THIS MATTER comes before the Court on the Defendant’s Motion to Suppress Evidence Based on Spoliation or Incompleteness, filed June 26, 2012 (Doc. 75)(“Motion to Suppress”). The Court held an evidentiary hearing on September 19, 2012. The primary issues are: (i) whether the Court should suppress the text messages that Defendant Myron Harry sent to Dimitri Wauneka on May 6, 2011, because Plaintiff United States of America failed to preserve Wauneka’s outgoing text messages to Harry; (ii) whether the Court should prohibit the United States from using at trial the text messages from Harry at trial because their prejudicial effect substantially outweighs their probative value; and (iii) whether the Court should prohibit the United States from using at trial the text messages from Harry because they are impermissible character evidence. The Court determines that Wauneka’s outgoing text messages had a potentially useful value, at best, and that the United States did not fail to preserve them in bad faith, and, thus, the United States’ failure to preserve Wauneka’s outgoing text messages did not violate Harry’s due-process rights. The Court further concludes that, because Wauneka’s outgoing messages are not likely to have determined Harry’s innocence, the absence of the outgoing messages will not render Harry’s trial unfair. The Court also concludes that the prejudicial effect of the text messages from Harry is not so great as to outweigh the probative value of the messages as demonstrative of Harry’s state of mind immediately after the alleged assault of Jane Doe. Lastly, the Court concludes that the text messages from Harry are not impermissible character evidence, and, even if the text messages are indicative of Harry’s character, the United States may use the messages to prove Harry’s state of mind immediately after the alleged assault, as the United States seeks to do. The Court, thus, denies the Motion to Suppress.
FACTUAL BACKGROUND
Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. See Fed.R.Crim.P. 12(d) (“When factual issues are involved in deciding a [pretrial] motion, the court must state its essential findings on the record.”). This Memorandum Opinion and Order’s findings of fact shall serve as the Court’s essential findings for rule 12(d) purposes. The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure, and the voluntariness of an individual’s confession or consent to search. See United States v. Merritt,
1. On May 5, 2010, a group of young people, including Jane Doe and Harry, attended a birthday party at the home of Stephanie Johnson and Wauneka in Shiprock, New Mexico. See Transcript of Hearing, taken Sept. 19, 2012 at 22:16-23:14 (Adams, Joe) (“Tr.”).
2. Wauneka was very drunk at the party. See Tr. at 86:12-13 (Wauneka).
3. The attendees at the party decided, between 1:00 a.m. and 2:00 a.m. on May 6, 2010, that the remaining female guests would sleep in one of the two bedrooms of the home, an apartment, and the remaining male guests would sleep in the living room. See id. at 70:14-24 (Nayback, Wauneka); id. 95:24-25 (Adams, Johnson).
4. Johnson awoke around 5:00 a.m. and found Harry awake. See id. at 96:9-10 (Adams, Johnson)(Q: “[Did] you wake up at any point in the evening?” A: ‘Tes. I believe it was around five.”); id. at 98:3-12 (Johnson)(“I was walking straight to my room ..., I turned the light back on and that’s when Myron was standing there.... ”). Other female guests at the party were also awake and were accusing Harry of assaulting Jane Doe. See Tr. at 99: 11-16 (Johnson)(“So Joe had Myron’s keys, and when he came back in that’s when, you know, everybody was accusing ... [of] taking advantage of [Jane Doe].”). Harry left quickly thereafter. See id. at 98:1-25 (Johnson); id. at 99:11-16 (Johnson). Wauneka awoke to yelling. See id. at 75:2-5 (Nayback, WaunekaXQ: “[Y]ou woke up to screaming[,] yelling and fighting; is that right?” A: ‘Tes.”). Other guests at the house told Wauneka that Harry assaulted Jane Doe. See id. at 75:20-8 (Nayback, Wauneka).
5. Wauneka texted Harry between 5:00 a.m. and 7:00 a.m. on May 6, 2010 regarding the incident. See Tr. at 76:9-11 (Nayback, Wauneka)(A: “I texted Myron and asked him what happened.”); Government Exhibit S10
6. Wauneka asked about the alleged assault on Jane Doe. See Tr. at 101:3-18 (Johnson, Adams); id. at 102:5-8 (Johnson)(Johnson testifying that she could see some of Wauneka’s outgoing text messages to Harry and that messages were asking Harry about the alleged assault on Jane Doe).
7. Wauneka may have sent less than eight text messages to Harry on the morning of May 6, 2010. See Tr. at 81:9-16 (Nayback, WaunekaXQ: “[D]o you know if you sent one text for every text you received? There were eight text messages that you receive[d].” A: “I don’t really remember. I think it might have been less maybe.” Q: “Might have been less?” A: ‘Tes less.”).
8. Wauneka and Harry did not correspond via text messaging regarding anything except the alleged assault on the morning of May 6, 2010. See id. at 79:21-
9. Johnson saw Wauneka texting Harry and had the opportunity to look at Wauneka’s cellular telephone’s screen while Wauneka was texting Harry. See id. at 82:14-83:6 (Nayback, Wauneka)(Wauneka responding to the United States’ question whether Johnson had the “opportunity to look at your cell phone screen” while he texted Harry, “Yes. She wanted to know what was going on, also”).
10. Wauneka showed Johnson every text message which he sent to Harry that morning. See id. at 82:14-83:6 (Nayback, Wauneka); Tr. at 88:4-12 (Samore, WaunekaXQ: “And are you telling this court you were also showing her each of the things you were sending to him?” A: “Yes.” Q: “Every single one?” A: ‘Yes.”).
11. Johnson read one of Harry’s text messages to Wauneka, in which Harry stated that he would accept charges for what he had done, but Johnson did not see the exact wording of any other text messages exchanged between Wauneka and Harry. See Tr. at 105:3-18 (Johnson, Samore)(A: “I did see the one where it says T will take the charges.’ ” Q: “And that’s the only one you saw?” A: “Yes.” Q: “And you didn’t see any of the exact wording what Dimitri was sending to my client, did you?” A: “Well, no, I don’t — ” Q: “Other than what you’ve said?” A: “Yes.”).
12. Neither Joe, nor Louis St. Germaine, a criminal investigator for the Navajo Nation, were working alongside the United States, either with Federal Bureau of Investigation (“FBI”) agents, or with United States prosecutors, before, at the earliest, May 24, 2010. See Tr. at 21:19-22:3 (Adams, Joe)(A: “I’m a Navajo Nation criminal investigator.” Q: “How long have you been employed with the Navajo Nation?” A: “Approximately 22 years.”); id. at 29:l-31:4(Adams, Joe); id. at 37:1-10 (Samore, Joe)(Q: “To whom [did Wauneka] give the cell phone, sir?” A: “To another investigator by the name of Louis St. Germa[ine].”); Government Exhibit S6
14. Harry informed Joe that he texted with Wauneka on May 6, 2010, regarding the incident at Wauneka’s home. See Tr. at 46:23-24 (Adams, Joe)(A: “So when did you first learn about the text messages?” A: “When I interviewed Myron Harry.”); 47:3-19 (Adams, Joe); Government Exhibit S2
15. Joe did not make an effort to obtain text messages from Harry’s cellular telephone. See Tr. at 48:11-17 (Court, Joe).
16. Joe interviewed Wauneka on May 21, 2010, regarding the incident. See id. at 25:6-12 (Adams, Joe)(Q: “Do you recall the date when you interviewed [Dimitri]?” A: “I believe it was the 21st of May, ... 2010.” Q: “And you mentioned that you asked [Wauneka] about some text messages?” A: “Yes.”)
17. Joe’s specific purpose for contacting Wauneka was to discuss the text messages that he exchanged with Harry on May 6, 2010. See id. at 48:18-21 (Court, Joe)(Q: “[W]hen you had the conversation with Mr. [Wauneka] ... did you go to him specifically to talk to him about these text messages?” A: “Yes, sir.” Q: “Al[ ]right. So that was the purpose of that meeting?” A: “Yes.”).
18. Wauneka allowed Joe to look at his cellular telephone on May 21, 2010. See id. at 25:18-21 (Adams, Joe).
19. Joe took photographs of the following messages from Wauneka’s cellular telephone on May 21, 2010:
“From: Myron Whats going on? Im lost! ilmygirls:] [sic] CB:505-486-0099 May 6, 5:36 am Stored: May 6, 6:00 am” Government Exhibit S13.
“From: Myron Ok. I know u dnt. Ill guess I have 2 accept the charges. I still love u guys though, [sic] CB: 505-486-0099 May 6, 6:05 am” Government Exhibit S 14.
“From: Myron Im sorry 4 what I did. I didn’t want 2 disrespect u in ur home. That’s all I can say. Imsorry. il my-girls:-] [sic] CB:505-486-0099 May 6, 5:53 am” Government Exhibit S 15
“From: Myron Ok. Im sorry, ilmygirls:] [sic] CB: 505-586-0099 May 6, 6:15 am” Government Exhibit S 16
“From: Myron I knw. She was all over me the whole nite. I remember that, ilmygirls:] [sic] CB: 505-486-0099 May 6, 6:29 am” Government Exhibit S18 “From: Myron Well tel bean that Im sorry n That I am an idio n a stupid mafucker. Im sorry. I wasn’t in my right mind 2 do that 2 her. Im stupid, [sic] That’s all I can say. CB: 505-486-0099” Government Exhibit S19
“From: Myron I know. It was me. I messed up. I should have known better. Im sorry, ilmygirls:] [sic] CB 505-486-0099 May 6, 6:41 am” Government Exhibit S2010
Id. at 25:4-28:7 (Adams, Joe).
20. “Bean” is a nickname for Jane Doe. See Tr. at 27:18-25 (Adams, Joe); id. at 68:20-25 (Nayback, Wauneka).
21. The “CB” telephone number on the text messages in Wauneka’s cellular telephone labeled as “From: Myron” matches the telephone number which Harry provided to Joe as that of his cellular telephone. Government Exhibits S13-S20. See Tr. at 32:1-5 (Adams, Joe).
22. When Joe interviewed Wauneka, Wauneka’s outgoing text messages were still on his cellular telephone. See Tr. at 77:17-22 (Nayback, WaunekaXQ: “At that point [did] you realize that, ‘hey, my texts that I sent ... Harry, they’re not here?” A: “No. It was all there.” Q: “It was all there?” A: “Yes.”).
23. Wauneka showed his outgoing text messages to Joe, and the two looked at both sides of the text conversation during the interview. See Tr. at 92:2-17 (Court, WaunekaXQ: “When Mr. Joe came and talk to you for the first time, that’s when you gave him your telephone, correct?” A: “Yes.” ... Q: “You’re pretty certain that when you gave him the phone it had the text messages from Mr. Harry as well as your ... text messages to him?” A “Yes.” Q: “And so you recall that day looking at the phone and looking at your messages, as well?” A: “Yes.”);
24. Joe’s fellow investigator, Louis St. Germaine took custody of Wauneka’s eellu
25. Wauneka’s outgoing messages were on his cellular telephone when he gave it to St. Germaine, but when Joe tried to retrieve the outgoing messages at a later date he was unable to. See Tr. at 77:17-22 (Nayback, Wauneka)(A: “At that point [did] you realize that, ‘hey, my texts that I sent ... Harry, they’re not here?” A: “No. It was all there.” Q: “It was all there?” A: ‘Yes.”); id. at 92:2-17 (Court, WaunekaXQ: “When Mr. Joe came and talk to you for the first time, that’s when you gave him your telephone, correct?” A: “Yes.” Q: “You’re pretty certain that when you gave him the phone it had the text messages from Mr. Harry as well as your ... text messages to him?” A: “Yes.”); Government Exhibit S6 (Report prepared by Joe regarding his interview with Wauneka stating, in reference to Harry’s text messages, that: “Dimitri’s cell phone was placed in evidence to preserve the above text messages. Pictures of the text messages were taken as well.”).
26. The exculpatory value of Wauneka’s outgoing text message was not immediately apparent to Joe when he saw them at his May 21, 2010 interview. See Government’s Exhibit S2 at 14:11-15:13 (Harry)(“Dimitri was texting me, and telling me, ‘How could you do this? I was your friend. How could you do this to me?’ ... I was like, “What did I do, Dimitri?’ ... ‘[S]omebody said you raped [Jane Doe].’ ”); Tr. at 76:9-11, 79:21-80:3 (Nayback, Wauneka)(Wauneka testifying that he was asking Harry about “what happened?”); id. at 101:3-18, 102:5-8
27. Outgoing text messages are only recoverable from Wauneka’s cellular telephone for a certain period of time. See Motion to Suppress at 2 n. 1 (“Based on information, texts are not recoverable by the cell companies after thirty (30) days.”); Tr. at 29:l-5(Joe)(“Through experience also and by calling the [ ] telephone] company ..., I was told that [ ] in a two-week range their policy was they couldn’t save or retrieve what was sent out from a particular [] telephone].”); id. at 57:16-19 (Guilmette)(explaining that “[c]ertain phone what they’ll do is like ... only hold 50 messages. If another message comes in it then [h]as to delete one of the 50 messages that it has in order to make room for that new one.”).
28. Sometime after May 21, 2010, and before June 24, 2010, Joe requested the assistance of the Farmington, New Mexico Police Department in retrieving Wauneka’s side of the text conversation. See Tr. at 44:3-19 (Samore, Joe)(Q: “When did you check with these folks in Farmington about trying to get the text messages back.... So it was before ... about June 29, of 2010. Does that sound right?” A: ‘Yes.” Q: “And you interviewed [Dimitri] and took custody on May 21, prior to that? Yes?” A: ‘Yes.”). The Farmington Police Department was unable to retrieve Wauneka’s outgoing messages from the morning of May 6, 2010. See Tr. at 29:14-21 (Adams, Joe).
29. The United States filed a criminal complaint against Harry for this matter on May 24, 2010. See Complaint at 1. Joe signed the affidavit accompanying the
30. Joe is now the lead agent in the United States’ investigation for this matter. See Tr. at 22:4-5 (Adams, Joe)(Q: “Are you the lead agent in U.S. v. Myron Harry T A: “Yes.”)
31. On July 9, 2012, Joe contacted a forensic examiner with the FBI regarding forensically examining Wauneka’s cellular telephone. See Government’s Exhibit S9.
32. The forensic examination of Wauneka’s cellular telephone produced some text messages which correspond to those of which Joe took photographs. Compare Government Exhibit S10, with Government Exhibits S13-S20.
33. Certain messages are identified as “locked.” Government Exhibit S10. See Tr. at 56:3-60:17 (Nayback, Guilmette).
34. The significance of certain text messages being “locked” is unknown. Tr. at 60:16-17 (Nayback, GuilmetteXQ: “What does locked mean?” A: “I’m not sure what locked means.”).
35. The date and time on Wauneka’s cellular telephone may be altered, and thus, the date and time displayed on the messages retrieved from Wauneka’s cellular telephone may be inaccurate by up to twenty-minutes. See Tr. at 59:18-60:5 (Nayback, Guilmette); Government Exhibits S10, S13-S20.
36. The forensic examiner would have found Wauneka’s outgoing messages from May 6, 2010, if they were still physically on his cellular telephone. See Tr. at 63:21-23 (Nayback, Guilmette); id. at 64:7-11 (Samore, Guilmette).
37. There is no evidence that Wauneka’s outgoing text messages were deleted. See Tr. at 65:6-8 (Samore, Guilmette).
38. In early July, 2010, Harry’s counsel requested Wauneka’s outgoing messages from the United States’ attorney prosecuting this case. See Tr. at 18:5-16 (Samore)(“[P]robably early July, ... I said Kyle where’s the other side of these conversations.”). The United States did not have Wauneka’s outgoing messages at that time, and could not procure them from any other source. See id. at 18:12-16 (Samore)(“[H]e got back to me and he sa[id] we don’t have it we can’t get them back.”); Motion to Suppress at 2 (“The prosecutor ... did his diligent best to recover those records and eventually informed defense counsel that they could not be produced.”).
39. When he requested Wauneka’s outgoing text messages, Harry did not inform the United States that the outgoing text messages were potentially exculpatory evidence. See Motion to Suppress at 2 (asserting that Mr. Samore “personally contacted the prosecutor to request that the missing text messages from Dimit[r]i’s side of the conversation by produced,” but -not stating that Mr. Samore told the United States that Wauneka’s messages were material exculpatory evidence); Tr. at 18:5-16 (Samore)(Harry stating that he requested Wauneka’s outgoing messages in “early July,” but not stating that he told the United States that Wauneka’s outgoing messages were material exculpatory evidence).
PROCEDURAL BACKGROUND
On June 24, 2010, a grand jury indicted Harry for having knowingly engaged in a sexual act with Jane Doe, who was physically incapable of declining participation and could not communicate her unwillingness to engage in the sexual act, in violation of 18 U.S.C. §§ 1153, 2242(2), and 2246(2)(A). See Indictment at 1, filed June
Harry moves to suppress his side of the text messages exchanged with Wauneka on May 6, 2010, as well as “any testimony concerning the content of text messages or even [that] the text messages were sent.” Motion to Suppress at 5. Harry asserts that, because the text messages will contain only his side of the conversation, “the record is incomplete and misleading.” Motion to Suppress at 2. Harry asserts that Wauneka cannot be accurately cross-examined regarding the text messages, because Wauneka does not remember the conversation. Harry thus asserts that the text messages will be “subject to great speculation.” Motion to Suppress at 2. Harry contends that the text messages were entirely within the law enforcement officers’ control and that it was the officers’ responsibility to preserve the record for trial. Harry asserts that permitting the text messages to be offered into evidence in an incomplete form violates rules 403 and 404 of the Federal Rules of Evidence. See Motion to Suppress at 2-3.
Harry asserts that law enforcement officers have a duty to preserve text messages in their possession, because the messages may be producible under both Jencks v. United States,
Harry further asserts that the FBI agents participating in this case are “responsible for failure to maintain relevant evidence that is exculpatory.” Motion to Suppress at 3 (citing United States v. Bagley,
The United States asserts that the Court should not suppress the text messages unless Harry is able to show that the missing text messages have considerable exculpatory value or that the evidence was destroyed in bad faith. See Response ¶¶ 5-7, at 3-4 (citing Arizona v. Youngblood,
The United States further asserts that the admission of Harry’s text messages would not result in prejudice. The United States argues that unfair prejudice occurs only where the admission of evidence “ ‘makes a conviction more likely because it provokes an emotional response in the jury or otherwise tends to affect adversely the jury’s attitude toward the defendant wholly apart from its judgment as to the guilt or innocence of the crime charges.’ ” Response ¶ 12, at 7 (quoting United States v. Tan,
Harry argues that Arizona v. Youngblood and United States v. Bohl,
The Court held an evidentiary hearing on September 19, 2012. See Transcript of Hearing (taken September 19, 2012)(“Tr.”).
Before witnesses began testifying, the Court ordered, upon the United States’ request, that the other witnesses remain outside of the courtroom while a witness testified, and ordered the witnesses not to speak with each other, but allowed the witnesses to discuss their testimony with the attorneys. See Tr. at 19:16-22 (Nay-back, Court). The parties stipulated to the admission of all exhibits in the United States’ Exhibit List, filed September 18, 2012 (Doc. 91), and the Court admitted the exhibits into evidence. See Tr. at 20:6-15 (Court, Samore). The United States called Joe, see Tr. at 21:4-6 (Wild, Joe), Jeremy Guilmette, a computer forensic examiner with the FBI, see id. at 52:12-14 (Wild, Joe), Government Exhibit S8,
After the Court took testimony, Harry argued that, based on Wauneka’s testimony, when he turned his cellular telephone over to Joe both Wauneka’s outgoing texts and Harry’s incoming texts were still on the cellular telephone. See Tr. at 109:23-110:5 (Samore). Harry noted that, at least for a period of time, the United States had both sides of the messages on the cellular telephone, and, thus, Harry initially asserted that the United States may be liable for spoliation of the evidence. See Tr. at 110:20-24 (Court, Samore). Harry maintained, however, that his main argument is that the Court should suppress the text messages, as spoliation is rarely if ever used in criminal cases, and he believes the proper remedy is for the Court to exclude the text messages in their entirety. See Tr. at 110:25-111:8 (Samore). Harry argued that the text messages are unreliable evidence and inadmissible under rules 403 and 404: he pointed out that the guests had consumed a large amount of alcohol at the party and that the jury would be inclined to speculate regarding the meaning of the text messages. See Tr. at 111:17-112:7 (Samore). Harry asserted that his primary argument is not that admission of the evidence would be unconstitutional, but that the evidence is more prejudicial than probative under rule 403. See Tr. at 112:9-11 (Samore). Harry argued that Wauneka’s testimony at the hearing, regarding Johnson viewing the text messages as he sent them, was new information which Wauneka did not mention in his grand-jury testimony or previous interviews. See Tr. at 113:4-16 (Samore).
The Court stated that, had there been no allegations of spoliation or destruction of evidence, then the admissibility of the text messages would likely be determined by the best evidence rule, and Harry agreed. See Tr. at 113:25-114:5 (Court, Samore). Harry asserted, however, that allowing Johnson and Wauneka to testify to the contents of the outgoing texts, and admitting the contents of Harry’s messages into evidence, would be unfairly prejudicial to him. See Tr. at 114:11-115:14 (Court, Samore). The Court inquired whether Harry believed it was possible that Wauneka sent a few general text messages regarding the alleged assault, to which Harry replied with the eight messages. See Tr. at 115:15-24 (Court, Samore). Harry asserted that, even if that scenario occurred, admitting the text messages would still be unfair to him, and Harry asserted that the United States may have been leading Wauneka when he testified that he might have sent only a few messages to Harry. See Tr. at 116:1-12 (Samore). Harry argued that, if the Court admits the text messages, the trial will be determined by supposition and Harry’s personal history, rather than on reliable evidence. See Tr. at 117:2-8 (Samore). Harry asserted that just as a letter is not admissible without its response, the text messages should not be admissible with Wauneka’s half of the conversation. See Tr. at 117:8-10 (Samore). Harry asserted that cross-examining the United States’ witnesses will not be effective without Wauneka’s text messages. See Tr. at 117:10-12 (Samore). Harry asserted that “the reliability of anything any of these folks said is already under[mined] because of the alcohol consumption.” Tr. at 117:13-15 (Samore). Harry asserted that Wauneka did not remember everything that happened that night. See Tr. at 117:15-17 (Samore). Harry conceded that he “really can’t establish intentional spolia
The United States admitted that Joe’s report from interviewing Wauneka did not affirmatively state whether Wauneka’s cellular telephone had his text messages in it, and admitted that a logical reading of Joe’s report would lead one to “think that it had both” sides of the conversation. Tr. at 119:2-3 (Nayback); id. at 119:7-8 (Nayback). The United States nonetheless stated that there is not a constitutional issue with admitting the text messages from Harry, which the United States asserts are “very reliable evidence [and] material to the Government’s case.” Tr. at 120:44-13 (Nayback). The United States asserted that, even if Joe was found to be a not credible witness and the United States at some point possessed the text messages from Wauneka, Harry had not shown that the messages were destroyed in bad faith, as would be necessary to suppress them under Arizona v. Youngblood and United States v. Suarez. See Tr. at 12:13-24 (Nayback). The United States argued that the text messages would provide “fertile ground for cross-examination,” and that the lack of Wauneka’s side of the conversation did not make Harry’s statements over text inadmissible. Tr. at 121:1-12 (Nayback). The United States asserted that, although the text messages may be prejudicial to Harry, they are also probative of his state of mind, and Harry can take the stand and testify about the text messages if he wishes to diminish the prejudicial effect. See Tr. at 121:16-22 (Nayback).
Harry asserted that he may have been apologizing just as part of his polite nature and noted that, when Joe interviewed him, he did not mention sexual assault or doing anything against somebody’s will. See Tr. at 122:12-22 (Samore). Harry conceded that he was not arguing that admitting the text messages would violate his due-process rights, and stated that “I don’t think there’s sufficient [evidence] that there was bad faith in destroying it. I want to confirm that.” Tr. at 123:1-7 (Samore). Harry argued, nonetheless, that even if his text messages were destroyed in negligence, the United States had access to his side of the conversation for “well over a year” after the alleged assault and before Harry was charged, and thus the “only fair remedy” is suppression of the messages. Tr. at 123:5-16 (Samore).
The Court stated that it does not believe there is evidence of bad faith, but it is troubled by the tension between Joe’s testimony and Wauneka’s testimony regarding the existence of Wauneka’s outgoing text messages. See Tr. at 123:18-23 (Court). The Court noted that Joe appears to be “stretched pretty thing and may not have conducted a very good investigation, but I don’t see any intentional conduct or bad faith.” Tr. at 123:24-124:1 (Court). The Court stated that, if the primary issue is whether the messages are admissible under rule 403, the Court is inclined to allow the text messages into evidence. See Tr. at 124:6-8 (Court). The Court noted that the evidence is “highly probative, given the facts here,” although also “highly prejudicial,” but the Court stated that it did not believe the messages were unfairly prejudicial. Tr. at 124:6-10 (Court). The Court noted that in many scenarios one side of a conversation may be admissible but not the other. See Tr. at 124:10-14 (Court). The Court also stated that it does not believe that the messages are “terribly unreliable,” and that Johnson’s and Wauneka’s testimony gives the Court some sense of the context for the text messages. Tr. at 124:15-22 (Court). The Court stated that “most of the defendant’s objections go to the weight of the evidence and criticisms of it and
LAW REGARDING DUE-PROCESS VIOLATIONS UNDER BRADY V. MARYLAND
“The Due Process Clause of the Constitution requires the United States to disclose information favorable to the accused that is material to either guilt or to punishment.” United States v. Padilla, No. CR 09-3598,
“An ‘open file’ policy is neither mandated by the Constitution ... nor is it ipso facto constitutionally sufficient.” Smith v. See’y of N.M. Dep’t of Corr.,
On the one side, showing that the prosecution knew of an item of favorable evidence unknown to the defense does not amount to a Brady violation, without more. But the prosecution, which alone can know what is undisclosed, must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of “reasonable probability” is reached. This in turn means that the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police. But whether the prosecutor succeeds or fails in meeting this obligation ... the prosecution’s responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable.
Kyles v. Whitley,
The United States’ good faith or bad faith is irrelevant in determining violations of Brady v. Maryland. See Brady v. Maryland,
Under Brady v. Maryland, the Supreme Court has held that an “individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.” Kyles v. Whitley,
1. Suppression.
Brady v. Maryland requires disclosure of information only in the government’s possession or knowledge, whether actual or constructive. See United States v. Beers,
“[A] prosecutor’s office cannot get around Brady by keeping itself in ignorance, or by compartmentalizing information about different aspects of a case.” Carey v. Duckworth,
A prosecutor does not have a duty to obtain evidence from third parties. See United States v. Combs,
The Constitution “does not grant criminal defendants the right to embark on a ‘broad or blind fishing expedition among documents possessed by the Government.’ ” United States v. Mayes,
[T]here is no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case. The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.
United States v. Agurs,
2. Material Exculpatory Evidence.
The holding in Brady v. Maryland requires disclosure only of evidence that is both favorable to the accused and “material either to guilt or to punishment.”
The Supreme Court, in Cone v. Bell,
Although the Due Process Clause of the Fourteenth Amendment, as interpreted by Brady, only mandates the disclosure of material evidence, the obligation to disclose evidence favorable to the defense may arise more broadly under a prosecutor’s ethical or statutory obligations. See Kyles,514 U.S. at 437 ,115 S.Ct. 1555 (“[T]he rule in Bagley (and, hence, in Brady) requires less of the prosecution than the ABA Standards for Criminal Justice Prosecution Function and Defense Function 3-3.11(a) (3d ed. 1993)”). See also ABA Model Rule of Professional Conduct 3.8(d) (2008)(“The prosecutor in a criminal case shall” “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal”).
The burden is on the United States to produce exculpatory materials; the burden is not on the defendant to first point out that such materials exist. See Kyles v. Whitley,
RELEVANT LAW ON GOVERNMENT DESTRUCTION OF EVIDENCE
The Tenth Circuit has held that:
“The Supreme Court’s jurisprudence divides cases involving nondisclosure of evidence into two distinct universes. Brady and its progeny address exculpatory evidence still in the government’s possession. Arizona v. Youngblood,488 U.S. 51 ,109 S.Ct. 333 ,102 L.Ed.2d 281 (1988) and California v. Trombetta,467 U.S. 479 ,104 S.Ct. 2528 ,81 L.Ed.2d 413 (1984) govern cases in which the government no longer possesses the disputed evidence.”
Smith v. Sec’y of N.M. Dep’t of Corr.,
“Under the two-prong Trombetta test, the government violates a defendant’s right to due process when: (1) it destroys evidence whose exculpatory sig
If the exculpatory value of evidence that the United States failed to preserve is “indeterminate,” then the defendant must show: (i) that the evidence was “ ‘potentially useful’ for the defense;” and (ii) “that the government acted in bad faith in destroying the evidence.” United States v. Bohl,
Thus, while the state of mind of the prosecutor is irrelevant to the question under Brady of whether the prosecution failed to disclose material exculpatory evidence, “the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” Arizona v. Youngblood,488 U.S. 51 , 57,109 S.Ct. 333 ,102 L.Ed.2d 281 (1988)(emphasis added).
Smith v. Sec’y of N.M. Dep’t of Corr.,
The “inquiry into bad faith ‘must necessarily turn on the [government’s] knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.’ ” United States v. Bohl,
RELEVANT LAW REGARDING RULE 403
Rule 403 provides: “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403. Under rule 403, the trial court must weigh the proffered evidence’s probative value against its potential for unfair prejudice. See United States v. Record,
The decision to admit or exclude evidence pursuant to rule 403 is within the trial court’s discretion, see United States v. Lugo,
In deference to a district court’s familiarity with the details of the case and its greater experience in evidentiary matters, courts of appeals afford broad discretion to a district court’s evidentiary rulings.... This is particularly true with respect to Rule 403 since it requires an “on-the-spot balancing of probative value and prejudice, potentially to exclude as unduly prejudicial some evidence that already has been found to be factually relevant.”
Sprint/United Mgmt. Co. v. Mendelsohn,
Evidence is unfairly prejudicial if it makes a conviction more likely because it provokes an emotional response from the jury, or if the evidence otherwise tends to adversely affect the jury’s attitude toward the defendant wholly apart from its judgment as to the defendant’s guilt or innocence of the crime charged. See United States v. Rodriguez,
LAW REGARDING APPLICATION OF RULE 404
Rule 404(a) provides that “[e]vidence of a person’s character or trait of character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion.” Fed.R.Evid. 404(a). “This rule is necessary because of the high degree of prejudice that inheres in character evidence. In most instances, [the United States Court of Appeals for the Tenth Circuit is] unwilling to permit a jury to infer that an individual performed the alleged acts based on a particular character trait.” Perrin v. Anderson,
Rule 404(b) states that “[ejvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” Fed.R.Evid. 404(b). The same evidence, however, may be admissible for other purposes. Permissible purposes include proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. See Fed.R.Evid. 404(b). The Supreme Court has enunciated a four-part process to determine whether evidence is admissible under rule 404(b). See Huddleston v. United States,
To determine whether Rule 404(b) evidence was properly admitted we look to [a] four-part test ...: (1) the evidence must be offered for a proper purpose; (2) the evidence must be relevant; (3) the trial court must make a Rule 403 determination of whether the probative value of the similar acts is substantially outweighed by its potential for unfair prejudice; and (4) pursuant to Fed. R.Evid. 105, the trial court shall, upon request, instruct the jury that evidence of similar acts is to be considered only for the proper purpose for which it was admitted.
United States v. Zamora,
Rule 404(b)’s prohibition is based in the common-law protection of the criminal defendant from risking conviction on the basis of evidence of the defendant’s character. See United States v. Dudek,
(1) that the jury may convict a “bad man” who deserves to be punished not because he is guilty of the crime charged but because of his prior or subsequent misdeeds; and (2) that the jury will infer that because the accused committed other crimes he probably committed the crime charged.
United States v. Phillips,
The Tenth Circuit has stated that district courts must “identify specifically the permissible purpose for which such evidence is offered and the inferences to be drawn therefrom.” United States v. Youts,
ANALYSIS
The Court will not suppress Harry’s text messages retrieved from Wauneka’s cellular telephone. Because there is no evidence that Wauneka’s outgoing text messages to Harry are in the United States’ possession, Harry’s challenge to the admissibility of his text messages is governed by Arizona v. Youngblood and California v. Trombetta. The Court finds that Wauneka’s outgoing text messages to Harry were not of apparent exculpatory value when Joe learned of their existence, and the Court finds that neither the United States’
I. THE UNITED STATES HAS NOT VIOLATED HARRY’S DUE-PROCESS RIGHTS.
Harry initially argued that admitting text messages from him without Wauneka’s outgoing messages could “amount to a Constitutional error” under Brady v. Maryland. Motion to Suppress at 3 (citing Brady v. Maryland,
There is no evidence that the United States possesses Wauneka’s outgoing text messages to Harry sent on the morning of May 6, 2010. Accordingly, either Arizona v. Youngblood or California v. Trombetta governs Harry’s Motion to Suppress. See Smith v. Sec’y of N.M. Dep’t of Corr.,
The Court does not believe that the exculpatory value of Wauneka’s outgoing text messages to Harry would have been immediately apparent. Harry informed Joe that he and Wauneka were texting about the alleged assault on the morning of May 6, 2010. See Tr. at 47:3-19 (Adams, Joe); Government’s Exhibit S2 at 14:11-15:13 (Harry). Wauneka and Johnson both stated that Wauneka was texting Harry about the incident generally. See Tr. at 76:9-11 (Nayback, Wauneka); id. at 101:3-18 (Johnson, Adams); id. at 102:5-8 (Johnson); id. at 79:21-80:3 (Nayback, Wauneka). Joe similarly informed the Court that he understood, from Harry, that Wauneka asked him about the alleged assault and nothing more, when the two exchanged text messages on the morning of May 6, 2010. The Court cannot hypoth
The first prong of Arizona v. Youngblood requires the defendant to demonstrate that the lost evidence was “potentially useful,” because “it could have been subject to tests, the results of which might have exonerated the defendant.” United States v. Bohl,
The second prong of Arizona v. Youngblood, the “inquiry into bad faith[,] ‘must necessarily turn on the [government’s] knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.’” United States v. Bohl,
Moreover, the United States does not seem to have ever possessed the outgoing text messages. Harry asserts that, “[b]ased on information, texts are not recoverable by the cell companies after thirty (30) days,” and the United States’ witnesses at trial suggested a similar, limited time period in which text messages could be recovered from cellular telephones. Motion to Suppress at 2 n. 1. See Tr. at 29:l-5(Joe)(“Through experience also and by calling the [ ] telephone] company ..., I was told that [] in a two-week range their policy was they couldn’t save or retrieve what was sent out from a particular [] telephone].”); id. at 57:16-19 (Guilmette)(explaining that “[cjertain phones what they’ll do is like ... only hold 50 messages. If another message comes in it then [h]as to delete one of the 50 messages that it has in order to make room for that new one.”). The United States filed criminal charges on May 24, 2010. See Complaint at 1. It was not until at least two months after the incident, and after Harry was indicted, that he requested Wauneka’s outgoing text messages. See Tr. at 18:6-16 (Samore).
The third factor we deem significant to our inquiry into bad faith is that the record reveals that the government still had possession or the ability to control the disposition of the tower legs at the time it received notice from Bell and Bohl about the tower legs’ potential exculpatory value.
United States v. Bohl,
The only government which possessed Wauneka’s outgoing text messages for any period of time seems to have been the Navajo Nation, through Joe or St. Germaine before either of those criminal investigators began working alongside the United States. Although Harry asserted at the hearing that, at some point, the
Further, assuming Joe began working alongside or on behalf of the United States as early as May 24, 2010, the evidence demonstrates that Joe was negligent, at most, in not retrieving Wauneka’s outgoing text messages while they were available. Even if Joe knew that he had to immediately preserve Wauneka’s outgoing
Wauneka’s outgoing text messages do not appear to be central to the United States’ case. See United States v. Bohl,
II. THE PREJUDICIAL EFFECT OF HARRY’S TEXT MESSAGES DOES NOT OUTWEIGH THEIR PROBATIVE VALUE.
Harry asserts that admitting his text messages at trial will be prejudicial, because the text messages will be subject to great speculation and interpretation without Wauneka’s outgoing correspondence. See Motion to Suppress at 2-3. Harry asserts that admitting his “one-sided text messages” and not precluding “any testimony concerning the content” is likely to create an unfair trial, because the messages are unduly prejudicial. Motion to Suppress at 4-5. The United States asserts that Wauneka’s outgoing text messages “would not have the power to exonerate the defendant, and it is entirely possible for the defendant to receive a fair trial without the text messages, and with the admission of the evidence of text messages offered by the United States.” Response at 8. Harry asserts that, because the text messages from him contain an apology, to admit those messages without Wauneka’s outgoing messages would confuse or mislead the jury. See Reply at 2.
“In performing the 403 balancing, the court should give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value.” Deters v. Equifax Credit Info. Servs., Inc.,
As the Tenth Circuit has explained, the “exclusion of evidence under Rule 403 that is otherwise admissible under the other rules is an extraordinary remedy and should be used sparingly.” United States v. Smalls,
III. RULE 404 DOES NOT BAR HARRY’S TEXT MESSAGES.
Harry argues that admitting his messages would violate rule 404 of the Federal Rules of Evidence. See Motion to Suppress at 3; Reply at 2 (“What is also significant herein, is that to introduce only side of the conversation [sic] also violates Fed.R.Evid. 403 and 404.”); Tr. at 112:6-7 (Samore)(“It is not reliable enough under 403, 404, and perhaps other rules of evidence, for it even to come before the jury.”). While Harry is correct that character evidence is generally inadmissible to
Rule 404 provides: “Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.” Fed.R.Evid. 404(a). The United States has not indicated that it intends to prove that Harry acted in conformity with any particular character trait set forth in the text messages. The Court may only hypothesize as to the character trait the United States would attempt to tease out of the text messages, as Harry does not admit that he has previously sexually assaulted other females in the messages. The text messages, thus, are not “[e]vidence of other crimes, wrongs, or acts.” Fed.R.Evid. 404(b). To a certain degree, all evidence reveals some character, but if it has another purpose, the evidence is not excluded because it also shows character; a limiting instruction can cure any misuse of the evidence. “Almost all evidence has some tendency to show propensity; the question is whether that is the evidence’s sole purpose.” United States v. Mirabal, No. CR 09-3207 JB,
be offered for a proper purpose; ... be relevant; ... the trial court must make a Rule 403 determination of whether the probative value of the similar acts is substantially outweighed its potential for unfair prejudice; and ... upon request, instruct the jury that evidence of similar acts is to be considered only for the proper purpose for which it was admitted.
United States v. Zamora,
The Court will deny the Motion to Suppress. Wauneka’s outgoing text messages are not in the United States’ possession, and the evidence does not demonstrate that outgoing text messages were patently exculpatory to Joe, and thus the failure to preserve the outgoing text messages does not violate Harry’s due-process rights. Additionally, even if Wauneka’s outgoing text messages were potentially useful, there is no evidence that the United States failed to preserve them in bad faith. Proceeding to trial without the outgoing text messages will not preclude Harry from
IT IS ORDERED that the Motion to Suppress Evidence Based on Spoliation or Incompleteness, filed June 26, 2012 (Doc. 75), is denied.
Notes
. The Court files this Amended Memorandum Opinion and Order to correct an error. In the Memorandum Opinion and Order, filed February 19, 2013 (Doc. 114), the Court incorrectly stated: "The Court agrees with Harry that the evidence does demonstrate that the United States violated his constitutional rights by failing to preserve Wauneka's outgoing text messages.” Memorandum Opinion and Order at 50. This sentence is changed to explain that the Court "agrees with Harry that the evidence does not demonstrate that the United States violated his constitutional rights.... ” Amended Memorandum Opinion and Order at 50 (emphasis added).
. United States v. Garcia is an unpublished opinion, but the Court can rely on an unpublished opinion to the extent its reasoned analysis is persuasive in the case before it. See 10th Cir. R. 32.1(A), 28 U.S.C. (“Unpublished opinions are not precedential, but may be cited for their persuasive value.”). The Tenth Circuit has stated: "In this circuit, unpublished orders are not binding precedent, ... and ... citation to unpublished opinions is not favored.... However, if an unpublished opinion ... has persuasive value with respect to a material issue in a case and would assist the court in its disposition, we allow a citation to that decision.” United States v. Austin,
. Crawford v. Washington stands for the proposition that out-of-court statements against an accused are inadmissible at trial unless the witness is unable to testify and the defendant had a previous opportunity to cross-examine the witness. See
. The Court’s citations to the transcript of the hearing refer to the court reporter's original, unedited version. Any final transcript may contain slightly different page and/or line numbers.
. Johnson’s and Wauneka’s testimony is inconsistent regarding the total number of guests at the party. Joe’s report from his interview with Johnson on May 6, 2010, provides a list of the guests Johnson recalls were present at the party: she lists eleven individuals, including herself, Wauneka, and their child. See Government Exhibit S7 at 1 (Navajo Nation Report of Interview with Stephanie Johnson dated May 6, 2010). Thus Johnson’s and Wauneka's testimonies are closer to consistent if Wauneka did not include Johnson and their child in his count, and if Johnson did. The Court concludes that it need not parse the testimonies to determine an exact number of guests at the apartment on May 5-6, 2010, because the parties do not assert that
. Government Exhibit S 10 is the Printed Results of Forensic Download of Dimitri Wauneka's cellular telephone. See Government's Exhibit List for Hearing on Defendant’s Motion to Suppress Evidence Based on Spoliation or Incompleteness at 2, filed Sept. 18, 2012 (Doc. 91)(“Exhibit List”).
. The Government Exhibit S6 is a Navajo Nation Report of Interview of Dimitri Wauneka, dated May 11, 2010. See Exhibit List at 2.
. The evidence identifies Joe and St. Germaine as criminal investigators for the Navajo Nation. See Tr. at 21:16-21 (Adams, Joe)(Joe testifying that he is a “Navajo Nation criminal investigator”); id. at 37:5-10 (Samore, Joe)(Joe testifying that Wauneka gave his cellular telephone to St. Germaine, "another investigator”); Government Exhibit S6 (identifying Joe and St. Germaine as investigators with the Shiprock Police Department). Joe testified that, after interviewing Wauneka, he contacted the Farmington Police Department for help retrieving Wauneka’s outgoing messages from Wauneka's cell phone. See Tr. at 29:14-29 (Adams, Joe)(Q: "[Did] you do anything else to try to obtain the messages sent from Dimitri to Myron?” A: "I contacted the local agency of Farming-ton Police Department to see if they could retrieve any outgoing or any messages related to the investigation.”). In July, 2012, Joe contacted a forensic examiner with the FBI regarding forensically interrogating Wauneka's cellular telephone. See Government Exhibit S9 (report from Joe regarding his July 9, 2012 contact with a FBI forensic examiner and the results of the forensic examination of Wauneka's cellular telephone). The Court concludes that, because Joe did not contact a FBI forensic examiner until after the Indictment was filed, and Joe did not testify that in his capacity as a criminal investigator for the Navajo Nation he works alongside the United States’ investigators or attorneys, Joe was not working alongside the United States when he interviewed Wauneka and attempted to re
. The Government Exhibit S3 is a Shiprock Police Report of Interview of Myron Harry, dated May 12, 2010. See Exhibit List at 2.
. The Government Exhibit S2 is a Transcript of Myron Harry's Statement taken on May 12, 2010. See Exhibit List at 2.
. The parties did not define the meaning of "CB” displayed on the pictures of the text messages on Wauneka’s cellular phone. The "CB” appears to refer to the originating number for the text messages. See Tr. at 32:2-7 (Adams, Joe)(Adams: "[C]ould you read the phone number for the Court’s record?” Joe: "I asked him for his cell phone number. [Harry] gave me 505-486-0099.” Adams: "Was that the same cell phone number that you saw in Dimitri's phone, a[s] well?” Joe: "Yes.”).
. Joe’s testimony contradicts Wauneka's on this point. See Tr. at 28:8-22 (Adams, Joe)(A: "[Did] you have an opportunity to review any messages that were sent to Myron ... from [Dimitri]?” A: "There was nothing that I could see that he could pull up that there was any outgoing.”). The Court concludes that Wauneka's testimony is accurate. It is most likely that Joe does not remember looking at Wauneka's outgoing text messages: Harry's messages were the focus of his inquiry, demonstrated by Joe only taking pictures of Harry’s messages. Wauneka may have only shown the outgoing messages to Joe for a few seconds, as Wauneka moved between Harry’s messages. Additionally, the United States asserted at the hearing that Joe is "spread thin” in his investigative duties, which further causes the Court to believe that Joe had the opportunity to see Wauneka’s outgoing text messages on May 21, 2012, and he does not remember accurately this detail from the interview. Tr. at 119:12-17 (Nayback).
. The Government Exhibit S6 is a Shiprock Police Report of Interview of Dimitri Wauneka, dated May 11, 2010. See Exhibit List at 2.
. The Court concludes that Wauneka's outgoing text messages were still on his cellular phone when he gave it to Joe, even though Joe states that "[tjhere was nothing I could see that he could pull up that there was any outgoing.” Tr. at 28:12-13(Joe). Joe’s statement is not necessarily contradictory with Wauneka’s statement regarding the presence of tire outgoing text messages on the cellular phone. Joe may not have looked for Wauneka's outgoing messages immediately because his focus appears to have been on retrieving Harry’s messages. See Government Exhibits S13-S20 (photographs of Harry’s messages on Wauneka’s phone); Government Exhibits S6 (Report from Joe regarding his May 21, 2010 interview with Wauneka, recording Harry’s messages but not Wauneka's). Harry has admitted that outgoing text messages may only be retrievable for a certain period of time, between fifteen and thirty days, and this information is supported by the United States' forensic investigator. See Motion to Suppress Evidence Based on Spoliation or Incompleteness at 2 n. 1, filed June 26, 2012 (Doc. 75)(”Based on information, texts are not recoverable by the cell companies after thirty (30) days.”); Tr. at 29:l-5(Joe)("[B]y calling the all tell company to see if that was feasible [or][] possible, I was told that what's in a two-week range their policy was they couldn’t save or retrieve what was sent out from a particular [] telephone.”); Tr. at 57:16-19 (Guilmette)("Certain phones what they’ll do is like say the phone has a memory that will only hold 50 messages. If another message comes in it then it [h]as to delete one of the 50 messages that it has in order to make room for that new one.”). The Court concludes that, at the time Joe took possession of Wauneka’s cellular phone, the cellular phone contained Wauneka’s outgoing messages, but that, when Joe attempted to retrieve Wauneka's outgoing messages at some later date, the messages were no longer retrievable.
. The Court cannot hypothesize anything that Wauneka could have written to Harry that would exculpate him, to which Harry responded: “111 guess I have 2 accept the charges [sic],” Government Exhibits S 14, “tel bean that Im sorry,” Government Exhibit S 19, and “I know.... I messed up. I should have known better,” Government Exhibit S20. Nor have the parties presented any theories as to how Wauneka’s outgoing text messages could exculpate Harry. Even though the Court concludes that Joe saw Wauneka’s text messages when he interviewed Wauneka on May 21, 2010, there is nothing to indicate that Wauneka's questions to Harry about the alleged assault on Jane Doe was evidence "that might be expected to play a significant role in the suspect’s defense.” California v. Trombetta,
. The Government Exhibit S9 is a Shiprock Police Report of Communications with FBI dated July 6, 2012 and July 9, 2012. See Exhibit List at 2.
. In Jencks v. United States, the Supreme Court of the United States held that a
criminal action must be dismissed when the Government, on the ground of privilege, elects not to comply with an order to produce, for the accused’s inspection and for admission in evidence, relevant statements or reports in its possession of government witnesses touching the subject matter of their testimony at the trial.
. In Brady v. Maryland, the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”
. The Court’s citations to the transcript of the hearing refer to the court reporter’s original, unedited version. Any final transcript may contain slightly different page and/or line numbers.
. The Government Exhibit S8 is a Curriculum Vitae of Jeremy Guilmette. See Exhibit List at 2.
. The Tenth Circuit has cited United States v. Brooks with approval, but has not indicated that it would adopt the same interpretation of Kyles v. Whitley’s holding-that a state prosecutor has a " 'duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police’ "—as the United States Court of Appeals for the District of Columbia Circuit did in United States v. Brooks. United States v. Combs,
In United States v. Brooks, the District of Columbia Circuit held that an Assistant United States Attorney had the duty, under Brady v. Maryland, to search, or "have a suitably responsible person in the Metropolitan Police Department review ... any homicide and any Internal Affairs Division files of the Department that may contain material exculpatory information” pertinent to the credibility of a police officer — the United States’ key witness — who was killed shortly after testifying against the defendant. See
The Court determines, however, that, if the Tenth Circuit adopted United States v. Brooks' holding, the Court's decision of United States v. Badonie and United States v. Huerta-Rodriguez would still be sound. Unlike the “close working relationship” between the United States Attorney for the District of Columbia, "who prosecutes both federal and District crimes, in both federal and Superior courts,” United States v. Brooks,
[The] Assistant United States Attorney ... informed the Court that it is the procedure of the United States Attorney’s office to request to view the personnel files of testifying witnesses from the New Mexico State Police.... [T]he New Mexico State Police Department does not turn over the officers’ personnel files without a subpoena.
United States v. Huerta-Rodriguez,
. The Tenth Circuit does not cite to either California v. Trombetta or Arizona v. Youngblood in United States v. Wilks. See United States v. Wilks,
. Harry conceded, at the hearing, he "really can’t establish intentional spoliation.” Tr. at 118:1 (Samore). The Court agrees. Spoliation of evidence has five elements:
(1) the existence of a potential lawsuit; (2) the defendant’s knowledge of the potential lawsuit; (3) the destruction, mutilation, or significant alteration of potential evidence; (4) intent on the part of the defendant to disrupt or defeat the lawsuit; (5) a causal relationship between the act of spoliation and the inability to prove the lawsuit; and (6) damages.
Torres v. El Paso Elec. Co.,
. Harry does not contest that, if the messages came from him, they would be admissible as non-hearsay. See Tr. at 13:19-21 (Nay-back)("We would intent to introduce the text into evidence under 801(d)(2), 803(1), 803(2) ....”); id. at 125:23-126:8 (the Court inquiring whether Harry agreed that there is not a hearsay problem with the text messages and Harry responding “Yes”). Rule 801(d)(2)(a) provides that statements are not hearsay if: "the statement is offered against an opposing party and ... was made by the party in an individual or representative capacity.” Fed. R.Evid. 801(d)(2)(a).