United States v. Jose Orlando Lopez, (Two Cases)
989 F.2d 1032 (1993)
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Rule of Law:
The dismissal of an indictment under a court's supervisory powers is an improper remedy for a prosecutor's ethical violation unless the defendant can demonstrate that the misconduct caused substantial prejudice to their defense.
Facts:
- Jose Lopez was indicted for drug offenses and retained attorney Barry Tarlow.
- Tarlow informed Lopez of his general policy not to negotiate plea bargains that involved cooperation with the government.
- Concerned about his children's welfare and seeking an early release, Lopez became interested in pursuing a plea bargain.
- James Twitty, the attorney for Lopez's codefendant Antonio Escobedo, arranged meetings for both Lopez and Escobedo with the prosecutor, AUSA Lyons, without Tarlow's knowledge.
- Lopez agreed to the secret meetings because he feared Tarlow would withdraw as his counsel if he found out, and Lopez wanted Tarlow to represent him if the case went to trial.
- Prosecutor Lyons sought and received approval from a magistrate judge for the meetings, but the court later found Lyons had misled the magistrate regarding Lopez's reasons for excluding Tarlow.
- During the meetings, Lopez was accompanied by Twitty, who was not his attorney.
- After Tarlow learned of the secret meetings, he withdrew as Lopez's counsel.
Procedural Posture:
- Jose Lopez was indicted in the U.S. District Court for the Northern District of California.
- After his original attorney withdrew, Lopez, with substitute counsel, filed a motion to dismiss the indictment based on prosecutorial misconduct.
- The district court held six hearings and concluded that the prosecutor, AUSA Lyons, had violated California Rule of Professional Conduct 2-100.
- Exercising its inherent supervisory powers, the district court dismissed the indictment against Lopez.
- The government (appellant) appealed the district court's dismissal to the United States Court of Appeals for the Ninth Circuit, with Lopez as the appellee.
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Issue:
Does the dismissal of an indictment under a court's supervisory powers constitute an appropriate remedy for a prosecutor's violation of a state ethical rule against communicating with a represented defendant, where the defendant has not suffered substantial prejudice to his defense?
Opinions:
Majority - Poole, Circuit Judge
No. Dismissal of the indictment was an abuse of discretion because, while the prosecutor's conduct was improper, it did not result in substantial prejudice to the defendant. The court found that AUSA Lyons violated California Rule of Professional Conduct 2-100 by communicating with Lopez, a represented party, without his counsel's consent. The court rejected the government's arguments that the rule doesn't apply to prosecutors, that the conduct was 'authorized by law' through general prosecutorial statutes, or that the magistrate's approval was valid, since the magistrate was misled by the prosecutor. However, the court held that dismissal of an indictment is an extreme remedy that requires both flagrant government misconduct and substantial prejudice to the defendant. Since the district court found Lopez was able to obtain 'very able' replacement counsel and there was no showing that the loss of his counsel of choice had an impact on the verdict, substantial prejudice was not established. Lesser sanctions, such as contempt or referral to the state bar, are more appropriate remedies for the prosecutor's misconduct.
Concurring - Fletcher, Circuit Judge
No, dismissal was not the proper remedy, but the prosecutor's misbehavior was not the sole cause of this situation. This opinion agrees with the majority's conclusion to reinstate the indictment but writes separately to highlight the contributing misconduct of others. Attorney Tarlow's rigid policy against cooperation pleas placed Lopez in an untenable dilemma. Attorney Twitty acted improperly by facilitating the meetings and advising two clients with potentially conflicting interests. Finally, the magistrate judge could have averted the problem with a more thorough inquiry into Lopez's situation before authorizing the meetings. While the prosecutor's actions were wrong, the entire affair was a 'regrettable result' to which others besides the prosecutor contributed.
Analysis:
This decision establishes a high threshold for dismissing an indictment due to prosecutorial misconduct in the Ninth Circuit. It clarifies that even a clear and deliberate violation of professional ethics by a prosecutor is not, by itself, sufficient grounds for the extreme remedy of dismissal. The ruling requires a separate showing of 'substantial prejudice,' shifting the focus from merely punishing the prosecutor to assessing the actual impact of the misconduct on the defendant's ability to receive a fair trial. This precedent directs lower courts to use alternative sanctions against offending attorneys, such as contempt or disciplinary referrals, rather than dismissing valid indictments where the harm to the defendant's case is not tangible.
