Government's Failure to Preserve Text Messages Did Not Violate Defendant's Due Process Rights

U.S. v. Harry, 2016 WL 767028 (2/29/16) (NM) - The Court affirms a sexual assault conviction that stemmed from post-party conduct while the victim was sleeping. The government did not violate Mr. Harry's due process rights by failing to preserve text messages sent to him by a friend present at the party. The text messages were requested from the phone company 15 days after the text message exchange, but the phone company responded that it did not store messages after two weeks. Mr. Harry did not satisfy his burden to prove the lost text messages would have been expected to play a significant role in his defense and thus would have had apparent exculpatory value. He also did not show bad faith. There was no evidence that anyone intentionally deleted the lost messages.

The Tenth also rejects Mr. Harry's claim that the district court erred by admitting into evidence text messages he sent, while excluding under Rule 412 one text in which he stated "[s]he was all over me the whole night." The Tenth finds Mr. Harry failed to establish the relevance of the excluded text message and the district court properly found that his purpose was to introduce the text to demean the victim. With respect to other excluded evidence that the victim had been flirting with him, Mr. Harry failed to show its relevance to his defense and its exclusion was proper under Rule 412. Mr. Harry did not rebut the presumption that his within-guidelines 151-month sentence was reasonable, the Tenth says, and so it affirms the sentence as substantively reasonable.