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