Failure to Preseve Text Messages Did Not Violate Due Process

United States v. Harry, 816 F.3d 1268 (10th Cir. 2016): Mr. Harry was convicted of sexual assault at the home of friends while the victim was sleeping after a party. After the assault, Mr. Harry exchanged text messages with a host of the party. The text messages (except for one) were used against Mr. Harry at trial, but the host’s messages were not. The Court rejects the contention that the failure to preserve the host’s text messages violated Mr. Harry’s right to due process because the messages were not apparently exculpatory before they were lost and in fact were not exculpatory, and the officers did not act in bad faith. The trial court did not err in excluding one text message which Mr. Harry contended showed the victim had been flirting with him, relying on FRE 412. The text message was hearsay and the rule of completeness did not require its admission. The trial court did not err in excluding any evidence, other than from Mr. Harry, of the flirting because there was no evidence of prejudice and Mr. Harry did not reopen the FRE 412 issue at trial. Mr. Harry’s 151-month sentence was reasonable.