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United States v. Jordan

United States District Court, D. Montana, Great Falls Division

April 24, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
RONALD ALLEN JORDAN, Defendant,

          ORDER

          Brian Morris, United States District Court Judge.

         Defendant Ronald Allen Jordan (“Mr. Jordan”) moves the Court to dismiss the indictment pursuant to the Due Process Clause of the Fifth Amendment and the Compulsory Process Clause of the Sixth Amendment. (Doc. 34). The Court conducted a hearing on this matter on April 18, 2018. (Doc. 54).

         BACKGROUND

         J.G.B., a minor, reported to staff at her middle school in Browning, Montana that she had been sexually assaulted. (Docs. 35 at 3; 44 at 2). J.G.B. reported that the incident happened the night before when she had stayed at her friend J.J.'s home in Babb, Montana. Id. J.J. is also a minor. School officials informed law enforcement and Blackfeet Child Protection of this report. (Doc. 44 at 3). F.B.I. Special Agent Charles Corbett (“Agent Corbett”) responded and interviewed J.G.B. that same day on April 25, 2018. (Docs. 35 at 3; 44 at 3).

         J.G.B. informed Agent Corbett that both she and J.J. were sleeping together in a single bed. (Doc. 27 at 10). Mr. Jordan entered the room and climbed into the bed where J.G.B. and J.J. were sleeping. Id. at 4. J.G.B. told Agent Corbett that Mr. Jordan touched her butt and side, as well as her legs. Id. J.G.B. informed Agent Corbett that Mr. Jordan left the room, but returned and crawled back into bed. Id. at 5. J.G.B. claimed that Mr. Jordan began trying to touch her and kiss her neck. Id. J.G.B. stated that Mr. Jordan made her touch his penis and that Mr. Jordan put his finger in her vagina. Id. J.G.B. alleged further that Mr. Jordan laid on her right arm so that she could not move. (Doc. 35 at 5).

         J.G.B. claims that Mr. Jordan got out of bed, left, and came back into the room and into the bed multiple times. (Doc. 44 at 4). J.G.B. reported that during this incident she was wearing Nike spandex shorts, a pink Nike shirt, pink underwear, and a black bra with hooks on the front. (Doc. 35 at 40). J.G.B. reported further that she had not taken a shower since the incident. (Doc. 27 at 5).

         Agent Corbett interviewed Mr. Jordan later that same day. Mr. Jordan agreed that J.G.B. had stayed at this home the night before. (Doc. 36). Mr. Jordan admitted also that he had climbed into the bed with the two girls, but claims that it had been brief and that he did not return or harm J.G.B. Id. at 9. Agent Corbett interrogated Mr. Jordan for about an hour. Mr. Jordan agreed with Agent Corbett that J.G.B. was an honest girl and that she would not lie. Id. Mr. Jordan continued to deny having assaulted J.G.B. Id. at 6.

         Agent Corbett observed that Mr. Jordan's hands were a “little dirty.” Id. at 14. Mr. Jordan acknowledged that he had not showered or cleaned up that day after having put in a full shift at his job. Id. at 13. Agent Corbett proposed taking “some swabs of [his] hands for DNA” and informed Mr. Jordan that this was “something that the FBI does all the time.” Id. Agent Corbett asked permission to swab Mr. Jordan's hands. Id. Mr. Jordan consented. Id. Agent Corbett asked Mr. Jordan if he was worried about the laboratory finding J.G.B.'s DNA on his hands. Id. Mr. Jordan replied no and reiterated that he was willing to provide the swab. Id.

         Agent Corbett failed to collect any physical evidence during his investigation. Mr. Jordan seeks to dismiss the Indictment in its entirety, alleging that Agent Corbett destroyed potentially exculpatory evidence due to his failure to preserve it. Mr. Jordan claims that Agent Corbett destroyed potentially exculpatory evidence when Agent Corbett failed to take, offer, or inform J.G.B. of a sexual assault examination. (Doc. 35). Mr. Jordan argues that Agent Corbett destroyed potentially exculpatory evidence when Agent Corbett failed to swab Mr. Jordan's hands for J.G.B.'s DNA. Id. Mr. Jordan further asserts that Agent Corbett should have collected the clothes that Mr. Jordan and J.G.B. had been wearing, as well as other evidence related to the assault such as photographs of the room and the bed where the alleged assault had taken place. Id.

         LEGAL STANDARD

         The Due Process Clause of the Fifth Amendment provides a criminal defendant with “a meaningful opportunity to present a complete defense.” California v. Trombetta, 467 U.S. 479, 485 (1985). The Supreme Court developed “what might be loosely called the area of constitutionally guaranteed access to evidence.” Id. This access requires, at a minimum, the “delivery of exculpatory evidence into the hands of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system.” Id. This evidence must possess both 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. Instances exist in which evidence is “obviously of such a substantial value to the defense that elementary fairness requires it to be disclosed even without a specific request.” Unites State v. Agurs, 427 U.S. 97, 110 (1976).

         A defendant must demonstrate bad faith on behalf of law enforcement when alleging spoliation. Bad faith consists of “official animus” or “a conscious effort to suppress exculpatory evidence.” Trombetta, 467 U.S. at 488-89. The “presence or absence of bad faith turns on the government's knowledge of the apparent exculpatory value of the evidence at the time it was lost or destroyed.” United States v. Cooper, 983 F.2d 928 (9th Cir. 1993). A bad faith failure to collect potentially exculpatory evidence would violate due process. Miller v. Vasquez, 868 F.2d 1116, 1120 (9th Cir. 1989). The Supreme Court has refused, however, to read the fundamental fairness requirement of the Due Process Clause “as imposing on the police an undifferentiated and absolute duty to retain and preserve all material that might be of conceivable evidentiary significance in a particular prosecution.” Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988).

         DISCUSSION

         The line of cases following the Supreme Court's decisions in Trombetta and Youngblood follow two paths. One path discusses the government's alleged failure to “preserve” evidence already obtained. See United States v. Zaragoza-Moreira,780 F.3d 971 (9th Cir. 2015); see also United States v. Sivilla, 714 F.3d 1168 (9th Cir. 2013); Cooper,983 F.2d 928. The other path discusses the government's alleged failure to “collect” potentially exculpatory evidence. See Sadowski v. McCormick,785 F.Supp. 1417, 1421 (D. Mont. 1992), aff'd, 2 F.3d 1157 (9th Cir. 1993); see also United States v. ...


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