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United States v. Swenson

United States District Court, D. Idaho

April 8, 2014

DOUGLAS L. SWENSON, et al., Defendants.


B. LYNN WINMILL, Chief District Judge.


"A criminal trial does not unfold like a play with actors following a script; there is no scenario and can be none. The trial judge must meet situations as they arise and to do this must have broad power to cope with the complexities and contingencies inherent in the adversary process."

Geders v. U.S., 425 U.S. 80, 86 (1976).

The trial in this case took a tragic turn when the lead FBI investigator, Special Agent Rebekah Morse, took her life the day after she had testified. During Special Agent Morse's testimony, at least one juror had seen her texting during a sidebar. When confronted by the Court under oath outside the jury's presence, Special Agent Morse denied texting and explained that she was merely turning off her phone. At the request of the Government, the Court instructed the jury that she was not texting but was merely turning off her phone. But after reflecting on an inconsistency between the juror's comment and Special Agent Morse's testimony, the Court took possession of her phone and directed her to return the next day to sort out this issue. A later examination of her phone showed that during one sidebar while she was on the witness stand, she was texting with her husband. Special Agent Morse did not return the next morning and was found dead of a self-inflicted gunshot wound.

Her death was devastating. A storm of emotion broke over all involved in this trial and drove the proceedings into uncharted waters. Her answers to the Court's inquiry will now never be explained. The jury has been instructed that what they saw with their own eyes - texting - did not occur, when in fact it did occur. The Court must correct that inaccurate instruction. The Court must also determine how far it will go in recognizing the defendants' rights under the Confrontation Clause to impeach a key Government witness while at the same time avoiding the morass of a mini-trial over text messages.

In this decision, the Court will (1) set forth a curative jury instruction; (2) explain why it selected this curative instruction; and (3) set forth boundaries on the evidence that will be allowed concerning the texting issue.


Curative Instruction

The Court decided, for the reasons explained below, to give the following curative instruction:

I previously gave you an instruction relating to whether FBI Special Agent Rebekah Morse was texting while on the witness stand during a sidebar. You should now disregard my prior comments and my instruction on this issue.
The Court inquired of Special Agent Morse under oath about texting during a sidebar, and she stated that she was turning off her phone and was not texting. It has now been determined that Special Agent Morse sent four text messages and received four text messages during a sidebar. The text messages were between her and her husband. You may consider these facts in assessing Special Agent Morse's credibility.

For the record, the Court issues the following opinion explaining its decision.


FBI Special Agent Rebekah Morse testified for the United States on March 18 and 19, 2014. On March 19, 2014, during a recess, a juror commented to the Court and the Court's Law Clerk that Special Agent Morse was texting while on the witness stand during the time the Court and counsel were occupied at a sidebar conference.

Implicit in the juror's comment was a troubling possibility: If that juror - and perhaps others - had seen Special Agent Morse texting during a sidebar, they may believe she was being coached or otherwise assisted during her testimony. The juror's comment could not be ignored.

It was also important that the juror's observation was at least hypothetically plausible. Special Agent Morse's testimony during the two hour session which preceded the recess had been interrupted four times for sidebar conferences. During those conferences, the jury remained in the jury box and Special Agent Morse remained on the witness stand, while counsel huddled with the Court at the far end of the bench. During the sidebar, the jury had an unobstructed view of the witness; the closest juror is about 10 feet or so from the witness stand. The Court and counsel were occupied with legal arguments and not paying attention to the witness. Thus, the juror's observation could not be dismissed out-of-hand.

Recognizing the importance of this issue, the Court immediately advised counsel through the Court's Law Clerk, and asked them for their input. The parties agreed the Court could inquire of Special Agent Morse concerning the issue, and the Court decided to ask her about the texting.

The Court's questioning of Special Agent Morse took place immediately after the recess where the concern was raised by the juror and about 30 minutes after the fourth and final sidebar that preceded the recess. The third sidebar had taken place about 50 minutes earlier; the second sidebar nearly 2 hours earlier; and the first sidebar about 2.5 hours earlier. With that background, the following colloquy took place outside the presence of the jury:

THE COURT: Counsel, we are convening outside the presence of the jury. One of the jurors stopped us in the hallway and commented that the juror had observed the witness to be on a texting - appeared to be - the word I think the juror used was "texting" while we were at a sidebar. I think we need to get to the bottom of that immediately. And the fact that a juror noticed it obviously makes it of some significance. I don't know precisely how you want to proceed, but perhaps we need to at least hear from Ms. - from Special Agent Morse as to exactly what occurred and then maybe go from there. I - Mr. Patricco, do you want to handle that first and then -
MR. PATRICCO: That's fine, Your Honor. I believe Special Agent Morse can simply explain what happened.
THE COURT: All right. Special Agent Morse, can you -
THE WITNESS: I noticed during one of the questions while before when you were at sidebar, my phone actually buzzed, so I just went, while you were at sidebar, to shut it off just to ensure that it didn't ...

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