The Court may invoke its inherent supervisory powers to dismiss an indictment due to Government misconduct. United States v. Ramirez, 710 F.2d 535 at 541 (9th Cir. 1983); United States v. Owen, 580 F.2d 365, 367 (9th Cir. 1978). However, use of such powers is a harsh sanction, "frequently discussed but rarely invoked."

United States v. Chanen, 549 F.2d 1306, 1309 (9th Cir.), cert. denied, 434 U.S. 825, 98 S.Ct. 72, 54 L.Ed.2d 83 (1977), quoting United States v. Leibowitz, 420 F.2d 39, 42 (2d Cir. 1969). While such dismissals have been based occasionally on constitutional grounds, United States v. Basurto, 497 F.2d 781 (9th Cir. 1974), more often we have invoked our inherent supervisory power, United States v. Owen, 580 F.2d 365 (9th Cir. 1978), United States v. Samango, 607 F.2d 877 (9th Cir. 1979). Indeed, over twenty years ago this court stated that a trial court may have legal discretion to dismiss an indictment "to do justice," even in the absence of express statutory authority.

Where the defendant asks the district court to use its supervisory powers to dismiss an indictment for outrageous government conduct, the proper prejudice inquiry is whether the government conduct "had at least some impact on the verdict and thus redounded to [the defendant's] prejudice." United States v. Lopez, 4 F.3d 1455, 1464 (9th Cir. 1993) (alteration in original) (quoting United States v. Owen, 580 F.2d 365, 368 (9th Cir. 1978)); cf. Bank of Nova Scotia, 487 U.S. at 263, 108 S.Ct. 2369 ("The prejudicial inquiry must focus on whether any violations had an effect on the grand jury's decision to indict."). Though this is a less stringent standard than the Brady materiality standard applied above, the claim fails for similar reasons.

Relief for alleged prosecutorial misconduct is available only if the defendant can prove she was prejudiced thereby. See United States v. Lopez, 4 F.3d 1455, 1464 (9th Cir. 1993) (citing United States v. Owen, 580 F.2d 365, 367 (9th Cir. 1978)). Ross claims that the prosecutor attempted to dissuade her witness from testifying by telling her she did not have to honor the subpoena.

If the government's investigatory or prosecutorial conduct is reprehensible, but not quite a violation of due process, the district court may nonetheless dismiss an indictment under its supervisory powers. Barrera-Moreno, 951 F.2d at 1092; United States v. Owen, 580 F.2d 365, 367 (9th Cir. 1978). However, "these supervisory powers remain a harsh, ultimate sanction [which] are more often referred to than invoked."

Barrera-Moreno, 951 F.2d at 1093. In United States v. Owen, 580 F.2d 365 (9th Cir. 1978), we adopted the view that, in order to justify dismissal of the indictment under the court's supervisory powers, there must "be some prejudice to the accused by virtue of the alleged acts of misconduct." Id. at 367.

In United States v. Owen, 580 F.2d 365 (9th Cir. 1978), we adopted the view that, in order to justify dismissal of the indictment under the court's supervisory powers, there must "be some prejudice to the accused by virtue of the alleged acts of misconduct." Id.

See, e.g., United States v. Jacobs, 531 F.2d 87, 90 (2d Cir.), vacated and remanded, 429 U.S. 909, 97 S.Ct. 299, 50 L.Ed.2d 277, aff'd on remand, 547 F.2d 772 (2d Cir. 1976), cert. dismissed, 436 U.S. 31, 98 S.Ct. 1873, 56 L.Ed.2d 53 (1978); United States v. Minnesota Mining Mfg. Co., 551 F.2d 1106, 1112 (8th Cir. 1977); United States v. Henderson, 525 F.2d 247, 250 n. 12 (5th Cir. 1975). The supervisory authority to dismiss an indictment is discussed but not applied in, e.g., United States v. Blue, 384 U.S. 251, 254-55, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966); Costello v. United States, 350 U.S. 359, 363-64, 76 S.Ct. 406, 100 L.Ed. 397 (1956); Holt v. United States, 218 U.S. 245, 247-48, 31 S.Ct. 2, 54 L.Ed. 1021 (1910); United States v. Broward, 594 F.2d 345, 351 (2d Cir.), cert. petition filed, ___ U.S. ___, 99 S.Ct. 2882, 61 L.Ed.2d 310 (1979); United States v. Fields, 592 F.2d 638 (2d Cir. 1978), cert. petition filed, ___ U.S. ___, 99 S.Ct. 2838, 61 L.Ed.2d 284 (1979); United States v. Owen, 580 F.2d 365, 367 (9th Cir. 1978); United States v. Chanen, 549 F.2d 1306, 1309 (9th Cir.), cert. denied, 434 U.S. 825, 98 S.Ct. 72, 54 L.Ed.2d 83 (1977); United States v. Baskes, 433 F. Supp. 799, 804-07 (N.D.Ill. 1977) (requiring amplification before exercising power to dismiss). For discussion of the supervisory power and of prophylactic rules thereunder which affect criminal trials, see generally, e.g., McNabb v. United States, 318 U.S. 332, 340-42, 63 S.Ct. 608, 87 L.Ed. 819 (1956); Olmstead v. United States, 277 U.S. 438, 469-71, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Holmes, J., dissenting); United States v. Fioraventi, 412 F.2d 407 (3d Cir.), cert. denied, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969); United States ex rel. Sturdivant v. New Jersey, 289 F.2d 846, 848 (3d Cir.), cert. denied, 368 U.S. 864, 82 S.Ct. 109, 7 L.Ed.2d 61 (1961); Note, The Supervisory Power of the Federal Courts, 76 Harv.L. Rev. 1656 (1963).

See Hobby v. United States, 468 U.S. 339, 349 (1984) ("At oral argument, petitioner eschewed primary reliance upon any particular constitutional provision and instead invoked this Court's supervisory power over the federal courts as a basis for the relief he seeks."); Lee v. United States, 432 U.S. 23, 37 (Marshall, J., dissenting) ("It is apparent to me that this Court has today deliberately passed up an opportunity to exercise its supervisory power to prohibit rather than to condone fundamental errors in criminal procedure."); United States v. LaMantia, 59 F.3d 705, 707 (7th Cir. 1995) ("[T]he court's supervisory authority can be used to dismiss an indictment."); United States v. Owen, 580 F.2d 365, 367 (9th Cir. 1978) ("Under its inherent supervisory powers, a federal court is empowered to dismiss an indictment on the basis of governmental misconduct.")

The Ninth Circuit has recognized that government misconduct may have a "devastating effect" on a defendant's Sixth Amendment right to counsel. United States v. Owen, 580 F.2d 365, 367 (9th Cir. 1978). Indeed, government interference with a defendant's relationship with his attorney may render that attorney's assistance ineffective and thus violate the Sixth Amendment.