United States v. Harry (927 F. Supp. 2d 1185, 2013)

MEMORANDUM OPINION AND ORDER

JAMES 0. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant’s Motion to Suppress Evidence Based on Spoliation or Incompleteness, filed June 26, 2012 (Doc. 75)(“Motion to Suppress”). The Court held an evidentiary hearing on September 19, 2012. The primary issues are: (i) whether the Court should suppress the text messages that Defendant Myron Harry sent to Dimitri Wauneka on May 6, 2011, because Plaintiff United States of America failed to preserve Wauneka’s outgoing text messages to Harry; (ii) whether the Court should prohibit the United States from using at trial the text messages from Harry at trial because their prejudicial effect substantially outweighs their probative value; and (iii) whether the Court should prohibit the United States from using at trial the text messages from Harry because they are impermissible character evidence. The Court determines that Wauneka’s outgoing text messages had a potentially useful value, at best, and that the United States did not fail to preserve them in bad faith, and, thus, the United States’ failure to preserve Wauneka’s outgoing text messages did not violate Harry’s due-process rights. The Court further concludes that, because Wauneka’s outgoing messages are not likely to have determined Harry’s innocence, the absence of the outgoing messages will not render Harry’s trial unfair. The Court also concludes that the prejudicial effect of the text messages from Harry is not so great as to outweigh the probative value of the messages as demonstrative of Harry’s state of mind immediately after the alleged assault of Jane Doe. Lastly, the Court concludes that the text messages from Harry are not impermissible character evidence, and, even if the text messages are indicative of Harry’s character, the United States may use the messages to prove Harry’s state of mind immediately after the alleged assault, as the United States seeks to do. The Court, thus, denies the Motion to Suppress.

FACTUAL BACKGROUND

Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. See Fed.R.Crim.P. 12(d) (“When factual issues are involved in deciding a [pretrial] motion, the court must state its essential findings on the record.”). This Memorandum Opinion and Order’s findings of fact shall serve as the Court’s essential findings for rule 12(d) purposes. The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure, and the voluntariness of an individual’s confession or consent to search. See United States v. Merritt, 695 F.2d 1263, 1269-70 (10th Cir.1982). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed.R.Evid. 104(a) (“The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.”). Thus, the Court may consider hearsay in ruling on a motion to suppress. See United States v. Garcia, 324 Fed.Appx. 705, 708 (10th Cir.2009)(unpublished) (“We need not resolve whether Crawford[ v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ]’s protection of an accused’s Sixth Amendment confrontation right applies to suppression hearings, because even if we were to assume this protection does apply, we would conclude that the district court’s error cannot be adjudged ‘plain.’ ”), cert. denied, 558 U.S. 890, 130 S.Ct. 223, 175 L.Ed.2d 154 (2009); United States v. Merritt, 695 F.2d at 1269; United States v. Christy, 810 F.Supp.2d 1219, 1223 (D.N.M.2011)(Browning, J.)(“Thus, the Court may consider hearsay in ruling on a motion to suppress.”); United States v. Hernandez, 778 F.Supp.2d 1211, 1226 (D.N.M.2011)(Browning, J.)(concluding “that Crawford v. Washington does not apply to detention hearings”).

1. On May 5, 2010, a group of young people, including Jane Doe and Harry, attended a birthday party at the home of Stephanie Johnson and Wauneka in Shiprock, New Mexico. See Transcript of Hearing, taken Sept. 19, 2012 at 22:16-23:14 (Adams, Joe) (“Tr.”). (Navajo Nation Criminal Investigator Jefferson Joe testifying that he was informed by Jane Doe that, on the evening of May 5, 2010, Harry attended a birthday party for Jane Doe at the home of Johnson and Wauneka in Shiprock, New Mexico. Jane Doe informed Joe that the party lasted into the morning of May 6, 2010.) There were between nine and twelve guests at the party. See id. at 69:7-8 (Nayback, Wauneka); id. at 95:7-8 (Adams, Johnson)(Wauneka states that there were “about” nine guests at the party; Johnson states that she believes there were twelve guests at the party). All guests at the party were close friends of Wauneka’s. Harry was one of Wauneka’s “best friends” at the time. Id. at 69:7-17 (Nay-back, Wauneka)(Nayback: “Q did you know [Harry] at the time?” A: “He was one of my friends, best friends.”). All the guests at the party, except for Johnson, consumed a large amount of alcohol. See id. at 86:5-7 (Samore, WaunekaXQ: “Pretty large amounts of alcohol consumed by everyone except Stephanie, right?” A: “Yes.”).

2. Wauneka was very drunk at the party. See Tr. at 86:12-13 (Wauneka).

3. The attendees at the party decided, between 1:00 a.m. and 2:00 a.m. on May 6, 2010, that the remaining female guests would sleep in one of the two bedrooms of the home, an apartment, and the remaining male guests would sleep in the living room. See id. at 70:14-24 (Nayback, Wauneka); id. 95:24-25 (Adams, Johnson).

4. Johnson awoke around 5:00 a.m. and found Harry awake. See id. at 96:9-10 (Adams, Johnson)(Q: “[Did] you wake up at any point in the evening?” A: ‘Tes. I believe it was around five.”); id. at 98:3-12 (Johnson)(“I was walking straight to my room ..., I turned the light back on and that’s when Myron was standing there.... ”). Other female guests at the party were also awake and were accusing Harry of assaulting Jane Doe. See Tr. at 99: 11-16 (Johnson)(“So Joe had Myron’s keys, and when he came back in that’s when, you know, everybody was accusing ... [of] taking advantage of [Jane Doe].”). Harry left quickly thereafter. See id. at 98:1-25 (Johnson); id. at 99:11-16 (Johnson). Wauneka awoke to yelling. See id. at 75:2-5 (Nayback, WaunekaXQ: “[Y]ou woke up to screaming[,] yelling and fighting; is that right?” A: ‘Tes.”). Other guests at the house told Wauneka that Harry assaulted Jane Doe. See id. at 75:20-8 (Nayback, Wauneka).

5. Wauneka texted Harry between 5:00 a.m. and 7:00 a.m. on May 6, 2010 regarding the incident. See Tr. at 76:9-11 (Nayback, Wauneka)(A: “I texted Myron and asked him what happened.”); Government Exhibit S10 (indicating that he exchanged text messages with Harry between 5:00 а. m. and 7:00 a.m. on May 6, 2010).

6. Wauneka asked about the alleged assault on Jane Doe. See Tr. at 101:3-18 (Johnson, Adams); id. at 102:5-8 (Johnson)(Johnson testifying that she could see some of Wauneka’s outgoing text messages to Harry and that messages were asking Harry about the alleged assault on Jane Doe).

7. Wauneka may have sent less than eight text messages to Harry on the morning of May 6, 2010. See Tr. at 81:9-16 (Nayback, WaunekaXQ: “[D]o you know if you sent one text for every text you received? There were eight text messages that you receive[d].” A: “I don’t really remember. I think it might have been less maybe.” Q: “Might have been less?” A: ‘Tes less.”).

8. Wauneka and Harry did not correspond via text messaging regarding anything except the alleged assault on the morning of May 6, 2010. See id. at 79:21-80:3 (Nayback, WaunekaXQ: ‘You were asking him about what happened, correct?” A: ‘Yes.” Q: “Were there any texts that you had that morning with Myron that were about some other subject matter?” A: “No.”)

9. Johnson saw Wauneka texting Harry and had the opportunity to look at Wauneka’s cellular telephone’s screen while Wauneka was texting Harry. See id. at 82:14-83:6 (Nayback, Wauneka)(Wauneka responding to the United States’ question whether Johnson had the “opportunity to look at your cell phone screen” while he texted Harry, “Yes. She wanted to know what was going on, also”).

10. Wauneka showed Johnson every text message which he sent to Harry that morning. See id. at 82:14-83:6 (Nayback, Wauneka); Tr. at 88:4-12 (Samore, WaunekaXQ: “And are you telling this court you were also showing her each of the things you were sending to him?” A: “Yes.” Q: “Every single one?” A: ‘Yes.”).

11. Johnson read one of Harry’s text messages to Wauneka, in which Harry stated that he would accept charges for what he had done, but Johnson did not see the exact wording of any other text messages exchanged between Wauneka and Harry. See Tr. at 105:3-18 (Johnson, Samore)(A: “I did see the one where it says T will take the charges.’ ” Q: “And that’s the only one you saw?” A: “Yes.” Q: “And you didn’t see any of the exact wording what Dimitri was sending to my client, did you?” A: “Well, no, I don’t — ” Q: “Other than what you’ve said?” A: “Yes.”).

12. Neither Joe, nor Louis St. Germaine, a criminal investigator for the Navajo Nation, were working alongside the United States, either with Federal Bureau of Investigation (“FBI”) agents, or with United States prosecutors, before, at the earliest, May 24, 2010. See Tr. at 21:19-22:3 (Adams, Joe)(A: “I’m a Navajo Nation criminal investigator.” Q: “How long have you been employed with the Navajo Nation?” A: “Approximately 22 years.”); id. at 29:l-31:4(Adams, Joe); id. at 37:1-10 (Samore, Joe)(Q: “To whom [did Wauneka] give the cell phone, sir?” A: “To another investigator by the name of Louis St. Germa[ine].”); Government Exhibit S6 (report from Joe and St. Ger-main’e interview with Wauneka, indicating that St. Germain and Joe are criminal investigators with the Navajo Nation); Complaint, filed May 24, 2010, at 1, 7 (Joe signed the Complaint and affidavit filed therewith in support.).

13. Joe interviewed Harry on May 12, 2010. See Government Exhibit S3. (indicating that Joe interviewed Harry on May 12, 2010).

14. Harry informed Joe that he texted with Wauneka on May 6, 2010, regarding the incident at Wauneka’s home. See Tr. at 46:23-24 (Adams, Joe)(A: “So when did you first learn about the text messages?” A: “When I interviewed Myron Harry.”); 47:3-19 (Adams, Joe); Government Exhibit S2 at 14:11-15:13 (Harry states that, after leaving Wauneka’s apartment, he and Wauneka were texting regarding the alleged assault on Jane Doe).

15. Joe did not make an effort to obtain text messages from Harry’s cellular telephone. See Tr. at 48:11-17 (Court, Joe).

16. Joe interviewed Wauneka on May 21, 2010, regarding the incident. See id. at 25:6-12 (Adams, Joe)(Q: “Do you recall the date when you interviewed [Dimitri]?” A: “I believe it was the 21st of May, ... 2010.” Q: “And you mentioned that you asked [Wauneka] about some text messages?” A: “Yes.”)

17. Joe’s specific purpose for contacting Wauneka was to discuss the text messages that he exchanged with Harry on May 6, 2010. See id. at 48:18-21 (Court, Joe)(Q: “[W]hen you had the conversation with Mr. [Wauneka] ... did you go to him specifically to talk to him about these text messages?” A: “Yes, sir.” Q: “Al[ ]right. So that was the purpose of that meeting?” A: “Yes.”).

18. Wauneka allowed Joe to look at his cellular telephone on May 21, 2010. See id. at 25:18-21 (Adams, Joe).

19. Joe took photographs of the following messages from Wauneka’s cellular telephone on May 21, 2010:

“From: Myron Whats going on? Im lost! ilmygirls:] [sic] CB:505-486-0099 May 6, 5:36 am Stored: May 6, 6:00 am” Government Exhibit S13.

“From: Myron Ok. I know u dnt. Ill guess I have 2 accept the charges. I still love u guys though, [sic] CB: 505-486-0099 May 6, 6:05 am” Government Exhibit S 14.

“From: Myron Im sorry 4 what I did. I didn’t want 2 disrespect u in ur home. That’s all I can say. Imsorry. il my-girls:-] [sic] CB:505-486-0099 May 6, 5:53 am” Government Exhibit S 15

“From: Myron Ok. Im sorry, ilmygirls:] [sic] CB: 505-586-0099 May 6, 6:15 am” Government Exhibit S 16

“From: Myron I knw. She was all over me the whole nite. I remember that, ilmygirls:] [sic] CB: 505-486-0099 May 6, 6:29 am” Government Exhibit S18 “From: Myron Well tel bean that Im sorry n That I am an idio n a stupid mafucker. Im sorry. I wasn’t in my right mind 2 do that 2 her. Im stupid, [sic] That’s all I can say. CB: 505-486-0099” Government Exhibit S19

“From: Myron I know. It was me. I messed up. I should have known better. Im sorry, ilmygirls:] [sic] CB 505-486-0099 May 6, 6:41 am” Government Exhibit S2010

Id. at 25:4-28:7 (Adams, Joe).

20. “Bean” is a nickname for Jane Doe. See Tr. at 27:18-25 (Adams, Joe); id. at 68:20-25 (Nayback, Wauneka).

21. The “CB” telephone number on the text messages in Wauneka’s cellular telephone labeled as “From: Myron” matches the telephone number which Harry provided to Joe as that of his cellular telephone. Government Exhibits S13-S20. See Tr. at 32:1-5 (Adams, Joe).

22. When Joe interviewed Wauneka, Wauneka’s outgoing text messages were still on his cellular telephone. See Tr. at 77:17-22 (Nayback, WaunekaXQ: “At that point [did] you realize that, ‘hey, my texts that I sent ... Harry, they’re not here?” A: “No. It was all there.” Q: “It was all there?” A: “Yes.”).

23. Wauneka showed his outgoing text messages to Joe, and the two looked at both sides of the text conversation during the interview. See Tr. at 92:2-17 (Court, WaunekaXQ: “When Mr. Joe came and talk to you for the first time, that’s when you gave him your telephone, correct?” A: “Yes.” ... Q: “You’re pretty certain that when you gave him the phone it had the text messages from Mr. Harry as well as your ... text messages to him?” A “Yes.” Q: “And so you recall that day looking at the phone and looking at your messages, as well?” A: “Yes.”); Government Exhibit S6 at 1 (Joe’s report from his interview of Wauneka states: “Dmitri showed the investigators his cellular telephone that still had the text communications between him and Myron.”).

24. Joe’s fellow investigator, Louis St. Germaine took custody of Wauneka’s eellular telephone at the interview. See Tr. at 25:20-21 (Adams, Joe)(Q: “And you received Mr. [Wauneka’s] permission to obtain his phone?” A: “Yes.”); id. at 37:1-10 (Samore, Joe)(Joe stating, regarding his May 21, 2010 interview with Wauneka, that on that date Wauneka gave his phone to another Navajo National criminal investigator, Louis St. Germaine); Government Exhibit S6 (Report prepared by Joe regarding his interview with Wauneka stating, in reference to Harry’s text messages, that: “Dimitri’s cell phone was placed in evidence to preserve the above text messages. Pictures of the text messages were taken as well.”).

25. Wauneka’s outgoing messages were on his cellular telephone when he gave it to St. Germaine, but when Joe tried to retrieve the outgoing messages at a later date he was unable to. See Tr. at 77:17-22 (Nayback, Wauneka)(A: “At that point [did] you realize that, ‘hey, my texts that I sent ... Harry, they’re not here?” A: “No. It was all there.” Q: “It was all there?” A: ‘Yes.”); id. at 92:2-17 (Court, WaunekaXQ: “When Mr. Joe came and talk to you for the first time, that’s when you gave him your telephone, correct?” A: “Yes.” Q: “You’re pretty certain that when you gave him the phone it had the text messages from Mr. Harry as well as your ... text messages to him?” A: “Yes.”); Government Exhibit S6 (Report prepared by Joe regarding his interview with Wauneka stating, in reference to Harry’s text messages, that: “Dimitri’s cell phone was placed in evidence to preserve the above text messages. Pictures of the text messages were taken as well.”).

26. The exculpatory value of Wauneka’s outgoing text message was not immediately apparent to Joe when he saw them at his May 21, 2010 interview. See Government’s Exhibit S2 at 14:11-15:13 (Harry)(“Dimitri was texting me, and telling me, ‘How could you do this? I was your friend. How could you do this to me?’ ... I was like, “What did I do, Dimitri?’ ... ‘[S]omebody said you raped [Jane Doe].’ ”); Tr. at 76:9-11, 79:21-80:3 (Nayback, Wauneka)(Wauneka testifying that he was asking Harry about “what happened?”); id. at 101:3-18, 102:5-8 (Johnson, Adams)(Johnson testifying that Wauneka was asking Harry about “what happened”).

27. Outgoing text messages are only recoverable from Wauneka’s cellular telephone for a certain period of time. See Motion to Suppress at 2 n. 1 (“Based on information, texts are not recoverable by the cell companies after thirty (30) days.”); Tr. at 29:l-5(Joe)(“Through experience also and by calling the [ ] telephone] company ..., I was told that [ ] in a two-week range their policy was they couldn’t save or retrieve what was sent out from a particular [] telephone].”); id. at 57:16-19 (Guilmette)(explaining that “[c]ertain phone what they’ll do is like ... only hold 50 messages. If another message comes in it then [h]as to delete one of the 50 messages that it has in order to make room for that new one.”).

28. Sometime after May 21, 2010, and before June 24, 2010, Joe requested the assistance of the Farmington, New Mexico Police Department in retrieving Wauneka’s side of the text conversation. See Tr. at 44:3-19 (Samore, Joe)(Q: “When did you check with these folks in Farmington about trying to get the text messages back.... So it was before ... about June 29, of 2010. Does that sound right?” A: ‘Yes.” Q: “And you interviewed [Dimitri] and took custody on May 21, prior to that? Yes?” A: ‘Yes.”). The Farmington Police Department was unable to retrieve Wauneka’s outgoing messages from the morning of May 6, 2010. See Tr. at 29:14-21 (Adams, Joe).

29. The United States filed a criminal complaint against Harry for this matter on May 24, 2010. See Complaint at 1. Joe signed the affidavit accompanying the United States’ Complaint. See Complaint at 7.

30. Joe is now the lead agent in the United States’ investigation for this matter. See Tr. at 22:4-5 (Adams, Joe)(Q: “Are you the lead agent in U.S. v. Myron Harry T A: “Yes.”)

31. On July 9, 2012, Joe contacted a forensic examiner with the FBI regarding forensically examining Wauneka’s cellular telephone. See Government’s Exhibit S9.

32. The forensic examination of Wauneka’s cellular telephone produced some text messages which correspond to those of which Joe took photographs. Compare Government Exhibit S10, with Government Exhibits S13-S20.

33. Certain messages are identified as “locked.” Government Exhibit S10. See Tr. at 56:3-60:17 (Nayback, Guilmette).

34. The significance of certain text messages being “locked” is unknown. Tr. at 60:16-17 (Nayback, GuilmetteXQ: “What does locked mean?” A: “I’m not sure what locked means.”).

35. The date and time on Wauneka’s cellular telephone may be altered, and thus, the date and time displayed on the messages retrieved from Wauneka’s cellular telephone may be inaccurate by up to twenty-minutes. See Tr. at 59:18-60:5 (Nayback, Guilmette); Government Exhibits S10, S13-S20.

36. The forensic examiner would have found Wauneka’s outgoing messages from May 6, 2010, if they were still physically on his cellular telephone. See Tr. at 63:21-23 (Nayback, Guilmette); id. at 64:7-11 (Samore, Guilmette).

37. There is no evidence that Wauneka’s outgoing text messages were deleted. See Tr. at 65:6-8 (Samore, Guilmette).

38. In early July, 2010, Harry’s counsel requested Wauneka’s outgoing messages from the United States’ attorney prosecuting this case. See Tr. at 18:5-16 (Samore)(“[P]robably early July, ... I said Kyle where’s the other side of these conversations.”). The United States did not have Wauneka’s outgoing messages at that time, and could not procure them from any other source. See id. at 18:12-16 (Samore)(“[H]e got back to me and he sa[id] we don’t have it we can’t get them back.”); Motion to Suppress at 2 (“The prosecutor ... did his diligent best to recover those records and eventually informed defense counsel that they could not be produced.”).

39. When he requested Wauneka’s outgoing text messages, Harry did not inform the United States that the outgoing text messages were potentially exculpatory evidence. See Motion to Suppress at 2 (asserting that Mr. Samore “personally contacted the prosecutor to request that the missing text messages from Dimit[r]i’s side of the conversation by produced,” but -not stating that Mr. Samore told the United States that Wauneka’s messages were material exculpatory evidence); Tr. at 18:5-16 (Samore)(Harry stating that he requested Wauneka’s outgoing messages in “early July,” but not stating that he told the United States that Wauneka’s outgoing messages were material exculpatory evidence).

PROCEDURAL BACKGROUND

On June 24, 2010, a grand jury indicted Harry for having knowingly engaged in a sexual act with Jane Doe, who was physically incapable of declining participation and could not communicate her unwillingness to engage in the sexual act, in violation of 18 U.S.C. §§ 1153, 2242(2), and 2246(2)(A). See Indictment at 1, filed June 24, 2010 (Doc. 14). Trial in this matter is presently set for March 4, 2013, at 9:00 a.m. See Agreed Order to Vacate and Reset Trial and Extend the Time for the Filing of Pre-Trial Motions at 4, filed January 16, 2013 (Doc. 110).

Harry moves to suppress his side of the text messages exchanged with Wauneka on May 6, 2010, as well as “any testimony concerning the content of text messages or even [that] the text messages were sent.” Motion to Suppress at 5. Harry asserts that, because the text messages will contain only his side of the conversation, “the record is incomplete and misleading.” Motion to Suppress at 2. Harry asserts that Wauneka cannot be accurately cross-examined regarding the text messages, because Wauneka does not remember the conversation. Harry thus asserts that the text messages will be “subject to great speculation.” Motion to Suppress at 2. Harry contends that the text messages were entirely within the law enforcement officers’ control and that it was the officers’ responsibility to preserve the record for trial. Harry asserts that permitting the text messages to be offered into evidence in an incomplete form violates rules 403 and 404 of the Federal Rules of Evidence. See Motion to Suppress at 2-3.

Harry asserts that law enforcement officers have a duty to preserve text messages in their possession, because the messages may be producible under both Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Harry asserts that he cannot impeach Wauneka’s testimony, because the text messages in the record contain only Harry’s side of the conversation. See Motion to Suppress at 3.

Harry further asserts that the FBI agents participating in this case are “responsible for failure to maintain relevant evidence that is exculpatory.” Motion to Suppress at 3 (citing United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). Harry argues that he need not show that the FBI agents acted with bad faith, or intentionally withheld or destroyed the text messages, but that he need show only that “ ‘the evidence is so immaterial [sic] that he cannot receive a fair trial without it.’ ” Motion to Suppress at 3 (quoting United States v. Wilks, 629 F.2d 669, 674 (10th Cir.1980) (citing United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); United States v. Brumley, 466 F.2d 911, 916 (10th Cir.1972))). Harry contends that the prosecution is responsible for FBI agents’ failure to preserve “critical evidence,” and that the failure to preserve such evidence is “ ‘functionally equivalent [to] destruction of evidence by FBI agents.’ ” Motion to Suppress at 4 (quoting United States v. Vella, 562 F.2d 275, 276 (3d Cir.1977)). Harry asserts that, in a “strikingly” similar case, the United States District Court for the District of New Jersey found that the government’s failure to produce “certain electronic text messages related to its investigation warranted” the suppression of other text messages. Motion to Suppress at 4 (citing United States v. Suarez, No. CR 09-932(JLL), 2010 WL 4226524 (D.N.J. Oct. 21, 2010)). Harry asserts that, just as in United States v. Suarez, Wauneka’s text messages were in the government’s control, the governments or its agents failed to take the necessary steps to preserve the text messages, the text messages are relevant to Harry’s claims and defenses, and “it was reasonably foreseeable by the Government that in the context of this investigation, the text messages would have proven discoverable.” Motion to Suppress at 4. Harry argues that Wauneka’s testimony at trial would be insufficient for Harry’s defense, as “a single word or, as text messages go, brief abbreviations, exclusions, or paraphrasing would be unreliable and speculative, likely misleading the jury, and frustrating the search for truth.” Motion to Suppress at 4. Harry asserts that, if the Court does not suppress the text messages, the Court should “[a]t the very least” “ ‘give an adverse inference instruction regarding the missing text messages.’ ” Motion to Suppress at 5 (quoting United States v. Suarez, 2010 WL 4226524, at *8).

The United States asserts that the Court should not suppress the text messages unless Harry is able to show that the missing text messages have considerable exculpatory value or that the evidence was destroyed in bad faith. See Response ¶¶ 5-7, at 3-4 (citing Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988); Brady v. Maryland; United States v. Hargus, 128 F.3d 1358, 1364 (10th Cir.1997)). The United States contends that Harry has not argued that the text messages were destroyed in bad faith, and, further, has failed to show that “allegedly missing texts had some exculpatory value.” Response ¶ 7, at 4. The United States argues that the fact that evidence was lost or was “potentially useful” is insufficient to show that the United States acted in bad faith in destroying the evidence. Response at 4-5 (citing United States v. Bohl, 25 F.3d 904, 910 (10th Cir.1994)). The United States asserts that, because Harry has not shown that the United States ever possessed the texts, Harry cannot show that the evidence was destroyed. The United States contends that, when there is other “ample evidence” in the record to support the charge against a defendant, the other evidence supports a conclusion that the missing evidence was “ ‘potentially useful’ at best.” Response ¶ 7, at 4 (quoting United States v. Hargus, 128 F.3d at 1364). The United States maintains that the other evidence, including eyewitness testimony that Harry was on top of Jane Doe while she slept, that Harry quickly left the premises while apologizing for his actions, and that Harry’s DNA was found inside of Jane Doe, is inculpatory evidence that indicates that the missing text messages were potentially useful evidence, at best. See Response ¶8, at 5. The United States argues that the possibility of the text messages exonerating Harry is insufficient to warrant the suppression of Harry’s text messages under Arizona v. Youngblood. The United States contends that Harry has not raised any argument that the text messages have “even the slight potential to exonerate defendant Myron Harry.” Response ¶ 10, at 6. The United States further asserts that its failure to preserve the text messages alone is not sufficient evidence of bad faith. See Response at 5. The United States argues that, in United States v. Hargus, the United Statés Court of Appeals for the Tenth Circuit found that a defendant’s similar failure to show that the government acted with bad faith, in addition to other evidence in the record supporting the defendant’s guilt, warranted admission of the evidence which the defendant sought to suppress under Arizona v. Youngblood. The United States asserts that the Court should come to the same conclusion here. See Response ¶ 11, at 6.

The United States further asserts that the admission of Harry’s text messages would not result in prejudice. The United States argues that unfair prejudice occurs only where the admission of evidence “ ‘makes a conviction more likely because it provokes an emotional response in the jury or otherwise tends to affect adversely the jury’s attitude toward the defendant wholly apart from its judgment as to the guilt or innocence of the crime charges.’ ” Response ¶ 12, at 7 (quoting United States v. Tan, 254 F.3d 1204, 1211-12 (10th Cir.2001)). The United States asserts that, “where there exists other evidence in support of the defendant’s guilt,” lost evidence does not prejudice a defendant. Response ¶ 13, at 7 (citing Fero v. Kerby, 39 F.3d 1462, 1471 (10th Cir.1994)). The United States argues that lost evidence is prejudicial to a defendant only where “ ‘he could not receive a fair trial without it.’” Response ¶ 13, at 7 (quoting United States v. Wilks, 629 F.2d at 674). The United States asserts that the possibility that evidence might be helpful to Harry is insufficient for its absence to be prejudicial. See Response ¶ 13, at 7 (citing United States v. Agurs, 427 U.S. 97, 109-10, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); United States v. Wilks, 629 F.2d at 674). The United States asserts that, unless the missing text messages would exonerate Harry, which the United States argues they would not, their absence at trial is not prejudicial to him. See Response ¶ 14, at 7 (citing United States v. Wilks, 629 F.2d at 674). The United States asserts that even the absence of evidence which is “considerably favorable” is not automatically prejudicial to a defendant, when the culmination of other evidence indicates the defendant’s guilt. Response ¶ 15, at 8 (citing Fero v. Kerby, 39 F.3d at 1471). The United States contends that Harry has not met his burden of showing “that the text messages carried significant probative value with regard to the defendant’s guilt or innocence,” and thus their absence is not prejudicial to him, and the remaining text messages should not be suppressed. Response ¶ 16, at 8.

Harry argues that Arizona v. Youngblood and United States v. Bohl, 25 F.3d 904, 910 (10th Cir.1994), support his position that the Court should suppress the text messages, because he needs to show only that the value of the Wauneka’s text messages was “‘not apparent before the evidence was destroyed.’ ” Reply to Response to Defendant’s Motion to Suppress Evidence Based on Spoliation or Incompleteness at 1, filed July 20, 2012 (Doc. 77)(“Reply”)(quoting United States v. Bohl, 25 F.3d at 910). Harry asserts that all that will be left to the jury from the text messages is “dangerous speculation,” because Wauneka’s side of the conversation is missing. Reply at 1. Harry further contends that the text messages’ exculpatory value is not for the prosecution to decide and that exculpatory evidence is “arguably all evidence that is not inculpatory.” Reply at 2. Harry further asserts that “[n]either party will ever know the extent of what is exculpatory due to the negligence of the agents who had the cellular telephone in their custody at a time when the whole exchange could have been preserved.” Reply at 2 (internal quotations omitted). Harry contends that allowing the text messages into evidence would violate rule 403 and 404. He also contends that the United States “is mistaken if [it] presumes that any apologies in the Harry side of the conversation are for criminal conduct.” Reply at 2.

The Court held an evidentiary hearing on September 19, 2012. See Transcript of Hearing (taken September 19, 2012)(“Tr.”). The United States asserted that Harry’s text messages are “incriminating” and “highly probative of the defendant’s state of mind,” and stated that it will seek to introduce them into evidence under rule 801(d)(2), 802(1), or 803(2) of the Federal Rules of Evidence. Tr. at 13:7-23 (Nayback). The United States asserted that it “has never had in its possession the other half of the text message conversation.” Tr. at 13:24-14:1 (Nay-back). The United States asserted that some telephone companies will only store text messages for two weeks, or possibly thirty-days, but that, if the United States does not subpoena the messages in time, there is no way to obtain them after the telephone companies deletes them. See Tr. at 14:1-8 (Nayback). The United States stated that it never possessed Harry’s cellular telephone. See Tr. at 14:25-15:1 (Court). The United States asserted that, when it acquired Wauneka’s cellular telephone, his outgoing messages were not in it. See Tr. at 15:2-14 (Nayback, Court). The United States asserted that it called Wauneka’s telephone company to try to procure the messages, but was informed that, after two weeks, those messages are no longer available. See Tr. at 15:24-16:5 (Nayback). The United States thus argued that the cases in which a court found that the destruction of evidence was prejudicial are inapplicable to Harry’s arguments, because the United States never had the text messages in its possession. See Tr. at 16:8-19 (Nayback). The Court inquired why the outgoing messages would have been deleted but not the incoming messages on Wauneka’s cellular telephone, and the United States responded that it does not know why, but asserted that its forensic witness may be able to provide plausible reasons for their absence. See Tr. at 17:4-12 (Court, Nayback). Harry pointed out that the United States had access to Wauneka’s cellular telephone the day Joe interviewed him, and that the United States informed Harry after the Indictment, a few months later, that it could not acquire the Wauneka’s side of the conversation. See Tr. at 18:5-25 (Samore).

Before witnesses began testifying, the Court ordered, upon the United States’ request, that the other witnesses remain outside of the courtroom while a witness testified, and ordered the witnesses not to speak with each other, but allowed the witnesses to discuss their testimony with the attorneys. See Tr. at 19:16-22 (Nay-back, Court). The parties stipulated to the admission of all exhibits in the United States’ Exhibit List, filed September 18, 2012 (Doc. 91), and the Court admitted the exhibits into evidence. See Tr. at 20:6-15 (Court, Samore). The United States called Joe, see Tr. at 21:4-6 (Wild, Joe), Jeremy Guilmette, a computer forensic examiner with the FBI, see id. at 52:12-14 (Wild, Joe), Government Exhibit S8, Wauneka, see Tr. at 66:6-14 (Nayback, Wild, Wauneka), and Johnson, see id. at 93:8-15 (Adams, Court, Wild). Harry did not call witness but conducted cross-examination of the United States Witnesses. See Tr. at 35:1-^16:7 (Samore, Joe)(cross examination of Joe by counsel for Harry, John F. Samore); id. at 49:7-51:4 (re-cross examination of Joe by Mr. Samore); id. at 64:3-65:12 (cross-examination of Guilmette by Mr. Samore); id. at 83:15-89:5 (Samore, Wauneka)(cross-examination of Wauneka by Mr. Samore); id. at 103:10-106:16 (cross-examination of Johnson by Mr. Samore).

After the Court took testimony, Harry argued that, based on Wauneka’s testimony, when he turned his cellular telephone over to Joe both Wauneka’s outgoing texts and Harry’s incoming texts were still on the cellular telephone. See Tr. at 109:23-110:5 (Samore). Harry noted that, at least for a period of time, the United States had both sides of the messages on the cellular telephone, and, thus, Harry initially asserted that the United States may be liable for spoliation of the evidence. See Tr. at 110:20-24 (Court, Samore). Harry maintained, however, that his main argument is that the Court should suppress the text messages, as spoliation is rarely if ever used in criminal cases, and he believes the proper remedy is for the Court to exclude the text messages in their entirety. See Tr. at 110:25-111:8 (Samore). Harry argued that the text messages are unreliable evidence and inadmissible under rules 403 and 404: he pointed out that the guests had consumed a large amount of alcohol at the party and that the jury would be inclined to speculate regarding the meaning of the text messages. See Tr. at 111:17-112:7 (Samore). Harry asserted that his primary argument is not that admission of the evidence would be unconstitutional, but that the evidence is more prejudicial than probative under rule 403. See Tr. at 112:9-11 (Samore). Harry argued that Wauneka’s testimony at the hearing, regarding Johnson viewing the text messages as he sent them, was new information which Wauneka did not mention in his grand-jury testimony or previous interviews. See Tr. at 113:4-16 (Samore).

The Court stated that, had there been no allegations of spoliation or destruction of evidence, then the admissibility of the text messages would likely be determined by the best evidence rule, and Harry agreed. See Tr. at 113:25-114:5 (Court, Samore). Harry asserted, however, that allowing Johnson and Wauneka to testify to the contents of the outgoing texts, and admitting the contents of Harry’s messages into evidence, would be unfairly prejudicial to him. See Tr. at 114:11-115:14 (Court, Samore). The Court inquired whether Harry believed it was possible that Wauneka sent a few general text messages regarding the alleged assault, to which Harry replied with the eight messages. See Tr. at 115:15-24 (Court, Samore). Harry asserted that, even if that scenario occurred, admitting the text messages would still be unfair to him, and Harry asserted that the United States may have been leading Wauneka when he testified that he might have sent only a few messages to Harry. See Tr. at 116:1-12 (Samore). Harry argued that, if the Court admits the text messages, the trial will be determined by supposition and Harry’s personal history, rather than on reliable evidence. See Tr. at 117:2-8 (Samore). Harry asserted that just as a letter is not admissible without its response, the text messages should not be admissible with Wauneka’s half of the conversation. See Tr. at 117:8-10 (Samore). Harry asserted that cross-examining the United States’ witnesses will not be effective without Wauneka’s text messages. See Tr. at 117:10-12 (Samore). Harry asserted that “the reliability of anything any of these folks said is already under[mined] because of the alcohol consumption.” Tr. at 117:13-15 (Samore). Harry asserted that Wauneka did not remember everything that happened that night. See Tr. at 117:15-17 (Samore). Harry conceded that he “really can’t establish intentional spoliation,” but argued that the text messages do not satisfy the best evidence rule, and thus the messages should not be admitted at trial. Tr. at 118:1-4 (Samore).

The United States admitted that Joe’s report from interviewing Wauneka did not affirmatively state whether Wauneka’s cellular telephone had his text messages in it, and admitted that a logical reading of Joe’s report would lead one to “think that it had both” sides of the conversation. Tr. at 119:2-3 (Nayback); id. at 119:7-8 (Nayback). The United States nonetheless stated that there is not a constitutional issue with admitting the text messages from Harry, which the United States asserts are “very reliable evidence [and] material to the Government’s case.” Tr. at 120:44-13 (Nayback). The United States asserted that, even if Joe was found to be a not credible witness and the United States at some point possessed the text messages from Wauneka, Harry had not shown that the messages were destroyed in bad faith, as would be necessary to suppress them under Arizona v. Youngblood and United States v. Suarez. See Tr. at 12:13-24 (Nayback). The United States argued that the text messages would provide “fertile ground for cross-examination,” and that the lack of Wauneka’s side of the conversation did not make Harry’s statements over text inadmissible. Tr. at 121:1-12 (Nayback). The United States asserted that, although the text messages may be prejudicial to Harry, they are also probative of his state of mind, and Harry can take the stand and testify about the text messages if he wishes to diminish the prejudicial effect. See Tr. at 121:16-22 (Nayback).

Harry asserted that he may have been apologizing just as part of his polite nature and noted that, when Joe interviewed him, he did not mention sexual assault or doing anything against somebody’s will. See Tr. at 122:12-22 (Samore). Harry conceded that he was not arguing that admitting the text messages would violate his due-process rights, and stated that “I don’t think there’s sufficient [evidence] that there was bad faith in destroying it. I want to confirm that.” Tr. at 123:1-7 (Samore). Harry argued, nonetheless, that even if his text messages were destroyed in negligence, the United States had access to his side of the conversation for “well over a year” after the alleged assault and before Harry was charged, and thus the “only fair remedy” is suppression of the messages. Tr. at 123:5-16 (Samore).

The Court stated that it does not believe there is evidence of bad faith, but it is troubled by the tension between Joe’s testimony and Wauneka’s testimony regarding the existence of Wauneka’s outgoing text messages. See Tr. at 123:18-23 (Court). The Court noted that Joe appears to be “stretched pretty thing and may not have conducted a very good investigation, but I don’t see any intentional conduct or bad faith.” Tr. at 123:24-124:1 (Court). The Court stated that, if the primary issue is whether the messages are admissible under rule 403, the Court is inclined to allow the text messages into evidence. See Tr. at 124:6-8 (Court). The Court noted that the evidence is “highly probative, given the facts here,” although also “highly prejudicial,” but the Court stated that it did not believe the messages were unfairly prejudicial. Tr. at 124:6-10 (Court). The Court noted that in many scenarios one side of a conversation may be admissible but not the other. See Tr. at 124:10-14 (Court). The Court also stated that it does not believe that the messages are “terribly unreliable,” and that Johnson’s and Wauneka’s testimony gives the Court some sense of the context for the text messages. Tr. at 124:15-22 (Court). The Court stated that “most of the defendant’s objections go to the weight of the evidence and criticisms of it and reinterpretations, but that doesn’t seem to me to be a reason to exclude the evidence.” Tr. at 124:22-25 (Court). The Court stated that the parties should assume that there is not a problem with the text messages from a “constitutional or spoliation or Brady issue,” and that the Court is inclined to think that the evidence is admissible under rule 403. Tr. at 125:1-7 (Court).

LAW REGARDING DUE-PROCESS VIOLATIONS UNDER BRADY V. MARYLAND

“The Due Process Clause of the Constitution requires the United States to disclose information favorable to the accused that is material to either guilt or to punishment.” United States v. Padilla, No. CR 09-3598, 2011 WL 1103876, at *5 (D.N.M. Mar. 14, 2011) (Browning, J.). In Brady v. Maryland, the Supreme Court explained that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. 1194. In Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), the Supreme Court extended the prosecution’s disclosure obligation to evidence that is useful to the defense in impeaching government witnesses, even if the evidence is not inherently exculpatory. See 405 U.S. at 153, 92 S.Ct. 763; United States v. Torres, 569 F.3d 1277, 1282 (10th Cir.2009) (“Impeachment evidence is considered exculpatory for Brady purposes.”); Douglas v. Workman, 560 F.3d 1156, 1172-73 (10th Cir.2009)(“[N]o distinction is recognized between evidence that exculpates a defendant and ‘evidence that the defense might have used to impeach the [United States’] witnesses by showing bias and interest.’ ”) (quoting United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)); United States v. Abello-Silva, 948 F.2d 1168, 1179 (10th Cir.1991) (“Impeachment evidence merits the same constitutional treatment as exculpatory evidence.”). Finally, the Supreme Court has refined Brady v. Maryland and clarified that it is not necessary that a defendant request exculpatory evidence: “[Rjegardless of request, favorable evidence is material, and constitutional error results from its suppression by the government ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ” Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (quoting United States v. Bagley, 473 U.S. at 682, 105 S.Ct. 3375). See Douglas v. Workman, 560 F.3d at 1172 (“The government’s obligation to disclose exculpatory evidence does not turn on an accused’s request.”); United States v. Summers, 414 F.3d 1287, 1304 (10th Cir.2005) (“[T]he prosecution has an affirmative duty to disclose exculpatory evidence clearly supporting a claim of innocence even without request.”). “[T]he Due Process Clause does not require the government to disclose before trial the names of its witnesses, just so the defense can have sufficient time to investigate their backgrounds for impeachment information.” United States v. Ashley, 274 Fed.Appx. 693, 697 (10th Cir.2008) (unpublished). See Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) (“It does not follow from the prohibition against concealing evidence favorable to the accused that the prosecution must reveal before trial the names of all witnesses who will testify unfavorably.”).

“An ‘open file’ policy is neither mandated by the Constitution ... nor is it ipso facto constitutionally sufficient.” Smith v. See’y of N.M. Dep’t of Corr., 50 F.3d 801, 828 (10th Cir.1995) (internal citations and quotations omitted). “While an open file policy may suffice to discharge the prosecution’s Brady obligations in a particular case, it often will not be dispositive of the issue.” Smith v. Sec’y of N.M. Dep’t of Corr., 50 F.3d at 828 (internal quotations omitted).

On the one side, showing that the prosecution knew of an item of favorable evidence unknown to the defense does not amount to a Brady violation, without more. But the prosecution, which alone can know what is undisclosed, must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of “reasonable probability” is reached. This in turn means that the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police. But whether the prosecutor succeeds or fails in meeting this obligation ... the prosecution’s responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable.

Kyles v. Whitley, 514 U.S. at 438, 115 S.Ct. 1555 (internal citations omitted).

The United States’ good faith or bad faith is irrelevant in determining violations of Brady v. Maryland. See Brady v. Maryland, 373 U.S. at 87, 83 S.Ct. 1194. “This means, naturally, that a prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence.” Kyles v. Whitley, 514 U.S. at 439, 115 S.Ct. 1555. The United States has an obligation to “volunteer exculpatory evidence never requested, or requested only in a general way,” although the obligation only exists “when suppression of the evidence would be of sufficient significance to result in the denial of the defendant’s right to a fair trial.” 514 U.S. at 433, 115 S.Ct. 1555 (internal quotations omitted). On the other hand, “[t]he Constitution, as interpreted in Brady, does not require the prosecution to divulge every possible shred of evidence that could conceivably benefit the defendant.” Smith v. Sec’y of N.M. Dep’t of Corr., 50 F.3d at 823. “ ‘[T]he government typically is the sole judge of what evidence in its possession is subject to disclosure’ and it acts at its own peril by failing to comply adequately with an order requiring disclosure of Brady material.” United States v. Lujan, 530 F.Supp.2d 1224, 1230 (D.N.M. 2008)(Brack, J.)(quoting United States v. Presser, 844 F.2d 1275, 1281 (6th Cir.1988)).

Under Brady v. Maryland, the Supreme Court has held that an “individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.” Kyles v. Whitley, 514 U.S. at 437, 115 S.Ct. 1555. On the other hand, “[t]here is no Brady violation where the defendant knew or should have known of the material, exculpatory information or where the information was available to him from another source.” United States v. Lujan, 530 F.Supp.2d at 1230 (citing United States v. Graham, 484 F.3d 413, 417 (6th Cir.2007)).

1. Suppression.

Brady v. Maryland requires disclosure of information only in the government’s possession or knowledge, whether actual or constructive. See United States v. Beers, 189 F.3d 1297, 1304 (10th Cir.1999), cert. denied, 529 U.S. 1077, 120 S.Ct. 1696, 146 L.Ed.2d 501 (2000); Smith v. Sec’y of N.M. Dep’t of Corr., 50 F.3d at 825 n. 36 (noting that, because a district attorney’s office had actual knowledge that there was a separate investigation by authorities in a separate county, it was reasonable to impute knowledge possessed by the separate county to prosecution). The Tenth Circuit explained in Smith v. Sec’y of N.M. Dep’t of Corr. that, “while proof the prosecutor had actual knowledge of the existence of the evidence at issue would be sufficient to establish the suppression element of a Brady claim, such proof is by no means necessary.” 50 F.3d at 824. Under Kyles v. Whitley, the prosecution’s actual possession of the information is irrelevant. Every federal prosecutor “has a duty to learn of any favorable evidence known to others acting on the government’s behalf in the case.” Kyles v. Whitley, 514 U.S. at 437, 115 S.Ct. 1555. Under Brady v. Maryland, “[a] prosecutor must disclose information of which it has knowledge and access.” United States v. Padilla, 2011 WL 1103876, at *7 (citing United States v. Bryan, 868 F.2d 1032, 1037 (9th Cir.1989)). On the other hand, “[i]t is well settled that there is no ‘affirmative duty upon the government to take action to discover information which it does not possess.’ ” United States v. Tierney, 947 F.2d 854, 864 (8th Cir.1991) (quoting United States v. Beaver, 524 F.2d 963, 966 (5th Cir.1975)). Accord United States v. Kraemer, 810 F.2d 173, 178 (8th Cir.1987) (explaining that the prosecution is not required “to search out exculpatory evidence for the defendant”); United States v. Badonie, No. CR 03-2062 JB, 2005 WL 2312480, at *3 (D.N.M. Aug. 29, 2005) (Browning, J.)(holding that the United States does not have duty under Brady v. Maryland to produce evidence it does not possess, or to “seek information from other governments,” such as the Navajo Nation, and thus the United States was not required to produce Navajo Nation Police records, even though the United States may have been able to “get the information [Defendant] Badonie seeks merely by requesting them”).

“[A] prosecutor’s office cannot get around Brady by keeping itself in ignorance, or by compartmentalizing information about different aspects of a case.” Carey v. Duckworth, 738 F.2d 875, 878 (7th Cir.1984). The “prosecution has an affirmative duty to disclose exculpatory evidence clearly supporting a claim of innocence even without request.” United States v. Summers, 414 F.3d 1287, 1304 (10th Cir.2005) (citing Scott v. Mullin, 303 F.3d 1222, 1228 n. 2 (10th Cir.2002)). “A prosecutor may have a duty to search files maintained by other ‘governmental agencies closely aligned with the prosecution’ when there is ‘some reasonable prospect or notice of finding exculpatory evidence.’ ” United States v. Padilla, 2011 WL 1103876, at *7 (quoting United States v. Brooks, 966 F.2d 1500, 1503 (D.C.Cir.1992)). The Tenth Circuit in United States v. Beers held that the state’s knowledge and possession of potential impeachment evidence cannot be imputed to a federal prosecutor for purposes of Brady v. Maryland where there is no joint investigation by federal and state officials. See 189 F.3d at 1304. See also United States v. Romo, 914 F.2d 889, 899 (7th Cir.1990) (holding that court did not err in denying request to compel prosecutors to make various inquires of local police in absence of showing by defendant that specific material, exculpatory information existed of which government knew). The Tenth Circuit in United States v. Beers, however, left open the question whether knowledge possessed by state officials would be imputed to the federal prosecutor where the federal government participated in a joint investigation with state officials. See 189 F.3d at 1304, 1304 n. 2. The Court has previously determined that the New Mexico State Police (“NMSP”) is not closely aligned with a federal prosecution when NMSP officers are government witnesses in the federal prosecution of an illegal alien in possession of a firearm. United States v. Huerta-Rodriguez, No. CR 09-3206 JB, 2010 WL 3834061, at *1, *3, *8 (D.N.M. Aug. 12, 2010) (Browning, J.); United States v. Huerta-Rodriguez, No. CR 09-3206, Complaint at 1-2, filed Oct. 27, 2009 (Doc. 1); United States v. Huerta-Rodriguez, No. CR 09-3206, Indictment at 1, filed Nov. 4, 2009 (Doc. 11). In United States v. Huerta-Rodriguez, the Court, accordingly, found that it could not compel the United States to produce the NMSP officers’ personnel files, because the files were stored at the NMSP office and, thus, not in the United States’ possession. See 2010 WL 3834061, at *4, *10 (holding that the United States cannot be compelled to produce NMSP officers’ personnel files, because the United States was only allowed to review the files at the NMSP office, and could not remove or photocopy any documents without a subpoena).

A prosecutor does not have a duty to obtain evidence from third parties. See United States v. Combs, 267 F.3d 1167, 1173 (10th Cir.2001) (observing that Brady v. Maryland does not oblige the government to obtain evidence from third parties); United States v. Baker, 1 F.3d 596, 598 (7th Cir.1993) (“Certainly, Brady does not require the government to conduct discovery on behalf of the defendant.”); United States v. Flores, 540 F.2d 432, 437 (9th Cir.1976) (noting that government has no duty to fish through public records equally accessible to defense to collate information); United States v. Lujan, 530 F.Supp.2d at 1231 (stating there is no affirmative duty to discover information in possession of independent, cooperating witness and not in government’s possession)(internal citations omitted). Accordingly, in United States v. Badonie, the Court determined that it could not compel the United States to produce Navajo Nation files, including the personnel files from Navajo Nation officers whom the United States intended to call at trial, because the United States did not possess the files. See 2005 WL 2312480, at **1-3. The Court explained that, although “the United States may have an obligation to seek information from ‘closely aligned’ United States agencies, ... its obligations does not require it to seek information from other governments,” such as the Navajo Nation. 2005 WL 2312480, at *3 (quoting United States v. Brooks, 966 F.2d at 1503). The Court held, thus, that because the personnel files and other evidence which the defendant sought to be produced were in the possession of the Navajo Nation, the United States could not be compelled to produce the evidence, even though the United States may have been able to “get the information Badonie seeks merely by requesting” it. 2005 WL 2312480, at *3.

The Brady v. Maryland doctrine is nonetheless interpreted broadly to encourage prosecutors to carry out their “ ‘duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.’ ” United States v. Combs, 267 F.3d 1167, 1174-75 (10th Cir.2001)(quoting Kyles v. Whitley, 514 U.S. at 437-38, 115 S.Ct. 1555). “Information possessed by other branches of the federal government, including investigating officers, is typically imputed to the prosecutors of the case.” United States v. Beers, 189 F.3d at 1304. Accordingly, in Smith v. Sec’y of N.M. Dep’t of Corr., the Tenth Circuit held that Torrance County’s knowledge from a criminal investigation could be imputed to Bernalillo County’s district attorney’s office investigation into the same matter, because the Bernalillo County district attorney’s office had actual knowledge of Torrance County’s investigation, and because both entities were “two arms of the State.” 50 F.3d at 825 n. 36.

The Constitution “does not grant criminal defendants the right to embark on a ‘broad or blind fishing expedition among documents possessed by the Government.’ ” United States v. Mayes, 917 F.2d 457, 461 (10th Cir.1990)(quoting Jencks v. United States, 353 U.S. 657, 667, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957)). A defendant’s mere allegation that the requested information might be material does not entitle him to an unsupervised search of the government’s files. See Pennsylvania v. Ritchie, 480 U.S. 39, 59, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). The Brady v. Maryland rule is not an evidentiary rule that grants broad discovery powers to a defendant, because there “is no general constitutional right to discovery in a criminal case.” Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977).

[T]here is no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case. The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.

United States v. Agurs, 427 U.S. at 109-10, 96 S.Ct. 2392 (internal quotations and citations omitted), rev’d on other grounds by United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375. See Doums v. Hoyt, 232 F.3d 1031, 1037 (9th Cir.2000) (“Brady does not require a prosecutor to turn over files reflecting leads and ongoing investigations where no exonerating or impeaching evidence has turned up.”).

2. Material Exculpatory Evidence.

The holding in Brady v. Maryland requires disclosure only of evidence that is both favorable to the accused and “material either to guilt or to punishment.” 373 U.S. at 87, 83 S.Ct. 1194. “Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. at 682, 105 S.Ct. 3375. See United States v. Al len, 603 F.3d 1202, 1215 (10th Cir.2010). A “reasonable probability” is a “probability sufficient to undermine confidence in the outcome.” United States v. Bagley, 473 U.S. at 682, 105 S.Ct. 3375 (internal quotation marks omitted). The Tenth Circuit has noted that “[t]he mere possibility that evidence is exculpatory does not satisfy the constitutional materiality standard.” United States v. Fleming, 19 F.3d 1325, 1331 (10th Cir.1994). The Tenth Circuit has also found that “[djuplicative impeachment evidence is