United States District Court, D. South Dakota, Western Division
ORDER ON MOTION TO DISMISS THE SUPERSEDING INDICTMENT, MOTION TO RECUSE, AND MOTION TO JOIN
KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE
Pending are pretrial motions filed by defendants Gerald Wayne LeBeau and Neil Thomas LeBeau.
Defendants were indicted on May 20, 2014, on one count of conspiracy to distribute a controlled substance (cocaine) and one count of conspiracy to distribute a controlled substance (marijuana). Gerald was also indicted on a separate count alleging possession with intent to distribute a controlled substance (cocaine). On August 26, 2014, the government filed a superseding indictment charging the three previous counts and adding a fourth count charging Gerald with witness tampering.
Defendants have filed numerous motions. This court now addresses the following motions:
1. Gerald’s motion to dismiss the superseding indictment for a due process violation (Docket 151).
2. Gerald’s motion for recusal (Docket 211).
3. Neil’s motion to join Gerald’s motion for recusal (Docket 244).
I. Motion to Dismiss the Superseding Indictment
Gerald argues that the prosecution’s failure to preserve video recordings allegedly containing exculpatory evidence requires dismissal of the charges against Gerald. Docket 152. The United States responded, asserting that the video recordings were never in its control and that Gerald has not shown any bad faith. Docket 172.
The evidence in question is surveillance footage taken by Cadillac Jack’s Hotel and Casino on January 10, 2014. Gerald contends the video footage would show “that Tyra Smith is not Jessica Fields, that [Gerald] did not consent to any search, and that Agent Tolsma entered [Gerald’s] room without consent.” Docket 152 at 1. Gerald also argues that the failure to preserve the video footage amounts to bad faith. Id. at 2.
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that “the suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87. When the exculpatory value is not known, however, a showing of bad faith is necessary. See Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988). “[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Id. at 58.
Gerald does not provide any indication of what he thinks the tapes may show. The government states that law enforcement viewed the surveillance footage to see which room the individual they believed to be Jessica Fields entered. See Docket 172 at 1. Despite Gerald’s unsupported claims that the evidence on the tapes would have been clearly exculpatory, the actual evidentiary value of the tapes is unclear. Rather than showing that the evidence in question would be material to his guilt or potential punishment, Gerald only argues that the footage would assist him in litigating his suppression motion. Because the exculpatory value of the evidence in question is unclear, this case is more like Youngblood than Brady. See Youngblood, 488 U.S. at 57 (distinguishing Brady from circumstances in which the prosecution failed to preserve evidence of unknown exculpatory value). Gerald’s failure to make any showing of bad faith on the part of the prosecution is fatal ...