United States v. Harry
2016 U.S. App. LEXIS 3625
| 10th Cir. | 2016Background
- Defendant Myron Harry was convicted of sexual assault for having sex with a sleeping victim at a house party; DNA linked him to the intercourse.
- After the incident, Harry exchanged texts with host Dimitri Sanisya; investigators recovered Harry’s outgoing texts but the incoming texts from Sanisya were lost or unavailable to the government.
- Harry sought the lost incoming texts (which he claimed would show the victim had been flirting) and moved to suppress his own texts as a remedy; the district court denied suppression after evidentiary hearings.
- The government moved in limine under Fed. R. Evid. 412 to exclude evidence of the victim’s sexual behavior (including alleged flirting) and the court excluded the “I knw. She was all over me the whole nite” text as hearsay and Rule 412 evidence; it permitted Harry alone to testify about flirting but barred other witnesses unless Harry renewed the issue (he did not).
- At trial most of Harry’s texts admitted were incriminating; Harry testified but did not elicit corroborating flirting testimony; he was sentenced within the Guidelines to 151 months.
Issues
| Issue | Plaintiff's Argument (United States) | Defendant's Argument (Harry) | Held |
|---|---|---|---|
| 1) Did government's failure to preserve Sanisya’s incoming texts violate due process? | N/A (government’s position: no due-process violation) | Lost incoming texts were apparently exculpatory (would show victim flirted) so suppression/remedy required | No violation: texts were not apparently exculpatory; in retrospect unlikely exculpatory; no bad faith by investigators. |
| 2) Was exclusion of Harry’s “all over me” text erroneous (hearsay/Rule 412/completeness)? | Text was admissible; relevant to consent and needed for completeness | Text was hearsay and barred under Rule 412(a)(2); defendant failed to show relevance under completeness rule | Affirmed exclusion: text is hearsay; defendant didn’t meet Rule 106/completeness or demonstrate relevance pretrial; court did not abuse discretion. |
| 3) Was excluding flirting testimony from witnesses other than Harry prejudicial error? | N/A | Excluding other witnesses prevented corroboration and prejudiced Harry’s consent defense | No reversible error: defendant failed to proffer the excluded testimony, so plain-error review fails; no prejudice shown. |
| 4) Was the sentence substantively or procedurally unreasonable? | N/A | Sentence failed to account for mitigating factors and alternatives | No abuse of discretion: within-Guidelines sentence affirmed as reasonable. |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecution must disclose favorable, material evidence)
- California v. Trombetta, 467 U.S. 479 (1984) (due process duty to preserve evidence that is both apparently exculpatory and material)
- Arizona v. Youngblood, 488 U.S. 51 (1988) (absent apparent exculpatory value, defendant must show police bad faith for duty-to-preserve violation)
- United States v. Agurs, 427 U.S. 97 (1976) (materiality of suppressed evidence judged by its probative significance)
- United States v. Lopez-Medina, 596 F.3d 716 (10th Cir. 2010) (Rule of completeness may bring otherwise hearsay matter into evidence to provide context)
- United States v. Hargus, 128 F.3d 1358 (10th Cir. 1997) (standard for reviewing apparent-exculpatory-preservation findings)
- United States v. Bohl, 25 F.3d 904 (10th Cir. 1994) (bad faith in evidence destruction analysis)
- United States v. Gomez, 191 F.3d 1214 (10th Cir. 1999) (defendant’s burden to show missing evidence would play significant role in defense)