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.
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