United States of America, Plaintiff-appellant, v. Stephen Anthony Gonsalves, Defendant-appellee, 781 F.2d 1319 (9th Cir. 1986)

Our original judgment in this case (691 F.2d 1310 (9th Cir. 1982)) was vacated by the Supreme Court and remanded for further consideration in light of United States v. Hasting, 461 U.S. 499, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983). United States v. Gonsalves, 464 U.S. 806, 104 S. Ct. 54, 78 L. Ed. 2d 73 (1983). The facts of this case are discussed at length in this court's earlier opinion and need not be repeated here. In our earlier opinion, we affirmed the district court's order dismissing the indictment against Gonsalves pursuant to the exercise of its supervisory powers. Gonsalves, 691 F.2d at 1311. We now reverse that order of dismissal on the ground that the dictates of Hasting, as interpreted by this circuit, have defined and limited the exercise and scope of a federal court's supervisory powers to very specific areas, not including the unmanageability or complexity of an indictment.

Hasting held, and all subsequent Ninth Circuit cases analyzing Hasting have consistently held, that the court's exercise of its supervisory power is limited to three specific areas: (1) to implement a remedy for a violation of recognized rights; (2) to preserve judicial integrity by ensuring that a criminal conviction rests on appropriate considerations validly before the jury; and (3) to deter future illegal conduct.

In U.S. v. Gatto, 763 F.2d 1040 (9th Cir. 1985), this court examined a district court's exercise of its supervisory powers to exclude evidence. This court specifically examined the vacated decision in United States v. Gonsalves, 691 F.2d 1310 (9th Cir. 1982), vacated 464 U.S. 806, 104 S. Ct. 54, 78 L. Ed. 2d 73 (1983). The court in Gatto held that because the Gonsalves case was vacated by the Supreme Court in light of Hasting, "our extensive discussion [on supervisory powers] was insufficiently sensitive to the power's limitations." Gatto, 763 F.2d at 1045. "In particular, the Supreme Court's action [in Hasting ] calls into question the expansive supervisory discretion we attempted to derive from the supposed animating force of 'notions of fair play'." Id. This court further held that

" [a]lthough the Supreme Court continues to recognize that lower federal courts enjoy supervisory power, it has circumscribed this power to the formulation of 'procedural rules not specifically required by the Constitution or the Congress.' " Hasting, 461 U.S. at 505, 103 S. Ct. at 1978 (emphasis added). In addition, it has never identified its source. Beale, supra, at 1434, 1462. It is clear, however, that the power has limits. Hasting, 461 U.S. at 505, 103 S. Ct. at 1978."

Gatto, 763 F.2d at 1045 (emphasis in original).

In United States v. Ramirez, 710 F.2d 535 (9th Cir. 1983), this court examined an appellant's appeal to the supervisory power of the federal courts as an alternative ground for dismissal of his indictment. We held that " [i]n determining whether there was a sound basis for invoking the supervisory power we are guided by United States v. Hasting ... where the Supreme Court listed three purposes which may properly underlie use of the power...." Ramirez, 710 F.2d at 541. This court then looked at the reason for requesting the dismissal of the indictment (law enforcement officials exceeded the bounds of permissible investigatory conduct) and said that the inquiry need go no further. Since none of the three purposes established by the Supreme Court would be furthered by the exercise of the supervisory power, it was not wrong to fail to invoke it. Id.¹ 

It seems to be equally true in this case that none of the purposes established in Hasting would be furthered by the exercise of the court's supervisory powers based on the complexity or unmanageability of the indictment.

In an en banc decision discussing supervisory powers, this court held that " [i]n some appeals from multiple count criminal convictions with concurrent sentences, the societal interests and those of the administration of justice may point towards the wisdom of dismissal of a count. But that can best be accommodated in our system by an appropriate policy instituted by the Department of Justice, not by the ad hoc actions of an appellate court." United States v. De Bright, 730 F.2d 1255, 1258 (9th Cir. 1984). The same should be held to apply with equal force to the dismissal of an indictment due to alleged complexity and unmanageability.² 

For the reasons given above, we REVERSE the action of the district court, reinstate the indictment, and remand for further proceedings.