Association, Gordon, and Estate of
`Taylor. ON BRIEF: John C. Keeney, Acting Assistant Attorney Gen-
`eral, Criminal Division, UNITED STATES DEPARTMENT OF JUS-
`TICE, Washington, D.C., for Appellant. James E. Bell, III, BELL &
`MOORE, Sumter, South Carolina, for Appellee Blanding. Lisa B.
`Kemler, ZWERLING & KEMLER, Alexandria, Virginia, for Amicus
`Curiae Association.
`
`_________________________________________________________________
`
`OPINION
`
`LUTTIG, Circuit Judge:
`
`Appellant, the United States of America, appeals from the order of
`the federal district court for the District of South Carolina, dismissing
`with prejudice five indictments returned in the aftermath of the so-
`called Operation Lost Trust investigation into political corruption in
`the South Carolina Statehouse in the early 1990s. For the reasons that
`
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`
`

`
`follow, we vacate the opinion of the district court and remand with
`instructions that the dismissed indictments be reinstated.
`
`I.
`
`This case arises from an FBI investigation into political corruption
`in the South Carolina legislature in connection with its consideration
`in 1990 of the state's parimutuel betting legislation. That investigation
`resulted in the prosecution and conviction by jury of the defendants
`-- Larry Blanding, Paul Wayne Derrick, and Jefferson Marion Long,
`Jr.1 -- for various offenses, including extortion under color of official
`right and conspiracy to commit extortion, in violation of the Hobbs
`Act, 18 U.S.C. § 1951. Defendants Blanding's and Derrick's convic-
`tions (as well as Taylor's and Gordon's) were eventually overturned
`by this court on appeal on the grounds that the intervening Supreme
`Court decisions in McCormick v. United States, 500 U.S. 257 (1992),
`and Evans v. United States, 504 U.S. 255 (1992), rendered defective
`the jury instructions that were given at their trials. See United States
`v. Blanding, 1992 WL 138353 (4th Cir. No. 91-5871); United States
`v. Derrick, 1994 WL 34691 (4th Cir. No. 92-5084). We affirmed the
`district court's award of a new trial to defendant Long based upon the
`improper playing of inadmissible tape recordings before his jury.
`United States v. Long, 1994 WL 56993 (4th Cir. No. 92-6799).
`Accordingly, all three cases were remanded to the district court for
`retrial.
`
`Upon remand, defendant Taylor moved for dismissal of his super-
`seding indictment, which had also included defendants Gordon and
`Blanding, on the grounds of discovery violations and other alleged
`prosecutorial misconduct. And in response to these allegations of
`improper withholding of documents and other wrongdoing, the gov-
`ernment decided essentially to "start over on discovery by providing
`it again." United States v. Taylor , 956 F. Supp. 622, 626 n.4 (D.S.C.
`_________________________________________________________________
`1 Two other original defendant-appellees to this appeal, Luther Taylor
`and B.J. Gordon, are now deceased. Taylor passed away on March 23,
`1997, and Gordon passed away on July 12, 1997. Consequently, neither
`of these individuals is a party to this appeal. By order of the court, how-
`ever, we granted the estates of both of these defendants the opportunity
`to participate as amicus curiae.
`
` 4
`
`

`
`1997) (district court order dismissing defendants' indictments) (quot-
`ing 10/18/94 OPR Report at 10). This decision having been made, the
`government produced to the defendants "all [FBI] 302s that men-
`tioned any co-conspirator named in the new indictment as well as all
`pre-trial Jencks Act materials." J.A. at 2688. This production on
`November 29, 1993, prompted defendant Gordon also to move for the
`dismissal of his indictment on the grounds that the government had
`improperly withheld materials required to be produced under Brady
`v. Maryland, 373 U.S. 83 (1963).
`
`On February 22, 1994, the district court granted the government's
`motion for continuance in order to allow the Department of Justice's
`Office of Professional Responsibility (OPR) to investigate the defen-
`dants' allegations of prosecutorial misconduct. That investigation,
`which disclosed no intentional misconduct by the prosecution in these
`cases, was concluded in October of 1994. Although the Department
`of Justice found that the prosecution had not engaged in any inten-
`tional wrongdoing, the United States Attorney for South Carolina
`recused his office from further involvement, and attorneys from Pub-
`lic Integrity at Main Justice assumed responsibility for prosecution of
`the cases.
`
`Thereafter, at an October 20, 1994, status conference, the govern-
`ment agreed to produce to the defendants all FBI 302s and transcripts
`in its possession relating to the investigation, reserving the right to
`seek in camera review by the court of any materials the government
`believed should not be produced. J.A. at 1334, 1341. The district
`court also ordered the government to produce any existing handwrit-
`ten interview notes. J.A. at 1348. All of these materials were to be
`surrendered by December 1, 1994, into the evidence room established
`by the district court. J.A. at 1352-53 (district court discovery order).
`Pursuant to its promise at the status conference, the government
`placed a large number of documents in the evidence room. Addition-
`ally, acting upon its reservation of right, the government submitted a
`number of FBI 302s to the court for in camera inspection and argued
`that they should not be produced to the defendants.
`
`In January and February of 1995, the prosecution learned that the
`FBI had in its possession tape recordings and FBI 302s relating to the
`1988-89 drug investigations of prosecution witness Ron Cobb. Upon
`
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`
`

`
`learning of these materials, the prosecution obtained these documents
`and turned them over to the defendants.
`
`Following the above-described productions, the defendants pro-
`posed to the court at its April 19, 1995, hearing on pending discovery
`motions, that
`
`the government take every scrap of paper that they have,
`every internal memorandum, every piece of correspondence,
`every doodle pad, every videotape, every transcript, every
`audio tape, everything, put it in the room.
`
`J.A. at 1364-65. (The same day, defendant Derrick filed a motion to
`dismiss his indictment.) And the following day, over the govern-
`ment's objections that it had already produced far more documents
`than required by Brady and federal rules, the district court issued an
`order "[t]o avoid any further confusion as to what material should and
`should not be turned over by the government to the .. . defendants."
`J.A. at 1418, 1419. That order required the government to produce for
`in camera inspection by May 8, 1995, "all documents and/or materi-
`als in [its] possession . . . dealing with these cases and not presently
`available to the defendants in the `evidence room'." J.A. at 1420. In
`compliance with the court's order, the government produced, accord-
`ing to the district court, seven file boxes from the Department of Jus-
`tice, four file boxes from the FBI, and one file box from the Office
`of Professional Responsibility. See J.A. at 1422.
`
`In a July 25, 1995, discovery order entered following its in camera
`review of the materials produced pursuant to its earlier orders, the dis-
`trict court concluded that the government's argument that the drug-
`related audiotapes produced in March of 1995 were not relevant or
`discoverable under Brady was "ludicrous" because "the drug investi-
`gation was hand-in-glove with the corruption investigation known as
`Lost Trust." J.A. at 1427. Arguments such as the one made by the
`government, the district court said, "cause the court to look very
`closely at what was withheld by the government that may have jeop-
`ardized the rights of these defendants." J.A. at 1427. The court also
`concluded that documents relating to corruption in connection with
`the capital gains legislation (as opposed to the parimutuel betting leg-
`islation that was the subject of the Lost Trust sting operation) were
`
` 6
`
`

`
`relevant to the defendants' defense because "one of the key figures in
`the Lost Trust investigation pled to a RICO violation, one of the pred-
`icate offenses of which was the taking of a bribe from the govern-
`ment's cooperating subject and key Lost Trust witness, Ron Cobb, in
`relation to the capital gains tax bill." J.A. at 1428.
`
`As to the documents submitted by the government for in camera
`inspection, the district court concluded they were
`
`in the main, internal administrative documents constituting
`privileged work products, or are documents that are part of
`the public record in these cases, or are copies of documents
`known by this court to have been previously furnished to
`defendants. The court has found few additional materials
`therein to which it believes these defendants are entitled
`under either Brady or within the meaning of the "open file
`policy" in effect in this district.
`
`J.A. at 1430 (emphasis added). The court ordered the government to
`produce but ten specific documents in addition to OPR interview
`notes. J.A. at 1440.
`
`The district court subsequently amended its July 25 discovery order
`a number of times, including once on September 7, 1995. In its Sep-
`tember 7 amended order, the court ordered "that should the govern-
`ment come into possession of any evidence which might impact on
`the alleged capital gains cover-up, such information and/or materials
`shall be immediately submitted to this court for in camera review."
`J.A. at 1457. In response to this amended order, the government
`inquired, J.A. at 1542, and was informed by the FBI that Special
`Agent Denton had located, "on the 14th floor of the Strom Thurmond
`Federal Building in a section of files known as closed files," J.A. at
`1540, an investigative file for the capital gains matter.2 The govern-
`ment notified the court that it had found this file, placed some of the
`_________________________________________________________________
`2 Special Agent Denton testified:
`
`I noticed on one of the files a file number that was not the Lost
`Trust file, it was down at the bottom of an empty 302, and it had
`the Lost Trust file number on it and it had another file number.
`
`. . .
`
`It turns out it was the capital gains file, which was not indexed
`capital gains.
`
`J.A. at 1542.
`
` 7
`
`

`
`documents in the evidence room, and, on October 4, 1995, submitted
`other documents for in camera review by the court. In an order dated
`October 6, 1995, the district court indicated that the submitted docu-
`ments "should have been furnished long ago" and, acknowledging
`that it had "made only a cursory in camera review of the documents,"
`ordered them produced to the defendants. J.A. at 1460.
`
`On October 18-20, 1995, the court conducted an evidentiary hear-
`ing on the defendants' claims of prosecutorial misconduct. During
`this hearing, which related primarily to the capital gains investigation,
`Special Agent Denton, after testifying that the FBI maintained "coop-
`erating witness" files, was asked to search his files again for any files
`relating to Ron Cobb. In conducting this review, Denton found an FBI
`302 on Robert Kohn, which was generated after the defendants' trials
`and which he produced to the defendants. Rejecting the defendants'
`suggestion that this document had been intentionally withheld, the
`district court stated:
`
`[O]ut of the thousands and thousands of documents that's
`passed through this court, I'm not surprised that there's one
`that got overlooked, or lost, or whatever it is. . .. Now, I had
`not seen that last 302 that was found, and I don't know if
`it contains anything that would warrant anybody trying to
`intentionally hide it. I have already heard the agent say that
`he didn't intentionally do it. He doesn't know how it got
`misplaced, but he found it, and he gave it up.
`
` I guess he would have been better off if he had just acted
`like he didn't find it, but I think he's trying to comply with
`the court's orders, and there have been several of these
`things that have come up after a more thorough investiga-
`tion.
`
`J.A. at 1929.
`
`At the conclusion of the hearing, the district court said that it
`wanted to re-review the boxes of documents that it had already
`reviewed in camera and had said in its July 25, 1995 order need not
`be produced. On February 6, 1996, the court ordered that all of these
`documents be produced to the defendants, reasoning that "little, if
`
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`
`

`
`anything, contained therein can still be classified as `sensitive'," "a
`wider latitude must be given with regard to materials to be furnished
`for the purposes of the defendants' pursuit of their motions to dismiss
`for prosecutorial misconduct than might be given for trial prepara-
`tion," and that "no prejudice will inure to the government should this
`court order all of these documents furnished to the defendants." J.A.
`at 1946-47.
`
`On October 3, 1996, the district court reconvened the hearing on
`defendants' motions to dismiss their indictments, and thereafter
`received additional briefing in support of and in opposition to the
`motions to dismiss. And, on February 3, 1997, the district court
`entered its order dismissing the defendants' indictments with preju-
`dice pursuant to its supervisory power.
`
`Rejecting the government's contention that the dismissal of the
`indictments would be unauthorized absent a specific finding that the
`alleged prosecutorial misconduct prejudiced the defendants, the dis-
`trict court stated:
`
`The court is convinced that the totality of the government's
`actions in these matters rises to the level of egregious pro-
`secutorial misconduct, and that this is a sufficient finding on
`which the court can exercise its supervisory power.
`
`. . .
`
`The government would argue that in using its supervisory
`power the court must find pattern and prejudice, and that the
`defendants have proven neither. The court agrees that the
`circuits are in disarray on this subject, but believes there is
`sufficient precedent to dismiss the subject indictments with-
`out addressing these issues.
`
`956 F. Supp. at 623; see also id. (district court concluding that "it has
`the discretion under the doctrine of the court's supervisory power to
`dismiss should it find the government's actions so outrageous as to
`offend the sensibilities of the court").3 From the district court's order
`_________________________________________________________________
`3 The district court summarized its beliefs as to the prosecution's mis-
`conduct as follows:
`
` 9
`
`

`
`dismissing the defendants' indictments pursuant to its supervisory
`power, the United States appealed.4
`
`II.
`
`As the United States vigorously asserts, the district court's dis-
`missal of the defendants' indictments without a finding of prejudice
`is directly contrary not only to the precedent of this court, but also to
`clear and well-established Supreme Court precedent. As the Supreme
`Court held in United States v. Hasting , 461 U.S. 499 (1983), a court's
`"supervisory powers to discipline the prosecutors of its jurisdiction"
`may not be invoked to reverse a defendant's conviction for prosecu-
`torial misconduct where the alleged misconduct was harmless. Id. at
`505. In Hasting, the Seventh Circuit had,"notwithstanding the harm-
`less nature of the error," id. at 504, reversed the defendants' convic-
`tions because the prosecutor had commented on the defendants'
`_________________________________________________________________
`
`The court is convinced that this investigation began in an appro-
`priate fashion. It is, after all, the responsibility of the FBI and the
`USAO to pursue information with regard to illegal acts within
`their jurisdiction. It is the opinion of the court, however, that
`some of the investigators and lead prosecutors got lost on their
`way to the lofty goal of weeding out drugs and corruption from
`the South Carolina State House. Overzealousness and political
`pressure upon those in positions of authority appear to be the
`detours that led the government to rush to trial, especially in the
`cases of Taylor, Blanding and Gordon; to withhold volumes of
`exculpatory evidence; to allow perjured testimony to stand
`uncorrected on more than one occasion; to allow its primary
`cooperating witness, Cobb, to take an unusual amount of control
`of the sting operation; to go outside of its own regulations to tar-
`get certain legislators, and to mislead this court to such an extent
`as to perpetrate a fraud upon the court.
`
`956 F. Supp. at 658.
`
`4 By orders of this court, former prosecutors E. Bart Daniel and Dale
`L. DuTremble, joined by Richard Greer, were permitted to participate in
`this appeal as amicus curiae, as were the estates of Luther Taylor and
`Benjamin Gordon. The brief filed by Daniel, DuTremble, and Greer will
`be referred to throughout as the brief of the "prosecutors amici."
`
` 10
`
`

`
`failure to testify in violation of Griffin v. California, 380 U.S. 609
`(1965). The Court of Appeals had, through its reversal of the convic-
`tions, sought "to discipline the prosecutor -- and warn other prosecu-
`tors -- for what it perceived to be continuing violations of Griffin"
`within the circuit. Hasting, 461 U.S. at 504. The Supreme Court,
`however, reversed, holding that a court's supervisory powers may not
`be invoked to evade the harmless error rule for constitutional violations5
`because "the interests preserved by the doctrine of harmless error" --
`including the interest of the victims in seeing the defendants brought
`to justice and the public's interest in the "prompt administration of
`justice" -- "cannot be so lightly and casually ignored in order to chas-
`tise what the court viewed as prosecutorial overreaching." Hasting,
`461 U.S. at 507, 509, 505. The Court reasoned that invocation of the
`"[s]upervisory power to reverse a conviction is not needed as a rem-
`edy when the error to which it is addressed is harmless since by defi-
`nition, the conviction would have been obtained notwithstanding the
`asserted error." Id. at 506. The Court also noted that concern for "the
`integrity of the process carries less weight" when the error is harmless
`because there is "no `reasonable possibility' that [it] contributed to the
`conviction." Id. (quoting Fahy v. Connecticut, 375 U.S. 84, 86-87
`(1963)). Finally, the Court explained, "deterrence is an inappropriate
`basis for reversal where, as here, [the constitutional violation is at best
`"attenuated"] and where means more narrowly tailored to deter objec-
`tionable prosecutorial conduct are available." 6 Id. (footnotes omitted).
`
`It would seem to follow, a fortiori, from the Court's holding in
`Hasting that a court may not, without finding prejudice to the defen-
`dant, exercise its supervisory power to reverse a defendant's convic-
`tion and require a retrial based upon prosecutorial misconduct, that a
`court may not dismiss an indictment altogether on this ground without
`also finding prejudice. The dismissal of an indictment altogether
`clearly thwarts the public's interest in the enforcement of its criminal
`laws in an even more profound and lasting way than the requirement
`_________________________________________________________________
`5 See Chapman v. California, 386 U.S. 18 (1967).
`6 The Court noted that more narrowly tailored means of deterrence
`included "order[ing] the prosecutor to show cause why he should not be
`disciplined," "asking the Department of Justice to initiate a disciplinary
`proceeding against him," or "publically chastis[ing] the prosecutor by
`identifying him in its opinion." Hasting, 461 U.S. at 506 n.5.
`
` 11
`
`

`
`of a retrial. And, indeed, in Bank of Nova Scotia v. United States, 487
`U.S. 250 (1988), the Court reaffirmed its analysis in Hasting and
`squarely held that a court has "no authority to dismiss the indictment
`on the basis of prosecutorial misconduct absent a finding that petition-
`ers were prejudiced by such misconduct." Id . at 263.
`
`Defendants apparently contend that the Court's holding in Nova
`Scotia applies only to prosecutorial misconduct that occurs at the
`grand jury stage.7 See Appellee's Br. at 93. However, although the
`misconduct at issue in Nova Scotia did occur before the grand jury,
`see id. at 254 ("[A]s a general matter, a district court may not dismiss
`an indictment for [prosecutorial misconduct] in grand jury proceed-
`ings unless such errors prejudiced the defendants."), both the Court's
`analysis and the text of its opinion confirm that Nova Scotia's holding
`applies equally to prosecutorial misconduct that occurs at the pre-trial
`and trial stages of a prosecution.
`
`Specifically, the Court reasoned that all federal courts are bound by
`Federal Rule of Criminal Procedure 52(a) to conduct the harmless-
`error inquiry and that a "court may not invoke supervisory power to
`circumvent" that inquiry. Id. at 254-55. As the Court explained, "[t]he
`balance struck by [Rule 52(a)] between societal costs and the rights
`of the accused may not casually be overlooked `because a court has
`elected to analyze the question under the supervisory power.'" Id. at
`255 (quoting United States v. Payner, 447 U.S. 727, 736 (1990)).
`Thus, the Court held broadly that "a district court exceeds its powers
`in dismissing an indictment for prosecutorial misconduct not prejudi-
`cial to the defendant," Nova Scotia, 487 U.S. at 255.
`
`Other Supreme Court cases likewise confirm that a court's supervi-
`sory power cannot be exercised to dismiss indictments for govern-
`ment misconduct absent a showing of prejudice to the defendants.
`See, e.g., United States v. Morrison, 449 U.S. 361, 365-67 (1981)
`(holding that dismissal of an indictment was an inappropriate remedy
`for an alleged Sixth Amendment violation that did not prejudice the
`defendant, even though the conduct of the government agents was
`"egregious"); id. at 365 ("[A]bsent demonstrable prejudice or substan-
`_________________________________________________________________
`7 The district court in this case made no findings of prosecutorial mis-
`conduct before the indicting grand jury. See Appellees' Brief at 93.
`
` 12
`
`

`
`tial threat thereof, dismissal of the indictment is plainly inappropriate,
`even though the violation may have been deliberate." (footnote omit-
`ted)); cf. United States v. Payner, 447 U.S. 727, 733 (1980) (holding
`that district court cannot invoke its supervisory power to circumvent
`the Fourth Amendment standing rules by excluding evidence seized
`illegally and in bad faith by the government in violation of a third
`party's -- but not the defendant's -- constitutional rights).
`
`We, too, have consistently recognized that an indictment may not
`be dismissed for prosecutorial misconduct absent a showing that the
`misconduct prejudiced the defendant. See, e.g., United States v.
`McDonald, 61 F.3d 248, 253 (4th Cir. 1995) (holding that indictment
`should not be dismissed for alleged prosecutorial misconduct before
`the grand jury that did not prejudice the defendant because "[t]he
`United States Supreme Court has recognized . . . that an indictment
`may be quashed on the basis of prosecutorial misconduct, but only
`where the government's misdeeds `substantially influenced the grand
`jury's decision to indict, or if there is grave doubt that the decision
`to indict was free from the substantial influence of such violations'"
`(quoting Nova Scotia, 487 U.S. at 256) (internal quotation marks
`omitted)); United States v. Lee, 906 F.2d 117, 120 (4th Cir. 1990)
`("[T]he district court erred in dismissing the indictment [based on the
`prosecution's failure to produce a defense witness, who was allegedly
`"within government control,"] because, as the Supreme Court has
`explained, `absent demonstrable prejudice, or substantial threat
`thereof, dismissal of the indictment is plainly inappropriate, even
`though the violation may have been deliberate.'" (quoting Morrison,
`449 U.S. at 365; citing Nova Scotia, 487 U.S. at 254)); United States
`v. Hastings, 126 F.3d 310, 317 (1997) (holding that, although the
`government's improper refusal to comply with a discovery order war-
`ranted sanctions, dismissal of the indictment was"an extreme and
`inappropriate sanction" where the only prejudice to defendant was
`"inconvenience and slight expense of delays").
`
`And virtually every other circuit to consider the issue post-Hasting
`and Nova Scotia has also held that an indictment may not be dis-
`missed based on prosecutorial misconduct, absent a showing of preju-
`dice to the defendant. See, e.g., United States v. Van Engel, 15 F.3d
`623, 631-32 (7th Cir. 1993) ("A federal judge is not authorized to
`punish the misconduct of a prosecutor by letting the defendant walk,
`
` 13
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`

`
`unless the misconduct not only violated the defendant's rights but also
`prejudiced his defense, and neither condition is satisfied here.");
`United States v. Santana, 6 F.3d 1, 11 (1st Cir. 1993) ("[T]aken
`together, Payner, Hasting, and Bank of Nova Scotia form a trilogy
`admonishing federal courts to refrain from using the supervisory
`power to conform executive conduct to judicially preferred norms by
`dismissing charges, absent cognizable prejudice to a particular defen-
`dant."); United States v. Isgro, 974 F.2d 1091, 1097 (9th Cir. 1992)
`("In its recent jurisprudence . . . the Supreme Court has moved . . .
`toward a rule that a court should not use its supervisory powers to
`mete out punishment absent prejudice to a defendant."); id. ("Hasting
`thus unequivocally rejects the idea that a court may sanction the gov-
`ernment for its misconduct without considering first the actual preju-
`dice suffered by the defendant.").
`
`The district court ignored entirely this impressive body of estab-
`lished Supreme Court and appellate court caselaw, failing even to cite
`to a single one of the cases discussed above. Instead, the district court
`relied on a number of district court cases -- all of which predated
`Hasting or Nova Scotia or both, and most of which are easily distin-
`guishable from the present case in any event. See 956 F. Supp. at 657-
`59, citing to United States v. Omni Intern Corp., 634 F. Supp. 1414
`(D. Md. 1986) (dismissing indictment without prejudice); United
`States v. Fischbach & Moore, Inc., 576 F. Supp. 1384, 1396 (W.D.
`Pa. 1983) (denying defendant's motion for release of grand jury tran-
`scripts because there was no evidence that the government abused the
`grand jury process and "no indication of actual prejudice to defen-
`dant"); United States v. Lawson, 502 F. Supp. 158, 172 (D. Md. 1980)
`(dismissing indictment without prejudice); United States v. DeMarco,
`407 F. Supp. 107 (C.D. Cal. 1975); United States v. Banks, 383 F.
`Supp. 389 (D.S.D. 1974). Additionally, the district court relied on
`three circuit court cases. Two of these predated Nova Scotia, see 956
`F. Supp. at 658, citing United States v. Serubo, 604 F.2d 807 (3d Cir.
`1979), and United States v. Hogan, 712 F.2d 757 (2d Cir. 1983),8 and
`the other failed even to cite Nova Scotia or Hasting, see United States
`_________________________________________________________________
`8 Hogan is also easily distinguishable from the case at hand, because
`the court in that case found that the error was not harmless: "If not for
`the clear prejudice resulting from the AUSA's misconduct, appellants
`might not have been indicted." 712 F.2d at 762 n.2.
`
` 14
`
`

`
`v. Kojayan, 8 F.3d 1315 (9th Cir. 1993). 9 Obviously, none of the
`cases cited by the district court can overcome the force of the control-
`ling Supreme Court authority requiring the district court to find preju-
`dice to the defendants before dismissing indictments based on
`prosecutorial misconduct.
`
`It is hardly surprising, however, that even in the face of these pre-
`cedents, the district court declined to make any findings that the
`defendants were, in fact, prejudiced. As the district court itself noted,
`the bulk of the misconduct it identified related to discovery violations,
`and the defendants now have all of the discovery materials to which
`they could possibly be entitled -- and considerably more -- available
`to them for use at their retrials. Thus, any prejudice that arguably
`existed as a consequence of discovery violations is fully remedied by
`this court's orders of new trials. See United States v. Borakinni, 748
`F.2d 236, 237 (4th Cir. 1984) (rejecting defendant's claim that his
`indictment should have been dismissed because the government failed
`to produce exculpatory material at his first trial because, even "assum-
`ing [defendant] was entitled to the materials at his first trial, his rem-
`edy for the government's failure to furnish them was a new trial, not
`an acquittal"). Similarly, any prejudice to defendants at their original
`_________________________________________________________________
`9 The district court also cited to McNabb v. United States, 318 U.S. 332
`(1943), for the proposition that the "government's misconduct `need not
`be so unfair or imprudent as to offend "due process" before exercise of
`this [court's] supervisory power is appropriate.'" 956 F. Supp. at 658.
`(Although the district court's citation suggests that it was quoting
`McNabb, the quoted phrase does not appear in McNabb). In McNabb, the
`Supreme Court exercised its "supervisory authority over the administra-
`tion of criminal justice in the federal courts," McNabb, 318 U.S. at 341,
`to exclude confessions obtained under oppressive circumstances in "fla-
`grant disregard" of the statutory duty imposed by Congress on law
`enforcement officers promptly to take a person arrested before a judicial
`officer who can determine the sufficiency of the justification for deten-
`tion, id. at 344-45. McNabb provides no support for the district court and
`defendants' contention that the supervisory power can be exercised gen-
`erally (much less exercised to dismiss indictments) to discipline the gov-
`ernment in the absence of prejudice to the defendants, for the Court
`clearly viewed the government tactics employed in McNabb as both prej-
`udicial to the defendants and in clear "violation of [their] legal rights."
`Id. at 346.
`
` 15
`
`

`
`trials that might have resulted from the other alleged misconduct of
`the government would also be fully cured by retrial.
`
`Defendants contend, nonetheles