United States v. Darrel Simpson Robert Anderson James Freeman

Under their supervisory power, courts have substantial authority to oversee their own affairs to ensure that justice is done. They do not, however, have a license to intrude into the authority, powers and functions of the coordinate branches. Judges are not legislators, free to make laws guided only by their moral compass or notions of national interest; nor are they executive officers, vested with discretion over law enforcement policy and decisions. Thus, while the supervisory power does empower judges to formulate procedural rules not specifically contemplated by Congress or the Constitution, United States v. Hasting, 461 U.S. 499, 505 , 103 S.Ct. 1974, 1978 , 76 L.Ed.2d 96 (1983), it does not “justify a chancellor’s foot veto over activities of coequal branches of government.” United States v. Gatto, 763 F.2d 1040, 1046 (9th Cir.1985) (quoting United States v. Russell, 411 U.S. 423, 435 , 93 S.Ct. 1637, 1644 , 36 L.Ed.2d 366 (1973)) (internal quotations omitted).

Today we consider whether a judge may dismiss an indictment under the supervisory power because he disapproves of the government’s investigatory tactics.

Facts

FBI agent Hamer received a tip from the Canadian…

concurring:

I concur. I wish to emphasize that we are not holding today that a district court may never use its supervisory powers absent a statutory or constitutional violation. As Judge Norris pointed out in his dissent in United States v. Sears, Roebuck & Co., Inc., 719 F.2d 1386 (9th Cir.1983), cert. *1092 denied, 465 U.S. 1079 , 104 S.Ct. 1441 , 79 L.Ed.2d 762 (1984), supervisory powers are intended to deter governmental misconduct and protect the integrity of the judicial process, while constitutional analysis preserves fairness for the individual defendant. Id. at 1394 (Norris, J., dissenting). Dismissal on supervisory powers grounds is based on a combination of the egregiousness of a prosecutor’s present misconduct, the need to discipline him for past misconduct, and the effectiveness of any other available sanctions short of dismissal. Id. at 1395 (Norris, J., dissenting). Here, the holding in Simpson I forecloses our discussion of the first issue, and there has been no evidence of past prosecutorial misconduct. Though there are not other available sanctions, save censure, we still hold that in light of the first two factors, no invocation of the supervisory powers is…

927 F.2d 1088 59 USLW 2603 UNITED STATES of America, Plaintiff-Appellant, v. Darrel SIMPSON; Robert Anderson; James Freeman, Defendants-Appellees. No. 89-50196. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 2, 1990. Decided March 6, 1991. John J. Byrne, Jr., Sp. Atty., U.S. Dept. of Justice, Los Angeles, Cal., for plaintiff-appellant. Joshua C. Needle, Alan Baum and J. Brendan O'Neill, Santa Monica, Cal., for defendants-appellees. Appeal from the United States District Court for the Central District of California. Before NELSON, BRUNETTI and KOZINSKI, Circuit Judges. KOZINSKI, Circuit Judge: 1 Under their supervisory power, courts have substantial authority to oversee their own affairs to ensure that justice is done. They do not, however, have a license to intrude into the authority, powers and functions of the coordinate branches. Judges are not legislators, free to make laws guided only by their moral compass or notions of national interest; nor are they executive officers, vested with discretion over law enforcement policy and decisions. Thus, while the supervisory power does empower judges to formulate procedural rules not specifically contemplated…