U.S. v. Crosdale
U.S. v. Crosdale
2021 WL 4295154 (W.D. Mo. 2021)
July 14, 2021
Morris, Jill A., United States Magistrate Judge
Summary
The dash camera video of Defendant's initial encounter with police and subsequent arrest was not captured by any dash camera. After investigation, it was discovered that the video had been deleted due to a typing error in the report number, which caused the video to be deleted automatically in accordance with a records retention schedule. The Court found that the prosecutor did not deliberately suppress the video and that there was no due process violation.
UNITED STATES OF AMERICA, Plaintiff,
v.
RASHIDI CROSDALE Defendant
v.
RASHIDI CROSDALE Defendant
Case No. 18-00015-01-CR-W-BP
United States District Court, W.D. Missouri, Western Division
Filed July 14, 2021
Counsel
Matthew Aaron Moeder, Assistant US Attorney, United States Attorney's Office, Kansas City, MO, for Plaintiff.Rashidi Crosdale, Leavenworth, KS, Pro Se.
Stephen Chase Higinbotham, Jr., Higinbotham & Higinbotham, Lee's Summit, MO, for Defendant.
Morris, Jill A., United States Magistrate Judge
REPORT AND RECOMMENDATION TO DENY DEFENDANT'S MOTION TO COMPEL DISCOVERY
*1 Before the Court is Defendant Rashidi Crosdale's Motion to Compel Discovery. Doc. 134. For the following reasons, the Court recommends that Defendant's motion be denied.
I. PROCEDURAL BACKGROUND
On January 31, 2018, the Grand Jury returned a one-count Indictment charging Defendant with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Doc. 11. Defendant was initially represented by the Federal Public Defender, Doc. 5, but in March of 2018, after a conflict of interest was discovered, the Federal Public Defender withdrew from the case and CJA counsel was appointed. Docs. 15-16. Defendant Crosdale filed several motions to replace counsel, and on July 9, 2018, new CJA counsel was appointed. Docs 20, 26-27, 30, and 33, respectively.
Defendant filed a motion to suppress evidence on March 24, 2019, seeking suppression of any and all evidence and testimony obtained from a search and seizure of Defendant Crosdale, his vehicle, and a residence. Doc. 47. The Government responded on April 22, 2019. Doc. 53. The suppression hearing was continued twice at the Defendant's request, Docs. 54, 56, 62-63, before ultimately being held on July 31, 2019. Doc. 73. The court issued a Report and Recommendation that the motion be denied. Doc. 75. In an Order that provided additional analysis of the issue, the District Judge adopted the Report and Recommendation, over the objections of both parties, and denied the motion to suppress. Doc. 84.
While the motion to suppress was being litigated, Defendant Crosdale filed numerous motions to proceed pro se. Docs. 58-59, 61, 65. A hearing was held regarding Defendant's request to proceed pro se on June 25, 2019, where various discovery issues were also discussed. Docs. 67, 159. After Defendant elected not to proceed pro se, the motions were denied as moot. Doc. 65. However, after the suppression hearing was held, Defendant made additional requests – which were again denied - to either proceed pro se or appoint new counsel. Docs. 74, 77, 81. On October 29, 2019, several days after objections to the Report and Recommendation regarding the suppression motion were filed, counsel filed a motion to withdraw and for Defendant to proceed pro se. Doc. 83. The motion was granted on November 14, 2019. Doc. 92. Although counsel remained in the case in a standby capacity, Docs. 97, 149, Defendant has proceeded pro se since November of 2019.
On June 23, 2020, the Grand Jury returned a one-count Superseding Indictment that modified certain language but otherwise charged Defendant Crosdale as being a felon in possession of a firearm as in the original Indictment. Doc. 111. A three-count Second Superseding Indictment returned on July 22, 2020 added one count each of Possession with Intent to Distribute PCP in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and Possessing a Firearm in Relation to a Drug Trafficking Crime in violation of 18 U.S.C. § 924(c)(1)(A)(i), in addition to the original felon in possession of a firearm charge. Doc. 115.
II. THE MOTION TO COMPEL
*2 On November 2, 2020, a status conference was held where various discovery issues were discussed. On November 16, 2020, Defendant Crosdale filed the subject motion to compel discovery. Doc. 134. Defendant's motion referenced the November 2, 2020 conference, stating that the motion to compel was intended to create a record and address certain issues that had not been resolved to his satisfaction. Defendant asked the Court to compel production of – or otherwise address issues with – six items: analysis of Defendant's cell phone; the dash camera footage of Defendant's wife being taken to police headquarters in the vehicle of police officers Bobbie King and James Oakes; the Missouri Department of Revenue photograph of Kevin Conner, the individual police were searching for when they arrested Defendant; Kevin Conner's probation violation warrant; the complete video of Defendant's interrogation; and the dash camera footage of the “actual incident of arrest.” Doc. 134. In regard to the foregoing, Defendant stated in his motion that although the cell phone analysis had been provided, discovery access issues were preventing Defendant from reviewing it. Doc. 134.[1]
The Government responded on November 30, 2020. Doc. 137. In its response, the Government stated that various items requested had either been produced or were never in the Government's possession. In regards to those items never in the Government's possession – the photograph of Kevin Conner and his probation warrant – the Government disputed that they were material to this case. Nonetheless, the Government provided the probation warrant as requested and indicated that the photograph of Kevin Conner would be provided once the police located the same. Central to the issue now before this Court, the Government indicated that the dash camera footage of Defendant's initial encounter with police and subsequent arrest was not captured by any dash camera. Doc. 137, p. 6.
Defendant Crosdale filed his reply on May 12, 2021. Doc. 162. In his reply, Defendant set forth the lengthy history of the various efforts he had made, both through counsel and pro se, to receive the dash camera video of the initial encounter and arrest, and he specifically questioned the idea that the dash camera was malfunctioning and accused the prosecutor of deliberately misleading the Court and suppressing the evidence. For the first time in his reply brief, Defendant requested dismissal of the case.[2]
On June 7, 2021, the Court scheduled a hearing on the motion for June 29, 2021. On June 11, 2021, the Government filed a pre-hearing brief, informing Defendant and the Court that the missing dash camera video did at one point exist before it was deleted as part of standard retention procedures. The brief set forth what the Government believed to be the applicable law for analyzing such a situation. Doc. 162. On June 29, 2021, United States Magistrate Judge Gaddy issued an order of recusal and cancelled the scheduled hearing. Doc. 169. The case was then reassigned to the undersigned and, due to witness availability, the hearing was ultimately rescheduled for July 6, 2021. Docs. 170, 173.
An evidentiary hearing was held on July 6, 2021, with all parties and counsel appearing in person. At the start of the hearing, the Court stated that it appeared that all items in the motion to compel had been resolved except for issues regarding the dash camera video from the vehicle driven by the arresting officers, and that the hearing was to determine what happened to that particular piece of evidence. Tr. at 4. The parties agreed that this was the scope of the hearing. Tr. at 6.
*3 Defendant Crosdale testified on his own behalf. The Government called three Kansas City, Missouri Police Officers as witnesses: Detective John Straubel, Sergeant Chase Moraczewski, and Officer Carla Boykin. The following exhibits were admitted into evidence:
Defendant's Exhibit A: Letter from Defense Counsel dated May 4, 2019
Defendant's Exhibit B: Letter from Defense Counsel dated May 15, 2019
Defendant's Exhibit C: Jan. 9, 2018 Police Incident Report
Defendant's Exhibit D: Kansas City, Missouri Police Department Policies regarding audio and video recordings
Defendant's Exhibit E: Letter to Defense Counsel dated May 12, 2019
Defendant's Exhibit F: Letter to Chief Judge Phillips dated April 19, 2018
Defendant's Exhibit G: Letter to Defense Counsel dated May 30, 2019
Defendant's Exhibit I: Jan. 9, 2018 Police Report from arresting Officer King
Government's Exhibit 1: Letter from Government to Det. Straubel dated Jan. 10, 2018
Government's Exhibit 2: Email from Det. Straubel to Digital Technology Section dated Jan. 11, 2018
Government's Exhibit 3: The Government's case discovery production log
Government's Exhibit 4: Email from Government to Det. Straubel dated Feb. 8, 2018
Government's Exhibit 5: Email between Government and Det. Straubel dated Feb. 8, 2018
Government's Exhibit 6: Email from Det. Straubel to Digital Technology Section dated Feb. 9, 2018
Government's Exhibit 7: Email from Det. Straubel to Government dated Feb. 9, 2018
Government's Exhibit 8: Email from Det. Straubel to Government dated Feb. 13, 2021
Government's Exhibit 9: Email between Det. Straubel and Digital Technology Section dated Nov. 30, 2020
Government's Exhibit 10: Email between Government and Det. Straubel dated May 20, 2021
Government's Exhibit 11: Email between Det. Straubel and Officer Boykin dated May 20, 2021
Government's Exhibit 12: Det. Straubel's report dated May 21, 2021
Government's Exhibit 13: Officer Boykin's report dated May 21, 2021
Government's Exhibit 14: Sgt. Moraczewski's report dated May 21, 2021
Government's Exhibit 15: Digital Disc labeled CROS_MD_007
Government's Exhibit 16: Digital Disc labeled CROS_MD_008
Government's Exhibit 17: Digital Disc labeled CROS_MD_011
Government's Exhibit 18: Digital Disc labeled CROS_MD_012
Government's Exhibit 19: Digital Disc labeled CROS_MD_013
Government's Exhibit 20: Digital Disc labeled CROS_MD_014
At Defendant's request, and without objection from the Government, the Court took judicial notice of the transcript of the June 25, 2019 hearing regarding the motion to proceed pro se at Doc. 159, the transcript of the July 31, 2019 suppression hearing at Doc. 73, the pro se motion to remove or dismiss defense counsel filed May 17, 2018 at Doc. 27, and the motion to proceed pro se filed May 24, 2019 at Doc. 59. Closing arguments were presented, after which the Court took the matter under advisement.
III. PROPOSED FINDINGS OF FACT
On the basis of the evidence presented at the suppression hearing, the undersigned submits the following proposed findings of fact:
1. Detective John Straubel has been a police officer with the Kansas City, Missouri Police Department for 24 years, having spent the last ten years as a detective in the Narcotics and Vice Division. Tr. at 87. He also serves as a task force officer (“TFO”) with the Federal Bureau of Investigation. Tr. at 88. He was a TFO during all of the events discussed herein. Tr. at 88. He has worked with the U.S. Attorney's Office in cases involving the illegal possession of firearms for almost ten years. Tr. at 91.
*4 2. Sergeant Chase Moraczewski has been a police officer with the Kansas City, Missouri Police Department for 14 years, having served as a sergeant in the Digital Technology Section for the last three years. Tr. at 183. He has seven employees in the Digital Technology Section, of which four are law enforcement officers, and three are civilians. Tr. at 184.
3. Officer Carla Boykin has been employed with the Kansas City, Missouri Police Department for 27 years, first as a civilian and later as an officer. Tr. at 212. She has been a project officer with the Digital Technology Section for 12 years. Tr. at 212. Her duties in the Digital Technology Section include maintaining videos from dash cameras and body cameras, placing holds on videos, and producing copies to prosecutors and other requesting parties. Tr. at 213. Between January of 2018 and May of 2021, Officer Boykin produced thousands, if not tens of thousands, of videos that were requested. Tr. at 219-20.
4. The Digital Technology Section (“DTS”) is the administrator of police department-owned video which includes dash camera video. Tr. at 94-95, 184. DTS sets policy on how video is managed and how systems should be operated; coordinates with a vendor to ensure systems are configured properly; and handles any requests for video footage, including requests related to court cases. Tr. at 184-85. In January of 2018, almost every marked vehicle in the police department was equipped with a dash camera. Tr. at 185. Well over 30,000 dash camera videos are made by the department every year. Tr. at 186. Body cameras were introduced in August of 2020 and were not used by the department in January of 2018. Tr. at 185.
5. If a report is generated, a case report number, or “CRN,” is given to every case or incident involving the Kansas City, Missouri Police Department. Tr. at 191.
6. The Computer Aided Dispatch system (“CAD”) is utilized by dispatchers to record when a call started, which officers arrived on the scene, and what time specific officers arrived. Tr. at 188.
7. DTS receives requests for videos through a specific email inbox. Tr. at 188. All DTS employees have access to the email inbox where requests are received, and they will individually work on requests as they are able, marking the request with a color code that indicates to other employees who is handling the request. Tr. at 216. The request usually references a case report number, and DTS employees search for the video using the CRN and by searching the CAD system. Tr. at 188, 217.
8. The CAD system is how DTS employees usually find videos. Tr. at 188. They use CAD to determine which officers were on the scene, they then search their video database for videos produced by those officers at the time they were on the scene, and they will often play a brief clip of the video to ensure that it matches the reported location. Tr. at 189, 219. After locating all of the videos requested, they “tag” the videos with the appropriate case report number and, in some instances, classify the video based on the type of offense at issue. Tr. at 189, 219. DTS employees then run a search using the case report number, which will show them every video that was tagged. Tr. at 219. They then place a hold on the tagged videos, burn a copy of the videos onto discs, and provide the discs to the requesting party. Tr. at 192, 219.
*5 9. At the time the subject video of the arrest was recorded in January of 2018, the department would retain any video from a dash camera for two years. Tr. at 200. In late 2018 or early 2019, the retention cycle for videos was shortened to one year, and now they are retained for six months. Tr. at 200. The department keeps shortening the time it retains videos because data storage is costly, and the number of videos produced continues to increase, particularly with the introduction of body cameras. Tr. at 200. State regulations require police departments to retain videos for 30 days unless the video involves a murder or has evidentiary value in a case. Tr. at 201-202.
10. Holding a video extends the time that it is retained in the system, which in the case of court-related requests, is an additional three years or until a court case is fully adjudicated. Tr. at 190, 202.
11. In January of 2018, officers would physically bring their dash camera hard drives into the station and place them in a cradle which would upload any videos to the department's server. Tr. at 186, 214. In January of 2018, there was no other way to upload a video from a vehicle to the server. Tr. at 187.
12. In the Kansas City, Misouri Police Department, only DTS employees and the department's internal affairs unit can place holds on video footage and extend the retention time for that footage. Tr. at 192-93. Other officers can only request holds and search for videos for the purpose of viewing them. Tr. at 112-13, 142. When an officer writes in a report that they put a hold on a video, it means that the officer requested that DTS hold the video to extend the retention time of the video. Tr. at 192, 224.
13. On January 9, 2018, Det. Straubel was serving as an on-call detective, meaning patrol officers would contact him regarding potential crimes. Tr. at 88-89. On that date, he was contacted by officers regarding an incident involving Defendant Rashidi Crosdale. Tr. at 89. Det. Straubel was informed that officers attempted to stop a vehicle in a restaurant drive-thru, the driver of the vehicle fled but was ultimately arrested, and that firearms and narcotics were found in the vehicle. Tr. at 89. Det. Straubel had no prior knowledge of Defendant Crosdale. Tr. a 90.
14. Det. Straubel was responsible for the portion of the case involving narcotics and the felon in possession of a firearm charge. Tr. at 90. On January 9, 2018, after he was contacted by patrol officers regarding Defendant Crosdale, Det. Straubel called the U.S. Attorney's office to discuss the case with the on-call prosecutor, who on that date was Mr. Matthew Moeder. Tr. at 91. The U.S. Attorney's office decided to charge Defendant Crosdale with being a felon in possession of a firearm by way of criminal complaint. Tr. at 91; see also Doc. 1.
15. The next day, January 10, 2018, the U.S. Attorney's Office sent Det. Straubel a four-page letter via email. Tr. at 92; Ex. 1. The letter advised Det. Straubel that the Kansas City, Missouri Police Department was responsible for producing all evidence and information pertaining to the case, including any exculpatory materials and materials relevant for impeachment. Tr. at 92, 93-94; Ex. 1. The letter specifically requested, among other things, all photographs, videotapes, and audiotapes relevant to the case. Tr. at 94; Ex. 1. Det. Straubel signed and dated the letter on January 11, 2018.
16. After signing the letter, Det. Straubel attempted to gather all the relevant materials in order to provide them to the U.S. Attorney's Office, including collecting any reports and videos regarding the incident. Tr. at 94. Collecting the video evidence involved contacting DTS. Tr. at 94-95.
*6 17. Det. Straubel requested all videos in this case by sending an email with an attached request form on January 11, 2018. Tr. at 95; Ex. 2. The attached request form is a standard form used by the department titled “Patrol Video Request Form.” Tr. at 96, 99; Ex. 2. The request form includes, among other things, the name of the prosecutor handling the case; the date, time, and location of the subject incident; a description of the incident; contact information for the police officer making the request; and a report number specific to the case, which in this case was 18-2094. Tr. at 97; Ex. 2. In this instance, Det. Straubel's request described an initial encounter between Officers King and Oakes with a vehicle at a McDonald's restaurant where the vehicle fled to a nearby grocery store lot, the driver fled on foot, and was then arrested. Tr. at 97; Ex. 2.
18. After making the request, Det. Straubel received two discs from DTS. Tr. at 99-100; Ex. 15-16. The discs had labels that showed the prosecutor's name, “Defendant Crosdale,” and the case number, 18-2094. Tr. at 100. Stickers on the discs displayed “CROS_MD_” followed by a three-digit number. Tr. at 101. These stickers (with bates numbers) are not from the police department and are added by the U.S. Attorney's Office. Tr. at 101.
19. Videos are associated with the serial number assigned to each specific police officer. Tr. at 102. The first two videos produced were associated with three different serial numbers, none of which were the serial numbers assigned to the arresting officers in this case. Tr. at 103.
20. Det. Straubel received an email from the prosecutor in this case on February 8, 2018. Tr. at 103-04; Ex. 4. The email indicated that the prosecutor did not believe all dash camera videos had been produced, and it specifically requested production of dash camera video from Officers Oakes and King, the arresting officers in the case. Tr. at 104-05; Ex. 4.
21. Det. Straubel responded to the February 8, 2018 email (Exhibit 4), stating that the dash camera video from the arresting officers should have been included, and that he would work on retrieving that dash camera video. Tr. at 105-06; Ex. 5.
22. On February 9, 2018, Det. Straubel made an additional email request to DTS, indicating that dash camera video from the arresting officers was missing and was needed by the prosecutor. Tr. at 107; Ex. 6. Det. Straubel attached the original request he first submitted to DTS in January of 2018. Tr. at 109; Ex. 6. Officer Boykin was the DTS employee who handled the request. Tr. at 214. Officer Boykin replied later that same day that additional videos were ready for pickup. Tr. at 107-08, 217; Ex. 6.
23. In the meantime, due to the difficulty in finding the dash camera video, Det. Straubel personally spoke with Officer King, one of the arresting officers, and she assured Det. Straubel that there was video of the incident. Tr. at 112. Det. Straubel also attempted to search for the video himself in the computer system, but he was unable to locate it. Tr. at 112.
24. On February 9, 2018, after emailing his additional request to DTS regarding the missing dash cam video, Det. Straubel emailed the U.S. Attorney's Office, indicating that he had asked DTS to continue looking for the arresting officers' dash camera video; that he had spoken with one of the officers, Officer King, and she confirmed that there should be video; and that the video had nonetheless not been found thus far. Tr. at 111; Ex. 7.
25. Det. Straubel emailed the U.S. Attorney's Office on February 13, 2018 and reported that the hard drive that contained the dash camera video had initially not been turned in, but that it had been located. Tr. at 114-15; Ex. 8. Det. Straubel learned this from DTS informing him of the same. Tr. at 115. Det. Straubel subsequently received four more discs from DTS. Tr. at 116; Ex. 17-20.
*7 26. One disc contained a video associated with the serial number assigned to Officer King. Tr. at 118; Ex. 17. The video associated with Officer King was six minutes in length, but it did not capture Defendant Crosdale's initial encounter with police and subsequent arrest. Tr. at 119. Another disc also contained a video associated with the serial number assigned to Officer King. Tr. at 120; Ex. 20. This video did not capture Defendant Crosdale's initial encounter with police and subsequent arrest. Tr. at 121. Exhibits 15-20 include all of the discs Det. Straubel ever received from DTS, and none of the videos on those discs captured Defendant Crosdale's initial encounter with police and subsequent arrest. Tr. at 122.
27. The U.S. Attorney's Office communicated its request to Det. Straubel that the missing video be located and produced during this case numerous times. Tr. at 122. Det. Straubel continued to look for the missing video by contacting DTS numerous times via email and telephone, and DTS employees repeatedly confirmed that they had no other videos to provide in connection with this case. Tr. at 122.
28. There were numerous conversations between the U.S. Attorney's Office and Det. Straubel regarding the missing dash camera video before the suppression hearing held in July of 2019. Tr. at 126. Det. Straubel contacted DTS numerous times during the spring and summer months of 2019 in an effort to locate the missing video. Tr. at 127. Det. Straubel also interviewed the arresting officers and the sergeant involved in the arrest regarding the video, and no one was able to explain why the video was missing. Tr. at 127-28. Based on his experience as a police officer and interacting with DTS as a case agent working with the U.S. Attorney's Office, Det. Straubel assumed that a technical malfunction of some kind was the reason the video could not be located. Tr. at 128.
29. In the Fall of 2020, the U.S. Attorney's Office notified Det. Straubel of the motion to compel filed by Defendant Crosdale which requested the missing dash camera video. Tr. at 129. The U.S. Attorney's Office again requested confirmation that the dash camera video of the arrest did not exist. Tr. at 129. In response to the U.S. Attorney's Office's request, Det. Straubel emailed DTS, asking that they verify that he did, indeed, have all of the videos pertaining to the incident. Tr. at 130; Ex. 9. A DTS employee responded via email with a screenshot of her search results, stating that it appeared that all videos had been produced. Tr. at 130-31; Ex. 9. The screenshot of the records matched what Det. Straubel had already obtained and provided to the U.S. Attorney's Office. Tr. at 131-32.
30. On May 20, 2021, after Defendant Crosdale submitted a filing alleging that the U.S. Attorney's Office purposely refused to disclose the missing video, Det. Straubel received an email from the U.S. Attorney's Office which presented a synopsis of prior efforts to locate the missing video before again asking for confirmation that no dash camera video existed and requesting any documentation pertaining to the matter. Tr. at 133; Ex. 10. The synopsis accurately described efforts made to locate the video thus far. Tr at 133.
31. After receiving the May 20, 2021 email, Det. Straubel contacted Officer Boykin via telephone in DTS, and forwarded her the May 20, 2021 email that requested confirmation that the video did not exist and any documentation concerning the same. Tr. at 134-35, 220; Ex. 11. In speaking with Officer Boykin, Det. Straubel advised her of the situation and emphasized that not only was confirmation needed that the video did not exist, but that a report of any findings by DTS would also be needed. Tr. at 134-35.
*8 32. Officer Boykin began by searching under the case report number where she saw the videos that had already been produced. Tr. at 221. She then examined the video database where she saw that a video associated with the arresting officer that began at the time reported by the officer did at one time exist, but that it had been erased by the system. Tr. at 221. Officer Boykin saw that she tagged the video at one time, but she noticed that she had accidentally transposed two digits in the case report number, meaning the video was not saved with the other videos in the case, so it was never produced, it was not properly held, and, consequently, it was deleted by the system. Tr. at 224. The correct case report number was “18-002094,” and Officer Boykin typed “18-002904,” transposing the digits “0” and “9.” Tr. at 224.
33. After looking into the matter, Officer Boykin communicated to Det. Straubel that she discovered that the dash camera video of the initial encounter and arrest did, at one point, exist. Tr. at 135. Officer Boykin reported that while tagging each video pertaining to the incident, she had accidentally transposed two digits in the case number for the video showing the arrest. Tr. at 135-36, 137. This error meant that the video of the arrest would not appear in searches using the proper case report number, and the video was instead saved off by itself under an inaccurate report number. Tr. at 136.
34. Sgt. Moraczewski first learned of this case and the missing dash camera video in early June of 2021. Tr. at 194. He was informed of the request for videos in the case, that officers went back to research why a certain video was never located, and that it was discovered that a mis-typed case report number resulted in the video not being found before it was purged consistent with the system's retention schedule. Tr. at 194-95. Sgt. Moraczewski then personally investigated the matter and attempted to locate the video. Tr. at 195-96.
35. In his search for the video, Sgt. Moraczewski searched under the correct and incorrect case report numbers, he checked the server to make sure the video was not saved somewhere else, and he examined the video's metadata to determine if a copy was ever made and provided to a third party. Tr. at 196. The metadata revealed that no copy was ever made of the video. Tr. at 196, 221. The metadata revealed that the video was purged or deleted on July 8, 2019, consistent with the retention schedule in place at the time. Tr. at 201; Exs. 12-14.
36. Officer Boykin is not known to make mistakes. Tr. at 197. The transposition of the digits in the case report number was an accident, and this is the first time that Officer Boykin is aware of making a mistake of this nature. Tr. at 228-29.
37. Det. Straubel, Sgt. Moraczewski, and Officer Boykin each prepared a report regarding their efforts to locate the video, the error in tagging the video, and the subsequent purging of the video from the police server. Tr. at 137, 198-99, 223; Exs. 12-14.
38. Exhibit 3, the Government's production log, accurately describes the contents of discovery the police provided to the U.S. Attorney's Office. Tr. at 124.
39. During the subject January 9, 2018 incident and arrest, Defendant was operating a vehicle in a McDonald's drive-thru when officers entered the parking lot with their lights on. Tr. at 83-84. Officers approached with guns drawn, commanding Defendant to exit the vehicle. Tr. at 84. Defendant drove his vehicle to exit the drive-thru, and in the process struck another vehicle and a guardrail, before driving to a different parking lot. Tr. at 85
IV. PARTIES' ARGUMENTS
Defendant Crosdale asserts that throughout this case he has maintained that the dash camera video of his initial encounter and arrest did exist and needed to be found. He cites letters to the Court and defense counsel as well as statements he made in open court in prior hearings to establish this. He claims that he was able to determine that the video existed by examining police reports that stated the video existed and educating himself about police procedures for producing and managing video evidence, all while he was detained with limited access to discovery and investigative resources. He argues that if he was able to determine that the video existed despite the numerous limitations he faced as a detained, pro se litigant, the Government's inability to find the evidence had to be willful.
*9 In arguing that the Government's failure to produce the evidence was willful, Defendant Crosdale makes numerous assertions. He argues that Officer Boykin was able to find the video two times, first in February of 2018 and later in May of 2021. He claims that the failure to specifically approach Officer Boykin in the intervening years is evidence of an inexcusable lack of diligence on the part of the Government, including the prosecutor and the police. He further argues that the police were aware that improperly tagged evidence was not preserved forever, implying that they were not concerned about the impending destruction of the missing video. In regards to the prosecutor, Defendant Crosdale argues that his various statements to Defendant's counsel, Defendant, and to the Court that the evidence did not exist due to a presumed technical malfunction were outright fabrications intended to mislead the Court and prevent the defense from locating the evidence. Defendant Crosdale does not specifically state what the video would show, but he argues that if the evidence was truly incriminating, he would not be the only one searching for it. He argues that all of this is sufficient to establish bad faith on the part of the Government.
The Government responds that statements that the evidence did not exist were based on the good faith belief that it did not, in fact, exist. The Government points to extensive correspondence about the video, as well as Detective Straubel's numerous interactions with DTS regarding the video, as evidence of its diligent efforts to produce everything Defendant was entitled to under the law. In regards to the video's destruction, the Government argues that it was the result of a simple typing error, and that the error – the transposing of two digits – in no way establishes animus towards Defendant or a conscious effort to destroy the video. The video was therefore not, the Government argues, destroyed in bad faith. As to the evidence itself, the Government argues that it is not exculpatory as it does not relate at all to the three charges at issue in this case, and because witnesses of the initial encounter and arrest, including Defendant, were largely in agreement as to what occurred, the evidence is not necessary to address any factual dispute. The Government concludes that Defendant has failed to meet his burden in every respect.
V. DISCUSSION
Defendant Crosdale has repeatedly argued that the prosecutor deliberately suppressed the missing dash cam video and misled both the defense and the Court in stating it did not exist. The Court will thus begin by disposing of any issues regarding the prosecutor before examining the primary issue of the destruction of evidence by police.
As held by the Supreme Court in the seminal case Brady v. Maryland, “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. 83, 87 (1963). The prosecution's duty to disclose evidence was later expanded to include evidence not requested by the accused and “material” evidence that may otherwise be viewed as non-exculpatory,[3] even in instances where the evidence was “known only to police investigators and not the prosecutor.” Strickler v. Greene, 527 U.S. 263, 280-81 (1999) (citations omitted). This expanded duty imposes upon a prosecutor “a duty to learn of any favorable evidence known to the others acting on the government's behalf in [a] case, including the police.” Id. at 281 (citation omitted). However, “Brady requires the government to disclose to a defendant only evidence that is in the government's possession or that of which the government is aware.” United States v. Lacey, 219 F.3d 779, 783 (8th Cir. 2000).
Although Defendant attempts to establish a colorable Brady claim, the facts of this case, quite simply, do not support a Brady violation. At the inception of this case, a mere day after Defendant Crosdale was arrested, the prosecutor sent a letter to the case agent, Detective Straubel, outlining the Government's discovery and disclosure obligations. Fact 15, Ex. 1. After evidence was produced, including various dash camera videos, the prosecutor sent an email on February 8, 2018 specifically inquiring about the dash camera video from the vehicle driven by Officers Oakes and King which was not included in the initial materials provided by the police. Fact 20, Ex. 4. An email from Detective Straubel in November of 2020 indicates that the prosecutor was still requesting confirmation from the police that the video of the initial encounter and arrest did not exist. Fact 29, Ex. 9. On May 20, 2021, in response to the pending motion, the prosecutor once again requested from the police confirmation that all known video relevant to the case had been located and produced and requesting any department records that would document the matter. Fact 30, Ex. 10. This final inquiry prompted the Digital Technology Section to again review the matter, at which point the Digital Technology Section's error was discovered. Facts 31-33, Exs. 12-14. After learning of the error, the prosecutor prepared and filed the pre-hearing brief that informed Defendant and the Court that the video at one point existed, that it was not found by police due to a clerical error of transposing two digits in the report number, and that it was automatically purged pursuant to the department's retention schedule before its existence was discovered. Doc. 167.
*10 None of the foregoing facts, indeed nothing in the record of this case at any point, support the assertion that the Government possessed or was aware of the existence of the subject dash camera video, and at multiple points, the prosecutor – and Detective Straubel – attempted to either locate the video or confirm its non-existence. Defendant may assert otherwise, but that assertion is directly contradicted by the evidence before this Court. Furthermore, when it was discovered that the video had at one point existed before its accidental deletion, the Government promptly disclosed that fact as the law requires, even though doing so exposed the prosecutor to additional aspersions from Defendant. Simply put, any claim that the prosecutor's actions violated Defendant's due process rights under Brady are wholly without merit.
As to the destruction of the dash camera video, a “due process violation arises from destruction of evidence when the evidence ‘possess[es] an exculpatory value that was apparent before the evidence was destroyed, and [is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’ ” United States v. Tyerman, 701 F.3d 552, 560 (8th Cir. 2012) (quoting California v. Trombetta, 467 U.S. 479, 489 (1984)).
The Report and Recommendation regarding Defendant's motion to suppress sets forth detailed factual findings pertaining to Defendant's initial encounter with police, his subsequent arrest, and, most importantly, evidence discovered during an inventory search of his vehicle and a consensual search of a residence. Doc. 75, pp. 3-4. Defendant also made inculpatory statements during an interview conducted after he waived his Miranda rights. Id. at p 4. The evidence seized – both firearms and controlled substances – and Defendant's own inculpatory statements form the basis of the underlying three charges in this case. Significantly, none of the charges even remotely relate to what transpired during the initial encounter and arrest. The facts of his initial encounter and arrest, while perhaps dramatic, are not material as to guilt or innocence. Defendant has therefore not established, nor does the Court discern, how anything contained in the missing dash camera video could potentially alter a fact-finder's consideration of his guilt or innocence.[4]
Additionally, as explained by the Court in the Order adopting the Report and Recommendation regarding Defendant's motion to suppress, officers possessed reasonable suspicion justifying their initial stop of Defendant before initiating the encounter, and they later possessed probable cause for the arrest on the belief that Defendant fled the scene of an accident. Doc. 84, pp. 5-6. In the hearing for the instant motion, Defendant himself testified that when exiting the drive-thru where he first encountered police, he struck another vehicle and a guardrail before driving to a nearby grocery store parking lot, Fact 39, conceding facts central to the development of probable cause as to fleeing the scene of an accident. The video footage would thus have no impact on the Court's earlier determination that suppression of the evidence was not warranted. Even if it arguably did, it is not clear that the destruction of evidence relevant to a Fourth Amendment claim is sufficient to establish a due process claim. In United States v. Lebeau, the Eighth Circuit held that the destruction of a video that showed how law enforcement gained access to a defendant's hotel room did not establish a due process claim because the video was not probative factually of guilt or innocence. 867 F.3d 960, 976-77 (8th Cir. 2017). Lebeau did not explicitly set forth a rule that the destruction of evidence relevant to suppression was not a due process violation, but it strongly implied as much. Therefore, as the missing evidence did not have exculpatory value that was apparent before it was destroyed, Defendant has not suffered a due process violation.
*11 Nonetheless, even if the evidence was viewed as potentially exculpatory, “[t]he general rule is that ‘[l]aw enforcement's failure to preserve potentially exculpatory evidence violates due process if the defendant can show that [law enforcement] acted in bad faith.” United States v. Paris, 954 F.3d 1069, 1074 (8th Cir. 2020) (quoting United States v. LeBeau, 867 F.3d 960 976-77 (8th Cir. 2017)). It is Defendant's burden to establish bad faith conduct on the part of the Government. United States v. Webster, 625 F.3d 439, 447 (8th Cir. 2010). “[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Arizona v. Youngblood, 488 U.S. 51, 58 (1988). “Bad faith can be shown by proof of an official animus or a conscious effort to suppress exculpatory evidence.” Jimerson v. Payne, 957 F.3d 916, 926 (8th Cir. 2020). “[N]egligent destruction of evidence is insufficient to establish a due process claim,” United States v. Bugh, 701 F.3d 888, 895 (8th Cir. 2012), as is reckless destruction. United States v. Tyerman, 701 F.3d 552, 560 (8th Cir. 2012).
Here, Defendant has not met his burden to establish bad faith conduct by the police. The arresting officer checked the necessary parts in her initial report to trigger a request that the dash camera video be retained. Fact 12, Ex. I. As already discussed, Detective Straubel made numerous attempts to retrieve the dash camera video from the Digital Technology Section throughout the pendency of this case. Facts 17, 21-22, 25, 28, 31, Exs. 6, 9, 11, 12. He also spoke with the officers involved in the arrest about the missing video. Fact 23. In addition to sending various emails entered into evidence, he also made phone calls to DTS. Facts 28, 31. The Digital Technology Section's inability to find the video was ultimately the result of a simple typing error. An officer in the section accidentally transposed two digits in the report number when tagging the video, relegating the video to a separate case such that future searches for it proved fruitless. Facts 32, 33, 34, Exs. 12-14. Because it was not properly held with the case file, the video itself was ultimately deleted, not because of a conscious act, but automatically, in accordance with a records retention schedule. Facts 9, 32, 34-35. It was not until May of 2021 that the error was discovered, but at this point, the video had been deleted. Digital Technology Section employees even examined the video's metadata to determine if copies had been provided to third parties in the hopes that a copy of the video could be recovered, but no copies were ever made. Fact 35. They also searched elsewhere in their systems in an effort to locate a copy, but to no avail. Fact 35.
Nothing in the foregoing approaches “bad faith.” The deletion of the video was not the product of any conscious act or decision, it was simply the result of a typo that was discovered too late in the process. It is unfortunate, and understandably frustrating for Defendant Crosdale, who repeatedly insisted that the video could and should be found. However, the destruction was plainly the result of negligence – simple human error – and that is insufficient to establish a due process violation. On that basis, Defendant's motion and request for dismissal of the charges in the Second Superseding Indictment should be denied.
VI. CONCLUSION
For the reasons set forth above, it is
RECOMMENDED that the Court, after making an independent review of the record and the applicable law, enter an order denying Defendant's motion to compel discovery. Doc. 134.
The Parties are advised that, pursuant to 28 U.S.C. § 636(b)(1), each has fourteen days from the date of this Report and Recommendation to file and serve specific objections to the same, unless an extension of time for good cause is obtained. Failure to file and serve timely specific objections may result in waiver of the right to appeal factual findings made in the report and recommendation which are accepted or adopted by the district judge except upon the ground of plain error or manifest injustice.
Footnotes
The discovery access issues referenced by Defendant in his motion relate to challenges faced by detained, pro se litigants during the COVID-19 pandemic. The Court rectified this by ordering appointed standby counsel to assist in the discovery review process, allowing Defendant Crosdale to access electronically stored discovery while in custody. Docs. 149, 152.
The request for dismissal transformed the discovery motion into a dispositive motion, prompting the undersigned to issue this Report and Recommendation rather than an order addressing the motion.
“[E]vidence is ‘material’ within the meaning of Brady when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Turner v. United States, 137 S. Ct. 1885, 1893 (2017) (citation omitted).
The parties have not fully addressed the extent to which the dash camera video would be material in determining Defendant's punishment. The Government did state that nothing that occurred in the drive-thru would raise the minimum sentence Defendant faces if convicted, though it might have sentencing guideline ramifications. Tr. at 261. This issue is not something properly addressed at this stage of this case, nor is the proper remedy dismissal.