The FBI Agent and Texting During Sidebars

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In 2013, a federal grand jury returned an indictment that charged Douglas Swenson, and others, with “securities fraud, wire fraud, mail fraud, bank fraud, interstate transportation of stolen property, as well as multiple counts of conspiracy to commit securities fraud, wire fraud, mail fraud, interstate transportation of property taken by fraud, and money laundering.”  U.S. v. Swenson, 2013 WL 3322632 (U.S. District Court for the District of Idaho 2013).  The press release you can find here provides more details about the prosecution.

On March 18 and 19 of this year, FBI Agent Rebekah Morse testified for the prosecution in what seems to have been a trial of many, if not all, of the named defendants.  U.S. v. Swenson, supra. What seems to me, at least, to be an unusual issue arose during her testimony at that trial:

On March 19, 2014, during a recess, a juror commented to the Court's Law Clerk that Agent Morse was texting while on the witness stand during the time the Court and counsel were occupied at a sidebar conference. When questioned by the Court about this concern of the juror, Agent Morse denied texting. She explained that during her testimony, her phone vibrated, and to turn it off she claimed that she had to first enter her password. 

That explanation satisfied counsel and the Court. To resolve the one juror's expressed concern -- and to address any unexpressed concerns by other jurors -- the Court instructed the jury that Agent Morse was just turning off her cell phone by first punching in her password.

U.S. v. Swenson, supra.

That, though, was not the end of the matter:

The trial then proceeded forward with further cross examination of Agent Morse. But during that cross examination, the Court reflected further on the matter and became concerned that the juror had expressed her concern in such a way as to suggest that Agent Morse may have texted on more than one occasion. Agent Morse's explanation about turning off her cell phone on one occasion did not address the possibility that she might have been texting on two or three occasions.

After conferring with counsel, and with their approval, the Court advised Agent Morse of a potential inconsistency in her testimony and took possession of her cell phone. Agent Morse was to return for further testimony the next day, March 20, 2014. Tragically, she was found dead the morning of March 20, 2014, of a self-inflicted gunshot wound.

U.S. v. Swenson, supra.

The U.S. District Court Judge (“the Court”) who has the case then subpoenaed the

text records and the e-mails taken from the cellphone of Agent Morse for the dates of March 18, 2014, through and including March 19, 2014. The Court has now received those records and thoroughly examined them -- they contain the contents of all texts and e-mails sent and received by Agent Morse on those two days. The Court has also examined (1) the FBI's 302 Report of FBI Agents' interview with Agent Wyand who had interviewed Agent Morse during the evening of March 19, 2014; (2) what appears to be a note written by Agent Morse and found at her home on March 20, 2014; and (3) notes of IRS Special Agent Josh Culbertson on March 19, 2014, when members of the prosecution team met with Agent Morse.

With regard to the text and e-mail messages, the Court compared the times they were sent (or received) to the times provided (to the second) by the Real–Time transcript of the court proceedings. The only times that Agent Morse texted while on the witness stand were during a sidebar held on March 19, 2014. The sidebar was held from 12:02:47 to 12:10:41 p.m., and during that sidebar, Agent Morse sent 4 text messages and received 4 text messages. At no other time during a sidebar on March 18th or 19th did Agent Morse send any text messages or e-mails.

There were three additional times when text messages were received while Agent Morse was testifying. However, the text messages appear to be of a personal nature and the information provided does not permit the Court to conclude whether the received messages were actually viewed by Agent Morse while she was testifying. The Court has also reviewed the Verizon records that confirm that the Government has provided the entire texts and e-mails from March 18 and 19, 2014.

U.S. v. Swenson, supra.

Because this material could include exculpatory evidence, i.e., evidence that negated the criminal liability of one or more of the defendants, the defense attorney(s) asked

the Court to turn over all the material submitted by the Government for in camera pursuant to the Jencks Act, Rule 16, and Brady v. Maryland, 373 U.S. 83 (1963). Under Brady, the defense is entitled to see evidence that is favorable to the defendants and is material to guilt or innocence. Id. at 87. This extends to evidence that bears upon the credibility of a government witness. Giglio v. United States, 405 U.S. 150 (1972). Impeachment evidence is especially likely to be `material,’ under Brady, when it impugns the testimony of witness who is critical to prosecution's case. . . .

U.S. v. Swenson, supra.  All of the sources cited above deal with “discovery” in federal criminal cases.  You can read more about criminal discovery here.

The judge analyzed the defense request and ultimately held that

[t]here is no doubt that Agent Morse was a critical witness for the Government. Nevertheless, some of the texts and e-mails examined by the Court are clearly not material because they were sent or received during times that Agent Morse was not on the witness stand and they have nothing to do with the substance of her testimony.

Those texts and e-mails are clearly not Brady material. On the other hand, the text messages that were sent and received during the time Agent Morse was on the witness stand have potential use in impeaching Agent Morse's testimony and must therefore be disclosed under Brady.

U.S. v. Swenson, supra.

The judge also found,

[a]fter a full in camera review, the Court finds that the following material should be submitted under Brady: (1) the 302 Report; (2) the note apparently written by Agent Morse found at her home on March 20, 2014; and (3) those text messages referred to above that were sent and received while she was on the witness stand on March 19, 2014. None of this material—and none of the texts and e-mails not included in the material being turned over to the defense—are otherwise discoverable under the Jencks Act (18 U.S. Code § 3500) or Rule 16.

The Court will also turn over to both sides the court security video tapes of the courtroom proceedings during the days in question. These videos are being released on the Court's own initiative and are not required pursuant to Brady, the Jencks Act, or Rule 16. They will be provided separately.

U.S. v. Swenson, supra.

The judge therefore held that the

Court will turn this material over to the defense with direction to counsel to not distribute it further unless approved by order of this Court. This decision and the associated material were originally filed under seal because (1) some of the materials contain personal identifying information that must not be disclosed to the public under the E–Government Act, and (2) the materials may contain sensitive information not proper for public disclosure.

The Court has now unsealed the decision for the reasons expressed in a contemporaneous Docket Entry Order.

U.S. v. Swenson, supra.

He therefore entered this formal Order:

NOW THEREFORE IT IS HEREBY ORDERED, that the following material shall be delivered by the Government to the defense counsel: (1) the FBI's 302 Report of Agent Scata's interview with Agent Wyand who had interviewed Agent Morse during the evening of March 19, 2014; (2) what appears to be a note written by Agent Morse found at her home on March 20, 2014; (3) the Court's redacted version of the texts for March 19, 2014; (4) court security video tapes of the courtroom proceedings on the days at issue (to be provided separately by the Court).

IT IS FURTHER ORDERED, that counsel shall not distribute the material any further without approval from this Court.

U.S. v. Swenson, supra.

If you would like to read more about this issue and how it was handled, this news story also addresses it.  And this news story also provides a few more details.