United States v. Hawk

I On November 13, 1975, Leonard Peltier and companions were thought by the FBI to be traveling across the State of Oregon. Peltier was then a fugitive from the United States authorities .and federal officers were attempting to take him into custody. It was thought that he might be traveling with a party of five others and going east. One other who was believed to be in this party of six and thought to be a federal fugitive was Dennis Banks. The events of the siege of Wounded Knee had occurred a short time before,1 and the government was still in the process of tracking fugitives from that sorry affair. Desiring to make Oregon State Police aware of this information, the Portland, Oregon FBI office sent a teletype message on that day to all Oregon law enforcement officers which stated that federal fugitives might be traveling through Oregon in a motor home and a station wagon. Both vehicles were described and the license number of the motor home was given. The message then stated that if the vehicles were sighted they should not be stopped, but the FBI notified. The next day, on November 14, at about 9:30 p. m., Oregon State Trooper Griffiths sighted the vehicles and verified their description and the license number of the motor home. He proceeded to stop the vehicles. Griffiths had not read the entire bulletin and made the stop under the impression that the bulletin required it. Findings of Fact at l.2 — 1142 — He then radioed for help and pulled in between the vehicles with his overhead lights flashing. Both vehicles stopped, with the station wagon about 100 yards behind the trooper’s car. Trooper Griffiths got out of his car and approached the motor home on the right. He commanded the occupants of the motor home to get out. An Indian male got out, followed by two Indian women ' and a small child. Griffiths asked if anyone else was inside and they replied “No.” At approximately the same moment the motor home accelerated swiftly forward and the man who had gotten out of it fled toward a fence along the highway. As he jumped the fence about 15 yards from the road he fired a shot in the direction of Trooper Griffiths. The trooper returned two shotgun blasts. Both of these shots missed. As Trooper Griffiths was approaching the motor home, Corporal Kramer, also of the Oregon State Police, who had responded to the call for aid, got out of his patrol car and shined his flashlight into the rear window of the station wagon. Corporal Kramer cautiously approached the left side of the station wagon. When he reached the driver’s door he ordered the driver (later identified as defendant Russ James Redner) out of the vehicle and to the rear of the station wagon where he was ordered to stand in the headlights of Kramer’s patrol car. On request, the driver produced a Washington driver’s license. The officer then approached the passenger’s side and ordered the occupant to get out and also stand in the front of the headlights of his patrol car. The passenger was identified as defendant Loud Hawk. Griffiths meanwhile had followed the direction of the motor home and found it on the highway about one-half mile away from the initial stop. The motor was running, the lights were on and the door was shut. No occupants were found inside. Both vehicles were then locked, towed away and impounded by the Oregon State Police until a search warrant was obtained. On Saturday, November 15, 1975, state search warrants were, obtained for the search of both vehicles.3 The Oregon State Police searched both vehicles on Saturday, November 15, 1975, pursuant to their warrants. No federal agent participated in the decision to obtain the state search warrant. Federal agents observed the search of both vehicles but did not participate directly except that federal agent Hancock entered the motor home on one occasion. The findings of the trial court on remand in part relate the subsequent events: “Firearms were found in the motor home, which was searched first, and federal agents were told of this fact.4 Federal agents then suggested that the station wagon be searched for firearms. State officers opened the station wagon and found the dynamite immediately. Federal agents did not participate physically in the search of the station wagon, and no federal warrant had been obtained. Federal agents did observe the state search and photograph the dynamite as it appeared in the station wagon. “On November 16, the dynamite was transferred from the station wagon to a state police car by state officers. Federal agents did not participate physically but did observe and photograph the dynamite as it appeared in the trunk of the state police car. Federal agents did not advise or direct any action with respect to the removal or transportation of the dyna — 1143 — mite. Federal agents made no request that any of the dynamite be preserved for their purposes. Had such a request been made, state police would have complied. “The decision not to keep the dynamite was made by Trooper Fettig of the state police, pursuant to an unwritten policy defined by his practice of six years before November 1975. Trooper Fettig’s practice of destroying explosives was based on the lack of state storage facilities, problems with chain of custody and public safety considerations. Federal agents did not actively participate in Trooper Fettig’s decision not to transport the dynamite for safekeeping. Federal agents were present and aware of Trooper Fettig’s intended destruction of the dynamite and neither encouraged nor discouraged such action. “The decision to destroy, like the decision not to transport the dynamite, and containers was made by Trooper Fettig, pursuant to state police policy and in his discretion. No federal agent participated in this decision. Federal agent Milam, the only federal agent present at the destruction of the dynamite and containers, rode with a state officer in a car following Trooper Fettig’s to a gravel pit outside Ontario for the purpose of observing and photographing the destruction. Agent Milam neither encouraged nor discouraged the destruction of the dynamite and containers.” Findings of Fact at 3. II A five count superseding indictment charged all of the appellees with three counts relating to possession of an unregistered and unnumbered destructive device “consisting of a combination of parts designed and intended for use in converting a device into a destructive device; said combination of parts consisting of: (a) six (6) pocket watches, each with a hole drilled in the face with a metal screw inserted into the hole in a position with the moving hands of the watch, with a soldered battery connector and a ground wire attached with expended flash bulbs attached; (b) four (4) batteries with wires attached; and (c) two (2) expended flash bulbs with wires attached; and said device consisting of watches, timing devices, electrical blasting cap leg wires, wires, electrical blasting cap, detonating cord, batteries, and seven (7) cases of DuPont 70 percent dynamite, and said destructive device had not been registered to them in the National Firearms Registration & Transfer Record as required by section 5841, Title 26, United States Code, in violation of section 5861(j) and section 5871, Title 26, United States Code.” C.T. at 113, 114, 115. Count I charged the violation as above; Count II again described the same destructive device and charged violation of the provision requiring identification by serial number as required by section 5842(c) of Title 26, and 27 CFR 179.102 and violation of sections 5861(i) and 5871. Count III again described the same destructive device but with violation of different registration requirements. Count IV charged Loud Hawk with wilfully transporting weapons in interstate commerce which had their serial numbers obliterated, to wit: four Valmet semi-automatic rifles; one Colt AR-15 Cal. 223; three Smith & Wesson .357 Magnums and a Swiss-made 7.5 mm handgun, in violation of Title 18, section 922(k), United States Code. Count V charged only Dennis James Banks, who was a fugitive when the indictment was returned. Because the dynamite which was being transported was destroyed by Oregon State Police who had apprehended the defendants, the district court dismissed the dynamite counts with prejudice pursuant to Rule 48(b), Fed.R.Crim.P., on grounds of unlawful suppression of evidence. When the government then declined to proceed with the firearms count until it could appeal the ruling on the dynamite counts, the district judge dismissed the indictment with prejudice. The federal government then appealed the Order Dismissing the Indictment. On June 11, 1976, the appeals of the suppression order and the order dismissing the — 1144 — indictment were consolidated by this court. Nos. 76-1906 and 76-2127, July 26, 1977. A panel of this court considered the matter after oral argument and by a divided vote affirmed the judgment of the district court. Application for en banc reconsideration was made and this court en banc directed a remand to the district court for the purpose of obtaining an evidentiary hearing and to make findings of fact with respect to the following matters: “1. Did any agent of the federal government participate in the destruction of the evidence? The factual findings should include the nature and extent of the federal participation, if any, in: “(a) The search for, and possession of, the evidence destroyed; “(b) The decision not to transport the dynamite for safekeeping; “(c) The decision to destroy, and the actual destruction of, the dynamite and containers; “(d) Any other actions or inactions relevant to the destruction of the evidence; and “(e) Any other actions or inactions to preserve samples or secondary evidence. “2. What prejudice, if any, was suffered by the defendants as a result of the destruction of the evidence? “In this order, the term ‘dynamite’ is used to designate the material that was contained in the cartons and that was destroyed. “This court retains jurisdiction of this case and requests the district court to hold hearings and make findings pursuant to this limited remand within 45 days of the date of this Order, or as soon thereafter as practicable.” Order of Remand, March 6, 1978. The district court held an evidentiary hearing on May 9 and 10, 1978, and made findings at its conclusion. Wherever possible in this opinion, matters of fact are taken from the facts developed at that remand hearing and noted in the district court’s findings. Ill Throughout the consideration of the case there continues to be uncertainty voiced by the district court and by the defendants as to the nature of the substance contained in the boxes which were destroyed. The district court in its Order Suppressing Evidence makes reference to the fact that “State Police Officers discovered what appeared to be seven cases of DuPont Gelex 2-70% dynamite.” Following the evidentiary hearing on remand, the court refers to the explosive as “[t]he substance at issue which I shall call dynamite for the purpose of these findings. . . . ” (Emphasis added). Officer Fettig, the explosives expert of the Oregon State Police, who was dispatched to investigate the explosive problem, went to the impounded station wagon and, in his words “opened the driver’s right rear door and noticed in the inner compartment of the station wagon, with the seats laid down, that in a greenish black visquine bag there was dynamite.”5 There was no doubt or equivocation in his judgment or his statement of fact stating that “there was dynamite.” Each of the seven boxes was marked “High Explosives Dangerous” and on the side had the following markings: — 1145 — “50 lbs Gelex 2 1X8 70% Strength D73MAO 7B” together with the logo of the DuPont company prominently displayed. Inside were red cylindrical sticks with heavy wrapping paper covering the contents and marked: “Explosives Dangerous Gelex 2 70% Strength E I Dupont De Nemours & Co. (Inc.).” and again carrying the number D73MAO 7B, with a last letter as Q or A, or Y. There was no testimony or other evidence to prove that it was not dynamite. Certainly it could be detonated and would explode because it did. A witness put on the stand by appellees, Ronald McCreary, qualified as an expert on the basis of using dynamite in road building, which was part of his occupation as a civil engineer. He looked at the pictures of the explosion and stated that the substance did not seem to have the explosive characteristics of the dynamite he was familiar with. Yet, he stopped short when asked the direct question whether he knew that it was dynamite or not, and acknowledged that he did not know.6 Photographs were taken of the explosives in the station wagon to show the cartons or boxes of Gelex 2 and the identity of the manufacturer with the serial numbers of the individual sticks so that they could be identified. They were in fact identified by employees of DuPont, manufacturer of the dynamite, by witnesses Bishop and Ursic. Bishop was a magazine keeper of explosives manufactured by the DuPont Company in the March 1973 trial period at its Washington plant. He identified a bill of lading, a cardex file showing the manufacture and shipment of dynamite from the Washington plant and a pack report showing where the material was manufactured and sent to the magazine for storage. The witness testified that the documents reflected the manufacture of 46 cases of Gelex 2 dynamite in 1973. Most important, he testified that those records “list the serial numbers or identification numbers that appear on those sticks of dynamite,” i. e., the sticks in the 46 cases. No questions were asked on cross-examination. Anthony Ursic was the assistant manager of that particular plant [at DuPont, Washington] in 1973. That plant, he testified, manufactured explosives, “dynamite essentially.” From exhibit 17, he testified that “[t]he envelope contains paper that is used to wrap dynamite. And it’s similar to the type we use at our plant.” Evidentiary Hearing, R.T. at 177. “Q. Looking at the records you have in Government’s Exhibit 17, can you tell where the dynamite which is contained in wrappers 1 through 7 was manufactured and when? “A. Yeah. Actually, the code date here is — for Gelax (sic) 2 is 974 MAO 7B, which is similar to the code date on here. “Q. And what does that— “A. So this indicates that 46 cases were made and shipped to a customer in Montana. “Q. And when they were shipped, were they full cases of dynamite? “A. Yes.” Evidentiary Hearing, R.T. at 180-81. When the DuPont employees testified, they referred to the cartons, the wrappers, the substance inside the wrappers, all in terms of “Gelex” or dynamite. They apparently had not been instructed to use a particular name — “dynamite” — as an artificial or symbolic term for an unknown sub — 1146 — stance. They referred to the substance as “dynamite” or “Gelex” as a name for a particular DuPont dynamite product. Finally, neither the indictment nor the statute requires that the explosive be “dynamite.” It is couched in broader terms and refers to a “destructive device.”7 It does not require that the parts be put together and ready for ignition or detonation if the parts are also available from which a destructive device may be readily assembled. United States v. Shafer, 445 F.2d 579, 583 (7th Cir.), cert. denied, 404 U.S. 986, 92 S.Ct. 448, 30 L.Ed.2d 370 (1971). Under the circumstances in which it was being transported, with firearms and bomb components and ammunition, the explosive here belies any contention that the group was on a peaceful agrarian mission, or that the explosive was to be used to dislodge stumps. IV The appellees have pointed to nothing in the circumstances we are concerned with that establishes that the federal authorities participated with the state authorities in destroying the dynamite. From the very beginning, when the FBI sent out its all points bulletin, the federal authorities made it plain that they did not want state authorities to interfere. The state trooper did not comply. He disregarded the admonition.8 When the vehicles were secure, they were in state possession and not federal possession. The State of Oregon obtained its own search warrant from a state official and conducted its own search of the vehicles. The state used its own fingerprint expert to examine the vehicles. It called in its own explosives expert, Officer Fettig, to determine what to do with the explosives. That expert made his own decision without calling upon the federal officers. There is no evidence of any connivance or even conference between the two groups of law enforcement officers as to the handling of the problem. The legal principles we are to look to for a solution to the problem here are well established. When the government loses or destroys tangible evidence prior to trial, a motion to suppress secondary evidence such as photographs, testimony of witnesses, etc., will be granted by the trial court if the defendant can show (1) bad faith or connivance on the part of the government, and (2) that he was prejudiced by the loss or destruction of the evidence. United States v. Sewar, 468 F.2d 236 (9th Cir. 1972), cert. denied, 410 U.S. 916, 93 S.Ct. 972, 35 L.Ed.2d 278 (1973); see also United States v. Young, 535 F.2d 484, 488 (9th Cir.), cert. denied, 429 U.S. 999, 97 S.Ct. 525, 50 L.Ed.2d 609 (1976); United States v. Heiden, 508 F.2d 898, 902 (9th Cir. 1974); United States v. Henry, 487 F.2d 912 (9th Cir. 1973). Thus, returning to the specific questions asked on the remand and commenting on them seriatim, the first question addressed by this court to the trial court on remand was whether any agent of the federal government participated in the destruction of the evidence and the nature and extent of that federal participation. There was no finding on remand that there was any federal participation in that destruction. (a) It was the state trooper who found the defendants in their two vehicles, stopped them on his own responsibility and took charge of the evidence on behalf of the state. At this point the only shred of argument to the contrary is that the stop and impounding of the vehicles was triggered by the teletype message put out by the FBI. But that message directed the state police not to take the persons or vehicles into custody. State Police Officer Griffiths said simply but unequivocally that he made the stop because he thought that was the thing to do despite the bulletin’s direction to the contrary. He was acting as an Oregon police officer — 1147 — and not as an adjunct of the federal government, but contrary to its admonition. (b) The decision not to transport the dynamite for safekeeping was made by Officer Fettig of the Oregon State Police. He testified that it was his responsibility what to do with the explosives and that he was guided solely by his own judgment based on a six-year state policy. (c) The decision to destroy the explosives was again that of Officer Fettig. It was in accordance with the state policy of long standing and not a decision of the moment after consulting the federal authorities. There was no evidence to the contrary. No evidence or finding indicated there was even any discussion with federal authorities at the scene or elsewhere concerning the manner of disposition of the explosives. Fettig (with assistance of Griffiths, an Oregon State Trooper) transferred the explosives to Fettig’s automobile and organized the three-car convoy that took the dynamite away with one state car leading, the second with Fettig and the explosive and the last car affording protection from the rear. (d) There was no evidence or finding as to the question of taking samples or preserving other secondary evidence. Both a state police officer and a federal officer took photographs which were made available to the court. Testimonial evidence was available from the officers who witnessed the destruction and the officers testified and were cross-examined and the photographs and dynamite wrappers were introduced. (e) With respect to the last question addressed to the district court, it concerned “any other actions or inactions” in regard to the destruction of the dynamite. The district court here calls attention to the cross-examination of John O’Rourke, Special Agent in Charge of Oregon, who came to Ontario before the dynamite was destroyed. The testimony of several FBI agents makes it clear that their interest was in locating federal fugitives and particularly Leonard Peltier. O’Rourke was asked if he knew whether Beverly Axelrod, an attorney for the defendants, was in Ontario. He said that he did, and then the inquiry was whether he made any effort to inform her of the impending destruction of the dynamite. He replied that he had not. Likewise, Axelrod never inquired of O’Rourke to be allowed to witness the destruction. The situation thus remains highly problematical. It is also unclear whether Axelrod was at this time and on this trip actually working for Loud Hawk. She was not produced, nor did she testify at any of the hearings. Throughout the entire proceedings, Loud Hawk was represented by Schiffman and Jones, a law firm of Portland, Oregon. At the trial, which took place in 1976, the court inquired of Loud Hawk as it did of the others, who their attorneys were, and Loud Hawk then stated he was represented by Lawyer Jones and was satisfied with his services. Axelrod does not appear of record as an attorney at any place in the record we have been able to find. Finally, the point that is attempted to be made, that federal agents failed to have defendants’ attorneys examine the dynamite before its destruction, is even less convincing when we remember that O’Rourke was never shown to have had any authority to stop or postpone the destruction of the evidence in the first place. Neither would he have any reason to look for Axelrod and invite her to witness the state’s destruction of the dynamite. The appellees rely on Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949), to prove that there was federal participation in the search and in the subsequent destruction. Lustig was a principal in a counterfeiting operation which appeared to be in operation in a hotel room. Greene, a Secret Service agent, was suspicious of the activity but apparently did not believe he had enough evidence for a break-in or even to obtain a warrant. He gave the information to the city police who proceeded to obtain an arrest warrant but no — 1148 — search warrant. The city officers entered the room illegally while Greene remained at the police headquarters awaiting their telephone call. As soon as a search warrant was obtained the police officers called Greene who then joined them in making the search. He helped the city police in the search, selecting evidence that would help a federal prosecution and accepting other evidence the local officers gave to him. The Court said: “The crux of that doctrine is that a search is a search by a federal official if he had a hand in it; it is not a search by a federal official if evidence secured by state authorities is turned over to the federal authorities on a silver platter. “Though state officers preceded Greene in illegally rummaging through the bags and bureau drawers in Room 402, they concerned themselves especially with turning up evidence of violations of the federal counterfeiting laws after Greene joined them. He was an expert in counterfeiting matters and had a vital share in sifting the evidence as the search proceeded. He exercised an expert’s discretion in selecting or rejecting evidence that bore on counterfeiting. The fact that state officers preceded him in breach of the rights of privacy does not negative the legal significance of this collaboration in the illegal enterprise before it had run its course. Greene himself acknowledged such participation by his remark about ‘leaving the room after we had gathered all this evidence together.’ ” Lustig v. United States, 338 U.S. 74, 78-79, 69 S.Ct. 1372, 1374, 93 L.Ed. 1819. In the case before us there was certainly not participation in the Lustig manner. The federal officers here did not have a part in the search of the car or in the destruction of the dynamite. Their major concern was with the whereabouts of Leonard Peltier and they hoped to find him among the travelers. The opinions of this court in United States v. Higginbotham, 539 F.2d 17 (9th Cir. 1976), and United States v. Trenary, 473 F.2d 680 (9th Cir. 1973), are also of no assistance to appellees. In Higginbotham, the appellant was convicted on a Dyer Act charge. Shortly after appellant’s arrest, an officer of the Boise, Idaho, Police Department put together a photographic display composed of 18 photographs, one of which was that of appellant. During pretrial proceedings, appellant’s photograph was readily identified from among the pictures constituting the display. At trial the display could not be produced because it had been broken up and the pictures returned by local police to their files. Before this court, appellant complained that the failure to produce the display denied him due process. The contention was rejected, Judge Kilkenny stating: “Here is a proper place to emphasize that the fifteen photographs were never in the possession of the prosecutor, the FBI or any other United States Government agency. The Boise police, under these facts, cannot be said to be acting on behalf of the federal government but rather on behalf of the State of Idaho. Cf. United States v. Smith, 433 F.2d 1266 (CA5 1970). Under such circumstances we should be reluctant to impute to the federal government the mistakes, particularly relatively innocent ones, committed by local police. Moreover, the demand to produce these photographs might well be likened to an attempt to require production under the Jencks Act of statements in the possession of state police. See Beavers v. United States, 351 F.2d 507 (CA9 1965), where the statements were never in possession of the United States and production was not required. By analogy, it is evident that the United States is in no way responsible for the actions of the Boise police in disposing of the fifteen photographs by inadvertence or otherwise.” Id. at 21. In Trenary there was a conviction for conspiracy to import marijuana from Mexico. The marijuana and duffle bags containing it had been destroyed by the Mexican police before trial. There being no charge of bad faith or negligence by the United States, secondary evidence was admissible — 1149 — at the trial. Trenary is another example of the refusal of this court to impute to the federal government the loss or destruction of evidence by other authorities over whom it has no authority or control. V The final questions addressed to the trial court concerned prejudice. Under the law of the circuit, even if there should be a finding of participation in the destruction, there must also be a showing by the defendants that they have been prejudiced by the loss of the evidence. United States v. Se-war, 468 F.2d 236 (9th Cir. 1972) and cases supra. Prejudice was suffered by the defendants, the trial court says, “to the extent that their inability to observe the destruction and to analyze samples of it deprived them of the opportunity to contest the government’s conclusion that the substance destroyed was indeed explosive.” We have already noted the weakness of the testimony of witness McCreary, who examined the photographs of the explosion and who then declined to express any opinion as to the question whether the explosion was of dynamite or not. The last finding of the trial court was that the defendants “were also prejudiced by the destruction of the cartons and plastic bag which contained the dynamite in that they were deprived of the opportunity to determine by fingerprinting who might have handled those items.” We find the fingerprinting argument a little difficult to follow. Let us assume that X, Y and Z are being prosecuted for possession of contraband and that the fingerprints of X are found on the contraband. This evidence might be used against X, but it does not affect Y and Z, whose prints were not found. As to defendants here, lack of their fingerprints is exculpatory, if anything. Absence of fingerprints has little significance to prove or disprove handling. The handlers might have worn gloves; they might have removed their prints; or they might have employed someone else to lift the dynamite. It is only where there are fingerprints that such identification is helpful, and then helpful to the prosecutor, if to anyone, in establishing an identity not otherwise discovered. Here, there is no prejudice to the defendants in the destruction of the boxes and the plastic covering or any other part of the explosives as a result of possible destruction of fingerprints. VI In its second assignment of error, the government contends that the district court incorrectly dismissed the indictment against appellees. The district court’s order dismissing the indictment was founded on Rule 48(b) of the Federal Rules of Criminal Procedure. That rule authorizes the court to dismiss an indictment whenever there has been “unnecessary delay in bringing a defendant to trial.” The government argues that the delay in prosecuting appellees has not been “unnecessary,” and consequently that the district court abused its discretion in dismissing the indictment. Assuming arguendo that the district court did not err in dismissing the indictment, the government contends that the court below did err in dismissing the indictment with prejudice. While dismissal with prejudice is authorized by Rule 48(b), the government points out that such power is to be utilized with caution and only after a forewarning to the prosecution that dismissal with prejudice will result from a failure to proceed to trial. United States v. Simmons, 536 F.2d 827, 834 (9th Cir. 1976), cert. denied 429 U.S. 854, 97 S.Ct. 148, 50 L.Ed.2d 130, see also United States v. Charnay, 577 F.2d 81, 84 (9th Cir. 1978). The government argues that the trial court failed both to exercise the requisite caution and to provide the required forewarning, and thus improperly dismissed the indictment with prejudice. In examining the government’s second assignment of error, the merits of its arguments are best demonstrated if the dynamite and nondynamite counts are analyzed separately. The dynamite counts. The delay in prosecuting appellees on the dynamite counts — 1150 — has not been unnecessary under Rule 48(b). The government had a statutory right to appeal the suppression order as it applied to the dynamite counts. The delay has been necessary to permit the meaningful exercise of that statutory right. The government has been granted the right by statute to appeal suppression orders entered by the district court. That right is set forth in 18 U.S.C. § 3731. Section 3731 provides in pertinent part: “An appeal by the United States shall lie to a court of appeals from a decision or order of a district courts suppressing . evidence . . . not made after the defendant has been put in jeopardy ... if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.” The government’s right to appeal is available conditionally. First, the appeal is not available if the defendant has been put in jeopardy. Second, the appeal must not be taken for purpose of delay. Third, the evidence suppressed must be substantial proof of a fact material in the proceeding. Clearly, these conditions were met in the context of the dynamite counts. (1) Appellees have yet to be placed in jeopardy. (2) The appeal was not taken for purpose of delay. The delay in bringing appellees to trial was necessary to permit the government to effectively exercise its statutory right to appeal. (3) The suppressed evidence was critical in establishing a necessary element of the alleged offenses, the existence of an explosive device. In summary, the government had a statutory right to appeal the suppression order if certain conditions were met. Those conditions were satisfied as to the dynamite counts. Delay was necessary to permit the government to effectively take its appeal. Clearly, such»a delay, necessary to give effect to a statutory right, cannot be deemed “unnecessary” for purposes of Rule 48(b). Therefore, we hold that the district court erred in dismissing the dynamite counts. pursuant to Rule 48(b); we reverse that portion of the district court’s order dismissing these counts; and remand the cause to the district court with instructions to reinstate the indictment as to these counts. The nondynamite firearms counts. The delay in prosecuting appellees on the nondynamite counts of the indictment has been unnecessary for Rule 48(b) purposes. As previously discussed, the government’s right (via section 3731) to appeal a district coúrt’s order suppressing evidence is conditional. One of the conditions is that the evidence suppressed must be substantial proof of a fact material in the proceeding. This condition must be met before appeal of the suppression order can properly be taken. Despite the government’s protests to the contrary, the suppressed evidence (dynamite) is not substantial proof of any material fact in the nondynamite counts of the indictment. The trial court found as much. Given the government’s failure to satisfy this condition, its appeal of the suppression order as it relates to the nondynamite counts was improper and the delay in prosecution occasioned by this appeal has been unnecessary under Rule 48(b). Therefore, we find that the court below properly dismissed these counts of the indictment. Having determined that the trial court properly dismissed the nondynamite counts of the indictment, we turn now to the propriety of dismissing those counts with prejudice. In United States v. Simmons, supra, at 834, this circuit held that even though dismissal with prejudice is authorized by Rule 48(b), trial courts should utilize such power with caution and only after a forewarning to the prosecution that dismissal with prejudice will result from a failure to proceed to trial. The government argues that the requisite caution and forewarning required by Simmons were absent in the trial court’s dismissal of the nondynamite counts with prejudice. We agree. We find the record devoid of any forewarning to the prosecution that the nondynamite counts of the indictment would be dismissed with prejudice. The district — 1151 — court’s entry dismissing these counts contains no reference to a forewarning of impending dismissal with prejudice. The remainder of the record is equally as barren. Any attempts to create the requisite forewarning from a declaration made by the United States attorney at a hearing conducted several days prior to dismissal must also fail. At the hearing the government counsel observed: “[W]e will suffer a dismissal at this time if the Court should choose to do so rather than go to trial on the imperfect case that we would have to present if we were forced to trial now.” 12 R.T. at 6. This statement cannot be a sufficient forewarning to satisfy the requirement of Simmons. First, the statement was made by the government, not the trial court. It is the trial court that is required to forewarn the prosecutor, not vice versa. Second, and far more important, the government’s statement indicates that it was prepared to suffer dismissal. Nothing is said concerning its preparedness to suffer dismissal with prejudice. As indicated in Simmons, at 837, it is not enough to forewarn that dismissal may result from a failure to proceed to trial. Rather, the prosecution must be forewarned that the dismissal will be with prejudice. Given the failure of the trial court to provide the forewarning mandated by Simmons, we reverse that portion of the trial court’s order dismissing the nondynamite counts with prejudice and remand the cause to the district court for further consideration of its dismissal of these counts in light of this opinion. In conclusion, we reverse the orders of the district court granting appellees’ motions to suppress and to dismiss the indictment with prejudice. Further, we remand the cause to the district court with instructions: (1) to deny appellees’ motion to suppress, (2) to reinstate the indictment as to the dynamite counts, and (3) to reconsider its dismissal of the nondynamite counts with prejudice in light of this opinion. SO ORDERED. KENNEDY, Circuit Judge, files a separate concurring opinion in which BROWNING, EUGENE A. WRIGHT, CHOY, WALLACE, and J. BLAINE ANDERSON, Circuit Judges, concur. Footnotes [1] The incident at Wounded Knee, involving a 71 day occupation of the town, had ended May 8, 1973, but there were apparently federal indictments outstanding for some participants, including Peltier and Banks. [2] Trooper Griffiths’ exact testimony at the remand hearing was as follows: “MR. TURNER: It’s an “all-points bulletin,” and it was used by Trooper Griffiths to stop these two vehicles. I might note for the Court that— “THE COURT: You can read it. The objection is overruled. “MR. TURNER: Is the offer received, Your Honor? “THE COURT: Yes, You can read it. “MR. TURNER: Thank you. Did you— “THE COURT: That’s what you asked him to do, isn’t it? “MR. TURNER: Yes, sir. “MR. SCHIFFMAN: Just the final portion of it. My objection is if he reads any of it, he read the entire document. “MR. TURNER: I have no objection to that, Your Honor. “THE COURT: All right. Well, read the part that the lawyer asked you to read, and on cross-examination if the lawyer wants to read some more, he can do it. “Q (By Mr. Turner:) Would you read the last line, sir. “A If vehicle is sighted, do not stop but advise FBI, Portland, immediately for more details.” “Q All right. Mr. Griffiths, did any Federal officer or agent tell you to disregard that portion of the APB? “A No. “Q And could you explain to the Court why you felt it was important to stop these vehicles? “A The proximity to the state line was a major factor. “Q Well, how close were you to the state— State of Idaho, I take it? — 1142 — “A Yes, Several miles. “Q All right. “A And it was my decision to stop the vehicles. 1 felt it had to be done right, then. “Q All right. Thank you very much.” R.T. at 54, Evidentiary Hearing, May 9, 10, 1978. [3] Federal search warrants were obtained the following day and executed on the 16th after the Oregon State Highway officers had completed their search. R.T. 1, 9. [4] Among the firearms found were semi-automatic rifles, police shotguns, handguns, more than 2,600 rounds of ammunition, 150 blasting caps, nine empty pineapple training hand grenades, pocket watches with the faces drilled to permit preparation of time bombs plus other bomb-making equipment such as batteries, wire, cable, etc. [5] Officer Fettig described himself as an explosives technician. He had at that time been with the Oregon State Police about six years. He had been in the military service for 25 years as an explosive ordnance disposal expert. He had been an explosives disposal man in World War II overseas for three and one-half years. Back in the United States he was assigned to Aberdeen Proving Grounds. He was an instructor in explosives and explosive devices, chemical and biological warfare. From there he was sent on special assignment clearing bomb ranges that were being returned to the owners after use as practice bombing ranges. In 1950, he was reassigned as an advisor to the Secret Service on bomb disposal procedures for the protection of the President and Vice President of the United States. In 1953, he was assigned to the Far East Command as an explosive ordnance technician on Okinawa and more recently he retired from the Army and has been employed by the Oregon State Police. He testified that he had destroyed on the average between 7,500 and 9,000 pounds of dynamite every year since he has been with the Oregon State Police. [6] Testimony of defendant witness Ronald McCreary was as follows: “Q Now, did I understand your testimony that this appeared to be an incomplete detonation of dynamite? Is that a fair statement? “A No, I said it was an incomplete combustion of some materials. I do not know what they are. “Q Oh, you don’t know whether it’s dynamite or not? “A Oh, no. I wasn’t there. “Q And you can’t tell from the photographs? “A No.” R.T. at 235, Evidentiary Hearing, May 9, 10, 1978. [7] 26 U.S.C. § 5845(f) reads in part as follows: “The term 'destructive device’ means (1) any explosive, incendiary, or poison gas (A) bomb, (B) grenade, (C) rocket ... or (F) similar device.” [8] See Note 2, supra.