United States District Court, D. Montana, Great Falls Division
Morris, United States District Court Judge.
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).
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).
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).
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).
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.
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.
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.
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).
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).
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. ...