D.Idaho: Def can’t get access to his cell phone yet because govt has yet to search it because it’s password protected

Defendant wants return of his cell phone because he asserts, without specifying, that there is exculpatory evidence on it. The government responds that it hasn’t opened the phone yet because it is password protected. The government wants the password to open it, but defendant refuses. There’s nothing to preclude at trial here yet. United States v. Vezina, 2023 U.S. Dist. LEXIS 38806 (D. Idaho Mar. 7, 2023):

To begin, this is an open investigation. As will be explained below, the Government need not return (i.e., turn over) either physical cellphone. But that conclusion does not answer the more immediate question of whether it needs to turn over information contained on the cellphone.

Here, the Court finds Vezina has not made a “threshold showing of materiality, which requires a presentation of facts which would tend to show that the Government is in possession of information helpful to the defense.” United States v. Stever, 603 F.3d 747, 752 (9th Cir. 2010). Because the Government did not respond to his materiality argument, Vezina argues that “the materiality of the information … is not in dispute.” Dkt. 148, at 2. But the absence of a counter argument does not automatically mean Vezina has met his burden. He has not provided the Court with any facts illustrating that the cellphone contains what he thinks it contains. He simply says that “evidence of prior communications . . . or lack thereof—would be material.” Dkt. 132-1, at 3-4. That is not enough evidence to support a finding of materiality. Speculating that there is evidence—even exculpatory evidence—is not the same as “presenting” facts that would tend to show the Government is in “possession” of relevant and material information.

Finally, Vezina’s argument is circular. The Government’s obligation is to disclose anything that might be relevant to Vezina’s defense. As just noted, the Government (like the Court) does not know if there is anything on either cellphone that would fall under that umbrella because it cannot access the information without Vezina’s permission or a search warrant. Thus, it has—technically speaking—met its obligation: it has turned over what it has: nothing. But it appears the parties are at a stalemate waiting for the other to act. The information could be helpful (or harmful) to both sides. But if Vezina will not open the phones of his own volition, and the Government will not get a search warrant, the status quo will not change. The Court will not tell the Government how to prosecute its case. That said, the Government will not be allowed to use anything from the cellphone if Vezina was not provided an opportunity to examine the evidence fairly. Additionally, the Government must continue to comply with its Brady and Giglio obligations.