IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-40544

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

VICTOR ISAIAS LIMON-CASAS,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

September 24, 1996

Before HIGGINBOTHAM, DUHÉ, and BENAVIDES, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

The district court dismissed an indictment charging Victor

Limon-Casas with conspiracy to possess cocaine with intent to

distribute it and possession of cocaine with intent to distribute

it. Despite four appearances before the local magistrate judge,

Limon was denied bail and remained in jail in Neuces County, Texas.

Acting on information from a confidential informant that Limon was

plotting the slaying of the government’s key witness, the

government obtained a warrant to search Limon’s cell. The district

court conducted a hearing on the day following the search. It then

g ranted a defense motion to dismiss the indictment for percei ved

government misconduct in the handling of the search of Limon’s cell1 We describe the facts as asserted in the indictment and as

developed at the detention hearings and the hearing on the motion

to dismiss. Limon, of course, has not been tried. The relevant

facts at the hearings proved to be undisputed.

2 and ordered defendant’s release. He is now a fugitive. The

validity of the warrant is un challenged. The search of the cell

produced photographs of the home and car of the target of the

suspected plot.

Defendant’s counsel on appeal is unable to identify any denial

of Limon’s rights, any wrongdoing by the government in conducting

the search, or any prejudice that Limon might have suffered in the

pending drug case had this search, whose validity was unchallenged

below, been illegal. Whatever the limited powers of a federal

trial judge to dismiss a lawful federal indictment for government

misconduct in preparing the case for trial, there was no basis for

this dismissal, and we reverse with instruction to reinstate the

indictment.

I

On Februa ry 15, 1995, three government agents watched Limon

remove approximately one kilo of cocaine from his 1993 Ford

Econoline van and deliver it to Guadalupe Ochoa, Sr., a member of

L imon’s drug organization, recently turned informant. 1 Within a

few days the agents followed Limon and a Gilbert “Hamburger”

Hernandez to a suspected stash house. On February 22, agents

recovered two and one half kilos of cocaine from this house. The2 The district court appointed Mr. Berg to represent Limon on

this appeal when he advised that he no longer represented Limon,

who was by that time presumably a fugitive.

3 wrappings and markings matched those on the cocaine Limon delivered

to Ochoa on February 15.

Ochoa had been arrested in Virginia for delivering two kilos

of cocaine and twenty pounds of marijuana. He told drug agents

that this delivery was made at Limon’s direction. Two days after

Ochoa’s arrest in Virginia, Limon was arrested for speeding in the

Ford Econoline van. He had ten thousand dollars in cash with him.

It is important, as we will explain, that Lim on appeared

before magistrate judge Eduardo E. De Ases at his presentment on

F ebruary 23, at three detention hearings between February 27 and

March 2, and at his preliminary hearing on March 2. At each Limon

was represented by Robert A. Ber g, his counsel throughout these

proceedings. 2 At the detention hearing on March 2, 1995, Officer

Bussey, who worked with the DEA and headed drug enforcement for the

Corpus Christi Police Department, outlined the government’s

evidence of drug trafficking. He also described threats that Ochoa

a nd Ochoa’s son believed Limon had made on their lives. Ochoa

reported to Bussey that durin g the weekend of February 25 and 26

Limon had telephoned “Hamburger” Hernandez and told him that, “if

he [defendant] gets out he’s going to do away with Mr. Ochoa,” and

Hernandez passed this along to Ochoa. Bussey learned from Ochoa’s

son that, according to Hernandez, Limon said that he would also

kill Ochoa, Jr., if he foun d that he was cooperating with the

government. Officer Bussey testified at the detention hearing that4

Limon furnished a false identification card to his common law wife,

who lacked legal status in the country.

James van Kirk was a friend of Limon. A registered

pro fessional engineer whose business had recently collapsed in

bankruptcy, van Kirk arranged for Berg to represent Limon. In late

March Berg ask van Kirk to take photographs of certain property of

Ochoa, including his house, business, and Porsche automobile. Van

Kirk made two sets of photographs and furnished one s et to Berg,

the law yer. At the hearing on the motion to dismiss, van Kirk

testified that Limon asked for a set of pictures of the house and

car and that he furnished them to him in late March or early April.

On May 22, 1995, a confidential informant, also in the Nueces

County jail, told Officer Bussey that Limon “has recently hired an

individual to burn the properties and murder a government

cooperating witness.” Ochoa was the witness. The informant told

Bussey that Gilbert Lopez, another drug trafficker, had been paid

$2,500 to burn the property or kill Ochoa. Officer Bussey checked

the records and found that Lo pez had a prior 1986 conviction for

aggravated assault. The informant was able to describe Ochoa’s

residence, business, and car as shown in pictures he said were in

Limon’s possession. Bussey also learned from Ochoa’s neighbors

that an individual had been taking pictures of the house and car.

Late on the afternoon of May 23, 1996, Limon was moved to another

cell, and his vacated cell was taped shut. Apparently through some

failure i n communication, Limon’s new cell was also taped shut.

There is a suggestion that the taping of the second cell was to5

prevent communication between Limon and guards feared to be on his

payroll, but there is no evidence that this was the reason or that

t he officials in charge of the search had intended the taping of

the s econd cell. In any event, this was not the basis the

dismissal of the indictment and is not relevant to the issues

before us today.

Limon’s defense counsel, Berg, learn ed of the transpiring

events and telephoned an Assistant United States Atto rney at his

home at midnight of the same day. Berg demanded an explanation but

was given none. The next morning he filed the motion prompting the

hearing and ultimate dismissal now before us. The motion mentioned

for the first time a concern that privileged communications between

Berg and Limon might be seized and requested a post-seizure

examination of any written materials by the court in camera. The

motion also asserted that the events were “calculated to retaliate

against the defendant’s attorney” for events in an unrelated case.

The motion did not ask that the search be stayed or that counsel be

present when it was conducted. The motion was “served” on the

United States Attorneys by slipping a copy under the door early in

the morning. Officer Bussey proceeded to obtain the warrant that

morning, unaware of the filed motion. The assistant assigned to

try the drug case did not obtain a copy until the afternoon because

he was in detention hearings before the magistrate judge. Bussey

conferred with AUSA Dowd about the warrant and intended search.

The application for the warrant specifically requested a search for

“photographs of 1726 Rhew, 1818 Baldwin, and 3333 Houston, all in6

Corpus Christi, Texas.” Dowd, heeding routine procedures,

instructed Bussey not to examine attorney-client materials and to

isolate any materials with an attorney’s letterhead. He also

instructed Bussey that in executing the warrant he should not use

any persons involved in the drug case. The warrant issued at 3:48

that afternoon and authorized search of Limon’s cell.

Agents David Gonzalez and Ross Larrimore conducted the search.

Gonzalez had been involved in surveillance in the case and been

present when Bussey debriefed an informant, contrary to USA Dowd’s

instructions that the agents executing the search warrant were to

have had no prior involvement in the case. Bussey instructed

Gonzalez and Larrimore “that [they] were to search for such things

as photographs, exclusively photographs t hat show a residence of

some sort, vehicles, in particular a Porsche--a black Porsche

vehicle...and some p hone numbers, names of people that may be

involved in [this] investigation.” The search took approximately

45 minutes. The agents seized only the photographs, van Kirk’s

business card, and a letter handwritten in Spanish to a “Lupe,” the

informal name of Ochoa. It later developed that the name referred

to Maria Guad alupe Medrano, Limon’s common-law wife. No

correspon dence with counsel was seized, and there is no evidence

that any communication between attorney and client was disclosed by

the search and seizures.7 II

The court conducted a hearing on Limon’s motion to dismiss and

for ex parte review of attorney-client material the next morning,

on May 25, 1995. It is important that before the hearing the

government had gained only a copy of the photographs and van Kirk’s

business card. None of this information was new to the government,

and none gave it any advantage in the drug case. The government

believed that the photographs were relevant to a possible

con spiracy to intimidate or harm a government witness.

The district court was concerned from the start of the hearing

about an interception of privileged communications between Berg and

Limon or possible “work product.” The district judge asked Berg,

“how do you know they went through [defendant’s] personal

correspondence, other than what [defendant] s ays?” Without

requesting any ex parte examination, Berg, avoiding the question of

privilege, turned to the photographs and offered his explanation of

his intended use of the photographs at trial. He explained that he

intended to display to the jury the different lifestyles of Limon

and Ochoa by the photographs of Ochoa’s property. This

explanation, while not answering the court’s question, offered an

innocent use of the photographs. As we will explain, Limon now can

point to nothing that the government learned by the search of

Limon’s cell that might be described as defensive strategy or work

product or that might be prejudicial to Limon’s defense of the drug

charge. The photographs disclosed no strategy. Their intended use

was volunteered in a transparent effort to blunt the inference that8

Limon was engaged in a conspiracy to intimidate a witness

investigation.

The district court found that it “could only assume from these

facts that a complete examination of the Defendant’s correspondence

with his attorney....were calculated to and did, compromise the

Defendant’s Sixth Amendment right to a fair trial and his Fifth

Amendment right to be free from self-incrimination.” Among other

difficulti es with this assumption, there was no evidence of any

such materials, and at the hearing Berg declined to offer any such

evidence. This telling unwillingness to offer any sworn evidence

in open court or in chambers in an ex parte proceeding left the

record barren of any supporting evidence. At oral argument before

this panel, Berg conceded that he knew of no written communications

between himself and Limon that were in the cell. He admitted that

he had delivered no documents to Limon but speculated that Limon

might have had notes Limon had taken in the course of various

visits with counsel in the j ail. When the district court asked

Berg directly about legal materials, it got no answer.

III

The governm ent has filed an extensive brief detailing the

limited circumstanc es under which a federal trial judge can

exercise the extraordinary power to dismiss a federal indictment.

We need not canvass that law. We need only remind that at the

least the conduct of the government must be outrageous and

prejudicial to the ability of a defendant to receive a fair trial.9

Outrageous government conduct at the least must violate some legal

norm and must injure. We are at a loss to understand the basis of

the district court’s action. The seizure of the photographs was

supported by a warrant obtained from a federal magistrate judge and

was assumed to be valid by the district court. Indeed, it is by no

means clear that a warrant was required to search the cell of this

prisoner. The district court expressed concern in the hearing

about the need to proceed with haste and demanded to know why the

warrant was executed when defendant was represe nted by counsel.

Yet even Limon’s counsel did not request that he be present,

probably because there is no such right. The court’s underlying

concern, as best we can t ell from reading the record, was the

gaining of access to privileged information. We have found no

evidence that this occurred. Nor can we find a basis for the

court’s written finding that the search and seizure was “calculated

to and did, compromise the Defendant’s Sixth Amendment right to a

fair trial....”

The district court also stated in its written order that

“[o]ne of the more unconscionable aspects of this case is the U.S.

A ttorney’s refusal to make all information available to the

Magistrate-Judge.” At the hearing the district court expressed

concern that the Magistrate-Judge was not told that Limon was a

pre-trial detainee. The relevance of this information aside, Limon

had been before the issuing Magistrate-Judge represented by Berg on

four occasions, three of them detention hearings that ultimately

resulted in d enial of bail. The judge thus deprived of this10

information was the same judge whose order kept Limon in jail. In

sum, we have found no basis for concluding that the government

engaged in any conduct that was illegal and prejudicial to the

rights of Limon, the defendant. The findings of the district court

are vacated, and the order dismissing the indictment is reversed.

The case is remanded to the district court.

REVERSED and REMANDED.