Bari, et al, et al v. United States, et al, et al

Filing 686

ORDER by Judge Claudia Wilken DENYING PLAINTIFF CHERNEYS RENEWED 678 MOTION TO STRIKE; GRANTING DEFENDANT UNITED STATES'S 673 MOTION FOR DE NOVO REVIEW ; OVERRULING DEFENDANT UNITED STATESS 673 OBJECTIONS TO MAGISTRATE JUDGES ORDER ; AND GRANTING CHERNEYS 682 REQUEST FOR ACTION AND 682 MOTION TO IMPLEMENT. (ndr, COURT STAFF) (Filed on 3/31/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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No. C 91-01057 CW
JUDI BARI, et al.,

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Plaintiffs,
v.
UNITED STATES OF AMERICA, et al.,
Defendants.
/

United States District Court
For the Northern District of California

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ORDER DENYING
PLAINTIFF CHERNEY’S
RENEWED MOTION TO
STRIKE (Docket No.
678); GRANTING
DEFENDANT UNITED
STATES'S MOTION FOR
DE NOVO REVIEW
(Docket No. 673);
OVERRULING DEFENDANT
UNITED STATES’S
OBJECTIONS TO
MAGISTRATE JUDGE’S
ORDER (Docket No.
673); AND GRANTING
CHERNEY’S REQUEST
FOR ACTION (Docket
No. 682) AND MOTION
TO IMPLEMENT (Docket
No. 682)

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The United States objects (Docket No. 673) to Magistrate Judge

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Larson’s March 21, 2011 order sustaining Plaintiff Darryl Cherney’s

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Objection to Destruction of Evidence of Who Bombed Judi Bari;

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granting Cherney’s Motion for an Order in Rem Granting Access for

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Testing and Notice Against Spoliation; and denying the United

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States’s Motion to Strike the Declaration of James Wheaton.

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United States moves for de novo review (Docket No. 673).

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opposes the objection and, in his opposition, renews his motion to

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strike the United States’s motion for de novo review, which the

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Court originally denied on April 26, 2011.

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action by the Court (Docket No. 682) and moves to implement the

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Magistrate Judge’s Order (Docket No. 683).

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of the papers filed by the parties, the Court grants the United

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The

Cherney

Cherney also requests

Having considered all

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States’s motion for de novo review, denies Cherney’s renewed motion

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to strike, overrules the United States’s objection to the

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Magistrate Judge’s order, and grants Cherney’s request for action

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and motion to implement.

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Larson’s order.

The Court affirms Magistrate Judge

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BACKGROUND

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Because Magistrate Judge Larson’s order thoroughly describes

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the procedural and factual history of this case, which was

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originally filed two decades ago, that history will not be repeated

United States District Court
For the Northern District of California

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here.

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underlying lawsuit in 1991, alleging that Defendants, including the

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City of Oakland, the Oakland Police Department (OPD) and several

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named individual Oakland police officers and FBI agents, conspired

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to frame them for the May 24, 1990 bombing of Bari's car, in which

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Bari and Cherney themselves were seriously injured.

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United States, C 93-1899 CW, was consolidated with this case and

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the caption of the case was changed to “Bari v. United States.”

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The case was tried and the jury reached a verdict for Plaintiffs in

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2002.

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discussions supervised by Magistrate Judge Larson.

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Bari, through her executor, and Cherney entered into a settlement

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agreement with Defendants.

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settlement agreement included the following provision:

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As is relevant to this order, Bari and Cherney brought the

Later, Bari v.

Thereafter, the parties engaged in protracted settlement

2a.

In April 2004,

In addition to monetary relief, the

Non-monetary relief: The City defendants have stated
their intention to release all evidence gathered in the
underlying criminal investigation to plaintiffs (save and
except for contraband items which plaintiffs would have
no lawful authority to possess). This will be reduced to
a writing between the plaintiffs and the City defendants.
The City will itemize any items withheld and the parties
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will refer any disputes regarding withheld items for
resolution to Magistrate Judge Larson.

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Cherney Ex. 10, Settlement Agreement paragraph 2a.1
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On May 14, 2004, Plaintiffs filed a partial satisfaction of
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judgment, which stated that the individual Federal Defendants had
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fulfilled the terms of the monetary portion of the settlement
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agreement.

See Docket No. 663-1, May 14, 2004 Partial Satisfaction

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of Judgment.

On June 18, 2004, this Court dismissed the case with

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prejudice, retaining jurisdiction to enforce the settlement
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agreement.
United States District Court
For the Northern District of California

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At some point thereafter, the FBI contacted the Sonoma County
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Sheriff’s Department (SCSD) and the OPD to arrange for the return
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of evidence the FBI had received from those agencies.

Docket No.

673, United States’s Motion for De Novo Review at 5-6.

The SCSD

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advised the FBI that it did not want the evidence returned to it.
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Id. at 6.

At some later date, there were discussions between the

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FBI, the OPD and Plaintiffs, after which the FBI acknowledged that
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it would turn over to the OPD only the non-contraband evidence that
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the OPD had provided to it and that the OPD would return the
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evidence to Plaintiffs.

Id.

On March 25, 2009, the FBI turned

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over some evidence to the OPD and the OPD simultaneously provided
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it to Plaintiffs.

Id.

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The following evidence was not turned over to the OPD: the
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fragments of the device which exploded in Bari's car, a partially24
exploded pipe bomb that was found at a Louisiana Pacific lumber
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According to the United States, the writing alluded to in
this provision was never made.
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mill in Cloverdale, California; a hand-lettered sign found near the

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Cloverdale device reading “LP screws mill workers;” a fingerprint

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obtained from the sign; an analysis of the fingerprint; and a

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letter to the Santa Rosa Press Democrat newspaper, known as the

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“Lord’s Avenger” letter, by an individual claiming responsibility

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for the Cloverdale device and the bombing of Bari’s car.

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Cloverdale device and the sign had originally been obtained by the

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SCSD, but, as noted, that agency had indicated that it did not want

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the evidence returned to it.

The

The Lord’s Avenger letter was

United States District Court
For the Northern District of California

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returned to the Santa Rosa Press Democrat, which had originally

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received it and turned it over to the FBI in 1990.

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In June 2010, counsel for the United States informed Cherney’s

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counsel that the remaining evidence would be destroyed.

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filed the objection and motions described above and noticed them

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for a hearing before Magistrate Judge Larson.

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evidence not be destroyed but be released for third party testing,

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either for use in a criminal prosecution or in a civil suit by

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Cherney.

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declaration of attorney James Wheaton, which addressed the

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understanding of the parties at the time of the settlement

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agreement regarding the disposition of the evidence.

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States opposed the motion, arguing that the Court lacked

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jurisdiction to provide the relief requested by Cherney.

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United States also filed a motion before Magistrate Judge Larson to

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strike the Wheaton declaration as barred by the parol evidence

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rule.

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and took the objection and motions under submission.

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Cherney

He asked that the

In support of his motion, Cherney attached the

The United

The

Magistrate Judge Larson held a hearing on September 8, 2010

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On March 21, 2011, Magistrate Judge Larson issued an order

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sustaining Cherney’s objection to the destruction of the evidence

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and granting his motions.

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United States’s motion to strike the Wheaton declaration, finding

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that it was admissible to interpret the settlement agreement, which

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was ambiguous.

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ordered:

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United States District Court
For the Northern District of California

Magistrate Judge Larson found jurisdiction and

that the United States preserve against loss, alteration,
destruction, or contamination all components and remnants of
the Oakland and Cloverdale bombs, along with the “LP Screws
Millworkers” sign, the “lifted” fingerprints, and any
fingerprint analysis; and further orders that the same be
transferred to a reliable third-party custodian, for
examination and testing, when an appropriate custodian is
identified by the Court. Plaintiffs are hereby ordered to
propose such a custodian for the Court’s consideration.

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Magistrate Judge Larson denied the

March 21, 2011 Order at 23.

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On April 5, 2010, the United States moved for de novo review

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of Magistrate Judge Larson’s order.

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moved to strike the United States’s motion, arguing that de novo

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review was unavailable because the United States consented to

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Magistrate Judge Larson’s jurisdiction.

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Court denied Cherney’s motion to strike.

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United States’s motion for de novo review, Cherney renews his

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motion to strike.

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On April 7, 2010, Cherney

On April 26, 2010, this
In his opposition to the

DISCUSSION
I.

Cherney’s Renewed Motion to Strike

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In denying Cherney’s first motion to strike the United

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States’s motion for de novo review, the Court found that Cherney

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had not identified a written consent by the United States to

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Magistrate Judge Larson’s jurisdiction, and noted that the referral

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to Magistrate Judge Larson was made pursuant to 28 U.S.C.

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§ 636(b)(1)(B).

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pursuant to Local Rule 72-1, and did not specify any section of

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§ 636.

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U.S. 580 (2003), for the proposition that a party may impliedly

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consent to a magistrate judge’s jurisdiction.

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This was incorrect.

The referral was made

Cherney now renews his motion, citing Roell v. Withrow, 538

Roell held that parties could impliedly consent to the

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jurisdiction of a magistrate judge by appearing before him or her,

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without expressing reservation, after being notified of their right

United States District Court
For the Northern District of California

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to refuse and after being told that the magistrate judge intended

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to exercise case-dispositive authority.

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United States appeared before Magistrate Judge Larson without

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expressing reservation, it was not notified that Magistrate Judge

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Larson would be entering an order that would not be subject to de

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novo review or that it had a right to refuse this exercise of

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jurisdiction.

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Id. at 586.

Although the

The United States may have consented to Magistrate Judge

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Larson’s jurisdiction in the settlement agreement itself.

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Paragraph 2a of the settlement agreement provided that “the

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parties” would refer any disputes regarding withheld evidence to

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Magistrate Judge Larson.

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the claims against it had been dismissed from the case before trial

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and it was not mentioned specifically in paragraph 2a, it did not

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consent to Magistrate Judge Larson’s jurisdiction regarding the

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disposition of the evidence.

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The United States argues that, because

The settlement agreement uses the term, “parties,” without
explicitly defining it.

Defendants are referred to as “Oakland
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Defendants” and “Federal Defendants.”

Paragraph 1(b) of the

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settlement agreement defines “Federal Defendants” as “federal

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defendants and the United States.”

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Oakland and Federal Defendants are referred to as “parties.”

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settlement agreement is signed by an Assistant United States

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Attorney on behalf of the “Federal Defendants.”

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section of the settlement agreement where the word, “parties,”

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appears, the United States is included.

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interpret the word “parties” in paragraph 2a any differently from

Together, Plaintiffs and the
The

Thus, in every

There is no reason to

United States District Court
For the Northern District of California

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the way that word is used in all other paragraphs of the settlement

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agreement.

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parties who agreed in paragraph 2a to refer any dispute regarding

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withheld evidence to Magistrate Judge Larson.

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abundance of caution, the Court will review Magistrate Judge

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Larson’s order de novo.

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II.

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Thus, the United States appears to be one of the

However, in an

The United States’s Objections
A.

Wheaton Declaration
1.

Motion to Strike

Magistrate Judge Larson denied the United States's motion to

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strike the declaration of James Wheaton, who served as fee counsel

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for Plaintiffs in the underlying lawsuit and participated in the

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settlement negotiations between Plaintiffs and the Oakland and

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Federal Defendants.

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Larson erred in finding that the settlement agreement was

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sufficiently ambiguous to allow the use of extrinsic evidence to

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interpret it.

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The United States argues that Magistrate Judge

Magistrate Judge Larson found the phrase, "all evidence
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gathered in the underlying investigation," contained in paragraph

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2a of the agreement, susceptible to two interpretations: (1) all

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the evidence from the underlying criminal investigation, even

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though the FBI, rather than OPD, was in possession of most of this

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evidence; or (2) only the evidence the OPD had gathered in the

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underlying criminal investigation.

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The United States argues that Magistrate Judge Larson’s
finding of ambiguity did not take the entire agreement into account

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and cites Klamath Water Users Protective Ass’n v. Patterson, for

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United States District Court
For the Northern District of California

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the proposition that a “written contract must be read as a whole

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and every part interpreted with reference to the whole, with

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preference given to reasonable interpretations.”

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1210 (9th Cir. 1999).

204 F.3d 1206,

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However, the United States does not indicate how the

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settlement agreement as a whole explains the contested phrase.

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United States does not cite any portions of the agreement that

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clarify that this phrase refers only to the evidence gathered by

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the OPD.

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United States's motion to strike.

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The

The Court affirms Magistrate Judge Larson's denial of the

2.

Claimed Erroneous Factual Finding

The United States argues that Magistrate Judge Larson

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erroneously found that it was understood at the time that the

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United States would return all evidence in the case to Oakland.

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According to the United States, the statement by James Wheaton that

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it was understood that the FBI would return evidence to the “local

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law enforcement agencies from whence it came” makes clear that the

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evidence obtained by the SCSD would be returned to that department,

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not transferred to the OPD.
Although attorney Wheaton did state that the FBI would return

3 the evidence to the local law enforcement agencies that gathered it,
4 he also stated that it was the understanding of the parties that the
5 FBI would transfer “all the evidence” to the OPD, which would
6 transfer it to Cherney.

He explained that the reason paragraph 2a

7 did not refer to the FBI in the context of the release of the non8 contraband evidence to Plaintiffs was that counsel for the Federal
9 Defendants stated at the time that the underlying investigation was
United States District Court
For the Northern District of California

10 being conducted by the OPD.

Wheaton said counsel for the Federal

11 Defendants represented that the evidence the FBI had did not belong
12 to it, but rather to local law enforcement agencies, and that the
13 FBI could only dispose of it by returning it to local law
14 enforcement agencies.

Further, the FBI could not destroy it or

15 enter into any agreement with a private party regarding its
16 disposition.

Thus, although some of the evidence had been gathered

17 by the SCSD, there was no reason for the Oakland Defendants and
18 Plaintiffs to believe that the FBI would return it to the SCSD,
19 given that the SCSD had provided it to the FBI, and it was the OPD,
20 not the FBI or the SCSD, that had been conducting the investigation.
21 The Court agrees with Magistrate Judge Larson's factual
22 determination that when the Oakland Defendants agreed to turn over
23 all of the evidence, except for contraband, they meant all of the
24 evidence, including that initially in the possession of the FBI,
25 which the parties expected the FBI to turn over to OPD.
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B.

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Magistrate Judge Larson found jurisdiction to enter his March

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Jurisdiction

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1 21, 2011 order on three bases: (1) the Court’s jurisdiction to
2 enforce the terms of the parties’ settlement agreement;
3 (2) jurisdiction pursuant to Federal Rule of Criminal Procedure
4 41(g); and (3) the Court’s inherent equitable authority.

The United

5 States disputes each basis and, for the first time, argues that
6 Magistrate Judge Larson’s order violates its sovereign immunity.
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Because neither the FBI nor the United States was mentioned

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specifically in paragraph 2a of the settlement agreement, the

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provision that applies to the release of evidence to Plaintiffs and

United States District Court
For the Northern District of California

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refers disputes to Magistrate Judge Larson, the United States

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argues that the Court’s jurisdiction to enforce this provision of

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the agreement does not extend to the FBI.

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acknowledged that the FBI and the United States were not mentioned

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in paragraph 2a of the agreement, but rejected the United States’s

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argument, based on estoppel:

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from asserting that the Court lacks jurisdiction to supervise the

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settlement agreement, where the Government, having been party to

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the three-way settlement negotiations, has not performed an

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obligation which gave rise to the terms of the agreement.”

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21, 2011 Order at 14:1-5.

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Magistrate Judge Larson

“The Government should be estopped

March

The United States does not specifically challenge Magistrate

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Judge Larson’s finding of estoppel.

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Magistrate Judge Larson's conclusion that the United States is

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estopped from arguing lack of jurisdiction to interpret and enforce

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the settlement agreement, even if it did not agree to Magistrate

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Judge Larson’s jurisdiction.

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address the alternate grounds on which Magistrate Judge Larson

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The Court agrees with

Accordingly, the Court does not

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based his finding of jurisdiction.
The United States further argues that Magistrate Judge

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Larson’s order violates its sovereign immunity because there is no

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statutory waiver of sovereign immunity allowing for the equitable

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remedy of preservation of evidence.

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jurisdiction to enforce the settlement agreement provides a

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sufficient basis to sustain Magistrate Judge Larson’s order as to

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the disposition of the evidence in this case, the United States's

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sovereign immunity is not implicated.

Because the Court’s

United States District Court
For the Northern District of California

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C.

Contraband

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Magistrate Judge Larson found that it was unnecessary to

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determine whether the remnants of the Oakland and Cloverdale

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devices are contraband because Cherney is requesting only that they

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be transferred to a third party laboratory for testing.

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States contends that this was error because the settlement

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agreement explicitly excludes contraband from the evidence that was

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to be transferred to Cherney.

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The United

The United States cites United States v. Lussier, 128 F.3d

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1312, 1315 (9th Cir. 1997), as well as several out-of-circuit

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cases, defining pipe bombs as "destructive devices" under various

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federal statutes.

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Wilson, 472 F.2d 901, 903 (9th Cir. 1972), an appeal of an order

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suppressing certain explosive devices as evidence in a prosecution,

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in which the court referred to “pipe bombs, blasting powder, and

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impact fuses” as contraband.

The United States also cites United States v.

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Because the devices in this case are not fully-assembled,

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functional explosives, but are either partially or fully exploded,

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Wilson and Lussier are not controlling.

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that the Oakland and Cloverdale devices are contraband per se,

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which is always illegal to posses.

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derivative contraband, which is illegal to possess only when used

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for illegal purposes.

The United States claims

Cherney claims that they are

Neither Wilson or Lussier addresses a distinction between

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contraband per se and derivative contraband.

However, this

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distinction is not relevant here because Cherney is not seeking to

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possess the devices.

Cherney states that he is "informed and

United States District Court
For the Northern District of California

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believe[s]" that the two devices are no longer dangerous because

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any residual explosive powder has been removed.

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The United States has not disputed this contention.2

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Cherney Dec. ¶ 5.

The Court affirms Magistrate Judge Larson’s ruling that a

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determination of whether the devices are "contraband" is not

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necessary because Cherney is requesting only that they be

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transferred to a third party laboratory for testing.

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E.

Disposition

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Magistrate Judge Larson ordered that the evidence be preserved

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and transferred to a reliable third-party testing facility after

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one is identified by Cherney and approved by the Court.

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States now suggests that, if the Court affirms Magistrate Judge

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Larson’s order, Cherney should not be permitted to direct

The United

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In addition, the Oakland device apparently consists entirely
of fragments. While the United States indicates that the FBI
Laboratory Explosives Unit confirmed at the time of the 2004
settlement negotiations that "the remains of a partially exploded
incendiary device, as was the Cloverdale device, were considered
contraband," Brief at 5, it makes no such statement regarding the
Oakland device. The fragments of an exploded bomb cannot be
considered a “destructive device” at this point.
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disposition of the evidence.

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place the responsibility on the Alameda County District Attorney to

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determine what, if any, further investigation or scientific testing

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to undertake.

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The United States urges the Court to

The settlement agreement provides no basis for ordering the

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evidence transferred to the Alameda County District Attorney, nor

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is there any indication that the District Attorney wants the

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evidence.

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Order, Cherney has identified Forensic Analytical Sciences as the

In his motion to implement Magistrate Judge Larson’s

United States District Court
For the Northern District of California

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third-party laboratory to receive, test and store the evidence.

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Cherney shall provide to the Court and to the United States

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Forensic Analytical Sciences’ qualifications, certifications and

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capabilities, its plan for taking custody, testing and storing the

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evidence, and a proposed order.

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this organization or its procedures, it must, within fourteen days

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from receipt of Cherney’s proposal, explain the basis of its

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objections and propose an alternate plan for the preservation,

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testing and storage of the evidence.

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could propose disassembling the Cloverdale device or removing any

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explosive powder, if necessary, so that it is not dangerous or

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contraband.

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with the OPD then providing it simultaneously to the third party

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laboratory.

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Cherney may reply within seven days thereafter.

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If the United States objects to

The United States’s plan

It could propose providing the evidence to the OPD,

If the United States files an objection or a plan,

CONCLUSION
For the foregoing reasons, the United States's motion for de
novo review is granted, and its objections are overruled.
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(Docket

1

No. 673.)

Cherney's renewed motion to strike is denied.

Cherney’s

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request for action (Docket No. 682) and motion to implement (Docket

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No. 683) are granted.

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Magistrate Judge Larson's March 21, 2011 Order is affirmed.

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parties shall proceed as outlined above.

For the reasons explained in this order,
The

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IT IS SO ORDERED.
Dated: 3/31/2012
CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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