JAMES O. BROWNING, District Judge.
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, 695 F.2d 1263, 1269-70 (10th Cir. 1982). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed.R.Evid. 104(a) ("The court must decide any preliminary
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: "Yes. 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, Wauneka)(Q: "[Y]ou woke up to screaming[,] yelling and fighting; is that right?" A: "Yes."). 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, Wauneka)(Q: "[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: "Yes 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 79:21-80:3
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, Wauneka)(Q: "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 `I 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 29:1-31:4(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:
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, Wauneka)(Q: "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, Wauneka)(Q: "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 cellular
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, Wauneka)(Q: "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 29:1-5(Joe)("Through experience also and by calling the [] tel[ephone] 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 [] tel[ephone]."); 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?" 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, Guilmette)(Q: "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).
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, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957),
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, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). Harry argues that he need not show that the FBI agents acted with bad faith, or intentionally withheld or destroyed the text messages, but that he need show only that "`the evidence is so immaterial [sic] that he cannot receive a fair trial without it.'" Motion to Suppress at 3 (quoting United States v. Wilks, 629 F.2d 669, 674 (10th Cir.1980) (citing United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); United States v. Brumley, 466 F.2d 911, 916 (10th Cir.1972))). Harry contends that the prosecution is responsible for FBI agents' failure to preserve "critical evidence," and that the failure to preserve such evidence is "`functionally equivalent [to] destruction of evidence by FBI agents.'" Motion to Suppress at 4 (quoting
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, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988); Brady v. Maryland; United States v. Hargus, 128 F.3d 1358, 1364 (10th Cir.1997)). The United States contends that Harry has not argued that the text messages were destroyed in bad faith, and, further, has failed to show that "allegedly missing texts had some exculpatory value." Response ¶ 7, at 4. The United States argues that the fact that evidence was lost or was "potentially useful" is insufficient to show that the United States acted in bad faith in destroying the evidence. Response at 4-5 (citing United States v. Bohl, 25 F.3d 904, 910 (10th Cir.1994)). The United States asserts that, because Harry has not shown that the United States ever possessed the texts, Harry cannot show that the evidence was destroyed. The United States contends that, when there is other "ample evidence" in the record to support the charge against a defendant, the other evidence supports a conclusion that the missing evidence was "`potentially useful' at best." Response ¶ 7, at 4 (quoting United States v. Hargus, 128 F.3d at 1364). The United States maintains that the other evidence, including eyewitness testimony that Harry was on top of Jane Doe while she slept, that Harry quickly left the premises while apologizing for his actions, and that Harry's DNA was found inside of Jane Doe, is inculpatory evidence that indicates that the missing text messages were potentially useful evidence, at best. See Response ¶ 8, at 5. The United States argues that the possibility of the text messages exonerating Harry is insufficient to warrant the suppression of Harry's text messages under Arizona v. Youngblood. The United States contends that Harry has not raised any argument that the text messages have "even the slight potential to exonerate defendant Myron Harry." Response ¶ 10, at 6. The United States further asserts that its failure to preserve the text messages alone is not sufficient evidence of bad faith. See Response at 5. The United States argues that, in United States v. Hargus, the United States Court of Appeals for the
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, 254 F.3d 1204, 1211-12 (10th Cir. 2001)). The United States asserts that, "where there exists other evidence in support of the defendant's guilt," lost evidence does not prejudice a defendant. Response ¶ 13, at 7 (citing Fero v. Kerby, 39 F.3d 1462, 1471 (10th Cir.1994)). The United States argues that lost evidence is prejudicial to a defendant only where "`he could not receive a fair trial without it.'" Response ¶ 13, at 7 (quoting United States v. Wilks, 629 F.2d at 674). The United States asserts that the possibility that evidence might be helpful to Harry is insufficient for its absence to be prejudicial. See Response ¶ 13, at 7 (citing United States v. Agurs, 427 U.S. 97, 109-10, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); United States v. Wilks, 629 F.2d at 674). The United States asserts that, unless the missing text messages would exonerate Harry, which the United States argues they would not, their absence at trial is not prejudicial to him. See Response ¶ 14, at 7 (citing United States v. Wilks, 629 F.2d at 674). The United States asserts that even the absence of evidence which is "considerably favorable" is not automatically prejudicial to a defendant, when the culmination of other evidence indicates the defendant's guilt. Response ¶ 15, at 8 (citing Fero v. Kerby, 39 F.3d at 1471). The United States contends that Harry has not met his burden of showing "that the text messages carried significant probative value with regard to the defendant's guilt or innocence," and thus their absence is not prejudicial to him, and the remaining text messages should not be suppressed. Response ¶ 16, at 8.
Harry argues that Arizona v. Youngblood and United States v. Bohl, 25 F.3d 904, 910 (10th Cir.1994), support his position that the Court should suppress the text messages, because he needs to show only that the value of the Wauneka's text messages was "`not apparent before the evidence was destroyed.'" Reply to Response to Defendant's Motion to Suppress Evidence Based on Spoliation or Incompleteness at 1, filed July 20, 2012 (Doc. 77)("Reply")(quoting United States v. Bohl, 25 F.3d at 910). Harry asserts that all that will be left to the jury from the text messages is "dangerous speculation," because Wauneka's side of the conversation is missing. Reply at 1. Harry further contends that the text messages' exculpatory value is not for the prosecution to decide and that exculpatory evidence is "arguably all evidence that is not inculpatory." Reply at 2. Harry further asserts that "[n]either party will ever know the extent of what is exculpatory due to the negligence of the agents who had the cellular telephone in their custody at a time when the whole exchange could have been preserved." Reply at 2 (internal quotations omitted). Harry contends that allowing the text messages into evidence would violate rule 403 and 404. He also contends that the United States "is mistaken if [it] presumes that any apologies in the Harry
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 (Nayback, 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 spoliation,"
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
"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, 2011 WL 1103876, at *5 (D.N.M. Mar. 14, 2011) (Browning, J.). In Brady v. Maryland, the Supreme Court explained 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." 373 U.S. at 87, 83 S.Ct. 1194. In Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), the Supreme Court extended the prosecution's disclosure obligation to evidence that is useful to the defense in impeaching government witnesses, even if the evidence is not inherently exculpatory. See 405 U.S. at 153, 92 S.Ct. 763; United States v. Torres, 569 F.3d 1277, 1282 (10th Cir.2009) ("Impeachment evidence is considered exculpatory for Brady purposes."); Douglas v. Workman, 560 F.3d 1156, 1172-73 (10th Cir. 2009)("[N]o distinction is recognized between evidence that exculpates a defendant and `evidence that the defense might have used to impeach the [United States'] witnesses by showing bias and interest.'") (quoting United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)); United States v. Abello-Silva, 948 F.2d 1168, 1179 (10th Cir.1991) ("Impeachment evidence merits the same constitutional treatment as exculpatory evidence."). Finally, the Supreme Court has refined Brady v. Maryland and clarified that it is not necessary that a defendant request exculpatory evidence: "[R]egardless of request, favorable evidence is material, and constitutional error results from its suppression by the government `if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (quoting United States v. Bagley, 473 U.S. at 682, 105 S.Ct. 3375). See Douglas v. Workman, 560 F.3d at 1172 ("The government's obligation to disclose exculpatory evidence does not turn on an accused's request."); United States v. Summers, 414 F.3d 1287, 1304 (10th Cir.2005) ("[T]he prosecution has an affirmative duty to disclose exculpatory evidence clearly supporting a claim of innocence even without request."). "[T]he Due Process Clause does not require the government to disclose before trial the names of its witnesses, just so the defense can have sufficient time to investigate their backgrounds for impeachment information." United States v. Ashley, 274 Fed.Appx. 693, 697 (10th Cir.2008) (unpublished). See Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) ("It does not follow from the prohibition against concealing evidence favorable to the accused that the prosecution must reveal before trial the names of all witnesses who will testify unfavorably.").
"An `open file' policy is neither mandated by the Constitution ... nor is it ipso facto constitutionally sufficient." Smith v. Sec'y of N.M. Dep't of Corr., 50 F.3d 801, 828 (10th Cir.1995) (internal citations
Kyles v. Whitley, 514 U.S. at 438, 115 S.Ct. 1555 (internal citations omitted).
The United States' good faith or bad faith is irrelevant in determining violations of Brady v. Maryland. See Brady v. Maryland, 373 U.S. at 87, 83 S.Ct. 1194. "This means, naturally, that a prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence." Kyles v. Whitley, 514 U.S. at 439, 115 S.Ct. 1555. The United States has an obligation to "volunteer exculpatory evidence never requested, or requested only in a general way," although the obligation only exists "when suppression of the evidence would be of sufficient significance to result in the denial of the defendant's right to a fair trial." 514 U.S. at 433, 115 S.Ct. 1555 (internal quotations omitted). On the other hand, "[t]he Constitution, as interpreted in Brady, does not require the prosecution to divulge every possible shred of evidence that could conceivably benefit the defendant." Smith v. Sec'y of N.M. Dep't of Corr., 50 F.3d at 823. "`[T]he government typically is the sole judge of what evidence in its possession is subject to disclosure' and it acts at its own peril by failing to comply adequately with an order requiring disclosure of Brady material." United States v. Lujan, 530 F.Supp.2d 1224, 1230 (D.N.M. 2008)(Brack, J.)(quoting United States v. Presser, 844 F.2d 1275, 1281 (6th Cir. 1988)).
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, 514 U.S. at 437, 115 S.Ct. 1555. On the other hand, "[t]here is no Brady violation where the defendant knew or should have known of the material, exculpatory information or where the information was available to him from another source." United States v. Lujan, 530 F.Supp.2d at 1230 (citing United States v. Graham, 484 F.3d 413, 417 (6th Cir.2007)).
Brady v. Maryland requires disclosure of information only in the government's possession or knowledge, whether actual or constructive. See United States v. Beers, 189 F.3d 1297, 1304 (10th Cir.1999), cert. denied, 529 U.S. 1077, 120 S.Ct. 1696, 146 L.Ed.2d 501 (2000); Smith v. Sec'y of N.M. Dep't of Corr., 50 F.3d at 825 n. 36 (noting that, because a district attorney's office had actual knowledge that there was a separate investigation by authorities in a separate county, it was reasonable to impute knowledge possessed by
"[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, 738 F.2d 875, 878 (7th Cir.1984). The "prosecution has an affirmative duty to disclose exculpatory evidence clearly supporting a claim of innocence even without request." United States v. Summers, 414 F.3d 1287, 1304 (10th Cir.2005) (citing Scott v. Mullin, 303 F.3d 1222, 1228 n. 2 (10th Cir.2002)). "A prosecutor may have a duty to search files maintained by other `governmental agencies closely aligned with the prosecution' when there is `some reasonable prospect or notice of finding exculpatory evidence.'" United States v. Padilla, 2011 WL 1103876, at *7 (quoting United States v. Brooks, 966 F.2d 1500, 1503 (D.C.Cir. 1992)). The Tenth Circuit in United States v. Beers held that the state's knowledge and possession of potential impeachment evidence cannot be imputed to a federal prosecutor for purposes of Brady v. Maryland where there is no joint investigation by federal and state officials. See 189 F.3d at 1304. See also United States v. Romo, 914 F.2d 889, 899 (7th Cir.1990) (holding that court did not err in denying request to compel prosecutors to make various inquires of local police in absence of showing by defendant that specific material, exculpatory information existed of which government knew). The Tenth Circuit in United States v. Beers, however, left open the question whether knowledge possessed by state officials would be imputed to the federal prosecutor where the federal government participated in a joint investigation with state officials. See 189 F.3d at 1304, 1304 n. 2. The Court has previously determined that the New Mexico State Police ("NMSP") is not closely aligned with a federal prosecution when NMSP officers are government witnesses in the federal prosecution of an illegal alien in possession of a firearm. United States v. Huerta-Rodriguez, No. CR 09-3206 JB, 2010 WL 3834061, at *1, *3, *8 (D.N.M. Aug. 12, 2010) (Browning, J.); United States v. Huerta-Rodriguez, No. CR 09-3206,
A prosecutor does not have a duty to obtain evidence from third parties. See United States v. Combs, 267 F.3d 1167, 1173 (10th Cir.2001) (observing that Brady v. Maryland does not oblige the government to obtain evidence from third parties); United States v. Baker, 1 F.3d 596, 598 (7th Cir.1993) ("Certainly, Brady does not require the government to conduct discovery on behalf of the defendant."); United States v. Flores, 540 F.2d 432, 437 (9th Cir.1976) (noting that government has no duty to fish through public records equally accessible to defense to collate information); United States v. Lujan, 530 F.Supp.2d at 1231 (stating there is no affirmative duty to discover information in possession of independent, cooperating witness and not in government's possession)(internal citations omitted). Accordingly, in United States v. Badonie, the Court determined that it could not compel the United States to produce Navajo Nation files, including the personnel files from Navajo Nation officers whom the United States intended to call at trial, because the United States did not possess the files. See 2005 WL 2312480, at **1-3. The Court explained that, although "the United States may have an obligation to seek information from `closely aligned' United States agencies, ... its obligations does not require it to seek information from other governments," such as the Navajo Nation. 2005 WL 2312480, at *3 (quoting United States v. Brooks, 966 F.2d at 1503). The Court held, thus, that because the personnel files and other evidence which the defendant sought to be produced were in the possession of the Navajo Nation, the United States could not be compelled to produce the evidence, even though the United States may have been able to "get the information Badonie seeks merely by requesting" it. 2005 WL 2312480, at *3.
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, 917 F.2d 457, 461 (10th Cir.1990)(quoting Jencks v. United States, 353 U.S. 657, 667, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957)). A defendant's mere allegation that the requested information might be material does not entitle him to an unsupervised search of the government's files. See Pennsylvania v. Ritchie, 480 U.S. 39, 59, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). The Brady v. Maryland rule is not an evidentiary rule that grants broad discovery powers to a defendant, because there "is no general constitutional right to discovery in a criminal case." Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977).
United States v. Agurs, 427 U.S. at 109-10, 96 S.Ct. 2392 (internal quotations and citations omitted), rev'd on other grounds by United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375. See Downs v. Hoyt, 232 F.3d 1031, 1037 (9th Cir.2000) ("Brady does not require a prosecutor to turn over files reflecting leads and ongoing investigations where no exonerating or impeaching evidence has turned up.").
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." 373 U.S. at 87, 83 S.Ct. 1194. "Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. at 682, 105 S.Ct. 3375. See United States v. Allen,
The Supreme Court, in Cone v. Bell, 556 U.S. 449, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009), recently noted:
556 U.S. at 470 n. 15, 129 S.Ct. 1769. Favorable evidence is only material and thus subject to mandated disclosure when it "could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Cone v. Bell, 556 U.S. at 470, 129 S.Ct. 1769 (quoting Kyles v. Whitley, 514 U.S. at 435, 115 S.Ct. 1555).
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, 514 U.S. at 437, 115 S.Ct. 1555 (stating that the prosecution has an affirmative duty to disclose evidence, because "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."); United States v. Deutsch, 475 F.2d 55, 57 (5th Cir.1973)(granting a mistrial for failure to produce personnel files of government witnesses), overruled on other grounds by United States v. Henry, 749 F.2d 203 (5th Cir.1984); United States v. Padilla, 2011 WL 1103876, at *6. The United States' good faith or bad faith is irrelevant. See Brady v. Maryland, 373 U.S. at 87, 83 S.Ct. 1194; United States v. Quintana, 673 F.2d 296, 299 (10th Cir. 1982) ("Under Brady, the good or bad faith of government agents is irrelevant."). "This means, naturally, that a prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence." Kyles v. Whitley, 514 U.S. at 439, 115 S.Ct. 1555. The United States has an obligation to "volunteer exculpatory evidence never requested, or requested only in a general
The Tenth Circuit has held that:
Smith v. Sec'y of N.M. Dep't of Corr., 50 F.3d at 824 n. 34 (quoting Fero v. Kerby, 39 F.3d at 1472)(internal alterations omitted). Accord United States v. Gomez, 191 F.3d 1214, 1218-19 (10th Cir.1999). The remedy provided when the government violates a defendant's due-process rights under either California v. Trombetta or Arizona v. Youngblood is severe: "[W]hen evidence has been destroyed in violation of the Constitution, the court must choose between barring further prosecution or suppressing ... the State's most probative evidence." California v. Trombetta, 467 U.S. at 487, 104 S.Ct. 2528. See United States v. Bohl, 25 F.3d at 914 ("Accordingly, after concluding that there has been a violation of Youngblood, the decision to either suppress the government's secondary evidence describing the destroyed material or to dismiss the indictment turns on the prejudice that resulted to the defendant at trial."); United States v. Fletcher, 801 F.2d 1222, 1225 n. 3 (10th Cir.1986) (remanding for a hearing on whether the government violated California v. Trombetta, and, if so, whether the proper remedy would be to suppress evidence derived from the lost or destroyed material, or to dismiss the indictment).
"Under the two-prong Trombetta test, the government violates a defendant's right to due process when: (1) it destroys evidence whose exculpatory significance
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, 25 F.3d at 910 (quoting Arizona v. Youngblood, 488 U.S. at 58, 109 S.Ct. 333). "Potentially useful evidence" is "evidence 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.'" United States v. Bohl, 25 F.3d at 910 (emphasis in original) (quoting Arizona v. Youngblood, 488 U.S. at 57, 109 S.Ct. 333). Unlike asserted violations of Brady v. Maryland, for which the prosecutor's state of mind is irrelevant, if a defendant asserts that the prosecution violated his or her due-process rights by failing to preserve potentially exculpatory evidence, the defendant may prevail under Arizona v. Youngblood only if he or she demonstrates that the prosecution's failure to preserve the evidence was done in bad faith. See United States v. Pedraza, 27 F.3d 1515, 1527 (10th Cir.1994) ("[I]f the government destroys or otherwise fails to preserve potentially exculpatory evidence, the defendant bears the burden of demonstrating that the government acted in bad faith in doing so.").
Smith v. Sec'y of N.M. Dep't of Corr., 50 F.3d at 824 n. 34.
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, 25 F.3d at 911 (alterations in original)(quoting Arizona v. Youngblood, 488 U.S. at 57 n. *, 109 S.Ct. 333). "[T]he district court's determination regarding bad faith is a mixed question of fact and law, in which the quintessentially factual question of intent predominates...." United States v.
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, 873 F.2d 1363, 1375 (10th Cir.1989). "[I]t is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter [under rule 403]." United States v. Pettigrew, 468 F.3d 626, 638 (10th Cir.2006) (quoting United States v. Sides, 944 F.2d 1554, 1563 (10th Cir.1991)) (emphasis in original). "In performing the 403 balancing, the court should give the evidence its maximum reasonable probative force and
The decision to admit or exclude evidence pursuant to rule 403 is within the trial court's discretion, see United States v. Lugo, 170 F.3d 996, 1005 (10th Cir. 1999), and the trial court's discretion to balance possible unfair prejudice against probative value is broad, see United States v. Bice-Bey, 701 F.2d 1086, 1089 (4th Cir.1983); United States v. Masters, 622 F.2d 83, 87-88 (4th Cir.1980). As the Supreme Court has noted:
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008) (quoting 1 S. Childress & M. Davis, Federal Standards of Review § 4.02, at 4-16 (3d ed. 1999)).
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, 192 F.3d 946, 951 (10th Cir.1999). "Evidence is not unfairly prejudicial merely because it is damaging to an opponent's case." United States v. Caraway, 534 F.3d 1290, 1301 (10th Cir. 2008) (quoting United States v. Curtis, 344 F.3d 1057, 1067 (10th Cir.2003)). Rather, "[t]o be unfairly prejudicial, the evidence must have `an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.'" United States v. Caraway, 534 F.3d at 1301 (quoting Fed.R.Evid. 403 advisory committee note)(emphasis in original).
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, 784 F.2d 1040, 1044 (10th Cir.1986) (citing rule 404 advisory notes).
Rule 404(b) states that "[e]vidence 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, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988).
United States v. Zamora, 222 F.3d 756, 762 (10th Cir.2000) (citing United States v. Roberts, 185 F.3d 1125 (10th Cir.1999)). See United States v. Higgins, 282 F.3d 1261, 1274 (10th Cir.2002); United States v. Hardwell, 80 F.3d 1471, 1488 (10th Cir. 1996).
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, 560 F.2d 1288, 1295-96 (6th Cir.1977); 22A Charles A. Wright & Kenneth W. Graham, Federal Practice and Procedure: Evidence § 5239, at 260-62 (2012). In United States v. Phillips, 599 F.2d 134 (6th Cir.1979), the United States Court of Appeals for the Sixth Circuit noted, in addressing rule 404(b)'s precepts, that the rule addresses two main policy concerns:
United States v. Phillips, 599 F.2d at 136.
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, 229 F.3d 1312, 1317 (10th Cir.2000) (citing United States v. Kendall, 766 F.2d 1426, 1436 (10th Cir.1985)). "[A] broad statement merely invoking or restating Rule 404(b) will not suffice." United States v. Youts, 229 F.3d at 1317. "Uncharged, unrelated crimes or bad acts may be probative to show knowledge, ... whether the acts involved previous conduct or conduct subsequent to the charged offense if the uncharged acts are similar to the charged crime and sufficiently close in time." United States v. Valencia-Montoya, No. CR 11-2990, slip op. at 11 (D.N.M. Sept. 17, 2012) (Browning, J.)(citing United States v. Olivo, 80 F.3d 1466, 1468-69 (10th Cir.1996)). See Lewis v. District of Columbia, 793 F.2d 361, 363 (D.C.Cir. 1986) (per curium)(holding that the admission of evidence of prior arrests is proper for purposes of determining whether the plaintiff running from the police officers was result of a mistake or to avoid arrest).
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'
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, 373 U.S. at 87, 83 S.Ct. 1194). He also argues that the United States' failure to preserve the text messages is "functionally equivalent to spoliation." Motion to Suppress at 5. The United States contends that, because Wauneka's outgoing text messages are not in its possession, California v. Trombetta or Arizona v. Youngblood, governs the Court's determination of the Motion to Suppress, and not Brady v. Maryland. See Response ¶ 6, at 4. The United States asserts that Harry has not met the tests set forth to establish a constitutional violation under either case. See Response at 4-6. At the hearing, Harry conceded that the evidence does not demonstrate that the United States violated his constitutional rights. See Tr. at 123:1-7 (Samore)("I don't think there's sufficient [evidence] that there was bad faith in destroying it. I want to confirm that."); id. at 112:13-14 (Samore)("I'm not going to [have] any constitutional argument...."). The Court agrees with Harry that the evidence does not demonstrate that the United States violated his constitutional rights by failing to preserve Wauneka's outgoing text messages.
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., 50 F.3d at 824 n. 34 ("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.").
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 hypothesize
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, 25 F.3d at 910 (internal quotations omitted). Harry asserts that, in the context of text messages, "abbreviations, exclusions, or paraphrasing" can be misleading without the benefit of Wauneka's side of the conversation. Motion to Suppress at 4. He also argues that he cannot effectively cross-examine Wauneka without the outgoing messages. See Motion to Suppress at 2. This assertion is the functional equivalent of arguing that the text messages could be "subject to tests," through impeachment and cross-examination, which might "exonerate the defendant." United States v. Bohl, 25 F.3d at 910. In United States v. Bohl, the Tenth
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, 25 F.3d at 911 (alterations in original)(quoting Arizona v. Youngblood, 488 U.S. at 57 n. *, 109 S.Ct. 333). There is no evidence that the United States' prosecutors or investigators were on notice of the exculpatory value of Wauneka's outgoing text message before they were lost. When Joe interviewed Harry, Harry's description of Wauneka's outgoing messages was non-specific, as Harry informed Joe that
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 29:1-5 (Joe)("Through experience also and by calling the [] tel[ephone] 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 [] tel[ephone]."); id. at 57:16-19 (Guilmette)(explaining that "[c]ertain 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).
United States v. Bohl, 25 F.3d at 912. Joe testified that when he attempted to retrieve the text messages before June 29, 2010, he realized they were unavailable on the cellular telephone, and his efforts to procure Wauneka's outgoing text messages through other means did not work. See Tr. at 44:3-15 (Samore, Joe). The only time frame, therefore, during which Wauneka's outgoing text messages were available was after May 21, 2010, through the undetermined time in which Joe realized that the text messages were not available any longer, before the Indictment was filed.
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, 25 F.3d at 912 (explaining that, because the evidence destroyed was central to the government's case, the government was more likely to have destroyed it in bad faith). The United States has other witnesses to the incident that it may present at trial, and, although Harry's messages are probative regarding his state of mind, they are also subject to multiple interpretations and may be questioned for reliability, given Harry and Wauneka's recent intoxication. Harry's state of mind after the alleged assault does not establish that he possessed the requisite legal state of mind when the incident occurred. Lastly, the United States has an "innocent explanation for its failure to preserve" the outgoing text messages, as Harry and the United States assert that Wauneka's outgoing text messages could only have been retrieved for a limited time period, and that, by the time Harry requested the messages, that time period had likely passed. United States v. Bohl, 25 F.3d at 912-13. The Court determines, thus, that the United States' failure to preserve Wauneka's outgoing text messages, which were of a potentially useful value at best, was not done in bad faith and, therefore, was not a violation of Harry's due-process rights.
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., 202 F.3d at 1274. The maximum reasonable probative force of the text messages from Harry would be insight into Harry's state of mind shortly after the alleged assault. The Court has in another case denied a motion in limine under rule 403, because the probative value of defendants' previous litigation was helpful to prove their state of mind in the matter before the Court and outweighed the alleged prejudicial effect — that the evidence would cause the jury to dislike the defendants. See Guidance Endodontics, L.L.C. v. Dentsply Int'l, Inc., 705 F.Supp.2d 1265, 1272 (D.N.M.2010) (Browning, J.)("The prejudice or confusion about which the Defendants are concerned is that the jury will... dislike them. While that is a valid concern, it is not one against which the Rules of Evidence will protect the Defendants in this case."). Harry makes a similar argument here — that admitting one-side of the text messages from him would cause the jury read its own negative experiences into Harry's alleged conduct. See Tr. at 111:22-112:7 (Samore)("The jury's going to[] hear ... about sexual activity between these kids. That invites people projecting when they had been in their own experience and ... it's difficult to ro[ot] out the power of those subtle inferences we all have...."). The Court does not believe that the jury's potential bias based on their individual, unknown, negative experiences is so prejudicial to Harry as to outweigh the probative value the messages provide regarding his state of mind. Harry argued several times at the hearing that the evidence is not reliable, because it invites conjecture and speculation, and because of Wauneka and Harry's drunken state at the time the messages were exchanged. See Tr. at 11:12-16; id. at 117:5-23 (Samore). These arguments, however, go to the weight of the messages from Harry and not to their admissibility. See United States v. Martinez, 744 F.2d at 80 (holding that a defendant's argument regarding the materiality of tests which were not performed, the exculpatory value
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, 605 F.3d at 787. Harry's text messages will not be of such prejudice as to outweigh their probative value for the United States' case, and the Court will thus deny the Motion to Suppress on the basis of rule 403.
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, 2010 WL 3894147, at *3 (D.N.M. July 31, 2010)(Browning, J). To the extent the text messages demonstrate Harry's character, the general character trait presented is an apologetic tone, which does not inculpate Harry. Even if the messages are character evidence, the United States is permitted to introduce the messages to demonstrate Harry's "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Fed.R.Evid. 404(b). The United States' use of the text messages to demonstrate Harry's state of mind immediately after the alleged assault is a "permissible purpose for which such evidence is offered," and the inferences to be drawn from the messages should be limited to that purpose. United States v. Youts, 229 F.3d at 1317. Using the text messages to demonstrate Harry's state of mind is a proper purpose, relevant to whether Harry acted with the requisite state of mind, the prejudicial effect of which does not outweigh its probative value. Harry may request a jury instruction indicating the limit of the text message's evidentiary value should the United States introduce those messages at trial. Evidence which is admissible under rule 404(b) must
United States v. Zamora, 222 F.3d at 762.
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
353 U.S. at 671-72, 77 S.Ct. 1007. Congress codified this holding in 18 U.S.C. § 3500, which provides that the United States does not have to produce the statements or reports until after a witness testifies at trial. See 18 U.S.C. § 3500(a), (b). E.g., United States v. Kimoto, 588 F.3d 464, 475 (7th Cir. 2009)("[T]he Jencks Act, 18 U.S.C. § 3500.... was enacted in response to the Supreme Court's holding in Jencks v. United States....").
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 966 F.2d at 1501, 1504. The District of Columbia Circuit focused on the "close working relationship between the Washington metropolitan police and the U.S. Attorney for the District of Columbia (who prosecutes both federal and District crimes, in both the federal and Superior courts), a relationship obviously at work in this prosecution," and held that the United States' duty under Brady v. Maryland "must reach the police department's homicide and Internal Affairs Division files." 966 F.2d at 1503. Regarding the implication of United States v. Brook's in determining "how much knowledge possessed by various arms of the State should be imputed to the prosecution," the Tenth Circuit has described the District of Columbia Circuit's holding as unclear. Smith v. Sec'y of N.M. Dep't of Corr., 50 F.3d at 825 n. 36 (citing United States v. Brooks and stating that the "District of Columbia ... [has] not clearly defined the extent of the obligation"). The Tenth Circuit has discussed United States v. Brooks in two cases: United States v. Combs, 267 F.3d 1167 (10th Cir. 2001), and Smith v. Sec'y of N.M. Dep't of Corr. In neither case did the Tenth Circuit indicate that it would adopt a similar stance as the District of Columbia Circuit. See United States v. Combs, 267 F.3d at 1172, 1175 (discussing United States v. Brooks in regards to whether United States Pretrial Services' knowledge could be imputed to federal prosecutors, and suggesting that the District of Columbia Circuit "suggests that Brady is broadly construed to apply to agencies in reasonable proximity to the prosecution," but declining to "resolve this ... in this case," because the evidence allegedly withheld was immaterial); Smith v. Sec'y of N.M. Dep't of Corr., 50 F.3d at 825 n. 36 (discussing United States v. Brooks with respect to whether Torrance County district attorneys' knowledge may be imputed to Bernalillo County district attorneys, "two arms of the State," and describing the District of Columbia Circuit's holding as "not clearly defined," but finding that, because the Bernalillo County district attorneys had actual knowledge of Torrance County's criminal investigation into the same homicide, "it is reasonable to impute the knowledge possessed by each entity to the prosecution under Brady," and noting that this holding "relieves us from having to determine the full extent of when knowledge possessed by an arm of the State will be imputed to the prosecution"). The Tenth Circuit, therefore, has focused on whether state prosecutors have actual knowledge of potentially exculpatory evidence possessed by another arm of the state or whether the suppressed evidence was material, and has declined to determine whether and when police officers or state law enforcement officers' knowledge may be imputed to federal prosecutors. There is a great need for clarity and bright lines in this area, so that Assistant United States Attorneys know precisely their duties; United States v. Brooks creates too much fuzziness, and, the Court is not be inclined to follow it without more express direction from the Tenth Circuit.
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, 966 F.2d at 1503, the United States Attorney for the District of New Mexico does not prosecute tribal crimes, in tribal court. Thus, the presence of Navajo Nation officers as testifying witnesses in United States v. Badonie does not alone indicate that the Navajo Nation was closely aligned with the United States Attorneys in its prosecution, or that the officers were working on the United States' behalf for purposes of Brady v. Maryland, and therefore, neither the Navajo Nation's possession nor knowledge of exculpatory information could be imputed to the United States. Similarly, the Tenth Circuit has held that the federal government cannot be compelled to produce evidence which state investigators possess where the federal and state entities are not jointly investigating a criminal case. See United States v. Beers, 189 F.3d at 1304. Thus, because the NMSP officers in United States v. Huerta-Rodriguez were only testifying witnesses, and not joint investigators, the Court determined that the United States cannot be compelled to produce personnel files which the NMSP possess.
United States v. Huerta-Rodriguez, 2010 WL 3834061, at *4
Torres v. El Paso Elec. Co., 1999-NMSC-029, ¶ 37, 127 N.M. 729, 744, 987 P.2d 386, 401, overruled on other grounds by Herrera v. Quality Pontiac, 2003-NMSC-018, 134 N.M. 43, 73 P.3d 181. See Pandolfo v. Labach, No. CIV 08-0231 JB/DJS, 2009 WL 1255529, at *4 (D.N.M. Apr. 15, 2009)(Browning, J.)(allowing plaintiffs leave to amend to add a claim for intentional spoliation of evidence where defendants disposed of a vehicle upon which a victim was working with the defendants when a fire started inside the vehicle resulting in severe burns to the victim). Just as Harry has not established that Wauneka's outgoing text messages were destroyed in bad faith, the Court will not properly impose an adverse inference on the United States' evidence, because this remedy may only be imposed when a defendant intentional spoils evidence in bad faith. See Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 863 (10th Cir.2005)(stating that although it is within the court's discretion to impose sanctions for spoliation of evidence, if the aggrieved party seeks an adverse inference to remedy the spoliation, it must prove bad faith; "[m]ere negligence in losing or destroying records is not enough" (citing Aramburu v. The Boeing Co., 112 F.3d 1398, 1407 (10th Cir.1997))). Moreover, as with the alleged violation of Harry's due-process rights, Harry has not demonstrated that the United States ever possessed Wauneka's outgoing text messages, and thus the Court will not impose any other sanction for spoliation, such as a jury instruction that the jury may draw an adverse inference against the United States because of the loss of evidence. Harry remains free, however, to argue that position in closing, if he desires.