Hearing Required to Determine Due Process Violation Regarding Victim’s Cell Phone

 US v. Johnson: Johnson and Stewart were charged with distribution of heroin causing death. In addition, Johnson was also charged with simple distribution to another person, who also died shortly thereafter. Each defendant reached a plea agreement with the Government to plead guilty to simple distribution charges, but the district court refused to accept it in Johnson’s case, leading Stewart to withdraw his plea as well. 

Before going to trial, the defendants moved to dismiss the causing death count, arguing that the Government had violated their due process rights by not turning over exculpatory evidence from the victim’s cell phone or preserving the phone for further examination. The Government explained that the state police investigator who had the phone had returned it to the victim’s family, who could no longer find it. The district court denied the motion, without hearing any testimony about the matter. The district court also declined to give a spoliation instruction at trial, suggesting (among other things) that would require the jury to be informed of the defendants’ withdrawn guilty pleas. At trial, the district court also allowed the Government to present extensive evidence that the person to whom Johnson had separately sold heroin to had died shortly thereafter. The jury convicted the defendants on all counts, with the district court then sentencing Johnson to 365 months in prison and Steward 293 months.

On appeal, the Fourth Circuit reversed the defendants’ convictions and sentences. As to the due process issue regarding the victim’s phone, the court ultimately concluded that the “record was too meager to render a proper ruling,” holding that there were numerous unanswered questions that required the district court to hold an evidentiary hearing. The court did state that “we also have doubts about the merits of the district court’s decision,” however. The court did not resolve the related instructional issue, but noted that if the district court rejected again the due process argument, “the court should assess anew whether the defendants are entitled to an adverse inference instruction.” With regard to Johnson’s separate conviction, the court concluded that the district court had erred by concluding that Johnson had “opened the door” to extensive testimony about his death by cross examining one of the Government’s witnesses about how the person to whom Johnson allegedly sold heroin was in a parking lot, unsupervised, for hours afterward and could have obtained drugs from other sources during that period.

Congrats to the Defender office in the Northern District of WV on the win!