Unpublished Disposition, 846 F.2d 1383 (9th Cir. 1987)

MEMORANDUM^* 

Kristen Crabtree was indicted on one count of assaulting a federal officer, in violation of 18 U.S.C. § 111, for biting the finger of an FBI agent who had grabbed Crabtree's camera during a demonstration. The district court dismissed the indictment and the government appeals.

FACTS

On Thursday, May 14, 1987, FBI Agent Marene Allison participated in a career day at the campus of the University of California at San Diego. She was assigned a table at which she could meet and discuss FBI employment with interested students. She was informed on her arrival that the table originally set aside for her use had been "taken over" by students engaged in a peaceful demonstration opposing the recruiting activities of such organizations as the CIA and FBI. She was directed to make use of a table in a different location.

Around noon, a student named Arnie Schoenberg sat next to Allison and indicated that he intended to pass out literature of his own. Allison also noticed that the defendant, Crabtree, was approaching the table and appeared to be taking photographs of her. Allison, believing that Schoenberg was going to move her briefcase from the chair next to her, picked up the briefcase, placed its strap around her shoulder, and moved to the other side of the table. Meanwhile, Crabtree continued to take photographs of her. Allison stated that she believed that the students intended to provoke an incident with her which Crabtree would capture on film.

Allison then approached Crabtree and asked Crabtree to stop taking her picture. When Crabtree made it clear that she intended to continue taking photographs, Allison grasped the strap of Crabtree's camera. Allison testified that she intended to gain control of the situation by taking the offensive and that she grasped the strap of the camera because she did not want to be photographed.

Crabtree responded by biting Allison's right ring finger for approximately ten to fifteen seconds. When Crabtree released the finger from her mouth, Allison released the strap of the camera and left the scene.

The district court held an evidentiary hearing on defendant's Motion to Dismiss the Indictment for Outrageous Government Conduct. The only evidence was Agent Allison's extensive testimony. The court did not find "outrageous government conduct," but instead dismissed the indictment because he found there was insufficient evidence to support a conviction.

DISCUSSION

Fed. R. Crim. P. 12(b) provides for the hearing of pre-trial defense motions which are "capable of determination without the trial of the general issue." An indictment may be dismissed if it is insufficient on its face as a matter of law (rather than as a factual or evidentiary matter). See United States v. Schwartz, 785 F.2d 673, 679 (9th Cir. 1986). However, a Rule 12(b) motion cannot be used to resolve factual questions going to guilt or innocence. See United States v. Knox, 396 U.S. 77, 83 n. 7 (1969) (existence of "duress" defense or lack of intent should not be determined on motion to dismiss indictment); United States v. Ayarza-Garcia, 819 F.2d 1043, 1048 (11th Cir.), cert. denied, 108 S. Ct. 465 (1987); see also United States v. Calandra, 414 U.S. 338, 345 (1974) ("An indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence ...").

In this case, there is no contention that the indictment is facially inadequate. It simply tracks the language of 18 U.S.C. § 111, and alleges no specific facts. On the basis of Allison's testimony, in which Allison admitted that Crabtree was doing nothing illegal and that Allison grabbed the camera strap "to gain control of the situation" by taking the offensive, the court found that "no reasonable juror could find that Ms. Allison was acting within the scope of her official duties when she grasped the strap of Ms. Crabtree's camera." The Court also concluded that no reasonable juror could find that Crabtree assaulted Allison or that Crabtree used unreasonable force.

These findings would support a judgment of acquittal for insufficiency of the evidence under Fed. R. Crim. P. 29(a), see, e.g., United States v. Spears, 631 F.2d 114, 117 (9th Cir. 1980). However, such determinations cannot be made pretrial. The question of whether Allison was acting in the scope of official duty is an element of the offense, and thus goes to guilt or innocence: it is, therefore, not capable of determination without "trial of the general issue."

The district court exceeded its authority in examining the sufficiency of the evidence on a pre-trial motion to dismiss the indictment. Although the district court's assessment of the insufficiency of the government's evidence may well be correct, the proper procedure is to make this determination on motion for judgment of acquittal, which cannot be made prior to close of the government's case-in-chief. See Fed. R. Crim. P. 29(a).

Crabtree argues that once the district court had taken evidence, albeit in the hearing on outrageous government conduct, a hearing properly within the district court's authority, it need not blind itself to the fact that there obviously was insufficient evidence to support the indictment. We disagree. The district court's supervisory power to dismiss indictments, even when properly invoked by a defendant, cannot be bootstrapped into a kind of "criminal summary judgment" procedure.

We sympathize with the district court. Our review of the record and relevant law suggests that, were the government's case at trial to reveal the same facts as were developed at the hearing, a judgment of acquittal could well be warranted. To the extent that the district court sought to send a message that its docket and the efforts of the U.S. Attorney should be devoted to more meritorious prosecutions, it is a message with which we are hard put to disagree. Nevertheless, the district court's supervisory power to dismiss an indictment does not extend to clearing its docket of properly obtained--even if groundless--indictments.

CONCLUSION

We REVERSE the dismissal of the indictment and REMAND for further proceedings consistent with this memorandum.