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United States v. Swenson

United States Court of Appeals, Fifth Circuit

July 3, 2018

UNITED STATES OF AMERICA, Plaintiff-Appellant
v.
SIMONE SWENSON, Defendant-Appellee

          Appeal from the United States District Court for the Southern District of Texas

          Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

          EDITH BROWN CLEMENT, CIRCUIT JUDGE.

         We decide whether the district court abused its discretion by dismissing an indictment with prejudice because the prosecution missed pretrial discovery deadlines, mistakenly withheld some relevant documents until the eve of trial, and committed other errors that led the district court to conclude the "integrity of the prosecution ha[d] been destroyed." We reverse the dismissal order and remand for further proceedings.

         Facts and Proceedings

         The government indicted Simone Swenson, the owner and operator of an adoption agency, for fraud because, on multiple occasions, she matched two prospective families with the same birth mother as a means to secure funds from both prospective families.[1] According to the indictment, once Swenson received the required fees from the adoptive families, she would avoid contact with them. And "she would find a way, through lies and misrepresentations, to get out of the double matches."

         Swenson retained counsel and pleaded not guilty to the charges. She was released on bond, and she has not been in custody since August 2015.

         Swenson's investigation generated many documents, rendering the case fact intensive. Swenson's retained counsel sought an initial continuance because she was "not prepared to proceed to trial." Soon thereafter, Swenson apparently could no longer afford her privately retained counsel, who withdrew from the case. The office of the Federal Public Defender was appointed to represent her. Swenson's new counsel asked for a second continuance because she was new to the case and had not yet received the discovery from the prosecution. Swenson then sought, and was granted, two more continuances, because "defense counsel [was] still waiting to receive additional documents requested from third-parties that [were] necessary to fully investigate the case and to prepare for trial."

         Trial was scheduled for February 7, 2017. The district court imposed deadlines on the parties to disclose all of their requisite discovery under Federal Rule of Criminal Procedure 16(a). The government had until January 17 to comply.

         After the parties produced their documents, but before the pretrial conference, defense counsel expressed concerns about the prosecution's discovery. By way of background, some of the claims in the indictment stated that, to perpetuate her fraud, Swenson "was always available and responsive to prospective adoptive families prior to receiving agency fees." However, once she "received the necessary fees from the adoptive families, she was unavailable and would not return phone calls for long periods of time, if at all." To prove these claims, the prosecution sought access to the email communications between the victimized families and Swenson. The prosecution wanted to subpoena the email provider-"sanspareil.org"-but was having trouble because of the domain name.[2] Oddly, having encountered this difficulty, the prosecution's solution was to ask the victimized families to search their own accounts and send anything they thought was relevant. Swenson objected that these emails had never been authenticated and that the prosecution's production consisted of incomplete email-strings that contained missing messages.

         On January 23, the district court held the first (of four) pre-trial hearings to discuss the indictment, motions in limine, exhibits, and discovery. Defense counsel explained her concern that the prosecution was allowing the victimized families and witnesses to decide whether evidence was relevant. The district court agreed with the defense that this was problematic because the prosecution was abdicating its duty to determine whether exculpating evidence existed. The prosecutor attempted to mollify the district court by explaining that she "just didn't want the court to think we are hiding evidence or trying not to produce things" and "[d]iscovery has not been an issue in this case. I am very open. I give everything to defense counsel as soon as I get it, Your Honor. I make copies for everyone." The prosecutor later reiterated that she was not "hiding anything." The district court ordered the prosecutor to subpoena all of the emails. And the prosecution offered to obtain search warrants for the families' and witnesses' emails. The defense agreed to this plan, but stated that it was ready for trial and did not wish to wait any longer.

         On January 24, the parties had a second pretrial conference in the district court's chambers, and he signed the search warrants that had been discussed in the first pretrial conference. There is no transcript of this proceeding, but-according to defense counsel-the district court "made clear to the government that it should immediately comply with its constitutional and rule-based discovery obligations."

         A few days later, on January 27, the prosecution dumped a large number of documents on defense counsel. These documents included emails from the victimized families, which contained messages that Swenson believed are inconsistent with the families' statements in FBI reports. There was also a set of documents labeled "Dropbox files received from Maggie Steffen on 2/14" and another set labeled "Documents received from Kathleen Ruysser 2/2014." Swenson believed that many of these documents contained exculpatory material.

         On January 29, defense counsel moved for a continuance in light of the data dump. The parties held another pretrial conference with the district court on January 31. Despite receiving the large data dump a few days before, defense counsel withdrew her motion for a continuance, stating she was ready for trial. Defense counsel further stated that she believed that she had received all the documents from the government.

         Then, on February 3, only a few days before trial was set to begin, as a result of her own investigation, defense counsel learned of the existence of a police report that Swenson had made to the Montgomery County Sheriff's Office regarding Swenson's allegations that one of the birth mothers had committed fraud. Specifically, the report stated that the birth mother had agreed with Swenson to give up her baby and receive living expenses, but the birth mother had made the same agreement with a different adoption agency.

         Defense counsel contacted the prosecutor, who emailed her that report, along with four more reports, two of which had been filed by victimized families. Swenson claimed that these reports also contained at least impeaching, if not exculpatory material, including one statement from a victim explaining that "she had good communication between [Swenson] and the prospective birth mother." Swenson argued that this statement directly refutes an FBI report that indicates Swenson denied the victim's initial request to speak with the birth mother. These documents also showed that, after receiving the victim's report, the FBI report had been redrafted to exclude all of the contacts that ...


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