United States v. Harry
2016 U.S. App. LEXIS 3625, 2016 WL 767028, 816 F.3d 1268 (2016)
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Rule of Law:
The government's failure to preserve evidence that is only 'potentially useful' to the defense does not violate a defendant's due process rights unless the defendant can demonstrate that the government acted in bad faith. If the evidence was 'apparently exculpatory' before its loss, however, the failure to preserve it constitutes a due process violation regardless of governmental intent.
Facts:
- Myron Harry attended a party at the apartment of Stephanie Johnson and her boyfriend Dimitri Sanisya, where guests were drinking.
- The hosts allowed guests to spend the night, assigning women to a bedroom and men to the living room.
- Around 5 a.m., Harry entered the women's bedroom where the Victim was sleeping on an air mattress next to her friend, Elysia Murphy.
- Murphy awoke to find Harry on top of the Victim, who appeared to be asleep, and told him to get out of the room.
- The Victim testified that she woke up with someone on top of her having intercourse, a statement later corroborated by DNA evidence.
- After being confronted by the women in the apartment, Harry apologized and left.
- Immediately following the incident, Harry and Sanisya exchanged a series of text messages.
- An investigator later collected Sanisya's phone, which contained the text messages Harry had sent, but Sanisya's outgoing messages to Harry were subsequently lost.
Procedural Posture:
- Myron Harry was indicted in the U.S. District Court on one count of sexual abuse in Indian country.
- Prior to trial, Harry filed a motion to suppress the text messages he had sent, arguing the government's failure to preserve the corresponding incoming messages violated his due process rights.
- The government filed a motion in limine to exclude evidence of the victim's alleged flirting, including one of Harry's text messages.
- The district court denied Harry's motion to suppress and granted the government's motion to exclude the flirting evidence.
- After a jury trial, Harry was convicted and sentenced to 151 months' imprisonment.
- Harry, as the appellant, appealed his conviction and sentence to the United States Court of Appeals for the Tenth Circuit.
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Issue:
Does the government's failure to preserve text messages that are only 'potentially useful' to the defense violate a defendant's due process rights if the defendant cannot show that the government acted in bad faith?
Opinions:
Majority - Hartz, Circuit Judge.
No, the government's failure to preserve evidence that is only 'potentially useful' does not violate a defendant's due process rights unless the defendant can show bad faith. Under the standard established in California v. Trombetta and Arizona v. Youngblood, a due process violation occurs only if the lost evidence was 'apparently exculpatory' before its loss, or if it was 'potentially useful' and lost due to police bad faith. In this case, the lost messages from Sanisya were not apparently exculpatory; the context of the exchange and other testimony suggest they were accusatory, not favorable to Harry. Furthermore, Harry failed to establish bad faith, as the investigator made multiple attempts to recover the messages before the defense requested them, and their disappearance could be explained by innocent technological reasons rather than a deliberate attempt to conceal evidence. Therefore, the failure to preserve the messages did not constitute a due process violation.
Analysis:
This decision reinforces the high threshold for defendants claiming a due process violation from lost or destroyed evidence, strictly applying the bad faith requirement from Arizona v. Youngblood for evidence that is only 'potentially useful.' The court's analysis demonstrates that mere speculation about what lost evidence might have contained is insufficient; the defendant must provide concrete reasons why the evidence would have appeared exculpatory to law enforcement before its loss. This ruling makes it more difficult for defendants to succeed on such claims, particularly with digital evidence that can be lost for various technical reasons, unless they can present compelling proof of intentional, malicious conduct by the government.
