OPINION AND ORDER DENYING WOODLEY'S MOTION TO DISMISS COUNTS I AND II [127]

LAURIE J. MICHELSON, District Judge.

The Government maintains that a carjacking took place on August 27, 2014 and that Bijan Woodley is responsible. Woodley moves to dismiss the two counts of the superseding indictment based on this event because he believes the Government has failed to preserve material exculpatory evidence. (See generally Dkt. 127, Woodley's Mot. to Dismiss Counts I & II.) Upon reviewing the parties' briefs and listening to oral argument, the Court will deny Woodley's motion.

In January 2015, law enforcement personnel interrogated Woodley about a different carjacking that occurred in December. (Woodley's Mot. at 6.) According to an FBI agent, the following occurred during the interrogation: "Woodley . . . admitted that [one of the cell phones he possessed] likely contained the number for the scrap yard where he sold another car in the summer of 2014. [Woodley] believed that the car's previous owner may claim that he obtained the car via carjacking." (Woodley's Mot. A, Pennisi Aff. ¶ 28.) Woodley adds that, "[u]pon information and belief," he further stated during the interrogation that he bought the car that he later sold at the scrap yard. (Woodley's Mot. at 6.)

Woodley asserts that the Government has "fail[ed] to preserve" an audio recording of these "exculpatory" statements in violation of his due-process right to present a complete defense, thereby necessitating dismissal of Counts 1 and 2. (See Woodley's Mot. ¶¶ 9, 10.) Woodley says his statements "were not preserved" because he said them during the last hour of his interrogation, which is when the recording equipment was not functioning. (Woodley's Mot. ¶ 9.)

Woodley has not established a necessary premise of his argument: that the Government "fail[ed] to preserve" evidence. See United States v. Branch, 537 F.3d 582, 589 (6th Cir. 2008) ("The failure to preserve material exculpatory evidence violates the defendant's right to due process regardless of whether the government acted in bad faith.").

In reviewing the recordings of Woodley's interrogation, it has become apparent to the Court that Woodley's statements about buying a car in August 2014, selling it for scrap, and his belief the seller may claim he obtained the car via carjacking, were never captured on an audio recording. Two cameras recorded the interrogation. While both camera 1 and camera 2 were recording video of the interrogation, only camera 2 was recording audio. And after a break in the interrogation, camera 2 did not continue to record in any fashion—either it was not restarted or it malfunctioned. Thus, only camera 1 captured the last 51 minutes of Woodley's interrogation— the camera that had never been recording audio.

At oral argument, the Government confirmed the Court's understanding of what occurred with the audio and video of the interrogation. And Woodley offered nothing to rebut it.

Thus, this is not a situation where the Government possessed an audio recording of a defendant's allegedly exculpatory statements and then failed to preserve that recording or intentionally destroyed it. Rather, this is a situation where no such recording ever came into existence. Woodley has cited no authority that the Government breaches the Constitution's guarantee of due process by failing to record an interrogation. And the decisions the Court has found appear to be to the contrary. See United States v. Boston, 249 F. App'x 807, 810 (11th Cir. 2007) ("Although a rule requiring the government to record statements made during custodial interrogations might be sound policy, we agree with other circuits that have concluded that the Constitution does not require us to adopt such a rule." (citing cases)).1

Accordingly, the Court finds that Woodley has not carried his burden in showing that the Government failed to preserve exculpatory (or potentially useful) evidence. See United States v. Aldaco, 201 F.3d 979, 982 (7th Cir. 2000) ("When, as in this case, the failure of the prosecution to preserve evidence is at issue, due process requires that the defendant demonstrate [the following elements. . . .]" (emphasis added)); cf. United States v. Warshak, 631 F.3d 266, 300 (6th Cir. 2010) (providing that to show a Brady violation, "the defendant has the burden of establishing that the prosecutor suppressed evidence" (emphasis added)). Woodley's motion to dismiss Count I and Count II of the superseding indictment (Dkt. 127) is thus DENIED.2

SO ORDERED.