Haynes

Opinion by Judge McKEOWN; Partial Concurrence and Partial Dissent by Judge REINHARDT.

At the conclusion of a three-year investigation, Gregory Haynes (“Haynes”) and James Denton (“Denton”) were arrested and indicted for manufacturing marijuana, conspiring to manufacture marijuana, and conspiring to commit money laundering. During the investigation, law enforcement relied on information provided by Dale Fairbanks (“Fairbanks”), a private investigator who worked for an attorney who represented Haynes and Denton during the initial phase of the investigation.

Claiming government misconduct based on the government’s reliance on Fairbanks as an informant, Haynes and Denton filed a motion to dismiss indictment, or alternatively, to suppress evidence as well as a *793 motion to suppress fruits of searches that were conducted pursuant to search warrants. After the district court refused to dismiss the indictment or to suppress fruits of searches but partially granted their alternative motion to suppress evidence, Haynes and Denton entered conditional guilty pleas to the marijuana conspiracy and money laundering counts of the indictment. They now appeal the denial of their motiong to…

concurring in part and dissenting in part:

The district court summed this case up aptly when it concluded that “this is a highly unusual case, hopefully never to be seen again in this district or elsewhere.” What made the case so unusual was the cavalier manner in which the government accepted the assistance of an informant who the government knew was handing over information protected by the attorney-client privilege. Judge Zilly dealt commendably with these “unusual” actions by law enforcement, and correctly resolved the issues stemming for the government’s misconduct. The majority is wrong, therefore, to hold that his decision to exclude the evidence of the Stanwood grow at sentencing was misguided and in violation of our case law. I dissent from that part of the majority’s decision.

The majority believes that the district court’s sentencing determination is “problematic” because its reason for excluding from the sentencing calculus the evidence seized at Stanwood — government misconduct — is “entirely unrelated” to that evidence. Wholly apart from the question of the district court’s authority to exclude the evidence, therefore, the majority sees no link between the…