Opinion
No. CR-13-24-FVS
04-29-2014
UNITED STATES OF AMERICA, Plaintiff, v. RHONDA FIRESTACK-HARVEY, LARRY HARVEY, MICHELLE GREGG, ROLLAND GREGG, and JASON ZUCKER, Defendants.
ORDER DENYING JASON
ZUCKER'S MOTION TO
DISMISS BASED UPON THE
UNITED STATES' FAILURE TO
PRESERVE EVIDENCE
THE DEFENDANTS have filed a number of motions. The Court considered their motions at a pretrial conference that was held on April 22 and 23, 2014. This order addresses defendant Jason Zucker's motion to dismiss the indictment on the ground the United States failed to preserve critical evidence.
BACKGROUND
On two occasions during August of 2012, law enforcement officers seized marijuana plants that allegedly were growing at 939 Clugston-Onion Creek Road, Colville, WA. A grand jury returned an Indictment on February 6, 2013. The Court held a pretrial conference on April 2, 2013. The United States requested permission to destroy the marijuana plants. The Court authorized the United States to destroy the plants, but only after counsel for the defendants had a reasonable opportunity to inspect them. The Court entered an order that stated in part, "An attorney's failure to make arrangements [to inspect] within ten days of March 29, 2013, shall waive any objection to the destruction of the marijuana plants." (Order Continuing Trial (ECF No. 141 at 2.) Defendant Jason Zucker moves to dismiss the Indictment on the ground the United States failed to preserve the plants that allegedly were seized by law enforcement officers during August of 2012.
RULING
In order for a defendant to demonstrate he has been deprived of due process of law by the United States' destruction of evidence, the defendant must show, at a minimum, that the United States acted in bad faith. United States v. Cooper, 983 F.2d 928, 931 (9th Cir.1993). No such showing has been made by Mr. Zucker. To the contrary, the United States destroyed the plants only after raising the issue at a pretrial conference at which Mr. Zucker and his attorney were present.
IT IS HEREBY ORDERED:
Defendant Jason Zucker's "Motion to Dismiss for Failure to Preserve" (ECF No. 201) is denied.
IT IS SO ORDERED. The District Court Executive is hereby directed to enter this order and furnish copies to counsel.
__________
Fred Van Sickle
Senior United States District Judge