United States v. George L. Bohl, United States of America v. Richard R. Bell

Citations: 25 F.3d 904; 1994 U.S. App. LEXIS 11769; 1994 WL 197082Docket: 91-5180, 91-5181

Court: Court of Appeals for the Tenth Circuit; May 20, 1994; Federal Appellate Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

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The Tenth Circuit Court of Appeals addressed an appeal concerning Defendants-Appellants Richard R. Bell and George L. Bohl, who contested their convictions related to a contract with the Federal Aviation Administration (FAA) for building radar and radio transmission towers. The court examined whether the government violated the Due Process Clause of the Fifth Amendment by denying the defendants pretrial access to potentially exculpatory evidence, as established in Arizona v. Youngblood. The court concluded that the government intentionally disposed of this evidence despite repeated requests from Bell and Bohl, thereby denying them a meaningful opportunity to present a defense, which led to a reversal of their convictions.

The convictions stemmed from TSL, an Oklahoma corporation led by Bell and Bohl, being awarded a contract by the FAA to construct towers. A post-award amendment specified the use of high-strength steel that conformed to ASTM standards. The FAA raised concerns about the steel's compliance after an incident involving a fractured leg on one of the towers in Bangor, Maine. Testing revealed that the steel contained excessive levels of carbon and manganese, leading to further inspection of all towers constructed under the contract. Consequently, the FAA halted further fabrication and met with Bell and Bohl for discussions, during which TSL initiated an internal review to assess the quality of its steel supplies.

In response to the FAA's concerns regarding the quality of steel used in towers, TSL requested multiple times to inspect the allegedly nonconforming towers. TSL's representatives, Bell and Bohl, formally sought access during a meeting on November 21, 1988, and followed up with numerous phone calls until April 1989. A letter from Bell on July 13, 1989, expressed TSL's urgent need for information about the towers and raised concerns over potential improper disposal. The FAA acknowledged these requests but failed to respond.

In January 1989, the FAA contracted Raytheon Corporation to test the towers and later awarded a contract for the removal of all TSL towers, which were integral to the evidence against Bell and Bohl. Unbeknownst to them, a criminal investigation into their conduct commenced in May 1989, prompting the DOT to request that the FAA preserve the towers as evidence. Despite the significance of the towers for ongoing investigations, TSL’s requests for access remained unanswered.

On September 6, 1990, a grand jury indicted Bell and Bohl on multiple charges, including conspiracy to defraud and mail fraud. During the grand jury proceedings, it was noted that the towers were actively being demolished. Following the indictment, Bell and Bohl renewed their requests for access to the towers, with Bohl's counsel formally asking for information and access in letters dated September 24 and October 2, 1990. However, these requests also went unanswered, despite the impending pretrial hearing and trial dates.

On October 18, 1990, Assistant United States Attorney Kirkpatrick informed Bohl's counsel that the government would disclose the condition and location of certain towers. However, only minimal material was provided, including a portion of a leg from the Bangor tower and shavings from the Boise and Luthersville towers. Bell and Bohl filed a pretrial motion to dismiss the indictment on November 5, 1990, claiming the government’s destruction and loss of evidence hindered their ability to conduct tests on the towers' chemical composition. During a pretrial hearing on November 16, 1990, the government admitted it failed to respond to requests about the towers' whereabouts but argued that Bell and Bohl had access to comparable evidence, including photographs and test results. The court denied the motion to dismiss.

At trial, Bell and Bohl filed a motion for judgment of acquittal, arguing that the destruction of the towers deprived them of essential examination opportunities. The court denied this motion, stating the issue would be addressed during the defense phase. A subsequent motion for acquittal was also denied due to a lack of evidence showing government intent to destroy the towers. On April 15, 1991, a jury found Bell and Bohl not guilty on a conspiracy count but convicted them on multiple fraud-related counts. The government’s case focused on allegations that the defendants used inferior steel for towers constructed under an FAA contract, supported by laboratory test results showing noncompliance with contract specifications. Bell and Bohl contested the validity of the government's testing.

Post-trial, the district court rejected their motion for acquittal and a new trial, asserting no exculpatory evidence was withheld and that proper evidence was not destroyed. The court sentenced Bell to twenty-one months in prison and ordered restitution of $420,007.05, with Bohl receiving an identical sentence. On appeal, Bell and Bohl raised three errors: the destruction of the towers before trial, insufficient evidence for convictions, and false testimony to the grand jury.

The review of the district court's conclusion regarding the government's destruction of potentially exculpatory evidence utilizes the clearly erroneous standard. The inquiry into allegations of prosecutorial bad faith is a mixed question of fact and law, with a focus on the factual question of intent. The legal principles from California v. Trombetta and Arizona v. Youngblood guide the analysis of due process violations related to the loss or destruction of evidence. Under the Trombetta test, a due process violation occurs if the government destroys evidence with apparent exculpatory significance before its destruction and the defendant cannot obtain comparable evidence by other means. Youngblood expanded this to require a showing of bad faith when evidence is deemed only potentially useful. 

Recent cases illustrate the application of these principles: in United States v. Richard, the court found no bad faith due to a lack of evidence supporting the appellant's claim, while in United States v. Sullivan, the court remanded the case to assess the exculpatory value of destroyed evidence. In United States v. Donaldson, the court held that Trombetta and Youngblood also apply to sentencing, but the appellant failed to demonstrate bad faith. 

To determine which standard applies to Bell and Bohl's due process challenge, the nature of the destroyed materials must be assessed. The Trombetta standard requires evidence with apparent exculpatory value, while the Youngblood standard suffices with evidence deemed potentially useful. Since the review indicates that the destroyed materials constituted only potentially useful evidence for the defendants, the Youngblood standard is applied rather than Trombetta.

The Trombetta standard for "apparent" exculpatory evidence has not been satisfied because the government's test results indicate that the towers' chemical composition did not meet Contract specifications. Experts Bell and Bohl acknowledged that the potential exculpatory value of the tower legs depended on further tests, which could not be conducted due to the destruction of the evidence, rendering the value latent rather than apparent. Consequently, they did not meet the first prong of the Trombetta standard.

In relation to the Youngblood test's first prong, Bell and Bohl provided significant evidence suggesting that the actual steel from the towers could yield exonerating results if tested. Their expert metallurgist highlighted issues with the government's testing, including insufficient sample size, potential contamination, and non-compliance with industry standards, which may have led to inaccurate conclusions about the steel's composition. Additionally, testimony from a purchasing agent confirmed that certified steel was used, and government agents indicated the towers appeared to meet specifications during inspection.

Bell and Bohl have established that the actual steel could be potentially useful for their defense, as their independent tests might have exonerated them. Regarding the second prong of Youngblood, the assessment of the government's bad faith in disposing of the towers hinges on its awareness of the evidence's exculpatory value. The government was aware of Bell and Bohl's claims regarding the potential exculpatory nature of the tower legs, as they had communicated multiple times with the FAA and renewed requests for preservation of the towers following the grand jury indictment. This contrasts with previous cases where the appellant did not demonstrate that authorities were aware of the evidence's potential exculpatory value before its destruction.

Bell and Bohl's claim regarding the tower legs possessing potentially exculpatory value is substantiated by independent evidence, differentiating it from mere speculation as seen in United States v. Martinez. FAA Quality Reliability Officers (QROs) inspected TSL's towers during fabrication, collected samples, and found no issues with the tower legs. Additionally, they received a certificate from TSL's steel supplier confirming the steel's compliance with specifications. The case of United States v. Cooper illustrates the significance of bad faith destruction of evidence when the government knowingly destroyed potentially exculpatory equipment despite independent corroboration of its lawful use. The record indicates that the government retained control over the tower legs when notified by Bell and Bohl of their exculpatory potential. Testimony from DOT Special Agent Martin confirms that the towers were still being dismantled after Bell's request for preservation, and the government has not produced evidence refuting this timeline. Therefore, it is concluded that the towers had not been destroyed at the time of Bell and Bohl's request.

The evidence in question was essential to the government's prosecution of Bell and Bohl, primarily focusing on the steel composition of TSL's towers. The government's case relied heavily on test results concerning this steel, which the defendants sought to contest through general denials and challenges to the credibility of the tests, but lacked their own informed testimony due to the absence of the physical evidence. The government failed to provide a valid explanation for not preserving this critical evidence, which weighs against them in light of legal precedents that require demonstrating bad faith in evidence destruction. Courts have established that mere negligence is insufficient to prove bad faith; however, the government did not assert that the evidence was destroyed inadvertently or as part of a standard procedure before its exculpatory potential was recognized. The deliberate disposal of the steel, particularly after the defendants requested its preservation and in light of independent evidence questioning the government's test validity, strongly suggests bad faith on the part of the government.

The government argues that the evidence provided to Bell and Bohl, including photographs and minimal samples of the towers, is sufficient; however, this assertion fails to meet the standards set by Youngblood. The government acknowledges in its brief that testing is necessary to determine the chemical composition of the tower legs. Testimony from DOT Special Agent Martin reinforces this point, stating that independent verification can only be achieved through actual testing of the towers. 

The government supplied only a small eighteen-inch section of the Bangor tower and limited shavings from the Boise and Luthersville towers, which expert testimony indicated were inadequate for reliable chemical analysis. The government did not present any expert testimony to contest this claim and further restricted the sampling area from the provided portion. Additionally, the shavings from the Boise and Luthersville towers amounted to only about 50 grams each, further demonstrating the insufficiency of the samples.

The significant dispute over the government's testing methods also indicates that their test results cannot be considered comparable to the actual towers. The document references the Trombetta decision, outlining the court's obligation to determine a remedy when evidence is destroyed in violation of constitutional rights. Unlike cases involving undisclosed Brady material, the centrality of destroyed evidence may permanently impact the defendant's due process rights. Consequently, the decision to suppress secondary evidence or dismiss the indictment must consider the prejudice to the defendant, including the importance of the evidence for the defense and the reliability of the remaining evidence.

The court concludes that the indictment against Bell and Bohl should be dismissed due to the critical nature of the steel's chemical composition in the government's case. Bell and Bohl presented credible evidence suggesting their tests could yield exculpatory results and highlighted flaws in the government's testing methodology. The government failed to propose an alternative that would safeguard Bell and Bohl's due process rights, leading to the decision to reverse and remand the case with instructions for dismissal.

Additionally, although the appeals were not consolidated, they are considered jointly due to identical issues. The court granted the government's motion to supplement the appeal record with original trial exhibits. TSL's contract with the FAA specified delivery terms that left TSL unaware of the installation locations of the towers, contributing to the complexity of the case. Newly discovered evidence included government test results from other towers indicating compliance with contract specifications.

The court emphasized the relevance of the Due Process Clause, stating that individuals cannot be deprived of rights without due process. It noted inconsistencies in the government’s test results for the Bangor tower, which could indicate either variability in steel quality or testing accuracy issues. The government cited a previous case (Richard) regarding bad faith destruction of evidence, but the court found that the situations differed significantly. Unlike in Richard, Bell and Bohl demonstrated that the government was aware of the importance of the allegedly nonconforming towers for their defense.

Finally, the court addressed the government's claims regarding the use of steel in the towers, pointing out that the charge against Bell and Bohl included the requirement for new materials, contradicting the government's assertions about the use of used materials under certain circumstances.