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United States v. Palms

United States District Court, N.D. Oklahoma

November 18, 2019




         Now before the Court are the magistrate judge' report and recommendation (Dkt. # 59) recommending that defendant's motion to dismiss for spoliation of evidence (Dkt. # 42) should be denied and plaintiff's Notice of Intent to Admit Evidence of Other Crimes, Wrongs or Acts (Dkt. # 68). Defendant filed a motion (Dkt. # 42) to dismiss the case due to spoliation of evidence, because the arresting officer seized a cell phone from a key witness, M.W., and returned the phone to her without obtaining a forensic examination of its contents. Defendant contends that M.W.'s phone contained exculpatory evidence and plaintiff acted in bad faith by allowing M.W. to delete exculpatory evidence from her phone. The motion was referred to a magistrate judge for a hearing, and the magistrate judge recommends that the motion be denied. Dkt. # 59. Plaintiff has given notice that it intends to offer evidence that defendant threatened or harmed other prostitutes in the presence of M.W. to intimidate her, and plaintiff also seek to offer evidence of defendant's use of the internet in furtherance of prostitution. Dkt. # 68.


         On June 6, 2019, a grand jury returned an indictment (Dkt. # 2) charging defendant with sex trafficking by means of force, fraud, or coercion in violation of 18 U.S.C. § 1591 (count one), obstruction or attempted obstruction of enforcement of § 1591 (count two), and retaliation against a witness, victim, or informant in violation of 18 U.S.C. § 1513 (count three). The charges stem from defendant's arrest on November 20, 2018 by an undercover Tulsa Police Department (TPD) officer who was investigating potential human trafficking of young women in the commercial sex industry. TPD Officer Justin Oxford set up a “date” with a prostitute who he believed could be a minor and a victim of human trafficking, and he agreed to meet the prostitute at the Peoria Inn in Tulsa, Oklahoma. Dkt. # 26-2, 2. When Oxford arrived at the Peoria Inn, he observed a black male sitting in a car in the parking lot, and he believed that the black male was conducting surveillance of Oxford as he approached the hotel room where he had agreed to meet the prostitute. Id. Oxford made contact with the prostitute, M.W., and arrested her after she agreed to perform a commercial sex act. Id. Oxford directed supporting officers to arrest the black male in the hotel parking lot, and the black male was subsequently identified as Ramar Palms. Dkt. # 33, at 2.

         Oxford seized cell phones from M.W. and Palms, and Palms's phone was subject to a forensic examination by TPD.[1] However, Oxford returned M.W.'s phone to her and she deleted communications between herself and defendant. Defendant has filed a motion asking the Court to dismiss the case due to plaintiff's failure to preserve “apparently exculpatory evidence” or, in the alternative, he requests an adverse jury instruction concerning plaintiff's failure to preserve evidence. The matter was referred to a magistrate judge and a hearing was held on defendant's motion. Defendant called M.W. and Oxford as witnesses in support his motion to dismiss.

         M.W. testified that Oxford seized her cell phone from the hotel room when she was arrested on November, 20, 2018, and Oxford asked if he could keep the phone to download its contents. Dkt. # 70, at 11-12. M.W. consented to a search of her phone and Oxford returned the phone to her a couple of days later. Id. at 12. M.W. gave conflicting answers to questions about whether or when she deleted data from her phone, but it is undisputed that she deleted text messages from defendant and evidence related to prostitution from her phone. Id. at 13-16. She claims that she regularly deleted old messages and did not see any reason to store communications from defendant. Id. at 16. On cross-examination, M.W. testified that Oxford did not direct her to delete evidence from her cell phone and she claims that she did not remove evidence specifically to prevent police from finding anything on her cell phone. Id. at 17. After November 20, 2018, defendant had access to her cell phone, but her testimony does not suggest that defendant removed evidence from the phone. Id. at 18.

         Oxford testified that he seized M.W.'s phone when he arrested her on November 20, 2018, and it is a common practice for Oxford to seize a suspect's cell phone at the time of arrest. Id. at 22-23. Cell phones contain digital evidence of sex trafficking offenses, such as advertisements, payments by customers, and contact information for customers. Id. at 24. Oxford knew that he needed a search warrant or M.W.'s consent to search her phone, and he asked her to sign a consent form at the police station. Id. at 26. M.W. consented to a search of her phone, and Oxford intended to have the contents of the phone downloaded the next day. Id. at 27-28. However, TPD was understaffed and did not have an officer available who could download cell phones, and Oxford conducted a limited search of text messages on the phone before returning it to M.W. Id. at 28-29. He took photographs of text messages between M.W. and defendant, and the messages related to prostitution and the encounter on November 20, 2018. Id. at 29. Oxford acknowledged that the phone could have contained evidence related to a prostitution offense committed by M.W., but he did not believe that she would be prosecuted based on evidence suggesting that she was a victim of human trafficking. Id. at 31. There could have been evidence that M.W. posted advertisements for prostitution using her phone, but Oxford believed that defendant's e-mail address was used in connection with the advertisements. Id. at 35. Oxford gave the phone back to M.W. because he did not want to alienate a cooperating witness, and he believes that she asked for her phone back. Id. at 39. Oxford testified that he did not direct M.W. to remove evidence from her phone. Id. at 42. The contents of M.W.'s phone were eventually downloaded and there was still a substantial amount of information on the phone, including evidence that defendant continued to harass M.W. after the November 20, 2018 arrest. Id.

         The magistrate judge entered a report and recommendation (Dkt. # 59) recommending that the Court deny defendant's motion to dismiss or for an adverse jury instruction based on spoliation of evidence. Defendant failed to show that M.W.'s cell phone actually contained any exculpatory evidence, and the magistrate judge determined that defendant must show that plaintiff acted in bad faith by failing to preserve evidence on the phone in order to establish a constitutional violation. Dkt. # 59, at 2-3. The magistrate judge did not “condone the government's failure to maintain the phone, ” but he also did not find that Oxford acted in bad faith by returning M.W.'s phone to her. Id. at 3-4. The magistrate judge recommends that the Court deny defendant's motion to dismiss for spoliation of evidence and his request for an adverse jury instruction.


         Defendant objects to the magistrate judge's report and recommendation and he argues that the magistrate judge unreasonably discounted the value of the exculpatory evidence that was likely to have been on M.W.'s cell phone. Dkt. # 69, at 3. He argues that he cannot obtain comparable evidence from other sources, and he claims that Oxford acted in bad faith by returning M.W.'s cell phone to her. Id. at 5-6. Plaintiff responds that defendant has failed to show that any exculpatory evidence actually existed and, even if some potentially exculpatory evidence was lost, Oxford did not act in bad faith. Dkt. # 72.

         Without consent of the parties, the Court may refer any pretrial matter dispositive of a claim to a magistrate judge for a report and recommendation. However, the parties may object to the magistrate judge's recommendation by filing a timely objection. Schrader v. Fred A. Ray, M.D., P.C., 296 F.3d 968, 975 (10th Cir. 2002); Vega v. Suthers, 195 F.3d 573, 579 (10th Cir. 1999). The Court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). The Court may accept, reject, or modify the report and recommendation of the magistrate judge in whole or in part. Fed.R.Civ.P. 72(b).

         Under California v. Trombetta, 467 U.S. 479 (1984), due process requires that police have a duty to preserve evidence in their possession “that might be expected to play a significant role in the suspect's defense.” Id. at 488. For the evidence to be material as a constitutional matter, the evidence must “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.” Id. at 489. The holding of Trombetta has been extended to cases in which the “exculpatory value of the evidence is indeterminate and all that can be confirmed is that the evidence was ‘potentially useful' for the defense, '” and in such cases a defendant must show that the government acted in bad faith by failing to preserve evidence. United States v. Bohl, 25 F.3d 904, 910 (10th Cir. 1994) (citing Arizona v. Youngblood, 488 U.S. 51, 58 (1988)). The Tenth Circuit has identified five factors to consider to determine if the government acted in bad faith:

(1) whether the government had explicit notice that [the defendant[ believed the [evidence] was exculpatory; (2) whether the claim that the evidence is potentially exculpatory is conclusory, or instead “back up with objective, independent evidence giving the government reason to believe that further tests of the [destroyed evidence] might lead to exculpatory evidence”; (3) whether the government could control the disposition of the evidence once [the defendant] indicated that it might be exculpatory; (4) whether ...

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