Full opinion text
OPINION W. FLETCHER, Circuit Judge: Harry Stonehill and Robert Brooks (“Taxpayers”) appeal the district court’s denial of their Rule 60(b) motion to vacate a 1967 tax judgment against them. Based on evidence discovered through the Freedom of Information Act (“FOIA”), Taxpayers argue that the government committed fraud on the court during their 1967 suppression hearing, United States v. Stonehill, 274 F.Supp. 420 (S.D.Cal.1967) (“Stonehill /”), and their subsequent appeal to this court, Stonehill v. United States, 405 F.2d 738 (9th Cir.1968) (“Stone-hill II ”). We conclude that, although the evidence uncovered by Taxpayers shows some misconduct on the part of the government, it is insufficient to demonstrate fraud on the court. Taxpayers also argue that the judgment should be vacated under United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93 (1878), because William Saunders, Taxpayers’ business associate who sometimes served as their attorney, gave information to the government. Because Taxpayers have not shown Saunders was their attorney rather than their business associate at the time he informed on Taxpayers, we reject Taxpayers’ Throckmorton claim. As will become apparent during the course of this opinion, this litigation has been extraordinarily protracted. We have written an unusually detailed opinion in the hope that we may thereby finally lay this litigation to rest. For the reasons that follow, we affirm the district court. I. Background We begin with a general overview of the facts and procedural history. We then discuss in more detail the evidence uncovered at each stage of the litigation. A. General Overview Harry Stonehill was stationed in the Philippines during World War II. During and shortly after the war, Stonehill made tens of thousands of dollars buying and reselling army surplus cars, and importing Christmas cards from the United States. After the war, Stonehill briefly returned to his native Chicago, but returned to the Philippines several years later. Upon his return, Stonehill began what became an enormously successful business career, eventually becoming Robert Brooks’s partner. The Philippines became independent on July 4,1946. The early years of Philippine independence were notable for their tumultuous politics and extensive corruption. Taxpayers began their business ventures during these years. Taxpayers eventually owned sixteen different corporations in the Philippines, the most prominent of which was the United States Tobacco Company (“U.S. Tobacco”). U.S. Tobacco was the first company to produce Ameriean-style cigarettes in the Philippines. U.S. Tobacco’s success was aided by the Philippine government’s drastic limitation of the importation of American cigarettes in 1949. Stonehill, not surprisingly, supported (and, according to some, purchased) this limitation. U.S. Tobacco, as well as Taxpayers’ many other business ventures, were extremely successful, and Taxpayers became wealthy and influential figures in the Philippines. Taxpayers’ success attracted attention from both Philippine and U.S. authorities. The U.S. State Department became interested in Stonehill’s operations as early as 1950. The State Department requested that the U.S. Embassy in Manila conduct a “discreet investigation” into Stonehill’s operations. In its report to the State Department, the Embassy observed that Stonehill’s businesses were conducted “just within or just beyond the limits imposed by law,” and that Stonehill “has the reputation of not paying his full income tax.” Over the next decade, U.S. authorities became convinced that Stonehill did not pay income taxes he owed to the United States. In 1960, the IRS sent Stonehill’s 1958 tax return for audit to Robert Chandler, the IRS representative to the Far East stationed in Manila. However, Chandler took no action because he had insufficient resources to conduct an extensive investigation. Philippine attention to Taxpayers began in the late 1950s. It intensified after the election of President Diosdado Macapagal in 1961. Macapagal was elected on a reformist, anti-corruption platform. Although, as we discuss below, Macapagal and his party were not free from corruption themselves (including corruption involving Stonehill), Macapagal focused, at least rhetorically, on rooting out the influence of corrupt foreign businessmen. During this period, the Philippine government conducted wiretaps of Taxpayers’ activities. In late 1961, Menhart Spielman contacted Robert Hawley, an FBI agent stationed as the Legal Attache in Manila. Spielman had been the Executive Vice President of U.S. Tobacco, but had recently resigned from that position after a violent altercation with Taxpayers. Spielman told Hawley that he had confronted Taxpayers about massive illegalities in U.S. Tobacco. It is equally or more likely, however, that Spielman had attempted to blackmail Taxpayers by threatening to go to the authorities if they did not give him an ownership share in the company. Either way, Taxpayers responded by beating Spielman unconscious, resulting in his hospitalization. Spielman told Hawley that he could give the FBI information concerning illegal activity at U.S. Tobacco. Hawley concluded that, to the extent Spielman’s information suggested violations of U.S. law, it was U.S. tax law. Hawley therefore asked if Spielman would speak to IRS Agent Chandler. Spielman agreed to do so. Although Spielman’s information suggested violations of U.S. tax law, it primarily suggested violations of Philippine law. Chandler and Hawley therefore told Spielman that he should talk to the Philippine National Bureau of Investigation (“NBI”), the Philippine equivalent of the FBI. Spielman was reluctant to do so for fear that the NBI was in league with Taxpayers. Spiel-man said that if Taxpayers found out he was talking to the authorities, they would kill him. Hawley and Chandler eventually convinced Spielman to talk to Colonel Jose Lukban, the Director of the NBI. In a series of discussions at Chandler’s house, Spielman gave Lukban significant information about where Taxpayers kept records and illegally imported material for making cigarettes that would demonstrate various violations of Philippine law. Some of these meetings were attended by Philippine Secretary of Justice Jose Diokno. The information provided by Spielman eventually led to a massive NBI raid on all of Taxpayers’ businesses on March 3,1962. Approximately two hundred NBI agents raided approximately seventeen different corporations. After the raid, the NBI made many of the seized documents available to U.S. officials. The extent of U.S. access to the documents is contested, and we discuss the evidence concerning U.S. access in detail below. The documents to which U.S. officials had access were analyzed by Chandler, with William Ragland, an IRS Agent, and Sterling Powers, an IRS Assistant Revenue Service Representative. Ragland and Powers had been sent to Manila shortly before the NBI raid specifically to aid Chandler in the Stonehill investigation. On April 22, 1962, Menhart Spielman disappeared. Spielman had apparently been dissatisfied with his treatment by the NBI and had approached Stonehill’s lawyers in search of some sort of deal. Spiel-man then attempted to flee the Philippines, assisted by men associated with Stonehill. Philippine authorities eventually obtained confessions from the crewmen of a boat called the “Kingdom.” The crewmen claimed they attacked Spielman on the boat while he was asleep and threw him semi-conscious into the shark-infested waters of the Sulu Sea. The U.S. government was somewhat skeptical of this story. It is, however, certain that Spielman disappeared. Philippine enforcement proceedings against Taxpayers were complicated by Philippine politics, by a Philippine Supreme Court decision that the March 3 raid violated the Philippine Constitution’s equivalent of the Fourth Amendment, and by the disappearance of Spielman, their primary witness. After negotiations with Philippine authorities, Taxpayers agreed to leave the country voluntarily in exchange for the government’s agreement not to pursue criminal charges. Taxpayers left the Philippines on August 4, 1962. The documents seized in the March 3 raid were sufficient, even without testimony from Spielman, to trigger a series of legal actions in U.S. courts against Taxpayers, as well as against Ira Blaustein, Taxpayers’ New York agent. The United States filed a civil tax case against Taxpayers in January 1965 in the District Court for the Southern District of California. The government sought federal tax liens securing federal income tax liabilities outstanding against Taxpayers for the years 1958 through 1961. Taxpayers moved to suppress the documents seized in the NBI raid. The proceedings in that motion form the basis of the present dispute. B. Suppression Proceedings and Opinions At the time the U.S. government filed this ease against Taxpayers, the Philippine Supreme Court had already held that the raid violated the Philippine Constitution’s version of the Fourth Amendment. Stonehill I, 274 F.Supp. at 423-24. The United States did not contend that the NBI’s search warrants were lawful under either Philippine or U.S. law, but argued that under the “silver platter” doctrine the evidence should not be suppressed because United States agents did not instigate or participate in the raid. See id. at 426 (documents seized in violation of the Fourth Amendment should not be suppressed “if the illegal search and seizure is made by foreign government officers”). The major issue in the suppression motion in the district court was the extent of U.S. participation in the planning and execution of the raid. See id. at 424-25. Taxpayers argued that United States agents, primarily Chandler and Hawley, had sufficiently participated in the planning and execution of the raid to make the “silver platter” doctrine inapplicable. Taxpayers filed their motion to suppress on March 13, 1967. The hearing on the motion to suppress was held between June 12 and June 23, 1967. Nine witnesses provided live testimony, and testimony was read from numerous depositions. The transcript from the hearing totaled 1,257 pages. Much of the evidence at the suppression hearing came from Hawley’s and Chandler’s testimony. The district court denied Taxpayers’ motion to review all government memoranda concerning the raid, granting them access only to “all documents which were made from records seized in the Philippines.” However, the government did introduce some internal documents and cables dealing with preparations for the raid, as well as summaries of other documents and cables. It is unclear from the current record exactly what the government disclosed, but it was likely a small percentage of what is now available. Included in the documentary evidence introduced by Taxpayers were two pages of paper containing notes about sites that the NBI should raid. Some of the notes were in Chandler’s handwriting. These pages were part of a set of photographs, maps, and notes of raid sites. These pages were not provided by the United States but, rather, had been leaked to Taxpayers by someone in the NBI. We refer to these documents as the Picture Folder, which we discuss in detail below. We begin by describing the most important testimony by Hawley and Chandler. We then describe the district court’s findings concerning the history of U.S. involvement in the raid, and our conclusions on appeal in 1968. We then describe Taxpayers’ subsequent motions to suppress. 1. Hawley’s Testimony Hawley’s testimony was introduced through his deposition, which had been taken on January 17, 18, and 31, 1967. The parties have introduced relatively small selections of Hawley’s deposition into the record before us in the current proceeding. We describe those selections, and fill in some details based on descriptions in the district court’s 1967 opinion and our 1968 opinion. Hawley served as Legal Attache at the American Embassy in the Philippines starting in August 1961. Spielman met with Hawley alone on December 14, 15, and 16, 1961. Most of the information Spielman gave to Hawley concerned violations of Philippine law. Hawley testified, however, that some of Spielman’s evidence suggested violations of U.S. law. For example, Spielman told Hawley that Stone-hill, together with his agent Ira Blaustein in New York, had mislabeled a machine used to slit cigarette paper in order to pay the lower Philippine import duty for agricultural machinery. Such mislabeling would have constituted a violation of the U.S. Bill of Lading Act. Hawley reported this potential violation to Washington. Hawley testified that he concluded that the majority of potential violations of U.S. law were tax law violations. Hawley therefore suggested that Spielman meet Chandler. See Stonehill I, 274 F.Supp. at 421. Hawley and Chandler together met Spielman on December 18, 20, and 23, 1961. Chandler and Hawley eventually convinced Spielman to talk to Philippine authorities. Stonehill II, 405 F.2d at 741. The first such meeting occurred on January 27,1962. Present at the meeting were Lukban, Damaso Nocon (Lukban’s right-hand man), Spielman, Chandler, and Hawley. We describe these meetings in detail in discussing Chandler’s testimony. Hawley testified that during the period before the raid, Lukban provided him with copies of wiretaps the NBI had placed on Taxpayers. Hawley testified that he had not asked for these transcripts and that he stopped receiving wiretap transcripts after the raid. He also testified that he showed Chandler some of the wiretaps and technical surveillance reports that Lukban had made available to him. Hawley testified that at some time prior to February 24,1962, the date the raid was originally scheduled, Secretary Diokno had casually mentioned to him that the raid had been planned. Hawley testified that he had no specific knowledge concerning what was going to be raided, and that Diokno had not asked him for his recommendations as to locations that the NBI should raid. He also testified that he did not ask Diokno to provide him with any information that the NBI recovered in the raid. The raid was postponed. Hawley testified that he had not been told of the postponement. He “remember[ed] wondering why by the following Monday, I hadn’t seen anything in the paper about [the raid].” Further, Hawley testified that he was 'never told the final date for the raid. He was asked, “On March 3, you didn’t know anything about the raids?” He responded, “No.” He testified that he had scheduled a party for March 4. Even on the day of the raid he had “no idea of any kind of projected raids or anything.” The night of the raid he was home with his wife after spending some time at the office. He testified that he first learned of the raid in the Sunday copy of The Manila Times the day after the raid. He had the following exchange with Stonehill’s counsel: Q. When did you first find out that Stonehill was arrested and that the raids had taken place? A. I think it was in the Sunday paper, the Manila Times. Q. That was when you found out and that was delivered to you in the morning when you woke up? A. Yes. Q. At that time, you knew nothing about either the raids or Stonehill’s arrest until the time you read it in the Times? A. No. Q. What was your reaction? A. Interested that it had come about. Q. You knew it was planned, actually? You knew it was? A. Yes, but I had no positive date at all. Q. You had no positive date? A. No. 2. Chandler’s Testimony- Chandler testified in person at the suppression hearing. He testified that he was assigned to examine Stonehill’s 1958 tax return in 1960. He testified that the only time he saw a wiretap transcript was in December 1961, and that Hawley showed it to him. Much of Chandler’s testimony included in the record on appeal in 1968 focused on his activity coordinating communications between Spielman and Lukban, and his activity during the days surrounding the raid. Chandler testified that the initial meetings between Lukban and Spielman took place at Chandler’s home. Chandler said that Spielman requested that the meetings be there because Spiel-man “wouldn’t go near a Philippine government office at that time.” Hawley and Diokno attended the meetings “once or twice.” Chandler testified that he did not set the date for the raid, and that he had not been asked to participate in the raid or to assign any agent to the raid. He was told the date of the raid would be February 24 by someone in the NBI, probably Nocon. During cross-examination, Chandler was asked a series of questions about whether he saw any pictures of potential raid sites. At this point in the hearing neither Chandler nor the government knew that the defense had part of the Picture Folder. Chandler first testified that he had never himself taken or had others take any pictures of the buildings to be raided. Chandler and Taxpayers’ attorney then had the following exchange: Q. Mr. Chandler, did you ever see any pictures of any of the locations at which the raids were to be made? A. I don’t remember. I had — it seems to me that I had heard the NBI had photographed some of the — had made some photographs. I don’t recall whether I ever saw them. Q. Isn’t it a fact, Mr. Chandler, that the NBI made picture folders of each of the locations to be made, and showed them to you? A. I don’t recall seeing pictures, no. Q. But you do have some recollection of the NBI taking pictures? A. Yes, I have a recollection that they did do— Q. Did you recollect that you were told that by Mr. Danny Nocon? A. I think probably Danny, yes. They continued on the same subject shortly thereafter: Q. Do you recall seeing some files or documents which were called picture folders on March 2? A. I don’t recall seeing pictures, and yet I may have. Q. But you are clear— A. I may have seen these pictures at some time ... [b]ut I wouldn’t recall if it was March 2nd. Q. But you are clear that any pictures you saw would have been made by the NBI? A. Oh, yes. Taxpayers’ attorney then asked Chandler if he had ever made a sketch of several of the buildings to be raided and had given that sketch to Nocon or another NBI agent. Chandler said he may have helped Spielman make a sketch, but he would not have made one on his own. If there were such a sketch, he would have given it to Spielman, not directly to the NBI. Taxpayers then introduced the parts of the Picture Folder in their possession. This consisted of two pages. The first page was divided into three parts. The bottom two parts each contained a sketched floor plan of a building. There were five circled numbers identifying various locations within the two buildings. The top part of the paper had five instructions, which corresponded to the five circled numbers. Next to number one was written, “Check cigarette case for stamps.” Next to number two was written, “Check dummy wall for door.” Next to number three was written, “Rolls of paper t/b checked — is it actually cigarette paper for slitting[?]” Next to number four was written, “Check closely all items + area for stamps.” Next to number five was written, “Check all packing material for stamps.” The second page consisted solely of writing and was titled, “U.S. Tobacco Co.— Picture Folder.” It included a list of circled numbers, one through twenty, with comments after the numbers. These comments each seemed to correspond to something different, perhaps to a different picture. For example, next to number one was written, “No comment.” Next to number two was written, “Motor Pool, no significance.” Next to number four was written, “Goodyear Bldg. — John Brook’s— Confiscate records in separate small adjoining bldg. — This is bldg, from which John Brooks carried stamps at night.” Next to number nine was written, “Goodrich Bldg. — Chambón Slitting Machine + Evening News Newsprint supply.” Chandler testified that although he had no recollection of preparing these documents, the handwriting on both pieces of paper was his. He testified that the language is “Spielman’s language.” When asked why he would be preparing such a document for an informer, Chandler responded, “Spielman was an unusual individual. He pestered the life out of you on things and I figured on something of that nature, I don’t know what reason he would have given me, why I should write it down rather than he should write it down, because it was his information.” The following three exchanges provide a sense of Chandler’s testimony during cross-examination concerning the Picture Folders: Q. Does this language [instructions to “check” several places from the first piece of paper] recall to you that you did give instructions to the NBI prior to the raids or advice? A. Well, I did relay some — did help Spielman get some of his information to them, because they didn’t understand each other. Q. And you did this to help with the raiders, is that correct? A. I presume that would probably be used in the raids, yes. A second exchange was: Q. Now, I call your attention that each of these items I read on the first sheet, “Check, check, check, check,” and one that says “To be checked,” I think that is what it means, are numbered 1, 2, 3, 4, 5, and these numbers are placed in certain areas on these diagrammatic sketches of the buildings. Are these numbers in your handwriting also? A. Yes, those numbers are in mine. Q. So, in other words, those numbers were placed on these three sheets by you. Does that refresh your recollection to the effect that you were trying to specify for the NBI exactly where the places were that the agents and team leaders were to go? A. Well, undoubtedly I was trying to set down Spielman’s information. In the third exchange, the questions are coming from the court: Q. Now, can you tell me, how did you know that location 1 was a place to be checked for stamps, location 2 was a dummy wall, location 5 was packing material, how did you know all of that? A. I had listened to Mr. Spielman talk about that for weeks, this type of thing. Q. And you mean to say you got all your information about this building and these locations from Mr. Spiel-man? A. Yes, your Honor. Q. You never made any personal investigation of these buildings? A. No, your honor. He had told me this many times, he had told the NBI people many times.... But it might be exactly an example of what I am speaking of, they did not understand [him], even though he talked with them, just the same as he did with me. On redirect, Chandler further explained that, although he did not specifically remember making these drawings, he often served as a liaison between Spielman and the NBI. “There was not altogether rapport between [Spielman] and the NBI. I might have helped him to do something. He might have sketched this out and I might have done some of the writing.” Chandler testified that he could not have drawn the diagrams without Spielman because he had never been to the buildings they depicted. Returning to the days surrounding the raid, Chandler testified that late on the night of March 2, the night before the raid, Nocon came to Chandler’s house and told him Lukban would like Chandler to come to his house. Chandler testified that he followed Nocon to Lukban’s house, where Lukban’s associates were preparing search warrants. While there, Chandler asked if they had included the Army and Navy Club as a raid point. Nocon said they had not included the Army and Navy Club, and Chandler persuaded them to do so. Chandler testified that he gave no other advice to Lukban and made no requests of him. Chandler testified that he did not visit the Army and Navy Club that night with an NBI officer, but went straight home from Lukban’s house. Chandler testified that on the day of the raid he, along with William Ragland and Bill Reynolds, IRS agents who had recently arrived in Manila, went to an area across the street from the NBI headquarters that Lukban had designated as the place they should wait during the raid. That evening, at around 10 p.m., Lukban called them and said that “they had hit the jack pot.” He invited them to come to his office in the NBI headquarters. Chandler testified that he saw boxes throughout the headquarters building. While Chandler, Ragland, and Reynolds were with Lukban, an NBI agent reported that they had just seized a tremendous quantity of records and requested help sorting them. Lukban asked if Chandler, Ragland, and Reynolds would help the agent. They followed the agent to a location in the port area. When the three men arrived, they identified the documents they thought were important and placed them in a carton for the NBI to take back to headquarters. Chandler testified that he had felt that “this business was rather disorganized.” Thus, on the way back from the port “out of curiosity I went up to the main office, drove up to the main office of the U.S. Tobacco Corporation, to see whether that was equally disorganized.” Ragland and Reynolds remained in the jeep, and Chandler went into the office. Chandler testified that once in the office, he pointed out to NBI agents a back room area that the agents should search. Stonehill II, 405 F.2d at 742. Chandler testified that on the Monday after the raid, March 5, Lukban brought Chandler, Reynolds, and Ragland to the NBI building. Lukban gave them a place to work and made some records available. Once Reynolds and Ragland started work, Chandler left. 3. District Court Opinion The district court denied Taxpayers’ motion to suppress on October 16, 1967. Stonehill I, 274 F.Supp. at 420. The district court made the following factual findings. Spielman initially went to Hawley with documents he had obtained from U.S. Tobacco. Id. at 421. Hawley and Chandler eventually convinced Spielman to speak with Lukban. Id. “For some time before Colonel Lukban’s interview with Mr. Spielman, the [NBI] had been engaged in gathering evidence concerning the activities of Stonehill and Brooks.” Id. Lukban eventually decided to proceed with the raid, despite the fact that Chandler “negated any procedure which included raiding.” Id. at 421-22. The NBI then “consummated raid plans,” and because “Colonel Lukban and Robert Chandler were friends, some of the [raid planning] meetings were held in the home of Robert Chandler.” Id. at 422. The court found that at “one of the various meetings of members of the [NBI] (at which Robert Chandler was also present) the premises to be raided were mentioned, and Robert Chandler inquired whether the Army and Navy Building was included on the list of premises” to be searched. Id. Learning that it was not, he suggested that it be included, and it eventually was included. Id. “Sometime during the investigation,” a diagram of certain of Stonehill’s companies “was drawn by Robert Chandler ..., together with a memorandum. ... The diagram and memorandum thereafter came into possession of the [NBI].” Id. The court found that during the planning meetings “Lukban had promised Robert Chandler that he, Chandler, would be permitted to examine and copy documents and records which the [NBI] obtained in connection with defendants’ activities and the activities of their various corporations.” Id. On the day of the raid, Chandler, Reynolds, and Ragland were stationed at a small temporary structure. Id. They waited until 10:00 p.m. that evening, at which point Lukban contacted them and requested that they come to his office. Id. They went to his office, at which point “Chandler requested permission to copy or photograph some of the records and documents, [but] his request to copy or photograph them was denied.” Id. The NBI said they would not allow copying until the NBI had inventoried the items. Id. Chandler was allowed to copy documents the next day. Id. The district court held that Chandler had neither “instigated” nor “participated in” the raid. The court concluded that the NBI “had defendants under investigation” before Chandler did anything. Id. at 424. It concluded, further, that neither Chandler nor any other official “participated in, was present at, or a party to the raid.” Knowledge of the raid on its own, the court held, was insufficient to require suppression. Id. 4. Ninth Circuit Opinion We affirmed in a 2-1 opinion on December 9, 1968. Stonehill II, 405 F.2d at 738. The majority opinion largely reiterated the factual findings of the district judge. One key difference, however, was that in discussing the selections of the Picture Folder that Taxpayers had introduced, the majority concluded that the “diagram prepared by Chandler of one premises and a memorandum prepared by him on another inadvertently fell into the hands of the NBI. They were not intended as directions to the NBI.” Id. at 741 (emphasis added). The district court had found that the NBI had obtained the Picture Folder selections, but had not decided whether they had been inadvertently or intentionally provided to the NBI. The majority also discussed the incident, not mentioned by the district court, in which Chandler accompanied an NBI agent to the warehouse after the raid to help the NBI agent sort the files. Id. at 742. It also discussed the incident in which Chandler, after helping the NBI agent sort the files, drove to the U.S. Tobacco headquarters and “asked the NBI agent in charge if they had found the record storage room Spielman had told both Chandler and the NBI about. The NBI agent did not seem to know about it and asked Chandler to point it out. Chandler stepped into the office, pointed out generally the location of the record storage area, and left.” Id. The majority agreed with the district court’s conclusions, specifically focusing on the following six factual findings: 1) No United States agent selected any evidence for use in a United States investigation or prosecution.... [T]he raids were initiated and planned by Philippine officers before United States agents became involved; the sole purpose of the raids was to obtain evidence for Philippine proceedings. 2) All activities of United States agents in connection with the raids took place before the raids commenced or after their termination. 8) Only after the raids were completed and the documents catalogued were the United States agents given permission to copy documents.... 4) There is no evidence that any United States agents were attempting to shortcircuit the Fourth Amendment rights of the taxpayers.... 5) The United States agents clearly objected to the raids, asking that the raids either not take place or at least that they be postponed. 6) When the United States agents made Spielman’s information available to the Philippine authorities, they were not requesting any action whatsoever, much less instigating an unlawful search. Id. at 746. Judge Browning wrote an emphatic dissent. He first noted that the Philippine Supreme Court had already concluded that the raid violated the Philippine Constitution’s equivalent of the Fourth Amendment. Id. at 747 (Browning, J., dissenting). Judge Browning noted that the American agents contributed to the raid in “at least these respects”: They brought Spielman and his information to the attention of the Philippine authorities, and, as the majority finds, “finally persuaded” Spielman to meet with them. Chandler made his home available to the NBI for meetings with Spielman, and for the “planning” and “preparation” of the raids. Chandler attended these meetings. In the course of “relaying information” from Spielman to the NBI, Chandler prepared a diagram and a memorandum of two of the premises to be raided. Chandler suggested an additional location to be raided; and his suggestion was adopted. Chandler, prior to the raids, “secured permission from Colonel Lukban to examine and copy records seized in the raids.” After the raids had begun, Chandler and his two assistants, at Colonel Lukbaris request, went to one of the premises being searched, and “pointed out” the “significant” books and records to be seized. From this search location the three American agents, on their own initiative, went to another. There Chandler inquired whether the NBI agents had found a records storage room which Spielman had mentioned, and upon discovering that they had not, Chandler pointed out the location of the storage room to the NBI agent in charge. Id. at 749-50 (footnotes omitted). Judge Browning criticized the majority for its “pallid and somewhat misleading description” of the relevant incidents. Id. at 750 n. 19. He noted that Chandler, after helping the NBI agent sort the documents, did not leave right away. He examined bobbins of cigarette paper (thought to have been illegally imported by Stonehill) in the warehouse, when the “agent didn’t seem to be familiar with the thing at all,” and told the agent “that he probably better check with Colonel Lukban.” Id. Furthermore, at the U.S. Tobacco headquarters, Chandler not only told the agent to search a back room, but also showed him where the room was in the building. Id. at 750 n. 20. Finally, Judge Browning emphasized the “inadequacy of the trial court’s findings,” and pointed out that the majority filled the gaps with questionable factfinding of its own. Id. at 752. The district court had made no finding whether the purpose of the raid was to obtain evidence for use in an American tax prosecution. Yet the majority specifically found that the purpose of the raid was “to uncover violations of Philippine law, not to obtain evidence for the United States agents.” Id. Judge Browning concluded that there was “substantial evidence” suggesting that the majority incorrectly characterized the purpose of the raid. Id. He also criticized the majority’s finding that the diagram Chandler drew of the buildings to be raided “inadvertently” fell into the NBI’s hands and was not intended to provide directions to the NBI, noting that the trial court had found only that the document had ended up in the NBI’s possession. Id. at 753-54. Judge Browning pointed out that there was no evidence that its transfer to the NBI was, in fact, inadvertent. Id. at 754. Judge Browning concluded that “[a]t the very least ... reconsideration by the trial court is plainly required.” Id. The Supreme Court denied certiorari. Stonehill v. United States, 395 U.S. 960, 89 S.Ct. 2102, 23 L.Ed.2d 747 (1969). 5. Renewed Motion to Suppress, Motion for Reconsideration, and Second Renewed Motion to Suppress In February 1971, Taxpayers filed a renewed motion to suppress based on newly discovered evidence. United States v. Stonehill, 420 F.Supp. 46, 51 (C.D.Cal.1976) (Stonehill III). The motion was based largely on an affidavit of Damaso Nocon, Lukban’s right-hand man. Nocoris affidavit, executed in November 1970, told a very different story from that told by Hawley and Chandler. Nocon stated that he was an NBI Special Agent and that part of his job was to “maintain[] liaison with agencies of the United States Government operating in the Philippines.” Taxpayers introduced a copy of Nocon’s Special Agent ID. Nocon stated that in 1961 Hawley began expressing interest in Stonehill. Nocon stated that “[bjecause of Mr. Hawley’s interest, and upon instructions of the NBI Director I commenced tapping Mr. Stonehill’s telephones.” No-con turned these transcripts over to Hawley. Nocon further stated that Chandler told him he was interested in making a tax case against Stonehill, and “hoped to obtain Philippine assistance in gathering evidence in the Philippines.” Nocon stated that Chandler told him that after talking with Spielman he felt he could make a case against Taxpayers, but that he needed more documentary evidence. Nocon stated that he met with Chandler and Hawley on an “almost daily basis” and talked to Chandler “at least four or five times a day.” They “discussed and laid plans for the raids,” and Chandler reviewed all information so the NBI “would be certain of raiding all places where any documents might be located. Together, we made a comprehensive list of these locations.” Nocon described a meeting at the Philippine Columbian Club on February 6, 1962, attended by Hawley, Chandler, Secretary Diokno, Spielman, and No-con. Nocon stated that Chandler told Secretary Diokno that the raid would receive full U.S. backing and that special U.S. agents would be flown over to assist in the raid. Chandler also “stated that he would try to arrange a meeting between Diokno and Attorney General Kennedy.” Nocon further stated that “[a]t Chandler’s request” the NBI made photographs of all target areas for the raid. After this had been done, Chandler and Nocon reviewed the photographs together, and Chandler gave instructions in writing for what to do in each place. Nocon stated that because the NBI had “never before been involved in massive raids of this kind,” its officials “relied heavily on Mr. Chandler’s apparent expertise.” Nocon also described Chandler’s suggestion that they add the Army and Navy Club to the warrants, but stated that Chandler and Nocon went to see the Army and Navy Club together after leaving Lukban’s house. Finally, Nocon stated that Chandler made a house available for the NBI to store the seized documents for free, “provided, however, that he be given exclusive use of a separate room for photocopying the seized documents.” In response, the United States submitted an affidavit by Colonel Lukban, dated March 2, 1971. Lukban stated that he found Nocon’s affidavit “inaccurate, misleading and false in a number of its allegations.” He stated that Nocon was not a special agent because he did not have the educational qualifications. He said Nocon was his “confidential agent.” Nocon had “no official duties or an official position which called for him to maintain liaison with foreign governments and police agencies.” Nocon “never made a telephone tap for the NBI as he says in his affidavit, although he may well have made some typewritten transcripts from records. However, his function was strictly that of typing.” Lukban further stated that Nocon lied about Chandler’s requests for help: I was in charge of the Stonehill investigation, not Mr. Nocon, and I was in charge of all the preparation for the raids, not Mr. Nocon nor anybody else. There were no joint preparations, US-Philippine, for the raids nor was there any joint strategy for the raids. I ordered the investigations into Stonehill’s affairs long prior to meeting Spielman solely for purposes of Philippine law enforcement and I ordered the raids on Stonehill’s businesses under the authority of then Secretary of Justice, Jose Diokno, with the sanction of President Macapagal, solely for the purposes of Philippine law enforcement. These raids were not a joint effort between Philippine authorities and United States authorities and the raids were not made because of any request by United States authorities or for the purpose of helping United States authorities in any investigation of theirs. Lukban stated that, although he let Chandler see the documents, it was not because Chandler had negotiated a deal. Rather, it was because Lukban believed “then and now that there should be cooperation and pooling of information among the various police agencies of the world.” He stated that the NBI had conducted large-scale raids in the past, and did not need to rely on, and had not relied on, Chandler’s expertise in preparing for the Stonehill raid. The district court denied Taxpayers’ Renewed Motion on May 26, 1971. Stonehill III, 420 F.Supp. at 51. Taxpayers filed a Motion for Reconsideration in August 1971. Id. In response the government submitted more evidence. In an affidavit filed September 16, 1971, John McCarthy, the government’s lawyer throughout the litigation, stated that he had asked Powers, the IRS representative in Manila, to look into Nocon’s status with the NBI. McCarthy stated that Powers had reported that Lukban told him that Nocon was never a Special Agent of the NBI, though Lukban gave Nocon an ID card (which had been introduced by Taxpayers) for his protection so he could legally carry a firearm. Powers told McCarthy that Lukban told him that Nocon was “merely an informer and he is not qualified educationally speaking to become a Special Agent of the N.B.I.” In the attachments to his affidavit, McCarthy included a certification from the then-current NBI Director that Nocon does not appear in any of the NBI’s payroll history, and that he served only as a Confidential Agent to Lukban, paid out of Lukban’s discretionary funds. The government also submitted several other documents suggesting that Nocon had never worked directly for the NBI. After hearing oral argument, the court denied the Motion for Reconsideration on November 11, 1971. Id. In May 1975, in connection with the litigation of the substantive tax assessment issues, Taxpayers filed a second Renewed Motion to Suppress, arguing that new evidence discovered since 1968 required suppression. Id. In addition to the evidence just discussed, Taxpayers had Nocon’s deposition, taken on September 4,1974. No-con testified that Lukban had appointed him the direct liaison with Chandler. He said that the planning of the raid “was a joint venture from the very beginning.” He further testified that technical surveillance of Stonehill started in the early 1960s based on instructions from the FBI’s Tokyo office. The district court denied this motion, and rejected Taxpayers’ substantive tax law claims, on July 23,1976. Stonehill III, 420 F.Supp. at 46. Ironically, given that litigation was to continue for an additional thirty-five years, the district judge began by lamenting the “many hundreds of thousands of dollars” that had been spent litigating the case, the “more than 35 separate court sessions” that had been held, and the work put in by the three district court judges who had been assigned to the case at various times. Id. at 51. He also noted the difficulty caused by the “unavailability or noncooperation of important witnesses, including Stonehill and Brooks who refused to appear,” as well as the allegations of misconduct by both sides. Id. The court then addressed Taxpayers’ two new arguments. First, based on No-con’s testimony, Taxpayers argued that U.S. officials were actively investigating Taxpayers much earlier than previous evidence had showed, and that Philippine authorities were acting at the direction of U.S. officials. Id. at 52. The district court found that Nocon’s testimony was not credible, and concluded that the NBI conducted the raid for the purposes of Philippine law enforcement. Id. at 52-53. Second, Taxpayers argued that the government’s evidence came from illegal wiretaps. Id. at 53. The district court concluded that even if the wiretaps had been illegal, they were NBI wiretaps that had been installed in the course of the NBI’s own investigation. Id. It noted that the only evidence to the contrary came from Nocon, whom the court did not believe. Id. C. Post-suppression Motion Litigation In the same 1976 decision in which the district court denied the renewed motion to suppress, the district court ruled against Taxpayers on a series of substantive tax arguments. Stonehill III, 420 F.Supp. at 54-64. The court ruled against Taxpayers in several more orders concerning substantive tax law in 1980. See United States v. Stonehill, No. 65-127-GJS, 1980 WL 1757, 1980 U.S. Dist. LEXIS 16574 (C.D.Cal. April 19, 1980). We affirmed those rulings in 1983. United States v. Stonehill, 702 F.2d 1288 (9th Cir.1983). In 1984, Stonehill (without Brooks) attempted to relitigate many of these substantive tax issues in Tax Court, but that court held that the district court’s order, affirmed on appeal, was res judicata. Stonehill v. Comm’r of Internal Revenue, No. 1574-65, 1984 WL 14983, 1984 Tax Ct. Memo LEXIS 339 (U.S.Tax Ct. June 28, 1984). In 1991, Taxpayers filed a Rule 60(b)(5) motion, seeking a declaration that the United States’ judgment for income taxes had been satisfied. United States v. Stonehill, No. 91-35049, 1992 WL 68261, 1992 U.SApp. LEXIS 6498 (9th Cir. April 7,1992). Taxpayers did not seek a modification of the district court’s prior determination of liability. Id. at *1, 1992 U.SApp. LEXIS 6498, at *2. But they contended that the district court had improperly prevented them from proving that the 1980 judgment was erroneous as to the amount owed. Id. at *1, 1992 U.SApp. LEXIS 6498, at *2-3. We -wrote in an unpublished memorandum disposition that “we are unwilling to permit taxpayers to go behind [the 1980] judgment to argue satisfaction of the judgment on the basis of a Rule 60(b)(5) motion filed ten years after entry of that judgment.” Id. at *1-2,1992 U.S.App. LEXIS 6498, at *5. Taxpayers also objected to the government’s attempts to sell some of the property subject to tax liens, but we affirmed the sale of the last property subject to tax lien in 1996. United States v. Stonehill, 83 F.3d 1156 (9th Cir.1996). In 1998, Stonehill filed the first of many FOIA requests, seeking government documents relating to the raid. See Stonehill v. IRS (“Stonehill IV"), 534 F.Supp.2d 1, 2 (D.D.C.2008). Shortly thereafter, on August 20, 2000, Taxpayers began the current incarnation of this case by filing a motion in district court under Rule 60(b)(6) to vacate the original 1967 judgment, alleging that the government had committed fraud on the court. The district court denied the motion and Taxpayers appealed. In the meantime, the FOIA proceedings continued. They were long and contentious. Taxpayers accused the government of losing documents, intentionally releasing documents slowly, and over-redacting the documents it did release. The government repeatedly emphasized that Taxpayers’ current attorney, Robert Heggestad, had not received many of the files previously assembled by Taxpayers’ prior attorney and was thus making duplicative FOIA requests. We heard Taxpayers’ appeal of the district court’s denial of the motion to vacate in 2002. In December 2002, we concluded in an unpublished memorandum disposition that the district court had abused its discretion “when it ruled on the motion to vacate while Stonehill and Brooks were still seeking potentially relevant evidence.” United States v. Stonehill, 58 Fed.Appx. 470, 471 (9th Cir.2002). We noted that even in the time since the district court’s ruling, Taxpayers had obtained more documents that could bolster their case, and that they still had FOIA requests pending. Id. We concluded that “[o]n remand, the district court should ensure that [Taxpayers] have a fair opportunity to present their argument to the court. It should assist them in obtaining relevant evidence and should not rule on their motion to vacate until it has received and considered all evidence that Stonehill and Brooks may obtain within a reasonable time.” Id. After nearly ten years of correspondence and litigation, the District Court for the District of Columbia ruled on all outstanding FOIA issues, mainly relating to redactions, on January 10, 2008. Stonehill IV, 584 F.Supp.2d 1. D. New Evidence Uncovered Through FOIA Through their numerous FOIA requests, Taxpayers have uncovered an enormous number of documents relating to the raid. We provide an overview of this evidence in chronological order, divided by subject area. 1. United States Government’s Early Interest in Stonehill, and Potential Involvement in the Investigation of William Saunders, Taxpayers’ Business Associate and Attorney The earliest document mentioning Stonehill is a memorandum from the U.S. Embassy to the State Department, dated February 21, 1951, in response to the State Department’s request for a “discreet investigation” into Stonehill’s affairs. The memorandum describes Stonehill’s tobacco business and his “reputation of not paying his full income tax.” The Embassy in Manila says it will “continue to observe Mr. Stonehill’s business operations and report any significant developments.” Interest in Stonehill appears to have been renewed nine years later. On April 27, 1960, IRS Agent James Griffin wrote to the audit division that “Mr. William W. Saunders, an attorney ..., reported in confidence, that Harry S. Stonehill had forwarded a check from a Swiss bank account to Honolulu.” (Emphasis in original.) The money was used to purchase land in Oregon. Griffin said that if “it is desired that further information be gathered on the above matter, please send the request as if the source was from some other area. Otherwise the source of information might be compromised.” On July 21, an individual whose name has been redacted filed an Application and Public Voucher for Reward for Original Information. Although there is no clear evidence supporting their contention, Taxpayers contend that this Application was filed by Saunders. On June 30, 1960, Louis Blissard, the U.S. Attorney for the District of Hawaii, wrote a memorandum to Lukban, responding to Lukban’s request for information concerning an indictment against a man named Ted Lewin. Although most of this memorandum concerns Lewin’s indictment for illegal currency transactions, the memorandum mentions that part of the money Lewin was using was “actually money belonging to Harry Stonehill.” Some of Blissard’s information came from “William W. Saunders, a Honolulu attorney, who is in some business ventures with Stonehill.” Saunders told Blissard that Taxpayers did not want Lewin to testify concerning Lew-in and Stonehill’s association in activities in the Philippines. On August 16, 1960, the IRS Office of International Operations (“OIO”) sent Chandler a memorandum forwarding Stonehill’s 1958 tax returns to evaluate whether an audit was warranted. Chandler responded on August 31,1960. Chandler stated that he had “for some time been aware of the need for investigation of Stonehill,” but that it would be a difficult case that is “beyond our present capacity in view of current workloads.” He informed the OIO that the Stonehill case would “of necessity remain in our unassigned backlog for an indefinite ... length of time.” In September 1960, Blissard wrote a memorandum to Charles Rice, the Assistant Attorney General for Tax, calling his attention to Stonehill’s activities, noting his belief that Stonehill “owes and has not paid large amounts of income taxes,” and briefly explaining the basis for that belief. Shortly thereafter, Blissard sent at least one other similar memorandum to Rice, in which he wrote that he had spoken with Lukban, who had provided him with information concerning Stonehill’s financial dealings. Rice forwarded this information to the Commissioner of Internal Revenue. We note two things about these early documents. First, although there was some U.S. interest in Stonehill prior to the appearance of Spielman, there was no action taken due to a lack of capacity. Second, during this period Saunders was giving information to U.S. authorities concerning Stonehill. There is no evidence, however, that Saunders was serving as Stonehill’s attorney at that time. 2. Initial Meeting with Spielman Both Hawley and Chandler wrote memoranda describing their initial meetings with Spielman. Hawley’s memorandum was sent to FBI Director Hoover on January 2, 1962, and Chandler’s memorandum was sent to the OIO on December 22,1961. According to Chandler’s memorandum, Spielman recounted that Stonehill and Brooks left the Philippines during the 1961 Philippine presidential campaign due to attempts by the administration to extort political campaign funds. Stonehill and Brooks gave Spielman more control of the companies during their absence. Spielman said that he then discovered a “huge and evil fraud” Taxpayers were perpetrating. “[T]he extent of this infamy was a shock to him.” Spielman realized that Stonehill would have enormous control over the regime of President Macapagal, who had just won the election. Stonehill had “engineered” the withdrawal of presidential candidate Rogelio de la Rosa, a candidate who had entered the race based on a bribe from then-President Garcia, who thought de la Rosa would take some of Macapagal’s votes. According to Spielman, Stonehill had signed agreements from Macapagal permitting Stonehill to name three members of the incoming cabinet and guaranteeing him important business concessions relating to Stonehill’s near-monopoly on the importation of Virginia tobacco into the Philippines. According to Spielman, when Stonehill and Brooks returned to the Philippines after Macapagal’s victory, now-President Macapagal tried unsuccessfully to convince them to change their ways. Macapagal then told them they would have to leave the Philippines. At this point, according to Spielman, they realized how dangerous Spielman could be to them because of his knowledge of their illegal activities. Stonehill called Spielman to his suite on December 9, 1961. After Spielman told them he was upset about the extent of the illegal activity, Stonehill called in Brooks. According to Hawley’s memorandum, Spielman said that Stonehill “pulled a couple of pistols from his desk, ostentatiously played with them and mentioned what would happen to people who did not play ball.” They then beat Spielman and knocked him unconscious. At the first interview with Hawley, Spielman had a very severe black eye, a swollen left cheek and side of his face, a bad cut inside his mouth, and a number of bruises on his chest and arms. Although the story of the beating is almost certainly true, Spielman’s motivations for speaking with Hawley and Chandler were likely less altruistic than Spiel-man suggested. In other memoranda, Hawley and Chandler suggest that they believed that Stonehill attacked Spielman only after Spielman attempted to blackmail Stonehill into giving him greater control of the company. The district court made a factual finding that Spielman copied the records he eventually brought to Hawley “to force the taxpayers to give him part ownership in their business enterprises. When Spielman proposed this, they first beat him and then fired him. Spielman became fearful of what else they might do to him, so he went to United States officials for protection and for vengeance.” Stonehill III, 420 F.Supp. at 58. Hawley wrote that he told Spielman that most of what Spielman described were violations of Philippine law over which he had no jurisdiction. He said there could be tax law violations, and he encouraged Spielman to meet with Chandler. Spielman agreed. According to Chandler’s memorandum, Spielman said he believed he was “in considerable danger of being murdered.” Chandler wrote, “[W]e are inclined to agree that this is a very real possibility.” Spielman, a Czech Jew and a Holocaust survivor whose parents were killed in concentration camps, said he was not afraid of Stonehill. He took “the position that he faced death many times during the war years in Europe, spent much time in concentration camps and lived constantly in fear of death. He became an American citizen in the hope and expectation that he would thereafter be a free man and he cannot now see himself subject to the threats of the Stonehill group.” He said he would thus stay in the Philippines despite the risk. Chandler noted in his memorandum that he had always suspected Stonehill of “an enormous fraud,” but that they had not had the manpower to pursue it. He wrote that based on Spielman’s evidence, he recommended that the OIO send at least a Special Agent and a Revenue Agent. He further noted, “We have also been given access to transcripts] of telephone taps made by the local NBI and in part the information comes also from that source or has been confirmed thereon.” Over the next several weeks, both Hawley and Chandler sent multiple memoranda to their respective domestic offices. Beginning with a January 9, 1962, memorandum describing the potential Bill of Lading Act indictment against Stonehill’s associate Ira Blaustein, Hawley sent regular memoranda to Hoover detailing information provided by Spielman and updating Hoover on the progress of the investigation. He also sent a “VERY URGENT” memorandum on February 7, 1962, advising Hoover that Diokno had personally interviewed Spielman. Chandler wrote fewer, but more detailed memoranda. In a January 10, 1962, memorandum to OIO, Chandler described an encounter with Howard Parsons, the Economic Counsellor for the Embassy. Parsons stated that “in the opinion of the Embassy it is imperative for American interests in the Philippines that some way be found to get Stonehill out of the Philippines and break his stranglehold here.” Parsons suggested that Stonehill could “undermine the entire American effort and perhaps destroy democracy here.” Chandler informed Parsons that he had begun an investigation. Chandler told Parsons that he doubted the maximum IRS effort could accomplish what the Embassy wanted. Chandler again requested from OIO that “agents be sent to Manila specifically to undertake this examination,” but he realized that it was not easy to spare agents. Chandler emphasized, however, that tax compliance in the Far East generally is “highly unsatisfactory,” and that the Stonehill case would be a good way “to create an effective and necessary enforcement image.” A memorandum to file from an employee at OIO, dated February 13, 1962, recorded the permanent assignment of Sterling Powers, an IRS Special Agent, to Manila, and suggested there would shortly be a second person assigned. Chandler wrote a memorandum to OIO the same day. Chandler informed OIO that one agent was insufficient, and that in order to undertake this investigation effectively, he would need the undivided attention of “at least a Special Agent and a Revenue Agent.” The newly discovered documents from this period are more detailed than previously available evidence, but they are generally consistent with the testimony of Hawley and Chandler at the 1967 suppression hearing. Specifically, Chandler’s discussion of wiretaps in his memoranda suggests that he and Hawley received these wiretaps only after speaking with Spiel-man, which comports with Hawley’s deposition testimony that the NBI never gave him wiretaps prior to December 15, 1961. Furthermore, in Chandler’s discussion of wiretap “transcripts] of telephone taps made by the local NBI,” he does not suggest that they had in any way helped the NBI establish the wiretaps. 3. Diokno-Seigenthaler Meeting In early February 1962, Robert Kennedy, then the Attorney General, made a trip to Hong Kong. In a February 7, 1962, memorandum to Hoover, Hawley reported that Secretary Diokno asked to meet with Kennedy “as Diokno would like to see him in Hong Kong so Attorney General will know about [Taxpayers’] activities and make sure that all American interested agencies involved, particularly Internal Revenue Service, will provide sufficient manpower for effective investigation.” The U.S. Ambassador to the Philippines asked the U.S. Legal Attache in Tokyo to tell Kennedy that Taxpayers’ case was the likely reason for Diokno’s request. There is some suggestion, however, that Diokno wanted to meet Kennedy for “personal reasons.” As a later memorandum made clear, “DIOKNO is youthful, energetic, and cuts through usual protocol channels, and has frequently been called ‘the BOBBY KENNEDY of the Philippines’ since he took office.” At the instruction of the Ambassador, Hawley told Diokno that Kennedy’s schedule was full. Although Diokno was unable to meet with Kennedy, he did travel to Hong Kong, where he met with Assistant Attorney General John Seigenthaler on February 11, 1962. A February 12 Foreign Service memorandum to the U.S. Embassy in Manila reported that Diokno told Seigenthaler about Taxpayers’ case and stated that Hawley and Chandler were “supposedly ... sympathetic” to Diokno’s “Hong Kong Mission.” Diokno further said he did not want to operate thro