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Following their arrests, government agents transported Weaver and Harris to hospitals to receive medical treatment for the gunshot wounds that they had suffered. Thereafter, the court decided to conduct separate preliminary hearings for the two men. In addition, the federal magistrate judges handling the preliminary hearings elected to combine the preliminary examination and detention hearing in one proceeding. The combined preliminary examination and detention hearing for Weaver was scheduled to begin on September 10, 1992; the combined preliminary examination and detention hearing for Harris was scheduled to begin on September 14, 1992.
On Friday, September 11, 1992, one day after the Weaver preliminary hearing had begun, U.S. Attorney Ellsworth appeared in court to argue a motion seeking to continue the preliminary hearing of Harris from September 14 to September 15 in order to accommodate the additional security needs presented by the visit of Vice President Quayle to Boise on September 14. It has been alleged that Ellsworth represented in court that Harris would be permitted a full preliminary hearing that would not be terminated or interrupted by the return of a grand jury indictment. With the understanding that a full preliminary hearing would be conducted, counsel for Harris consented to the continuance.
The preliminary hearing of Harris began on September 15. On the second day of the preliminary hearing, the proceeding were interrupted by Assistant U.S. Attorney Ronald Howen, who informed the court that the grand jury had just returned an indictment against Weaver and Harris. The Weaver preliminary hearing was also interrupted and the parties informed of the indictment. Although the magistrate judges ultimately decided to discontinue the preliminary hearings, they afforded Weaver and Harris the opportunity to question witnesses during the detention phase of the hearings.
It has been alleged that the government acted improperly when it sought grand jury indictments while the preliminary hearings were in progress. In particular, it has been argued that once the government elected to proceed by preliminary hearing, it was stopped from abandoning the preliminary hearing. With regard to the Harris preliminary proceeding, the question has been raised whether the government, in light of the Ellsworth representations, was obliged to complete the preliminary hearing and whether the failure to do so violated any legal or ethical rules.
On August 23, 1992, a criminal complaint was filed charging Weaver and Harris with violations of 18 U.S.C. 111, 1111 and 1114. Harris surrendered to federal authorities on August 30, and was taken for medical treatment to the intensive care unit at Sacred Heart Medical Center in Spokane, Washington. The next day, Weaver surrendered and was taken to St. Lukes Hospital in Boise for treatment. On September 2, 1992, U.S. Magistrate Judge Cynthia Imbrogno conducted the initial appearance of Harris in the hospital and continued his preliminary examination and detention hearing until September 14 because of his medical condition.
Assistant U.S. Attorney Howen originally planned to conduct joint preliminary hearings for Weaver and Harris but the delay caused by the medical treatment for Harris, coupled with federal time requirements, precluded this plan. [FN1015] As a result, the preliminary hearing for Weaver was scheduled for September 10th before Magistrate Judge Mikel Williams and the preliminary hearing for Harris was scheduled for September 14 before Magistrate Judge Lawrence Boyle. The magistrate judges decided to conduct the preliminary hearing and detention hearing in one proceeding.
Howen was assigned to handled the Harris preliminary hearing while Assistant U.S. Attorney Lindquist was assigned to handle the Weaver preliminary hearing. [FN1016] Howen initially expected that he would present the government's case at the Harris preliminary hearing through a summary witness and that this presentation would take half a day. Lindquist expected each preliminary hearing to take two days "at the most." According to Howen, it was the normal practice of the magistrates in the district to schedule the preliminary hearing after the grand jury had convened, if the time requirements permitted, so as to avoid conducting a preliminary hearing if an indictment were going to be returned. Thus, Howen was surprised when the magistrates set the Weaver and Harris preliminary hearings before the grand jury met in [G.J.] [FN1019]
From the moment that Weaver and Harris were taken into custody, Howen intended to present an indictment at the next session of the grand jury which was scheduled for [G.J.]. [FN1020] All attorneys working on the matter knew of this plan, including U.S. Attorney Ellsworth, who as head of the office, supervised Howen and Lindquist. Indeed, in his September 3, 1992 letter to Special Agent in Charge Eugene Glenn, Ellsworth noted that the grand jury proceeding would begin on [G.J.]. [FN1021]
Howen always believed that if the grand jury were to return an indictment before the preliminary hearings were completed that the indictment would extinguish the right to the preliminary hearing. [FN1022] He believed that Ellsworth shared this view. [FN1023] Indeed, Howen recalled that prior to the beginning of the preliminary hearings, he discussed with Lindquist and he believes also with Ellsworth the possibility that the Harris preliminary hearing could be terminated by the return of an indictment. [FN1024]
The combined preliminary examination and detention hearing for Weaver began on September 10. On that day the government spent the entire day examining Deputy Marshal Roderick. [FN1025] When the preliminary hearing resumed on September 11, defense counsel cross-examined Roderick and, in the afternoon, the government conducted the direct examination of Deputy Marshal Cooper. At the end of the proceedings on September 11, it was agreed, at the request of defense counsel Gerry Spence, that the hearing would resume on September 16, 1992. [FN1026]
On Friday September 11, 1992, three days before the Harris preliminary hearing was to commence, U.S. Attorney Ellsworth, filed a motion and a supporting affidavit requesting that the Harris preliminary hearing be continued one day until September 15. Ellsworth explained that the Bose Chief of Police had expressed concern to him about being able to provide security to both the Harris preliminary hearing and to Vice President Quayle who was scheduled to visit Boise on September 14. [FN1027] In arguing the motion to the court, Ellsworth [FN1028] told the court that the U.S. Secret Service had also expressed concern over the increased security demands created by the Quayle visit. [FN1029] When Judge Boyle asked for Harris' position on the continuance, defense counsel Nevin replied:
The primary concern that I have is that this not be simply an opportunity for the government to get a grand jury impaneled and to indict Mr. Harris and avoid the obligation to provide him with a preliminary hearing. And I've been afraid all along that was what was going to happen and that this would get delayed in some way so that would be possible.
I understand . . . this is approximately the time when the grand jury sits and is available. And if this is just an effort to do that, then I certainly object to it. [FN1030]
Now maybe Mr. Ellsworth could assure us or we could stipulate that a preliminary will be held on Tuesday and that there will not be an indictment filed which would supersede that, and in that case I would be glad to stipulate to it.
The court then invited comment from the Government to which Ellsworth responded:
As indicated in my affidavit there is no underlying basis for this . . . beyond the representations to me of the chief of police of Boise. . . . [W]e are prepared and ready to go to the preliminary hearing on Monday. I am willing to give assurances that we intend to have a preliminary hearing and there is no ulterior motive other than the request of the chief of police of Boise that the -- he's concerned about his security people. . . .But there is no ulterior motive other than what's expressed in the motion and affidavit. [FN1031]
Thereafter, the following exchange occurred between the parties and the court,
THE COURT: Okay. Do you gentlemen want to take a minute and talk privately and then I can come back in?
MR. NEVIN: Yeah, I mean if -- if what counsel is saying is that there is going to be a preliminary hearing on Tuesday not matter what, why that's fine. I -- we -- no objection.
THE COURT: So you would agree and stipulate to --
MR. NEVIN: Yeah.
THE COURT: -- to postpone the preliminary examination and detention hearing from Monday the 14th to Tuesday the 15th?
MR. NEVIN: Upon that condition, yes.
MR. ELLSWORTH: The government has no problem with that stipulation.
THE COURT: Well, let me just understand so I don't make a procedural mistake. And is it my understanding Mr. Nevin, that you agree based on the representations of the United States attorney that their motive is simply to honor requests by the chief of police regarding Mr. Quayle's visit to Boise, you will stipulate for a transfer of this -- or rescheduling of this from Monday until Tuesday?
MR. NEVIN: Yeah. And just so I don't make a mistake in what I'm saying. I read what Mr. Ellsworth has said as a guaranty that we'll have a prelim on Tuesday, and that's there -- this is not an attempt to delay this proceeding so that an indictment could be filed or the grand jury could be impaneled, whatever. And that we will have a preliminary hearing on Tuesday no matter what. And upon that representation I stipulated that the matter may be continued until Tuesday.
THE COURT: Okay, you're not asking as a condition of your stipulation that they not subsequently impanel a grand jury and return an indictment if that's such?
MR. NEVIN: Yeah. No, I don't consider that to be part of our stipulation.
THE COURT: All right. Mr. Ellsworth, is that agreement adequate for you?
MR. ELLSWORTH: I have no problem with that agreement, Your Honor. . . . [FN1032]
Thereafter, Judge Boyle granted me motion to continue the preliminary hearing until September 15. [FN1033]
Ellsworth told investigator that when he argued this motion he expected that the Harris preliminary hearing would take no longer than one day. At that time, he was aware that Magistrate Judge Williams had permitted Weaver's defense counsel to subpoena the marshals to testify; however, Ellswroth did not know whether Magistrate Judge Boyle, who was new on the bench, would adopt a similar approach in the Harris preliminary hearing. Ellsworth knew that they intended to present an indictment on [G.J.] [FN1035] but denied discussing with anyone or giving serious consideration to what would occur if an indictment were returned while the preliminary hearing was in progress. [FN1036] Ellsworth stated that he was surprised when the defense objected to his request and believed that they distrusted his stated reason for the continuance. [FN1037] Ellsworth insisted that he did not believe that he was guaranteeing a full preliminary hearing. He saw no conflict between his representation and his knowledge that an indictment would be presented on [G.J.] since he thought that the hearing would take one day and, thus, would be over before the indictment was presented to the grand jury. [FN1038]
Neither Howen nor Lindquist recall having any discussions with Ellsworth before he appeared in court on September 11th. [FN1039] However, Howen believed that Ellsworth knew that the government intended to present an indictment to the grand jury on [G.J.] [FN1040] and that the magistrate in the Weaver preliminary hearing was giving defense counsel unusually broad latitude in calling witnesses and in permitting expanded cross-examination of the government's witnesses. [FN1041] Furthermore, Howen told investigators that after the first day of the Weaver preliminary hearing it "was very apparent" to them that the preliminary hearing would be longer than a one or two day proceeding. [FN1042]
(2) Beginning of the Harris Preliminary Hearing
The preliminary hearing of Harris began on September 15. For the first two hours, Howen argued 10 motions that the government had filed late the previous day. [FN1045] Thereafter, Lindquist spent the remaining part of the day conducting the direct examination of Special Agent Gregory Rampton while Howen left the hearing and presented witnesses before the grand jury in another room in the courthouse.
At the end of the proceedings on September 15, Lindquist informed the court that he had a scheduling conflict if the Harris preliminary hearing continued the next day since he was supposed to participate in the Weaver preliminary hearing. Lindquist explained that Howen was unavailable to conduct either hearing because, "we have the grand jury convened, which is going to demand his time." [FN1046] As a result, Lindquist requested that the Harris hearing be continued. After defense counsel objected to the request, [FN1047] the following colloquy occurred:
MR. NEVIN: . . . . The -- I have been concerned all through this, that where the United States was going with a grand jury indictment, and then an argument that would cut off our right to have a preliminary hearing.
When we appeared in Court last Thursday, Mr. Ellsworth was there, and Mr. Ellsworth was there on a motion to continue these proceedings from yesterday until today.
I said at that time, that was what I was afraid they were doing, and that if they would guarantee me that was not what they were doing, and that we would go forward with a preliminary hearing, no matter what, they holding it at another time was fine with me.
I went outside here, and I saw grand jury witnesses going into the grand jury room, I know that's what they are doing. We've been told Mr. Howen can't be here tomorrow because he's got to appear before, and again that's a choice they have made for him to be there instead of here.
But, in any event, if counsel will assure me that we will hold and complete this preliminary hearing, I don't mind if we continue it until a later time, and that there will be not argument upon -- if a grand jury indictment is returned, that we're not entitled to complete this hearing. And upon that insurance, let's hold it another time, whenever it's convenient, that's fine. . . .
MR. LINDQUIST: . . . [C]ounsel will not have that assurance. We're all very much aware that the purpose of a preliminary hearing does not result in a charging document. The purpose is to get us to that grand jury, which is the institution that initiates the charging document. . . .
I'm simply saying that we are proceeding with the grand jury as it is convened, pursuant to Court order, and I'm not going to make any commitment as to what that grand jury will do. That is not in my power. That's not my authority. [FN1048]
The court then asked Lindquist whether he had "visited with Mr. Ellsworth about the nature of the hearing held last week on this very question," to which Lindquist replied that he had "about a two-meeting" with Ellsworth and had simply learned that defense counsel was cynical about the reasons Ellsworth had given for the continuance. Having ordered that the preliminary hearing reconvene the next morning, the court explained that it was going to "pull out the tape" of the earlier hearing because it believed that Ellsworth had represented that "there would be a complete preliminary hearing held in this matter."
[FN1051] Thereafter, the grand jury deliberated and returned two indictments against Weaver and Harris charging them with violations of 18 U.S.C. 1. 115, 1111 and 1114.
Howen stated that when he presented the indictment to the grand jury his understanding of what Ellsworth had stated in court that previous Friday was that the continuance was requested to accommodate the security concerns of the police and the Secret Service and that the request was not a subterfuge to avoid having a preliminary hearing before an indictment was returned. He was aware of no other representations having been made by Ellsworth. [FN1052] In addition, Howen said it was unclear to him whether Judge Boyle was going to allow the same broad latitude in issuing subpoenas to Harris as Judge Williams had allowed for Weaver which would extend the length of the Harris hearing. [FN1053]
Ellsworth believed that before the indictment was presented that he had briefly mentioned his September 11th statements to Howen and Lindquist but that he had not discussed the statements in detail including any representations he may have made to Nevin that Harris would have a preliminary hearing. [FN1054] Ellsworth denied that they ever discussed that the Harris preliminary hearing could be terminated by obtaining the return of an indictment. However, he conceded that they did contemplate ending the Weaver preliminary hearing in this fashion. [FN1055]
(2) Harris Preliminary Hearing
The Harris preliminary hearing resumed on September 16 with the defense examining its first witness, Deputy Marshal Hunt. Assistant U.S. Attorney Monty Stiles handled the proceeding while Lindquist continued to handle the Weaver preliminary hearing and Howen was before the grand jury. [FN1056] In the middle of the morning session, Howen interrupted the proceedings and informed the court that the grand jury had returned two indictments against Weaver and Harris. [FN1057] Howen requested immediate arraignment. Thereafter, the court declared a 10 minute recess. When court resumed, Howen stated that he had not been present in court when certain conversations occurred between the court and Ellsworth. The court then took another brief recess to allow Howen to review a transcript of the September 11 hearing transcribed by the judge's secretary the previous evening. [FN1058]
When the proceedings resumed, Judge Boyle made it clear that he considered the initial appearance of Harris to have been at the Spokane hospital on August 30, 1991 before Judge Imbrogno and, therefore, that the time requirements of Fed. R. Crim. P. began to run from that date. [FN1059] Howen then argued that the case would have been indicted the prior week if the court had not delayed the impaneling of the grand jury for one week because of the Labor Day holiday. [FN1060] Howen then admitted that Ellsworth "did guarantee a preliminary hearing" but argued "[w]e appeared for the preliminary hearing. . . . [W]e think at this time, with the return of the indictments. . . the preliminary hearing now should go on to the detention hearing. . . ." [FN1061]
Although Judge Boyle concluded that Ellsworth had moved for the continuance in good faith and seemed to agree that, as a legal matter, the return of an indictment extinguished the right to a preliminary hearing, he was concerned that the Ellsworth representations might have estopped the government from indicting Harris. [FN1062] In response, Howen adopted a narrow reading of the September 11 transcript and argued that preliminary hearings are typically brief and that all that Ellsworth was promising was that a preliminary hearing would be held on September 15 [FN1063] and that because a hearing had been held on that day, the Government was not estopped from indicting Harris. [FN1064] Howen denied having any improper motive in presenting the indictment to the grand jury and argued that because the defendants were in custody, they had a right to immediate presentment before a grand jury and indeed, that the Speedy Trial Act mandated that they be brought before a grand jury within 30 days of arrest. [FN1065]
Defense counsel Nevin argued that this matter was not dependent upon the statutory provisions and caselaw that held that an indictment extinguished the right to a preliminary hearing but rather was dependent upon the effect to be given Harris' waiver of a right to object to a continuance in return for a promise by the U.S. Attorney that Harris would have a preliminary hearing. [FN1066] Nevin, pointing to the lengthy argument of motions and the lengthy direct examination of Rampton, argued that Howen had no intention of completing the preliminary hearing on September 15, 1992. [FN1067] He maintained that the clear import of what was stated in court on September 11th was that in return for Harris' consent to continuing the preliminary hearing the government agreed to give Harris a full preliminary hearing without interrupting it with the return of an indictment. [FN1068] Thereafter, Nevin moved to quash the indictment.
After listening to the arguments of the parties, the court took the matter under advisement and commenced the detention phase of the hearing. [FN1069] Thereafter, the government resumed its direct questioning of Special Agent Rampton after which defense counsel cross examined Rampton.
stigators found that Ellsworth had a somewhat confused recollection of the events during this time period. He recalled having concern after the Harris preliminary hearing proceedings concluded on September 15 because it became apparent to him that they would continue beyond the one day he had anticipated. It was at that point that he recalled discussing with either Howen or Lindquist that they might have to continue the preliminary hearing. However, he did not remember that they ever considered not presenting the indictment on September 16. Indeed, it was his recollection that they decided to proceed and to deal with any objections to the indictment that were raised. [FN1070]
Howen told investigators that if he had been arguing the motion on September 11, he would not have made the statements that Ellsworth did. He attributed these statements to the fact that Ellsworth was not the attorney responsible for litigating the case and that he was unfamiliar with the issues in the case. Had Howen been in court, he would have explained that, if the court were to conduct the preliminary hearing before the convening of the grand jury -- a schedule that Howen argued was inconsistent with the practice in the district -- he would present an indictment, which, if returned, would extinguish the preliminary hearing. [FN1071] Despite his views about the statements made by Ellsworth, Howen stated that if had been provided a copy of the September 11 transcript before going before the grand jury it would not have changed his decision to present the indictment. [FN1072]
Based on his conversations with Ellsworth, Lindquist believed that on September 11 Ellsworth intended to agree that Harris had a right to a preliminary hearing but not to agree that the government could not seek an indictment that would terminate the preliminary hearing. Lindquist thought that Ellsworth intended to guarantee at least a partial preliminary hearing. However, Lindquist admitted that he believed that they "all agreed that what was communicated to [Nevin] was probably ambigious and could easily have been interpreted as I get my preliminary hearing from beginning to end." [FN1073]
(3) Weaver Preliminary Hearing
On September 16, the preliminary hearing of Weaver resumed. However, before defense counsel began to cross-examine Deputy Marshal Cooper, Lindquist informed the court and defense counsel that a grand jury had been convened and would be handing down an indictment that day. [FN1074] Shortly thereafter, an indictment was served on Weaver and the court heard argument from the parties as to whether the preliminary hearing should be continued. The court then permitted defense counsel to cross- examine Cooper before ruling that the preliminary hearing was being terminated. Judge Williams concluded that the grand jury's finding of probable cause obviated the need for the preliminary hearing and opined that the issue of prosecutorial misconduct could be addressed by motion with the district court judge. [FN1075] Thereafter, the court proceeded to the detention phase of the proceedings. Lindquist rested after introducing a few exhibits; defense counsel called no additional witnesses. The court ordered that Weaver be detained. [FN1076]
On September 17, the court ruled on the Harris motion to quash the indictment. Judge Boyle concluded that although he "truly believe[d]" that Ellsworth had made the request for a continuance in good faith, he interpreted "the stipulation entered into between counsel as contemplating that Mr. Harris would be entitled to a preliminary examination." [FN1077] With regard to what legal effect should be given the breach of the agreement, including whether it warranted quashing the indictment, Judge Boyle thought that the issue was better left to a superseding proceeding or appeal. However, he did not believe that Harris had been prejudiced by how the preliminary and detention hearings were conducted. [FN1078] The court concluded that the return of the indictment extinguished the need for the purpose of the preliminary hearing which was to determine whether probable cause existed that a crime had been committed and that Harris had committed it. As a result, Judge Boyle held that the preliminary hearing would not continue. [FN1079]
Thereafter, the court began the detention phase of the hearing and defense counsel proceeded to cross-examine Special Agent Rampton. After Rampton completed his testimony, defense counsel called and questioned Deputy Marshals Dave Hunt, Arthur Roderick, Larry Cooper, Joseph Thomas and Francis Norris. Following argument by counsel, Judge Boyle ordered that Harris be detained. [FN1080]
On November 16, 1992, Weaver and Harris sought to dismiss the indictments returned against them, arguing, among other grounds that the preliminary hearing had been improperly terminated. They asserted that the Government improperly obtained the indictments only after it realized that probable cause had not been demonstrated at the preliminary hearings because none of the witnesses offered had seen either defendant fire the shot that killed Degan. In addition, they argued that once the Government elected to proceed against the defendant by preliminary hearing it should "be estopped from abandoning that proceeding." [FN1081] To hold otherwise, in their view, would permit the Government to abuse the preliminary hearing, if it appeared that the defense might prevail, in violation of the due process rights of the defendants to introduce evidence. [FN1082] Harris also contended that dismissal was warranted in his case since his consent to a continuance had been secured by a false promise that the hearing would not be superseded by an indictment. [FN1083]
The government filed its response to the Weaver and Harris motions to dismiss on November 23, 1992 and argued that there was no legal authority to support the proposition that it was unconstitutional for the prosecution to have the grand jury return an indictment while a preliminary hearing was in progress. [FN1084] Furthermore, the Government noted that Weaver had requested the continuance of the preliminary hearing from September 11, 1992 to September 16, 1992. [FN1085] The Government failed to address directly Harris' argument that the Government had represented that an indictment would not be returned prior to the completion of the preliminary hearing. It did, however, argue that Harris had been afforded a completed preliminary hearing that was completed on September 17, 1992, one day after the indictment had been returned. [FN1086]
Magistrate Judge Williams concluded that the U.S. Attorney's Office had acted within the scope of the applicable laws and was not guilty of prosecutorial misconduct. In addition, he concluded that there was no legal barrier to an indictment being returned prior to the completion of the preliminary hearing. Once the indictment was returned, the need for the probable cause determination of the preliminary hearing became unnecessary. [FN1087]
Shortly thereafter, Magistrate Judge Boyle ruled on the claims made by Harris in his Motion to Dismiss. [FN1088] In that opinion, Judge Boyle adhered to his earlier ruling on the issue and reiterated his conclusion that there was no legal impediment to a grand jury returning an indictment while a preliminary hearing was in progress. [FN1089] In addition, Judge Boyle found that Harris had failed to demonstrate that he had been deprived of any constitutional or procedural right or that he had suffered prejudice that justified dismissal of the indictment. [FN1090] Nowhere in his opinion did Judge Boyle address the impact of the Ellsworth representations.
On January 8, 1993, Weaver and Harris filed a joint motion in which, among other forms of relief, they sought to dismiss the indictment. In this pleading, they repeated their allegation that the U.S. Attorney's Office had subverted the preliminary hearing process by securing a grand jury indictment when it had become apparent that probable cause could not be found at the preliminary hearing. In addition, they argued that this alleged subversion was exacerbated in the case of Harris since the U.S. Attorney had stated to the court that an indictment would not be sought until the completion of the preliminary hearing. [FN1091]
District Court Judge Edward Lodge rejected this defense challenge and adopted the recommended report and order of Magistrate Judges Williams and Boyle in orders issued on February 17, 1993. Judge Lodge repeated his rejection of the motion to dismiss in his order addressing the motion to disqualify the U.S. Attorney's Office from prosecuting the case.
We agree with the judicial determinations in the Weaver and Harris prosecutions that the return of an indictment in the midst of a preliminary hearing extinguishes the right to a preliminary hearing. The sole purpose of the preliminary hearing is to determine whether probable cause exists to believe that the defendant has committed the criminal conduct described in the complaint. Once the grand jury has made an independent determination that probable cause exists and returns an indictment, that document becomes the charging document in the prosecution. There is no reason for the preliminary hearing to continue. Nor are we aware of any estoppel principle that would restrict the government from returning an indictment while a preliminary hearing is in progress.
Despite this conclusion, we are troubled by the representations that Ellsworth made in court on September 11th, and question whether the members of the U.S. Attorney's Office- - especially Ellsworth -- behaved ethically in light of these representations. Our concern is not that Ellsworth fabricated the need for a continuance since the record is uncontradicted that law enforcement personnel had articulated the security problems created by the trial and the Quayle visit. Rather, our concern is directed at two other areas. First, whether the statements that Ellsworth made constituted a guarantee that Harris would have a "full" or "complete" preliminary hearing in return for agreeing to a continuance and, if such a representation was made, did Ellsworth make it with the intent to promise a complete preliminary hearing. [FN1092] Second, whether Howen or Lindquist understood that Ellsworth had made such a representation before the indictment was presented to the grand jury.
Focusing on the first issue, an examination of the September 11 transcript reveals clearly that defense counsel Nevin was concerned that if the preliminary hearing were continued, the prosecution might obtain an indictment and terminate the hearing. Thereafter, there was an exchange among Nevin, Ellsworth and the court in which the agreement of the parties was formed. Ellsworth insisted that he had not ulterior motive for the request and stated that "I am willing to give assurances that we intend to have a preliminary hearing . . . ." [FN1093] Nevin said that he would have no objection to the continuance "if what counsel if saying is that there is going to be a preliminary hearing on Tuesday no matter what. . . ." [FN1094] Ellsworth responded that "[t]he government has no problem with that stipulation." The court then proceeded to ensure that the parties understood the terms of the agreement. Nevin agreed that he was agreeing to continue the preliminary hearing on the representation that Ellsworth was making the motion simply to honor the requests of the chief of police, that Ellsworth was not making the request to permit his office time to present an indictment to the grand jury and that Ellsworth was providing a guarantee that Harris would have a preliminary hearing on September 15. Nevin agreed that the agreement did not include a promise that the USAO would not subsequently impanel a grand jury and return an indictment. In response, Ellsworth told the court that he had "no problem" with the terms of the agreement. [FN1095]
Critical to this issue is what did Ellsworth intend or believe he was promising when he entered into this agreement on September 11, 1992. The defense argued that he was promising a "full" preliminary hearing. In contrast, Ellsworth and Howen seem to believe that Ellsworth never promised a "full" preliminary hearing but rather "a" hearing or "some" preliminary hearing would be held on September 15. Ellsworth stated that he believed that the hearing could be completed in one day. Both men did not believe that any guarantees had been given that, if the preliminary hearing took longer than one day, that an indictment would not be returned.
If we were to strictly construe the meaning of the words used by the parties, it is true that the word "full" or its functional equivalent was never uttered in court. However, we are uncomfortable with the hypertechnicality of such an approach. We believe that implicit in a request for a promise of "a" preliminary hearing is the idea of a full rather than a partial preliminary hearing. Indeed, when first confronted with the statements that Ellsworth made, Howen stated to the court, "[w]e think, in good faith, the United States Attorney, with the -- with the transcript I have here, did guarantee a preliminary hearing. [FN1096] The remarks of the court echoed this view. [FN1097] In its initial ruling on this issue, the Court concluded that the stipulation "contemplate[ed] that Mr. Harris would be entitled to a preliminary examination." [FN1098]
Having concluded that a fair interpretration of the language used by Ellsworth was to promise a complete preliminary hearing we must proceed to our next area of inquiry which is what did Ellsworth intend when he made these representations in court. Ellsworth insisted that it was never his intent to guarantee that Harris would have a complete preliminary hearing but rather only to represent that there would be "a" preliminary hearing on September 15. [FN1099] A careful review of the evidence does not convice us otherwise. Thus, we cannot conclude that Ellsworth intended to guarantee Harris a full preliminary hearing.
Despite this conclusion, we are concerned by the actions of Ellsworth. At the outset, we are troubled by the insensitivity or misunderstanding that he demonstrated concerning the impact of his September 11 statements. Ellsworth failed to appreciate the effect given to his words because they were uttered by someone in the position of the U.S. Attorney. We are also concerned about the apparent failure of Ellsworth to carefully and continually evaluate all of the information available to him. The evidence establishes that Ellsworth knew on September 11 that Howen would be seeking an indictment when the grand jury convened on [G.J.]. It also appears that Ellsworth may have participated in discussions concerning the possibility that an indictment could be returned while the preliminary hearing was in progress and that the legal effect of this action would be to extinguish the preliminary hearing. Finally, it seems probable that Ellsworth also was aware that judicial rulings in the Weaver preliminary hearing had permitted the defense board latitude in calling witnesses to testify in the preliminary hearing thereby transforming it from a summary proceeding into a longer hearing and that the potential existed that the Harris hearing might be similarly handled. Although this information was available to Ellsworth, there was no indication that he carefully evaluated it when considering the timing of the Harris indictment. Thus, despite our inability to comfortable conclude that Ellsworth intentionally misrepresented the nature of the government's agreement, we believe that his inattention to the clear import of his words coupled with his failure to monitor the progress of the Harris preliminary hearing and the timing of the presentment of the indictment came precipitously close to unethical conduct.
The investigative record failed to develop evidence establishing that Howen or Lindquist understood the scope of what Ellsworth had arguably promised in court on September 11. Based on their remarks to the court and to us, both men, prior to the time when the indictment was returned, appeared to have been under the impression that the main issue discusses in court was whether the security concerns articulated by Ellsworth constituted a fabricated excuse designed to give the government more time in which to secure an indictment. [FN1100] From his remarks to the court on September 15, Lindquist did not seem to see Ellsworth's statements as providing a guarantee that there would be a preliminary hearing but rather only as an indication that they intended to proceed with the preliminary hearing on that date.
However, we are concerned about the events after the court session on September 15. Based on a reading of the transcript of the proceeding, we find it difficult to believe that Mr. Lindquist did not realize at the end of that day that a serious issue had developed over the representations that Ellsworth had made four days earlier. Indeed, we believe that Lindquist may have raised his concern to Howen because
[FN1101] It appears that neither Howen or Lindquist ever considered or discussed the need to evaluate the impact of the Ellsworth statements before resuming the grand jury proceedings. We think that the potential implications of these statements were apparent and, thus, we would have expected some discussion to have occurred about the impact of indicting Harris while the preliminary hearing was still in progress.
As a practical matter we do not believe that Harris was prejudiced by this controversy since he was allowed to question witnesses during the detention phase of the proceeding that he would have probably called to testify at the preliminary hearing if had been allowed to continue. [FN1102] Rather, what concerns us is the appearance of impropriety created when Mr. Ellsworth, as the U.S. Attorney, made statements that reasonable indicated that a promise of a preliminary hearing was being made and then supervised actions that appeared to violate that promise. Moreover, we are also concerned that this situation may have been attributable in part to the failure of Mr. Ellsworth to have thoroughly evaluated and monitored the information available to him before and after his appearance in court on September 11th.
We conclude that a reasonable interpretation of the language that Ellsworth used in court on September 11, 1991 was that Mr. Harris would have a full preliminary hearing. Although the government never promised that an indictment would not be returned it created the impression upon which the defense relied that such a return would not occur until the preliminary hearing had been completed. We do not believe that Mr. Ellsworth intentionally misrepresented the position of the government yet we do conclude that he gave insufficient consideration to the information available to him and to the plain meaning of his statements. Finally, the evidence does not sustain the charge that before the indictment was presented to the grand jury that Howen and Lindquist believed that Ellsworth had guaranteed a complete preliminary hearing to Harris. We find no misconduct by them in this matter.
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1016. Howen Interview, Tape 7, at 4.
1017. Howen explained that it was his usual practice to use the case agent as a summary witness as opposed to calling first party witnesses. Id. at 4-5.
1018. Lindquist Interview, Tape 1, at 27.
1019. Howen Interview, Tape 7, at 5.
1020. Id. at 1-3; Lindquist Interview, Tape 1, at 27; Ellsworth Interview, Tape 3, at 26-27.
1021. Letter from Maurice Ellsworth to Eugene Glenn, September 3, 1992.
1022. Howen Interview, Tape 7, at 5-6.
1023. Id. at S.
1025. See Transcript of Preliminary Hearing in United States V. Weaver, No. MS-3934, September 10, 1992 (hereinafter cited as "Weaver Preliminary Hearing Transcript").
1026. Lindquist Interview, Tape 1, at 28.
1027. See Motion to Vacate and Continue Preliminary and Detention Hearings, United States v. Harris, No. MS-3935, filed on September 11, 1992; Affidavit of Maurice O. Ellsworth, United States V. Harris, No. MS-3934, September 10, 1992. See also, Ellsworth Interview, Tape 3, at 29-30.
1028. Ellsworth was arguing the motion because the Assistant U.S. Attorneys assigned to the case were unavailable. Howen Interview, Tape 7, at 11.
1029. See Transcript of Motion Hearing, United State v. Harris, No. MS-3934, September 11, 1992, at 7.
1030. Id. at 5-6.
1031. Id. at 6-7.
1032. Id. at 7-9.
1033. Id. at 10.
1034. Ellsworth Interview, Tape 3, at 27-29, 31.
1035. Id. at 33.
1036. Id. at 31-32.
1037. Id. at 30-31.
1038. Id. at 32, 35.
1039. Howen Interview, Tape 7, at 12-16; Lindquist Interview, Tape 1, at 29-30.
1040. Howen said that if he had been in court that day and defense counsel had refused to consent to the continuance, he would have proceeded to have the preliminary hearing as originally scheduled. Howen Interview, Tape 7, at 21.
1041. Id. at 12-16. Howen thought Ellsworth was also aware that the court agreed to issue defense subpoenas for the five marshals involved in the incident at Ruby Ridge on August 21, 1992. As a result, the government had decided to call Larry Cooper and Arthur Roderick to testify in their part of the preliminary hearing rather than waiting for the defense to call them. Id.
1042. Id. at 15.
1045. The judge interrupted Howen early in his argument and stated that, "[W]e had a hearing last Thursday, September 10, where many of the issues you are raising today were argued by very able counsel for the Government." Harris Preliminary Hearing Transcript, September 15, 1992, at 12. Later, after Howen had finished arguing another point, the judge stated, "I believe that is consistent with, Mr. Howen, what I told counsel in our conference this morning. I think that you have just merely restated what I told you my position was." Id. at 38. Notwithstanding these remarks, Judge Boyle later refused to become involved in a debate as to whether the USAO had been attempting to delay the proceedings. Id., September 16, 1992, at 68.
1046. Id., September 15, 1992, at 226.
1048. Id. at 228-30.
1049. Id. at 230-33.
1052. Howen Interview, Tape 7, at 24-26.
1053. Id. at 26-27.
1054. Ellsworth Interview, Tape 3, at 39.
1055. Ellsworth stated, "We were talking about getting an indictment and cutting off the Weaver thing, because the Weaver thing had been continued and was, was going on and ad nauseam, but we didn't anticipate that the, the Harris one would, uh, would likewise." Id.
1056. Howen Interview, Tape 7, at 22-23.
1057. The first indictment charged them with the sinful, malicious and premeditated murder of William Degan in violation of 18 U.S.C. 2, 115, 111 and 1114; the second indictment charged them with forcibly resisting, impeding and assaulting Deputy Marshals Roderick, Cooper and Degan in violation of 18 U.S.C. 2 and 111.
1058. Harris Preliminary Hearing Transcript, September 16, 1992, at 23-25.
1059. Id. at 27-29.
1060. Id. at 33-37.
1061. Id. at 37.
1062. Id. at 35-39.
1063. Id. at 39-40.
1064. Id. at 48-50, 90-91.
1065. Id. at 44-45.
1066. Id. at 53-54.
1067. Id. at 54-55.
1068. Id. at 56.
1069. Id. at 100.
1070. Ellsworth Interview, Tape 3, at 35-36, 39-42.
1071. Howen Interview, Tape 7, at 27-28.
1072. Id. at 34.
1073. Lindquist Interview, Tape 1, at 31-32.
1074. See Affidavit of Charles F. Peterson in Support of Motion to Dismiss Indictment and to Remand for Preliminary Hearing, filed November 16, 1992, at 2.
1075. Weaver Preliminary Hearing Transcript, September 16, 1991, at 157-158.
1076. Id. at 184.
1077. See Harris Preliminary Hearing Transcript, September 17, 1992, at 4.
1078. Howen and Ellsworth opined that by allowing the defense to call the marshals in the detention phase of the preliminary hearing it achieved the same or better result than if the preliminary hearing had been completed. Howen Interview, Tape 7, at 31-32; Ellsworth Interview, Tape 3, at 37-38.
1079. Harris Preliminary Hearing Transcript, September 17, 1992, at 5-9. Magistrate Judge Williams denied a similar motion filed by Weaver. See Order, United States v. Weaver, No. MS- 3934, filed on September 17, 1992.
1080. Harris Preliminary Hearing Transcript, September 17, 1992, at 208-15.
1081. See Memorandum of Points and Authorities in Support of Motion to Dismiss Indictment and to Remand for Preliminary Hearing, United States v. Weaver, filed November 14, 1992, at 4.
1082. Id. at 3-5.
1083. See Affidavit of David Z. Nevin, United States v. Harris, dated September 16, 1992, at 3; Motion to Dismiss, United States v. Harris, filed November 16, 1992, at 1-2.
1084. Government Response to Motion to Dismiss Indictment and to Remand for Preliminary Hearing, United States v. Weaver, filed November 23, 1992, at 1-2.
1085. Id. at 2. The Government also noted that normally the grand jury for the District of Idaho would meed [G.J.] but could not do so in September 1992 because of delay caused by the Labor Day holiday and the need to swear in a new grand jury. If this delay had not occurred, the grand jury would have met on [G.J.] and returned the indictment before the preliminary hearing had begun. It was the Government's contention that the defense had attempted to manipulate the preliminary hearing proceedings so as "to frustrate and prevent the orderly receipt of evidence and testimony by the Grand Jury" and that its request for a remand for further preliminary hearing was no more that a discovery device since they has been unable to satisfy the deposition requirements of Fed. R. Crim P. 15. Id. at 3; Government Response to Motion to Dismiss, United States v. Harris, filed November 23, 1992, at 2.
1086. Government Response to Motion to Dismiss, United States v. Harris, filed November 23, 1992, at 2.
1087. Order, Report and Recommendation, United States v. Weaver, January 6, 1993, at 2-4.
1088. This order superseded a December 23, 1992 order that was withdrawn by the court on January 8, 1992.
1089. Order, Report, and Recommendation, United States v. Harris, January 8, 1993, at 2-3.
1090. Id. at 1-2.
1091. See Motion to Disqualify the United States Attorney's Office, To Dismiss the Indictment, To Strike Prejudicial Allegations, To Order an Evidentiary Hearing and For a Continuance Pending and Investigation by the United States Attorney General and Pending Interlocutory Appeals by the Parties, United States v. Weaver, filed January 8, 1993, at 2-3. In addition, Weaver and Harris filed separate pleadings on January 19, 1993 and January 25, 1993, respectively in which they objected to the report and recommendation filed by Magistrate Judges Boyle and Williams.
1092. Standard 3-2.9(d) of the American Bar Association Standards for Criminal Justice provides that, "[a] prosecutor should not intentionally misrepresent facts or otherwise mislead the court in order to obtain a continuance." Nor should a prosecutor "seek a continuance solely for the purpose mooting the preliminary hearing by securing an indictment." Standard 3.3.10(d), ABA Standards for Criminal Justice (1992). Although the Department of Justice has not adopted the ABA Standards as official policy of the Department, it recommends all U.S. Attorneys to familiarize themselves with the standards since the courts use the standards with addressing matters presented to them. United States Attorney's Manual, 9-2.102.
1093. Transcript of Motion Hearing, United States v. Harris, No. MS-3934, September 11, 1993, at 6-7.
1094. Id. at 7.
1095. Id. at 7-9.
1096. Harris Preliminary Hearing, September 16, 1992, at 38.
1097. For example, at the proceedings on September 15th, after Lindquist informed the court of his scheduling problems, defense counsel Nevin reiterated his concern about the grand jury returning an indictment. When Lindquist asserted that he could not assure Nevin that Harris would have a complete preliminary hearing uninterrupted by an indictment, the court inquired whether Lindquist had "visited with Mr. Ellsworth about the nature of the hearing held last week on this very question." Later the court stated that it was going to review that tape of the hearing that evening because he thought that "there was some representation that there would be a complete preliminary hearing held in this matter." Id. 228-233.
1098. Id., September 17, 1992, at 4. During their discussions with investigators, Lindquist agreed that the words uttered by Ellsworth were ambiguous while Ellsworth conceded that one could have concluded from his words that he was guaranteeing a full preliminary hearing. Ellsworth Interview, Tape 3, at 43. Lindquist Interview, Tape 1, at 31-32.
1099. Ellsworth Interview, Tape 3, at 43.
1100. Later, when asked to interpret the September 11 statements that Ellsworth made, both Howen and Lindquist interpreted them as promising "some" preliminary hearing but not a "full" preliminary hearing. For the reasons already discussed we do not agree with this interpretation of the record. Although we find these interpretations of the Ellsworth statements by Howen and Lindquist to be somewhat disingenuous we do not attribute these explanations to any bad motive on their parts but rather on an understandable desire to defend a colleague who they believe made ambiguous statements buy did not do so in bad faith.
1102. Members of the U.S. Attorneys Office reject Harris' argument that he relinquished a valuable right by consenting to the continuance since, if Harris had withheld his consent, they would have simply proceeded with preliminary hearing as scheduled. See, e.g., Lindquist Interview, Tape 1, at 30. This argument, in our view, misses the mark and overlooks the negative impact created by the U.S. Attorney making representatives and then failing to honor them.
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