In Criminal Case, Failure to Preserve Results in Exclusion of All Text Messages, Possible Adverse Inference

United States v. Vaughn, No. 14-23 (JLL), 2015 WL 6948577 (D.N.J. Nov. 10, 2015)

In this criminal case, a pro se defendant sought sanctions, including dismissal of the indictment, for the Government’s failure to preserve text messages relevant to its investigation.  Upon examination of the facts, including the Government’s acknowledged failure to preserve certain text messages and constantly changing explanations surrounding that failure as well as the “different level of diligence” applied to different text messages (care was taken to preserve certain messages, but not others), the court determined sanctions were warranted.  Accordingly, the court ordered that the Government would be precluded from using any text messages in its case-in-chief and reserved judgment until trial regarding the propriety of an adverse inference instruction.

Summarizing broadly, the Government in this criminal case failed to preserve text messages “related to its investigation of Defendants” and in particular those sent between an investigating police officer and a cooperating witness who assisted with the investigation by conducting numerous “controlled [drug] purchases.”  Specifically, the officer failed to adequately preserve text messages from four separate devices.  Additionally, in response to the inquiries of a pro se defendant and the court, the Government made repeated misrepresentations regarding its preservation of the at-issue messages.  Indeed, the court observed that:

There has been no hearing or letter in the past nine months were [sic] there has not been some change in statements previously made, some new surprise, or some undisclosed or misstated fact, right up to and including the identification of yet another phone (whose whereabouts are unknown) in the midst of the evidentiary hearings.

(Emphasis added.)

In its analysis of the question of sanctions, the court noted that the discovery obligations in a criminal case are different, but also clarified that “[w]hile the Government may not be required to produce its entire file, ‘Government disclosure of material exculpatory and impeachment evidence is part of the constitutional guarantee to a fair trial.’”  And, “[t]o that end,” the court continued, “’[i]t is the obligation of federal prosecutors . . . to seek all exculpatory and impeachment information from all the members of the prosecution team.’”  Thus, the court instructed, “federal prosecutors do not discharge their duty simply by hoping prosecution team members understand their duties, preserve the required information, and then self-identify discoverable items.”  Regarding its authority to impose sanctions, the court acknowledged that absent a showing of bad faith, the failure to preserve does not constitute a denial of due process, but noted the Government’s concession that the Court “has the power to impose sanctions for governmental discovery infractions even if bad faith is not shown.”

The court found that sanctions were warranted, citing “five primary reasons.”  First, the court found that the relevant officer was “aware (or reasonably should have been aware) of the FBI policy regarding the preservation of all text messages between law enforcement and confidential witnesses,” that he “systematically deleted or knowingly permitted text messages . . . to be deleted as a result of the auto-deleting functionality,” and that his “repeated mantra” that the lost messages were without evidentiary value lacked credibility.  Second, the court was “not persuaded” by attempts to minimize the officer’s role in the investigation and the importance of the lost messages.  Third, the “cumulative effect of the inconsistencies” in the Government’s representations rendered claims of a ”simple misunderstanding or inadvertent error not credible.” (“One extraordinary story (or misstatement) may be explained away through simple accident or inadvertence, two makes plausibility more challenging, and three claims of simple inadvertence are simply not believable.”)  Fourth, the court concluded that “the facts” contradicted representations that the Government made “all necessary and appropriate efforts to preserve text messages in this matter.” And, fifth- “and most notably for purposes of the remedy imposed by the Court” – was “the Government’s differential treatment of text messages depending on the source and use of those messages.”  For example, the Government took care to preserve messages between the cooperating witness and a pro se defendant, but failed to preserve other “investigation-related” messages between the cooperating witness and the at-issue officer.

In light of the above, the Court ordered that the Government would be prohibited from using any text messages in its case-in-chief and reserved until trial a determination regarding whether to impose an adverse inference.

A full copy of the court’s opinion is available here.