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Read the Judge’s Order Regarding FBI Agent In Idaho Who Killed Herself

By Allan Lengel
ticklethewire.com
U.S. District Judge B. Lynn Winmill of Idaho issued this order regarding FBI agent  Rebekah Morse, who apparently lied under oath when she told the judge that she turned off her phone and wasn’t texting while on the witness stand.  The texts had nothing to do with the case against Diversified Business Services and Investments.

Morse killed herself shortly after she was confronted about the texting.

The judge ordered the government to turn over to the defense information regarding the incident. Below is the court order, which was provided to ticklethewire.com by the website OpenCdA.com.

INTRODUCTION
 The Court has examined in camera certain materials submitted by the
Government. The defendants have requested access to all the material. In this decision,
the Court will determine what evidence the defendants are entitled to view.
ANALYSIS
FBI 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’s Law Clerk
that Agent Morse was texting while on the witness stand during the time the Court and
counsel were occupied at a sidebar conference. When questioned by the Court about this
concern of the juror, Agent Morse denied texting. She explained that during her
testimony, her phone vibrated, and to turn it off she claimed that she had to first enter her
password. That explanation satisfied counsel and the Court. To resolve the one juror’s
expressed concern – and to address any unexpressed concerns by other jurors – the Court
Case 1:13-cr-00091-BLW Document 441 Filed 03/25/14 Page 1 of 11Memorandum Decision & Order – page 2 

instructed the jury that Agent Morse was just turning off her cell phone by first punching
in her password.
 The trial then proceeded forward with further cross examination of Agent Morse.
But during that cross examination, the Court reflected further on the matter and became
concerned that the juror had expressed her concern in such a way as to suggest that Agent
Morse may have texted on more than one occasion. Agent Morse’s explanation about
turning off her cell phone on one occasion did not address the possibility that she might
have been texting on two or three occasions. After conferring with counsel, and with
their approval, the Court advised Agent Morse of a potential inconsistency in her
testimony and took possession of her cell phone. Agent Morse was to return for further
testimony the next day, March 20, 2014. Tragically, she was found dead the morning of
March 20, 2014, of a self-inflicted gunshot wound.
The Court subpoenaed the text records and the e-mails taken from the cellphone of
Agent Morse for the dates of March 18, 2014, through and including March 19, 2014.
The Court has now received those records and thoroughly examined them – they contain
the contents of all texts and e-mails sent and received by Agent Morse on those two days.
The Court has also examined (1) the FBI’s 302 Report of FBI Agents’ interview with
Agent Wyand who had interviewed Agent Morse during the evening of March 19, 2014;
(2) what appears to be a note written by Agent Morse and found at her home on March
20, 2014; and (3) notes of IRS Special Agent Josh Culbertson on March 19, 2014, when
members of the prosecution team met with Agent Morse.
Case 1:13-cr-00091-BLW Document 441 Filed 03/25/14 Page 2 of 11Memorandum Decision & Order – page 3 

 With regard to the text and e-mail messages, the Court compared the times they
were sent (or received) to the times provided (to the second) by the Real-Time transcript
of the court proceedings. The only times that Agent Morse texted while on the witness
stand were during a sidebar held on March 19, 2014. The sidebar was held from
12:02:47 to 12:10:41 p.m., and during that sidebar, Agent Morse sent 4 text messages and
received 4 text messages. At no other time during a sidebar on March 18th or 19th did
Agent Morse send any text messages or e-mails.

There were three additional times when text messages were received while Agent
Morse was testifying. However, the text messages appear to be of a personal nature and
the information provided does not permit the Court to conclude whether the received
messages were actually viewed by Agent Morse while she was testifying. The Court has
also reviewed the Verizon records that confirm that the Government has provided the
entire texts and e-mails from March 18 and 19, 2014.
 The defense asks the Court to turn over all the material submitted by the
Government for in camera inspection pursuant to the Jencks Act, Rule 16, and Brady v.
Maryland, 373 U.S. 83 (1963). Under Brady, the defense is entitled to see evidence that
is favorable to the defendants and is material to guilt or innocence. Id. at 87. This
extends to evidence that bears upon the credibility of a government witness. Giglio v.
United States, 405 U.S. 150, 153–54 (1972). Impeachment evidence is especially likely
to be “material,” under Brady, when it impugns the testimony of witness who is critical to
prosecution’s case. Silva v. Brown, 416 F.3d 980, 986 (9th Cir. 2005).
Case 1:13-cr-00091-BLW Document 441 Filed 03/25/14 Page 3 of 11Memorandum Decision & Order – page 4 

 There is no doubt that Agent Morse was a critical witness for the Government.
Nevertheless, some of the texts and e-mails examined by the Court are clearly not
material because they were sent or received during times that Agent Morse was not on
the witness stand and they have nothing to do with the substance of her testimony. Those
texts and e-mails are clearly not Brady material. On the other hand, the text messages
that were sent and received during the time Agent Morse was on the witness stand have
potential use in impeaching Agent Morse’s testimony and must therefore be disclosed
under Brady.
 After a full in camera review, the Court finds that the following material should be
submitted under Brady: (1) the 302 Report; (2) the note apparently written by Agent
Morse found at her home on March 20, 2014; and (3) those text messages referred to
above that were sent and received while she was on the witness stand on March 19, 2014.
None of this material – and none of the texts and e-mails not included in the material
being turned over to the defense – are otherwise discoverable under the Jencks Act (18
U.S.C. § 3500) or Rule 16.
 The Court will also turn over to both sides the court security video tapes of the
courtroom proceedings during the days in question. These videos are being released on
the Court’s own initiative and are not required pursuant to Brady, the Jencks Act, or Rule
16. They will be provided separately.
 The Court will turn this material over to the defense with direction to counsel to
not distribute it further unless approved by order of this Court. This decision and the
associated material were originally filed under seal because (1) some of the materials
Case 1:13-cr-00091-BLW Document 441 Filed 03/25/14 Page 4 of 11Memorandum Decision & Order – page 5 

contain personal identifying information that must not be disclosed to the public under
the E-Government Act, and (2) the materials may contain sensitive information not
proper for public disclosure. The Court has now unsealed the decision for the reasons
expressed in a contemporaneous Docket Entry Order.
ORDER
 In accord with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the following material
shall be delivered by the Government to the defense counsel: (1) the FBI’s 302 Report of
Agent Scata’s interview with Agent Wyand who had interviewed Agent Morse during the
evening of March 19, 2014; (2) what appears to be a note written by Agent Morse found
at her home on March 20, 2014; (3) the Court’s redacted version of the texts for March
19, 2014; (4) court security video tapes of the courtroom proceedings on the days at issue
(to be provided separately by the Court).
IT IS FURTHER ORDERED, that counsel shall not distribute the material any
further without approval from this Court. 

DATED: March 25, 2014 

 _________________________
 B. Lynn Winmill
 Chief Judge
 United States District Court

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