United States District Court, W.D. Oklahoma
MILES-LAGRANGE, UNITED STATES DISTRICT JUDGE.
the Court is defendant's Motion to Dismiss Based on
Destruction of Evidence, filed April 2, 2018. On April 30,
2018, the government filed its response. Based upon the
parties' submissions, the Court makes its determination.
is charged by Superseding Indictment with attempted use of an
explosive device and attempted use of a weapon of mass
destruction (an explosive or incendiary bomb). In the
affidavit in support of the Complaint [docket no. 1], Special
Agent Eric Larson states that on December 21, 2016, an FBI
Confidential Human Source (“CHS”) voluntarily
provided to the FBI information that defendant was aspiring
to bomb the Federal Reserve Building in Washington D.C. in a
manner similar to the Oklahoma City bombing. Agent Larson
further states that CHS began cooperating with the government
in January 2017, when he/she was interviewed by law
the January interview, CHS stated that he and defendant
communicated primarily through Facebook Chat, ultimately
using encryptions which could not be viewed to a casual
onlooker. CHS further stated that keys were developed for
both of them to use when reading each other's
communications, and CHS allegedly provided the known keys for
both he and defendant. CHS also stated that he had most of
the conversations between himself and defendant saved to his
laptop computer and cell phone that was at that time in his
parents' custody and CHS agreed to provide the devices
for a mirror image to be made at a later time. During this
interview, CHS further indicated that he had
“screenshots” of decrypted conversations, and CHS
was advised that a mirror of the devices is preferred because
screenshots could be altered or edited. Ultimately, CHS
provided screenshots of four conversation strings he
allegedly had with defendant; however, it appears no mirror
of CHS' devices was made, or if made, has been destroyed.
pursuant to the execution of a warrant of an account believed
to be defendant's from Facebook, Agent Larsen conducted
an analysis of messages on January 16, 2018. According to
Agent Larsen, the screenshots previously provided by CHS were
unable to be decoded using the password keys previously
provided by CHS. The experience of Agent Larsen was that the
TextLock app appeared to be unreliable and inconsistent in
its decoding process. Further, Agent Larsen's TextLock
analysis report reflects that the majority of TextLock
messages sent by CHS to defendant were unable to be decoded.
asserts that the evidence, or lack thereof, contained on
CHS' laptop and cell phone is now unavailable to
defendant and he is, therefore, not able to present this
exculpatory evidence at trial to support his entrapment
defense by showing his lack of previous intent or purpose to
violate the law prior to CHS working with the government and
building a case against him. Defendant further asserts that
if defendant had Facebook messaged CHS the content that
corresponded with the alleged screenshots, the evidence to
establish that CHS had not altered, tampered, edited, or even
created the content of the screenshots would have been
contained on either CHS' laptop computer or phone.
Defendant asserts that there simply is no other comparable
evidence to show defendant's lack of previous intent or
purpose to violate the law other than actual images from
CHS' electronic devices. Finally, defendant asserts that
his testimony alone is not comparable evidence to show his
lack of intent.
United States Supreme Court's opinions in California
v. Trombetta, 467 U.S. 479 (1984) and Arizona v.
Youngblood, 488 U.S. 51 (1988) govern exculpatory
evidence no longer in the government's possession.
For police destruction of evidence to rise to the level of
affecting a defendant's Due Process rights under
California v. Trombetta, the evidence “must
both possess an exculpatory value that was apparent before
the evidence was destroyed, and be of such a nature that the
defendant would be unable to obtain comparable evidence by
other reasonably available means.” 467 U.S. 479, 489,
104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). In addition, . . . the
defendant must show that the government acted in bad faith.
Youngblood, 488 U.S. at 58, 109 S.Ct. 333.
United States v. Pearl, 324 F.3d 1210 (10th Cir.
carefully reviewed the parties' submissions, the Court
finds that the government's failure to mirror image
CHS' electronic devices, or destruction of such mirror
image, does not affect defendant's Due Process rights.
Specifically, the Court finds that defendant has not shown
that he would be unable to obtain comparable evidence by
other reasonably available means. The government has provided
an image of defendant's own laptop computer and an image
of defendant's own cellphone to defendant. The government
has also provided a copy of defendant's Facebook account
records. To the extent defendant's Facebook conversations
were on CHS' electronic devices, those conversations
would also be contained in the laptop computer image, the
cellphone image, and the Facebook records. Additionally, to
the extent the communications between defendant and CHS were
encrypted, they would have been encrypted on all devices, and
to the extent that CHS knew the decryption keys, those same
keys would have been known by defendant as well. Thus, the
Court finds that defendant is able to obtain comparable
evidence by other reasonably available means.
for the reasons set forth above, the Court DENIES
defendant's Motion to Dismiss Based on ...