The opinion of the court was delivered by: Reagan, District Judge
The Government charged Kyle Kimoto with one count of Conspiracy, in violation of 18 U.S.C. § 371, one count of Mail Fraud, in violation of 18 U.S.C. § 1341, and twelve counts of Wire Fraud, in violation of 18 U.S.C. § 1343. A jury trial commenced on March 31, 2008, ultimately resulting in a guilty finding on all counts.
Now before the Court is Kimoto's March 25, 2008 motion to dismiss (Doc. 30), which is fully briefed. In this motion, Kimoto challenges the Government's right to maintain this prosecution in light of the Government's alleged failure to provide clearly exculpatory e-mails, failure to turn over FBI Agent Lawrence Wolfenden's report, inconsistent statements regarding the disclosure of discovery to the Postal Inspection Service and the alteration to a Bay Area Business Council ("BABC")*fn1 database. Kimoto asserts that the Government's actions denied him access to relevant, exculpatory evidence. Thus, according to Kimoto, he has been deprived of his due process right to "a meaningful opportunity to present a complete defense."California v. Trombetta, 467 U.S. 479, 485 (1984). The Court took testimony, held a hearing on this motion on April 10, 2008 and took it under advisement. On April 16, 2008, the Court denied the motion*fn2 and now sets forth its analysis, as follows.
II. Analysis of Motion to Dismiss
Kimoto moves for dismissal under the Due Process Clause of the Fifth Amendment and Brady v.Maryland, 373 U.S. 83 (1963), contending that the Government destroyed, or failed to provide the defense with beneficial digital forensic evidence and e-mails. Under Brady, the Government must provide to the defense all exculpatory evidence in its actual or constructive possession prior to trial. Brady material is evidence which is 1) exculpatory, 2) relevant to guilt or punishment, 3) favorable to the accused, and 4) within the actual or constructive possession of anyone acting on behalf of the State. Brady, 373 U.S. at 83.
The Supreme Court addressed the Government's duty to preserve evidence in Trombetta and inArizona v. Youngblood, 488 U.S. 51 (1988). The Court must assess Kimoto's right to relief, if any, in the light of these decisions. In Youngblood, the Court stated as follows:
We think that requiring a defendant to show bad faith on the part of the police both limits the extent of the police's obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant. We therefore hold that unless 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. Youngblood, 488 U.S. at 58.
In order to establish bad faith on the part of the Government, Kimoto must demonstrate "official animus" or a "conscious effort to suppress exculpatory evidence." United States v. Zambrana, 841 F.2d 1320, 1341-42 (7th Cir. 1988). In Illinois v. Fisher, 540 U.S. 544 (2004), the Court restated its position in Youngblood and added that the Youngblood holding applied not only to evidence that was "potentially useful," but also to evidence which was a defendant's "only hope for exoneration" and "essential to and determinative of the outcome of the case." 540 U.S. at 548.
The Supreme Court explained that a defendant must bear a heavy burden because of the "treacherous task" courts face in "divining the import" of the destroyed evidence.Youngblood, 488 U.S. at 57-58 (citing Trombetta, 467 U.S. at 486). The Court expressed itself as unwilling to read the "fundamental fairness" requirement of the Due Process Clause, as imposing on the police an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution. Id.
In addition to bad faith, a defendant must show that the destroyed evidence would likely be of significance to his defense. "To meet this standard of constitutional materiality ... evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means."Trombetta, 467 U.S. at 489; United States v. Nesbitt, 852 F.2d 1502, 1520 (7th Cir. 1988), overruled on other grounds, United States v. Durrive, 902 F.2d 1221 (7th Cir. 1990); United States v. Watts, 29 F.3d 287, 289-90 (7th Cir. 1994)(in addition to bad faith, a defendant seeking dismissal of a prosecution based upon destruction of evidence must also show both that the exculpatory value of the evidence was apparent and that the comparable evidence could not be obtained by other reasonably available means).
Kimoto contends that approximately 2500 missing e-mails were sent to or received by Peter Porcelli. According to Kimoto, of special importance are those sent by Porcelli to Alan Aronson on July 23, 2002, and August 6, 2002, which he alleges are exculpatory because they show a conspiracy between Porcelli and Aronson outside the presence or knowledge of Kimoto. Kimoto asserts that these e-mails have strong impeachment value against Porcelli, who stated under oath that he and his company were basically subsidiaries of Kimoto's. At oral argument, Daniel Libby, a computer forensics examiner, testifying on behalf of Kimoto, stated that he searched the entire data set and could not locate the Porcelli-Aronson e-mails. Mr. Libby also testified that, even if e-mails were deleted or purged, they could have been recovered if the acquisition of the computers had been done in a timely fashion, i.e., as soon as possible. Kimoto maintains that the Government has or had possession of the e-mails and was obligated to provide them to the defense.
According to Kimoto, FBI Agent Lawrence Wolfenden stated that he conducted a complete digital examination and a full forensic extraction of the records at BABC. Doc. 30, Exhibit 1, ¶ 27, Sheets Affidavit. Kimoto maintains that Wolfenden stated that he sent all computer-related evidence, including "hard drives, tapes, cd's and dvd's," to Postal Inspector Floyd Adam Latham on or about April 6, 2006. Id., ¶¶ 28, 29. Kimoto asserts that this statement is contrary to the statement made by Latham that the only digital discovery he received from the FBI was in the form of CDs, which he copied in their entirety for Kimoto. Id., ¶ 24. Kimoto also asserts that Latham stated, "I do think the folder is not a complete copy of the disk." Id. Kimoto requested a copy of Wolfenden's Federal 302 report, which was completed on October 5, 2005, and which summarized and documented his personal collection of evidence. Id., ¶ 35. Kimoto was referred to FBI Special Agent Kevin Klim who, according to Kimoto, first stated that the Postal Inspection Service had personally picked up all the evidence and later stated that Latham did not possess a copy of the report. Id., ¶ ¶ 36-41. Supervisory Special Agent Deanna Day, to whom Kimoto was then referred, did not return his phone call. Id., ¶ 41.
Lastly, Kimoto argues that the BABC database was altered and corrupted by the insertion, on March 16, 2007, of a table entitled ...