USA v. Miller

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Criminal Action No. 24-cr-00083-NYW-1
UNITED STATES OF AMERICA,
Plaintiff,
v.
1. 	DYLAN ANDREW MILLER,
Defendant.
ORDER ON POST-TRIAL MOTIONS
This matter is before the Court on Dylan Miller’s Motion for Judgment of Acquittal
(“Motion for Judgment of Acquittal”), [Doc. 211], and Dylan Miller’s Motion for a New Trial
(“Motion for New Trial”), [Doc. 212]. The Government has responded in opposition to the
Motions, [Doc. 217; Doc. 218], and with leave of Court, Defendant filed a reply in support
of his Motion for New Trial, [Doc. 221]. 	For the reasons set forth below, the Motion for
Judgment of Acquittal and the Motion for New Trial are DENIED.
BACKGROUND
On March 20, 2024, Defendant Dylan Andrew Miller (“Defendant” or “Mr. Miller”)
was charged with one count of deprivation of rights under color of law in violation of 18
U.S.C. §§ 242 and 250(a), (b)(1). [Doc. 1]. The Indictment alleged that, while working as
a Loveland Police Department (“LPD”) Officer, Defendant willfully deprived a minor—
referred to in this case using the pseudonym “Olivia,” see [Doc. 125 at 1]—of her right to
bodily integrity by placing his penis in Olivia’s mouth without her consent, [Doc. 1 at ¶ 5].
The Indictment alleged the existence of three potential sentencing enhancements,
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asserting that Defendant’s conduct “included aggravated sexual abuse and kidnapping
and involved sexual abuse as defined in 18 U.S.C. § 2242.” [Id.].
A jury trial commenced on November 17, 2025, [Doc. 163], and on December 2,
2025, a jury found Defendant guilty, [Doc. 197; Doc. 199]. The jury further found that the
offense involved sexual abuse and kidnapping. 	[Doc. 199 at 2]. 	Mr. Miller now moves
for a judgment of acquittal and for a new trial. [Doc. 211; Doc. 212].
LEGAL STANDARDS
I. 	Rule 29
Rule 29 states that “[a] defendant may move for a judgment of acquittal, or renew
such a motion, within 14 days after a guilty verdict or after the court discharges the jury,
whichever is later.” 	Fed. R. Crim. P. 29(c)(1). 	“[T]he court on the defendant’s motion
must enter a judgment of acquittal of any offense for which the evidence is insufficient to
sustain a conviction.” Fed. R. Crim. P. 29(a).
A court may enter a judgment of acquittal “only if the evidence that defendant
committed the crime is nonexistent or so meager that no reasonable jury could find guilt
beyond a reasonable doubt.” United States v. White, 673 F.2d 299, 301 (10th Cir. 1982).
In considering a motion under Rule 29, the Court views the evidence “in the light most
favorable to the government[] and without weighing conflicting evidence or considering
the credibility of witnesses.” United States v. Fuller, 751 F.3d 1150, 1153 (10th Cir. 2014)
(quotation omitted). 	The Court’s task is to decide whether the evidence, “if believed,
would establish each element of the crime.” United States v. Vallo, 238 F.3d 1242, 1247
(10th Cir. 2001) (quotation omitted). “If the government has met this standard, [the Court]
must defer to the jury’s verdict.” 	Id. 	“This familiar standard gives full play to the
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responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson
v. Virginia, 443 U.S. 307, 319 (1979).
II. 	Rule 33
Under Rule 33, “[u]pon the defendant’s motion, the court may vacate any judgment
and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). Unlike
a motion under Rule 29, in considering a motion for new trial, the district court considers
the credibility of witnesses, weighs the evidence, and does not view the evidence in the
light most favorable to the Government. United States v. Brown, 654 F. App’x 896, 908
(10th Cir. 2016). 	“A motion for a new trial is not regarded with favor and is only issued
with great caution.” United States v. Herrera, 481 F.3d 1266, 1269–70 (10th Cir. 2007).
ANALYSIS
I. 	Motion for Judgment of Acquittal
In the Motion for Judgment of Acquittal, Defendant argues that the evidence
presented at trial was insufficient to support his conviction. 	[Doc. 211 at 3]. 	To convict
Defendant of a willful deprivation of rights under color of law, the Government was
required to prove, beyond a reasonable doubt, the following three elements:
First: 	Defendant was acting under color of law when he committed
the act charged in the Indictment;
Second: 	Defendant deprived Olivia of her right to bodily integrity, which
includes the right to be free from non-consensual sexual acts
and which is a right secured by the Constitution or laws of the
United States; and
Third: 	Defendant acted willfully, that is, Defendant acted with a bad
purpose, intending to deprive Olivia of that right.
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[Doc. 192 at 20]; see also United States v. Rodella, 804 F.3d 1317, 1324 (10th Cir. 2015).
Defendant argues that (1) the Government failed to prove that he was the person who
assaulted Olivia, [Doc. 211 at 3]; (2) the Government failed to prove that Olivia was
deprived of her right to bodily integrity, [id. at 5]; and (3) the Government failed to prove
that Defendant acted willfully, [id. at 8]. He also contends that the Government failed to
adduce sufficient evidence to support the jury’s findings on both of the sentencing
enhancements. [Id. at 12–14]. The Court addresses each of these arguments below.
Identity of Assailant. First, Defendant argues that the Government failed to prove
that he was the person who assaulted Olivia, relying on Olivia’s inconsistent physical
descriptions of the assailant and his belief that some of Olivia’s descriptions do not match
his appearance. 	[Id. at 3–4]. 	He also argues that because the investigating officer,
Sergeant Rita Servin, did not turn on her body-worn camera to capture the interview at
which Olivia identified Mr. Miller in a photo line-up, there are “many questions about
whether Olivia independently chose Miller as the officer who assaulted her.” [Id. at 4–5].
He also asserts that “no witness present in North Lake Park [on the night of the assault],
other than Olivia, testified that Mr. Miller was the officer seen in the park.” [Id. at 5]. On
these bases, Defendant asserts that the Government failed to prove that he was the
officer who assaulted Olivia. [Id.].
In so arguing, Defendant asks the Court to ignore the applicable legal standards
under Rule 29 and invites it to weigh conflicting evidence and determine the credibility of
witnesses. 	Such tasks are well beyond the Court’s role, including but not limited to in
reviewing a Rule 29 motion, Fuller, 751 F.3d at 1153, as weighing the evidence is a task
“delegated exclusively to the jury,” United States v. Castorena-Jaime, 285 F.3d 916, 933
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(10th Cir. 2002). 	This Court’s limited role is to determine whether the Government’s
evidence, if believed, would establish that Mr. Miller was Olivia’s assailant. 	Vallo, 238
F.3d at 1247.
Based on the evidence presented at trial, a reasonable jury could conclude beyond
a reasonable doubt that Mr. Miller was the person who assaulted Olivia. The Government
presented evidence that Olivia was provided a photo line-up of 89 male LPD officers, and
when Mr. Miller’s picture appeared, Olivia “immediately pointed at the screen” and
identified Mr. Miller as the suspect. [Nov. 20 Trial Tr. at 81:18–22, 82:24–83:25].1 Olivia
also made an in-court identification of Mr. Miller as the suspect. 	[Nov. 19 Trial Tr. at
159:1–16]. 	This identification was corroborated by other evidence: 	Olivia testified that
she was assaulted at North Lake Park, [id. at 143:11–17], and data from Defendant’s
patrol car mobile data terminal placed him at North Lake Park during the late hours of
August 3, 2023 and the early morning hours of August 4, 2023, the time and date of the
assault, see [Trial Ex. 43; Nov. 21 Trial Tr. at 24:23–26:14].
In addition, Olivia’s friend Ethan2 testified that he and Olivia were encountered by
a police officer on August 3, 2024 at North Lake Park, [Nov. 19 Trial Tr. at 49:9–52:14,
66:20–67:9], and the officer told him to leave the park, [id. at 52:22–24]. He testified that
he recognized the police officer from a prior traffic stop, [id. at 49:5–8, 52:15–18], and
evidence was presented that Defendant had conducted a traffic stop and pulled over a
1 Although some portions of the trial transcript have been publicly filed on the docket, this
Court cites to a nonpublic draft version of the transcript using the convention “Trial Tr.”
and the transcript’s date.
2 The Court uses the pseudonyms assigned for trial when referencing minor individuals.
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car in which Ethan and Olivia were passengers, [id. at 45:6–46:16; Trial Ex. 10].3 Viewing
all of this evidence in the light most favorable to the Government, a reasonable jury could
find that Mr. Miller was the person who assaulted Olivia in North Lake Park, and
Defendant is not entitled to a judgment of acquittal on this basis.
Deprivation of the Right to Bodily Integrity. 	Defendant next argues that the
Government failed to prove that Olivia was deprived of her right to bodily integrity. [Doc.
211 at 5]. 	Again, Defendant focuses on inconsistencies in Olivia’s description of the
assault to undermine her credibility, [id. at 5–6], but the Court does not weigh evidence
at this stage, Fuller, 751 F.3d at 1153. 	To the extent Defendant argues that there was
insufficient evidence that oral sex occurred because Olivia had “multiple inconsistent
variations of her story,” [Doc. 211 at 6], “[t]he existence of conflicting evidence is common
during criminal trials and a defendant is not entitled to reversal of his conviction as a
result,” United States v. Goodman, 827 F. App’x 826, 831 (10th Cir. 2020). 	Defendant
3 At trial and again in the Motion for Judgment of Acquittal, Defendant focuses on the fact
that Olivia originally reported that the assailant was Hispanic, see [Nov. 20 Trial Tr. at
11:17–12:4], and he points the finger at a Hispanic LPD officer, see [Doc. 211 at 4–5].
This argument, which again asks the Court to ignore Rule 29 standards, is a red herring.
As an initial matter, Olivia was cross-examined regarding her first statement identifying
her assailant as “possibly Hispanic,” [Nov. 20 Trial Tr. at 12:1–2], which allowed the jury
to assess her credibility as to the identification of Mr. Miller. 	Furthermore, evidence
presented at trial showed that, when Sergeant Servin sent a text message to Sergeant
Alex Hutchinson containing the file number associated with Mr. Miller’s picture used in
the photo lineup—which resulted in Olivia “immediately” identifying Mr. Miller as the
assailant—Sergeant 	Hutchinson 	responded 	by 	asking 	Sergeant 	Servin 	to 	send 	a
photograph of the screen capturing the officer Olivia identified and stating, “Confirming
it’s Luzon?” [Trial Ex. 212; Doc. 211-4 at 2]. Sergeant Servin sent back a picture of the
screen, and Sergeant Hutchinson responded, “Ok, that’s Dylan Miller.” [Doc. 211-4 at 3].
Weighing the evidence in the Government’s favor, this evidence shows at best that,
before Sergeant Servin confirmed the identity of the suspect, Sergeant Hutchinson was
confused about which officer Olivia had identified. 	That another LPD officer—who has
no apparent connection to the events leading to this case—happens to be Hispanic does
not provide a legitimate basis to attack the jury’s verdict.
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explored these inconsistencies on cross-examination and emphasized them during
closing arguments. 	See [Nov. 19 Trial Tr. at 80:22–81:16; Nov. 21 Trial Tr. at 233:20–
234:17; Nov. 24 Trial Tr. at 118:3–18; Nov. 25 Trial Tr. at 224:16–18; Dec. 1 Trial Tr. at
34:6–15, 43:9–15]. 	The jury was free to resolve any conflicts or inconsistencies in the
evidence, and it is not this Court’s role to reweigh that evidence. 	See United States v.
Flynn, No. 2:16-cr-00056-RJS, 2023 WL 8188593, at *4 (D. Utah Nov. 27, 2023) (“Flynn
identified what he thought to be conflicts and inconsistencies in the United States’
evidence. 	He explored those conflicts and inconsistencies through cross-examination.
He highlighted them again in his closing argument. 	However, a reasonable jury could
have resolved some or all credibility and reliability issues against Flynn and found the
evidence sufficient to convict him beyond a reasonable doubt. 	That is what the jury did
here.”), aff’d, No. 22-4124, 2025 WL 2406234 (10th Cir. Aug. 20, 2025)
Alternatively, Defendant argues that “there is no evidence that Olivia was in North
Lake Park on August 4, 2023” because the Government “failed to extract any data from
Olivia’s phone to place her in the park that night.” [Doc. 211 at 6]. Contrary to Defendant’s
argument, the Government adduced evidence that Olivia was at North Lake Park the night
of the assault. 	Olivia testified that she was at North Lake Park the night of August 3 to
August 4. 	[Nov. 19 Trial Tr. at 137:17–20]. 	She also testified that she and Ethan rode
their bikes to the park the night of the assault and that she had worked at Culver’s the
day of the assault. [Id. at 116:21–118:8]. Ethan testified that he snuck out of the house
on August 3, 2023 and met up with Olivia to ride their bikes to North Lake Park, [id. at
49:5–50:1, 66:20–67:9]; see also [Trial Exs. 25, 25A, 25B], and evidence was presented
that Olivia worked at Culver’s on August 3, [Nov. 20 Trial Tr. at 101:5–10]. A reasonable
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jury could conclude beyond a reasonable doubt that Olivia was at North Lake Park the
night of August 3 into August 4.
Defendant next contends that the Government “failed to prove that any alleged
oral sex was non-consensual.” [Doc. 211 at 7]. This assertion ignores Olivia’s testimony
that the contact was not consensual. 	See [Nov. 19 Trial Tr. at 132:2–3, 134:12–135:3;
Nov. 20 Trial Tr. at 49:20–50:13 (Olivia testifying she felt “scared” when Defendant walked
her to the picnic table area); id. at 50:14–17 (“Q. When you were down at the picnic table
area when [Defendant] took his penis out and made you perform oral sex on him, did you
feel like you had a choice? A. Nope.”); id. at 50:18–20 (“Q. Were you forced to perform
oral sex on the defendant that night? A. Yes.”)]; see also [Doc. 192 at 22 (jury instructions
explaining that “consent that is the product of official intimidation or harassment is not
consent at all. 	An individual does not consent if she is coerced into complying with a
request that she would prefer to refuse”); Doc. 115 at 48–49 (Defendant’s proposed final
jury instruction with this language)]. There was also evidence that Defendant—a “taller,”
“broad,” uniformed police officer—was alone with Olivia—a then-15-year-old minor—in a
park after midnight. 	[Nov. 19 Trial Tr. at 101:3–6, 121:7–19, 127:8–17]. 	A reasonable
jury could conclude, based on this evidence, that Olivia was intimidated or coerced into
complying and, thus, the sexual contact was not consensual. Defendant is not entitled to
a judgment of acquittal on this basis.
Willfulness. Next, Defendant argues that there was insufficient evidence that he
acted willfully. [Doc. 211 at 8]. To convict Defendant of a § 242 violation, the Government
was required to prove that Defendant acted willfully, i.e., with the “specific intent . . . to
deprive a person of a right which has been made specific either by the express terms of
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the Constitution or laws of the United States or by decisions interpreting them.” Screws
v. United States, 325 U.S. 91, 104 (1945) (plurality opinion); see also [Doc. 192 at 24 (“A
defendant acts willfully if he acts voluntarily and intentionally, with the specific intent to do
something the law forbids. 	To find that the Defendant acted willfully, . . . you must find
that Defendant had a specific intent to deprive Olivia of a right protected by the
Constitution or federal law.”)].
Many of Defendant’s arguments with respect to willfulness ask the Court to weigh
conflicting evidence or view the evidence in the light most favorable to him, which the
Court will not do. 	Setting those arguments aside, Defendant argues that willfulness
cannot be proved by his failure to turn on his body-worn camera when he encountered
Olivia. See [Doc. 211 at 8–9]. The Court disagrees.
“Willfulness can be inferred from ‘plainly’ wrongful conduct, . . . inconsistency
between actions and training, . . . and efforts to prevent detection of wrongful behavior.”
Brown, 654 F. App’x at 910 (first citing Screws, 325 U.S. at 106; then citing Rodella, 804
F.3d at 1338; and then citing United States v. House, 684 F.3d at 1173, 1202 (11th Cir.
2012)). Evidence presented at trial demonstrated that Mr. Miller failed to turn on his body-
worn camera during his encounter with Olivia. 	See [Trial Ex. 41; Nov. 20 Trial Tr. at
256:18–257:6; Nov. 21 Trial Tr. at 29:17–34:4]. There was also evidence that Mr. Miller
had entirely taken his body-worn camera off. 	[Nov. 19 Trial Tr. at 128:8–17]. 	This
evidence provided a basis for a reasonable jury to conclude that Mr. Miller attempted to
prevent detection of wrongful behavior. 	And because LPD policy requires officers to
“wear and activate the BWC equipment to record contacts with the public . . . during any
interaction with the public initiated by the officer,” [Trial Ex. 39 at 3–4 (emphasis omitted);
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Nov. 20 Trial Tr. at 244:17–246:4], a reasonable jury could infer willfulness based on the
inconsistency between the LPD policy and Mr. Miller’s actions, Brown, 654 F. App’x at
910. 	And finally, a reasonable jury could conclude that Defendant engaged in “plainly”
wrongful conduct by forcing a 15-year-old to perform oral sex on him. Id. For all of these
reasons, there was sufficient evidence for the jury to find beyond a reasonable doubt that
Defendant acted willfully, and the Court need not consider Defendant’s alternative
arguments attacking other pieces of evidence.
Kidnapping or Sexual Abuse. 	Finally, Defendant argues that the Government
failed to prove that the offense involved either kidnapping or sexual abuse. [Doc. 211 at
13–14]. 	With respect to the sexual abuse enhancement, the jury was instructed as
follows:
A defendant commits “sexual abuse” if he knowingly either (1) causes
another person to engage in a sexual act by threatening or placing that other
person in fear, or (2) engages in a sexual act with another person without
that other person’s consent, to include doing so through coercion.
For the first prong of this element, the Government need not show that the
defendant placed the other person in fear of death, serious bodily injury, or
kidnapping; instead, the Government only needs to prove that the defendant
put the other person— here, Olivia—in fear.
As you have already been instructed, the term “sexual act” includes contact
between the mouth and the penis.
The term “coercion” encompasses both physical and nonphysical coercion.
[Doc. 192 at 26–27]. As for kidnapping, the instructions stated:
You may find the offense involved kidnapping if you find that Olivia was
forcibly held, detained, or carried away against her will for a reason
unrelated to a legitimate law enforcement objective. 	Law enforcement
officers may seize individuals and hold them against their will when making
an arrest based upon probable cause that the person broke the law. Once
arrested, 	an 	individual 	may 	be 	transported 	to 	a 	jail, 	police 	station,
courthouse, 	or 	similar 	facility 	to 	be 	booked 	and 	to 	await 	a 	judicial
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determination as to whether they should be detained for reasons of public
safety.
A law enforcement officer may not, however, detain or physically isolate
someone for a purpose that, viewed objectively from the perspective of a
reasonable officer, is unrelated to a legitimate law enforcement objective,
such as for personal pecuniary gain, sexual gratification, or to retaliate or
extract vengeance.
[Id. at 27].
Mr. Miller contends that the Government failed to prove that the offense involved
sexual abuse “[f]or the reasons stated in Section I.B. of th[e] Motion for Judgment of
Acquittal,” i.e., for the same reasons Defendant argued that there was insufficient
evidence that Olivia was deprived of her right to bodily autonomy. See [Doc. 211 at 14;
id. at 5–8]. 	For the reasons discussed above, the Court finds that there was sufficient
evidence for the jury to conclude that Defendant deprived Olivia of her constitutional right
to bodily autonomy by forcing her to perform oral sex on him without her consent. There
was thus a reasonable basis for the jury to conclude that Defendant engaged in a sexual
act with Olivia without Olivia’s consent and a reasonable basis for the jury to find that the
offense involved sexual abuse.
As for kidnapping, Defendant argues that the Government did not prove this
enhancement because it “failed to show any evidence of force, physical or otherwise.”
[Doc. 211 at 13]. 	He asserts that because Olivia denied at trial that Mr. Miller “ever
threatened her, dragged her, or held a gun to her head,” and because she acknowledged
that she “could have gone home or called for help, but she did not,” “[t]hese facts confirm
that Olivia was never forcibly held, detained, or carried away.” [Id.].
The Court is unpersuaded by Defendant’s argument. 	“The act of holding a
kidnapped person for a proscribed purpose necessarily implies an unlawful physical or
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mental restraint for an appreciable period against the person’s will and with a willful intent
so to confine the victim.” Chatwin v. United States, 326 U.S. 455, 460 (1946). Here, the
Court concludes that there was sufficient evidence from which a reasonable jury could
find, beyond a reasonable doubt, that the offense involved kidnapping. Specifically, Olivia
testified that Mr. Miller approached her and Ethan in the park and told Ethan to leave,
which left him alone with Olivia. [Nov. 19 Trial Tr. at 121:7–19]. Olivia testified that Mr.
Miller was in uniform, was “[m]uch taller” than her and had a broad build. [Id. at 127:8–
17]. Mr. Miller suggested to Olivia that she might get in trouble for being out past curfew
and asked how they could “solve it,” stating that the solution “ha[d] to be something
physical.” [Id. at 122:14–123:1, 123:10–12]. He then told Olivia that they “needed to walk
away from the camera,” [id. at 128:20], and Olivia testified that she did not feel like she
could disobey Defendant because he was a member of law enforcement, [id. at 129:6–
15]; see also [Nov. 20 Trial Tr. at 49:20–25 (Olivia “felt like [she] didn’t have a choice” but
to go on the walk)]. 	When they were walking to the beach, Mr. Miller took Olivia’s cell
phone. [Nov. 19 Trial Tr. at 135:9–18]. She was scared. [Nov. 20 Trial Tr. at 50:6–10].4
Olivia also testified that, during the assault, Defendant “had his hand on top of [her]
head and he was guiding [her] head.” [Nov. 19 Trial Tr.at 132:15–24]. She testified that
she did not feel like she could leave or had a choice to leave because Defendant “had a
4 To the extent Defendant’s argument could be construed as an assertion that physical
force is required, this assertion is inconsistent with this Court’s jury instructions on
kidnapping—which mirrored Defendant’s proposed instruction. 	Compare [Doc. 115 at
63], with [Doc. 192 at 27]. 	Defendant raises no argument that the jury instruction was
erroneous, see [Doc. 211; Doc. 212]. 	Nor does Defendant cite any legal authority
establishing that evidence of physical force was required for the jury to find that the
offense involved kidnapping. 	See [Doc. 211 at 13–14]. 	The Court thus declines to
require, post-trial and for the first time, that “kidnapping” under § 242 requires restraint
through physical force.
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higher power than [her], and [she] felt like if [she] left, he could turn it around and get [her]
in trouble.” [Id. at 134:12–135:3]; see also [Nov. 20 Trial Tr. at 50:21–23].
Based on all of this evidence, construed in the Government’s favor, a reasonable
jury could conclude beyond a reasonable doubt that Defendant forcibly detained Olivia at
the time of the offense such that the offense involved kidnapping. And because there is
no basis to vacate the jury’s verdict, the Motion for Judgment of Acquittal is DENIED.
II. 	Motion for New Trial
In the Motion for New Trial, Defendant argues that the Government “blatantly
delayed disclosure of several pieces of material exculpatory and impeachment evidence”
before and during trial. 	[Doc. 212 at 1]. 	He asserts that the Government’s delayed
disclosures violated its obligations under Brady v. Maryland, 373 U.S. 83 (1963), and
Giglio v. United States, 405 U.S. 150 (1972), and a new trial is warranted as a result, see
[Doc. 212].5
In Brady v. Maryland, the Supreme Court recognized that “the suppression by the
prosecution of evidence favorable to an 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.” 	373 U.S. at 87. 	The duty to disclose exculpatory
materials “extends to prosecutors, police, and other government investigators.” 	United
States v. Velarde, 485 F.3d 553, 559 (10th Cir. 2007). “Impeachment evidence . . . falls
5 Defendant suggests, but does not substantively argue, that the jury’s verdict was against
the weight of the evidence. See, e.g., [Doc. 212 at 2, 9, 15]. Because Defendant does
not develop this argument, the Court does not consider it. See United States v. Cooper,
654 F.3d 1104, 1128 (10th Cir. 2011) (deeming “inadequately briefed” arguments waived
(quotation omitted)).
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within the Brady rule.” United States v. Young, 45 F.3d 1405, 1408 (10th Cir. 1995) (citing
Giglio, 405 U.S. at 154).
A defendant moving for a new trial based on alleged Brady violations must
demonstrate that “(1) the prosecution suppressed evidence, (2) the evidence was
favorable to the defendant, and (3) the evidence was material.” 	United States v.
Quintanilla, 193 F.3d 1139, 1149 (10th Cir. 1999). Evidence is “material” “only if there is
a reasonable probability that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different.” 	Young, 45 F.3d at 1408 (quoting United
States v. Bagley, 473 U.S. 667, 682 (1985)). 	“A ‘reasonable probability’ is a probability
sufficient to undermine confidence in the outcome” of the trial. Bagley, 473 U.S. at 682.
“To the extent Brady applies where an allegation is made that the government’s belated
disclosure of material during the trial resulted in prejudice to the defense, the materiality
inquiry focuses on whether earlier disclosure would have created a reasonable doubt of
guilt.” 	Young, 45 F.3d at 1408 (footnote omitted). 	“[A] defendant establishes a Brady
violation ‘by showing that the favorable evidence could reasonably be taken to put the
whole case in such a different light as to undermine confidence in the verdict.’” Fontenot
v. Crow, 4 F.4th 982, 1080 (10th Cir. 2021) (quoting Kyles v. Whitley, 514 U.S. 419, 435
(1995)).
Mr. Miller identifies three purported Brady violations: (1) the Government’s failure
to timely turn over information obtained during trial preparation sessions held with Olivia
and Ashley, [Doc. 212 at 7–10]; (2) the Government’s failure to timely turn over a text
message thread between Government attorneys and Sergeant Servin, [id. at 10]; and
(3) the Government’s failure to timely disclose an email thread between FBI Special Agent
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Ryan Hammer and FBI Special Agent Ben Harris discussing Special Agent Hammer’s
location data analyses, [id. at 10–15]. The Court addresses each below.
A. 	Reports from Trial Preparation Sessions
On November 15, 2025, the Saturday before trial began, Defendant moved to
dismiss the Indictment on the basis that the Government violated its Brady obligations by
failing to turn over reports from Olivia’s trial preparation sessions. 	See [Doc. 148].
Broadly speaking, he argued that although the Government had been interviewing
witnesses over the last several weeks, the Government had failed to timely produce its
new reports related to those interviews. 	[Id. at 2–4]. 	The Government responded the
following evening. 	[Doc. 151]. 	Around the same time, the Government produced to
defense counsel “a supplemental discovery letter [that] reflect[ed] the information that
[would] be included in the report that [was] anticipated to be approved by the Larimer
County Sheriff’s Office” the morning of November 17, 2025. [Doc. 212-1 at 1].
On November 17, 2025, the Court heard argument on Defendant’s motion before
jury selection. See [Nov. 17 Trial Tr. at 17:25–47:24]. 	Defendant argued, among other
things, that the discovery letter produced the night before revealed that during the trial
preparation sessions, Olivia had provided inconsistent or new information about the
alleged assault and other encounters with Mr. Miller, which Defendant argued was
exculpatory Brady and Giglio material. 	[Id. at 29:14–30:16]. 	During a break in the
proceedings, the Government produced a report from the Larimer County Sheriff’s Office
regarding four trial preparation sessions with Olivia. 	[Id. at 50:2–5; Doc. 212-2 at 2–4].
The Court ultimately denied Defendant’s motion, concluding that that any suppressed
evidence of any inconsistencies in Olivia’s description of the assault was not material for
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purposes of Brady because there was already ample evidence of inconsistent statements
from Olivia in the record. [Nov. 17 Trial Tr. at 55:16–56:13]. However, the Court delayed
opening statements until the morning of November 18, 2025 “to allow for adequate
preparation of this additional and new information.” [Id. at 56:13–17].6
Defendant orally renewed his motion to dismiss on November 20, 2025, [Nov. 20
Trial Tr. at 264:1–3, 269:24–270:1], and filed a supplemental motion to dismiss that night,
see [Doc. 161]; see also [Doc. 162 (the Government’s response)]. 	The oral motion
focused on statements made by Olivia about her encounter with Defendant. 	See [Nov.
20 Trial Tr. at 264:1–10, 264:17–265:12]. The written motion also asserted that, in a new
report provided to the defense on November 17, 2025, the Government disclosed for the
first time that “[Ashley] and Olivia smoked marijuana on the night they encountered Mr.
Miller in his personal vehicle while they were driving around with Ethan.” [Doc. 161 at 2].
Defendant argued that these late disclosures violated the Government’s obligations under
Brady and Giglio. [Id. at 3].
The Court denied the renewed and supplemental motion the morning of November
21. With respect to Olivia’s inconsistent statements, the Court first concluded that it was
unclear whether this information had actually been suppressed by the Government. [Nov.
21 Trial Tr. at 4:7–11]. But even assuming it was suppressed, the Court found that any
suppressed evidence was not material under Brady because it amounted to cumulative
impeachment evidence on an already compromised witness. See [id. at 4:11–12, 5:17–
7:19]. 	Specifically, the Court noted that defense counsel had already cross-examined
6 Because jury selection was not completed until 6:00 p.m. on Tuesday, November 18,
opening statements began on Wednesday, November 19. [Nov. 18 Trial Tr. at 245:6–16;
Nov. 19 Trial Tr. at 10:17–18].
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Olivia in multiple instances about the details of the alleged assault and any purported
inconsistent or incomplete statements. 	[Id. at 6:13–25]. 	The Court concluded that any
additional 	impeachment 	evidence 	about 	details 	related 	to 	Olivia’s 	encounter 	with
Defendant on July 27, 2023 would be incremental and not material. [Id. at 7:12–19]. As
for Ashley’s statement about smoking marijuana, the Court again concluded that it was
not clear that there was any suppression of evidence because the subject interview was
conducted on Friday, November 14, the business day before trial commenced, and the
Government turned over the interview report when it received it on November 17, 2023.
[Id. at 7:19–8:3]. The Court also noted that the information was disclosed two days before
the defense cross-examined Olivia and had not yet called Ashley as a witness, and found
that because Defendant had not addressed prejudice at all in his supplemental motion,
Defendant was not materially prejudiced by any belated disclosure. [Id. at 8:3–9:2]; see
also United States v. Burke, 571 F.3d 1048, 1056 (10th Cir. 2009) (“To justify imposition
of a remedy, the defense must articulate to the district court the reasons why the delay
should be regarded as materially prejudicial.”); United States v. Warhop, 732 F.2d 775,
777 (10th Cir. 1984) (“As long as ultimate disclosure is made before it is too late for the
defendant to make use of any benefits of the evidence, Due Process is satisfied.” (cleaned
up)).
Defendant argues in his Motion for New Trial that the additional impeachment
evidence about Olivia’s inconsistencies was not cumulative. 	[Doc. 212 at 7–8]. 	He
asserts 	that 	“successfully 	impeaching 	a 	witness 	requires 	demonstrating 	falsity,
contradictions, unbelievable circumstances, and the like,” and that the evidence at issue
“demonstrated new, additional 	instances 	in 	which 	Olivia’s 	credibility 	was 	factually
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undermined and/or clearly inconsistent to prior versions of her story. 	[Id. at 7]. 	As for
Ashley’s new statement, he asserts that the belated disclosure of this information—made
on the first day of trial—precluded his ability to use the information to effectively cross-
examine Olivia and Ashley because “defense counsel’s attention had to be elsewhere.”
[Id. at 9]. 	He argues that the Court should find that the Government violated its Brady
obligations, vacate the verdict, and order a new trial. [Id.].
The Government responds that (1) it did not suppress evidence because it
“disclosed witness interview reports to the Defendant no later than one day after counsel
for the Government received the final reports from the agents,” and (2) any suppressed
evidence is not material and would not create a reasonable probability that Defendant
would have been acquitted at trial. 	[Doc. 218 at 5–7]. 	With respect to Olivia’s and
Ashley’s marijuana use, the Government notes that Defendant “had the opportunity to
cross-examine both Olivia and Ashley with the information contained in the reports” and
that Defendant does not explain “how an earlier disclosure” would have led to a different
result. [Id. at 7].
The Court respectfully agrees with the Government that Defendant has not
demonstrated that “earlier disclosure would have created a reasonable doubt of guilt.”
Young, 45 F.3d at 1408. 	In assessing materiality, courts “review the cumulative impact
of the withheld evidence, its utility to the defense as well as its potentially damaging
impact on the prosecution’s case.” 	Fontenot, 4 F.4th at 1080 (quotation omitted).
Relevant here, if evidence only “insignificantly impacts the degree of impeachment, it
generally will not be sufficient to meet the materiality standard.” United States v. Cooper,
654 F.3d 1104, 1120 (10th Cir. 2011) (cleaned up). For example, if a witness’s credibility
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“has already been substantially called into question in the same respects by other
evidence, additional impeachment evidence will generally be immaterial and will not
provide the basis for a Brady claim.” Id. (quoting Nuckols v. Gibson, 233 F.3d 1261, 1267
n.8 (10th Cir. 2000)).
At 	trial, 	the 	defense 	attacked 	Olivia’s 	credibility 	by 	questioning 	her 	about
(1) outside influences in the reporting process and how those influences affected her
recollection of the events, [Nov. 19 Trial Tr. at 203:2–16, 204:25–205:2, 206:4–6, 214:25–
215:3, 216:1–16, 221:14–21, 233:8–11, 255:20–256:8, 257:18–24, 259:5–16; Nov. 20
Trial Tr. at 8:9–9:4, 37:15–20, 39:15–19]; (2) Olivia’s withholding of information, [Nov. 19
Trial Tr. at 209:5–22, 256:6–10, 265:11–12, 266:17–21]; (3) Olivia’s memory or inability
to remember, [id. at 213:5–15, 214:5–22, 216:17–217:13, 219:22–220:9, 220:10–19];
(4) inconsistencies in Olivia’s reports or descriptions of the assault, [id. at 213:16–23,
236:5–11, 236:21–24, 238:10–16, 262:7–9, 266:11–21]; (5) new information Olivia had
recently provided about the assault, [id. at 218:10–219:13, 219:14–21, 220:20–23,
231:25–232:8; Nov. 20 Trial Tr. at 15:12–16:6]; and (6) potential motives for lying, [Nov.
19 Trial Tr. at 241:8–15, 243:21–244:3, 246:18–25, 249:6–19, 255:20–256:8, 257:18–24,
258:13–259:4; Nov. 20 Trial Tr. at 22:5–12]. 	And with respect to inconsistencies in
Olivia’s recollection specifically, the defense asked Olivia about (1) inconsistencies in the
reported date of the assault, [Nov. 19 Trial Tr. at 213:16–214:4; Nov. 20 Trial Tr. at 7:20–
8:11, 9:20–10:15, 11:5–12]; (2) whether Olivia inconsistently said that her walk with
Defendant lasted an hour, or whether she said that they were together for about an hour
in total, [Nov. 19 Trial Tr. at 238:5–19, 238:25–239:2]; (3) inconsistencies between her
original physical description of the assailant and later descriptions, [Nov. 20 Trial Tr. at
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11:13–14:21]; (4) potential inconsistencies between her description of the assault itself,
[id. at 16:13–16, 17:11–19]; (5) inconsistencies in Olivia’s description about whether she
walked home or rode her bike home after the assault, [id. at 17:20–19:18]; (6) an
inconsistency between Olivia’s statement that she told her grandparents about the assault
and her text message to a friend that someone else told her grandparents, [id. at 28:21–
23]; (7) an inconsistency as to whether she had ever seen Mr. Miller aside from the July
27 traffic stop and the night of the assault, [id. at 40:13–43:17]; (8) an inconsistency about
who she talked to after she got home on August 4, 2023, [id. at 43:20–44:16]; (9) an
inconsistency as to how many friends she told about the assault, [id. at 44:17–45:16,
45:23–46:8]; and (10) whether she had ever lied to law enforcement during the
investigation, [id. at 47:22–48:8].
In light of all of this impeachment evidence, the additional inconsistency evidence
highlighted by Defendant only “insignificantly impact[ed] the degree of impeachment.”
Cooper, 654 F.3d at 1120. 	Indeed, Olivia’s credibility was already substantially called
into question “in the same respects by other evidence”—namely, inconsistency evidence
that could suggest a lack of truthfulness. Id. (quotation omitted). The additional evidence
was, therefore, not material for purposes of Brady. 	See id.; see also United States v.
Dermen, 143 F.4th 1148, 1202 (10th Cir. 2025) (“[I]n light of the extensive impeachment
that Mr. Kazi was otherwise subjected to, we have difficulty discerning how additional
lines of impeachment would have significantly altered the jury’s overall perception of Mr.
Kazi’s credibility.”).
The Court is similarly unpersuaded by Defendant’s arguments with respect to
Ashley’s statement. 	Defendant cross-examined both Olivia and Ashley about their
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marijuana use the night they encountered Mr. Miller after the assault. See [Nov. 19 Trial
Tr. at 263:12–16; Nov. 21 Trial Tr. at 238:11–239:16].7 Although Defendant argues that
the disclosure on the first day of trial “prejudiced the defense’s ability to effectively use
the disclosure during cross-examination,” he does not explain why disclosure on Friday,
November 14 would have changed his cross-examination strategy or made it more
effective. [Doc. 212 at 9].8 In other words, he does not demonstrate that if the information
had been disclosed on November 14, there is a “reasonable probability that . . . the result
of the proceeding would have been different” or that “earlier disclosure would have
created a reasonable doubt of guilt.” Young, 45 F.3d at 1408. For all of these reasons,
the Court finds that there was no material Brady violation here.9
7 Ashley’s cross-examination referred to this encounter as occurring on September 15,
2023, as that was the date that Ashley stated she believed the encounter occurred. See
[Nov. 21 Trial Tr. at 238:11–14].
8 Defendant also argues that the disclosure on Monday, November 17, instead of Friday,
November 14, “deprived the defense of the opportunity to investigate the marijuana usage
further before trial began.” [Doc. 212 at 9]. But this assertion is not accompanied by any
explanation as to how the defense would have “investigated” the marijuana usage the
weekend before trial.
9 In passing within a footnote, Defendant suggests that the Government also failed to turn
over exculpatory information related to another witness, Nathan. Specifically, Defendant
represents that counsel
was also recently made aware of a trial prep session the government had
with Nathan in which he said he no longer believed Olivia’s allegations of
assault. 	This change in his testimony was never provided to the defense.
This evidence is impeachment and exculpatory evidence as it challenges
Olivia’s credibility and could have been admissible had the government
opened the door to it. The prejudice resulting from the government’s failure
to disclose Nathan’s trial prep report is exacerbated by his thumbs-up
gesture to Harris at the end of his testimony.
[Doc. 212 at 8 n.3]. 	The Government vigorously denies this contention and challenges
its admissibility at trial. 	[Doc. 218 at 3 n.1]. 	The Court, however, need not resolve this
dispute because this argument is unsupported by any evidence or legal authority. See
[Doc. 212 at 8 n.3]; United States v. Martinez, 518 F.3d 763, 768 (10th Cir. 2008) (“But
this contention appears only in a fleeting sentence at the conclusion of Mr. Martinez’s
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B. 	Sergeant Servin Text Message
Next, Defendant focuses on a text message Sergeant Servin sent to prosecutors
on Monday, November 17. See [Doc. 212 at 10].10 The text message exchange was as
follows:
Government counsel: 	Rita is there a LCSO policy that governs you not
needing to use BWC during trial prep meetings?
Sergeant Servin: Not directly
[Trial Ex. 211; Doc. 212 at 10]. This text message was provided to defense counsel on
November 20, 2025. 	[Doc. 212 at 10]. 	Defendant argues that “the unjustifiably late
disclosure prejudiced the defense’s ability to adequately investigate the LCSO body cam
policy in order to effectively cross-examine Servin about it, and about what ‘not directly’
means.” [Id.]. He argues that if the defense had the text message when Sergeant Servin
sent it to prosecutors, “the evidence could have been used more effectively.” 	[Id.]. 	He
does not explain how the text message would have been used differently or more
effectively with earlier disclosure. [Id.]. The Government responds that the text message
was not Brady or Giglio material, so disclosure under those doctrines was never required.
opening brief, supported by no analysis or citation; without any such development, our
precedent instructs us to deem the point waived and leave any such challenge for another
day.”).
10 Defendant correctly states that Sergeant Servin testified on November 20, 2025 that
“she gave the text to the prosecutors ‘several days ago.’” 	[Doc. 212 at 10]. 	The Court
observes that the text message was sent to prosecutors (i.e., the text message was a
direct communication to prosecutors) on Monday, November 17—the first day of trial.
[Nov. 20 Trial Tr. at 179:19–22 (Sergeant Servin confirming that defense counsel was
“showing [her] a text message from this Monday”); id. at 180:2–4 (Sergeant Servin
confirming that the message was a “text message with [her] and the prosecutors”)]. 	At
trial, defense counsel confirmed that she received a copy of the text message on
Thursday, November 20. [Id. at 180:2].
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[Doc. 218 at 9]. 	Rather, the Government says that it disclosed the text message on
November 19 as Jencks material. [Id. at 8].11
Mr. Miller raised this same argument in his supplemental motion to dismiss,
arguing that the Government violated Brady and Giglio through its delayed disclosure of
the text message. [Doc. 161 at 3]. The Court rejected this argument, finding that the text
message “does not appear to be exculpatory nor does it appear to be inconsistent with
Sergeant Servin’s testimony.” [Nov. 21 Trial Tr. at 9:3–8]. The Court further concluded
that “given that this evidence was disclosed before Sergeant Servin testified and defense
counsel was able to review and use it extensively during cross-examination,” the evidence
“was not impermissibly suppressed or delayed.” 	[Id. at 9:14–19]. And finally, the Court
explained that even if it assumed that there was a delay in production, Defendant had not
demonstrated that any delay was materially prejudicial. [Id. at 10:6–9].
The Court reaches the same conclusion here. 	The text message between
prosecutors and Sergeant Servin does not constitute Brady or Giglio material because it
is not inconsistent with Sergeant Servin’s testimony and is, therefore, not impeachment
evidence. Specifically, Sergeant Servin stated the following on cross-examination:
Q. 	[S]peaking of body-worn cameras, Larimer County Sheriff’s Office has
a policy regarding body-worn cameras, correct?
A. Correct.
11 Under the Jencks Act, “[a]fter a witness called by the United States has testified on
direct examination, the court shall, on motion of the defendant, order the United States to
produce any statement . . .of the witness in the possession of the United States which
relates to the subject matter as to which the witness has testified.” 18 U.S.C. § 3500(b);
see also United States v. Lujan, 530 F. Supp. 2d 1224, 1232 (D.N.M. 2008) (“The Jencks
Act requires the government to disclose to criminal defendants any statement made by a
government witness that is ‘in the possession of the United States’ once that witness has
testified.” (quoting 18 U.S.C. §§ 3500(a), (b)).
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. . .
Q. 	Looking under the paragraph stating “User Requirements Specific to
Body-Worn Camera,” it states, “in general, it is expected that any time an
employee contacts a member of the public in person, in an enforcement or
investigative capacity, their body-worn camera is activated”?
A. Correct.
Q. And what that is saying, similar to the Loveland Police Department and
many police departments these days, is that you are expected to have your
body-worn camera on and recording when you are doing an investigation?
A. Correct.
Q. 	And doing an investigation includes taking statements of witnesses,
correct?
A. Correct.
. . .
Q. Now, in those last four trial prep sessions recently with Olivia, because
of the nature of what you are talking about, you and everyone in the room,
you should have had your body-worn camera recording all of those trial prep
sessions?
A. No, ma’am.
Q. 	You are saying that this policy did not require you, as a Loveland,
Colorado Sheriff Officer, to record [Olivia’s] new and different information
during those four trial prep sessions?
A. That’s correct.
Q. 	Can I see Exhibit 211 please, just for the witness and the Court?
Sergeant Servin, I am showing you a text message from this Monday?
A. Yes.
Q. And you recognize that, right?
A. Yes.
. . .
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Q. You just told us here, under the policy that we were just looking at, that
you are not required to wear your body cam during the prep sessions you
had with Olivia?
A. Correct.
Q. 	This text message contradicts what you just told us because you are
telling the prosecutors “not directly”?
A. I would say “not directly” and “no” is the same answer.
Q. Indirectly?
A. Not directly or indirectly, so, no, it does not violate our policy.
Q. Hold on a second, because you said not directly, not indirectly, so that
means it is a gray area; right?
A. Yes, it does not violate our policy.
[Nov. 20 Trial Tr. at 177:8–11, 178:7–22, 179:8–24, 181:24–182:11]. The Court does not
perceive an inconsistency between (1) Sergeant Servin answering “[n]ot directly” when
asked if there was a policy “govern[ing] [her] not needing to use BWC during trial prep
meetings” and (2) Sergeant Servin explaining on cross-examination that while the Larimer
County 	Sheriff’s 	Office 	requires 	employees 	to 	wear 	body-worn 	cameras 	during
investigations, it did not require her to wear a body-worn camera during trial-prep
sessions. The second requirement for a Brady violation has thus not been established.
Furthermore, Defendant has not established that the evidence, if exculpatory, was
material. 	“To justify imposition of a remedy, the defense must articulate to the district
court the reasons why the delay should be regarded as materially prejudicial.” 	Burke,
571 F.3d at 1056 . 	Although he asserts that if his attorneys received the text message
earlier, “the evidence could have been used more effectively,” Defendant does not explain
how the evidence could or would have been used differently or how earlier disclosure
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would have created a reasonable doubt of guilt. 	[Doc. 212 at 10]. 	Defense counsel
questioned Sergeant Servin about the lack of body-worn camera footage from the trial
prep sessions for several minutes, see [Nov. 20 Trial Tr. at 178:7–183:3], and he does
not identify any specific additional lines of questioning that he would have pursued if the
text message had been disclosed earlier, see [Doc. 212]. 	The Court finds no Brady
violation here.
C. 	Special Agent Hammer
On Friday, November 21, 2025, the Government called Special Agent Hammer to
testify as an expert about historical cell site analysis. 	[Nov. 21 Trial Tr. at 124:18–20,
125:14]. 	Among other topics, Special Agent Hammer testified that he could not recall
whether he did any location data analyses for data captured on August 13, 2023 or the
afternoon of August 14, 2023. 	[Id. at 206:11–207:15]. 	He also confirmed that it was
“correct” that he did not perform any analysis of data from the evening of August 13, 2023.
[Id. at 206:19–23]. Then, on Sunday, November 23, 2025, Government counsel produced
to defense counsel “an email that [the Government] believe[d] [would] be Jencks material”
relating to the testimony of FBI Special Agent Ben Harris.12 	[Doc. 212-8 at 1, 3–5]. 	In
the email thread, Special Agent Harris asked Special Agent Hammer to look at location
data from Mr. Miller’s personal and work phones for the following dates and times: “8/13
– Evening (8pm – 3am)”; “8/14 – Afternoon (2pm – 8pm[)]”; and “9/15 – Evening (8pm –
3am).” [Id. at 3–4].
12 Special Agent Harris was the Government’s advisory witness and was therefore
present at counsel table throughout trial. See [Doc. 125 at 3].
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On November 24, Defendant raised another argument under Brady and Giglio in
open court. He argued that the email thread showed, contrary to Special Agent Hammer’s
testimony, that he did review location data from August 13, 2023 and August 14, 2023,
such that the email was impeachment evidence and the Government was required to
disclose the email under Giglio. [Nov. 24 Trial Tr. at 13:11–14:21, 15:23–16:18]. He also
argued that it called certain aspects of Ethan’s, Olivia’s, and Ashley’s testimony into
question. [Id. at 15:3–18, 17:10–13]. After taking the matter under advisement, the Court
denied Defendant’s oral motion to dismiss, finding that the email could not reasonably
deemed Giglio impeachment material until Special Agent Hammer testified on cross-
examination that he could not recall if he did an analysis of data from August 13 or August
14, 2023. 	[Id. at 112:16–113:2]. 	The Court made clear that it was “not persuaded that
any undue prejudice” had resulted, but ordered the Government to make Special Agent
Hammer available for re-cross-examination. [Id. at 113:3–25]; see also [id. at 111:3–10].
Defendant now argues that the failure to provide the email thread to defense
counsel violated the Government’s obligations under Brady and Giglio “because the email
would have impeached Hammer and allowed defense counsel to elicit that an analysis of
August 13, 2023 was in fact done but turned up nothing useful for the government, thus
rendering it exculpatory.” [Doc. 212 at 12]. He also argues that because of the belated
disclosure, he could not address this exculpatory information in his opening statement.
[Id.]. He also argues that the re-cross-examination of Special Agent Hammer did not cure
the prejudicial effect of the violation because Special Agent Hammer “had time to prepare
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for the limited re-cross,” and he would not have had this opportunity if the email had been
disclosed prior to the original cross-examination. [Id. at 14].13
The Government responds that the email is not exculpatory; rather, “[t]he arguably
exculpatory information is contained in the phone records themselves,” which the
Government produced to Defendant in 2024. [Doc. 218 at 13]. It contends that Defendant
could have initially cross-examined Special Agent Hammer with respect to those specific
dates, but he chose not to do so. [Id.]. In his reply brief, Defendant acknowledges that
the phone records are exculpatory, but argues that the email thread “is also exculpatory”
because Special Agent Harris’s “explicit request that Hammer analyze those dates”
shows that “Hammer did analyze those dates and, given the exclusion of these dates
from his report, found no corroborating evidence.” [Doc. 221 at 8].
The Court agrees with the Government in part. 	The Government’s Rule 16
disclosure informed Defendant that Special Agent Hammer had formed opinions based
on “his . . . analysis of the location data for two cell phones” and “his . . . analysis of the
location data for” a 2020 Ford Expedition. 	[Doc. 67-1 at 10–11]. 	The disclosure stated
that Special Agent Hammer “examined records associated with” the cell phones and
vehicle. [Id. at 12]. Then, in his original testimony, Special Agent Harris testified that he
13 Defendant also cursorily argues that “Hammer’s incorrect testimony was also a Napue
violation as false testimony that the government failed to correct.” 	[Doc. 212 at 12]. 	In
Napue v. Illinois, 360 U.S. 264 (1959), the Supreme Court “held that the Due Process
Clause would be violated if the prosecutor knowingly failed to correct perjured testimony
in its case, even when the evidence went only to the credibility of the witness,” United
States v. Garcia, 793 F.3d 1194, 1207 (10th Cir. 2015). “A Napue violation occurs when
(1) a government witness committed perjury, (2) the prosecution knew the testimony to
be false, and (3) the testimony was material.” 	Id. 	Defendant does not reference this
standard or otherwise raise any meaningful argument under Napue, and the Court finds
that any such argument has been waived. Cooper, 654 F.3d at 1128.
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reviewed Exhibits 34 to 37 in conjunction with creating his report. 	[Nov. 21 Trial Tr. at
152:6–10]. Defendant does not dispute that these exhibits contained data for August 13,
August 14, or September 15. See [Doc. 221]; see also [Trial Exs. 34–37]. The fact that
Defendant already had this evidence in his possession weighs against finding a Brady
violation here, as it suggests that any suppressed evidence was not material. 	See
Quintanilla, 193 F.3d at 1149 (“[A] defendant’s independent awareness of the exculpatory
evidence is critical in determining whether a Brady violation has occurred. If a defendant
already has a particular piece of evidence, the prosecution’s disclosure of that evidence
is considered cumulative, rendering the suppressed evidence immaterial.”); Fontenot, 4
F.4th at 1066 (noting that a defendant’s knowledge of evidence “implicates the element
of prejudice, or materiality”). 	Indeed, Defendant could have cross-examined—and did
cross-examine—Special Agent Harris about his analysis of location data from two of
those dates:
Q. 	Can we please turn to Exhibit 32S? 	Thank you. 	Now, Special Agent
Hammer, with regards to the timing advance summary the document you
created, this is again for August 14, 2023, within relation to Mr. Miller's
cellphone; is that correct, sir?
A. That’s correct.
Q. Okay. And I am looking at 12:46 to 1:00 a.m. So was it Special Agent
Harris that provided you the dates and time for you to conduct the analysis
on this document?
A. 	Yes, if I recall this date and general time period was provided as a
timeframe of interest.
Q. He did not tell you to look at dates and times at 11:30 [to] 11:30 p.m. on
August 14, 2023—he didn’t tell you to look at that?
A. I am sorry, what time period?
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Q. 11:30 p.m. for Mr. Miller’s cellphone on August 14, 2023. He didn’t tell
you to look at that time?
A. I can’t recall.
Q. Did he tell you to look at any time before 12:46 a.m., actually I will [say
it] differently, strike that bad question. August 13, that is what I want to ask
about. August 13 at 11:30 p.m. Did Special Agent Harris give you that time
period to look at Mr. Miller’s timing advance bands information from the
AT&T records?
A. Again, I can’t recall the specific time period that was provided.
Q. 	But based on the fact that we have your total report, and reviewing it,
you have done no analysis regarding . . . Mr. Miller for the evening of August
13, 2023, isn’t that true?
A. That’s correct.
. . .
Q. Also, did Special Agent Harris ask or request that you look to see where
his whereabouts were the afternoon of August 14, 2023, did he ask you to
do that?
A. Again, I can’t recall the specific time period, but if it wasn’t mapped then
likely not. But again I can’t recall definitely.
Q. 	So really as I understand it, the best information you had to conduct
other than the AT&T records, I understand that and Verizon records and so
forth but a lot of the information that you received to give you direction on
where to go with your analysis came from Ben Harris; is that correct?
A. 	Correct, which is generally when in conducting this analysis where
provided details pertinent investigative details in order to conduct an
analysis.
[Nov. 21 Trial Tr. at 205:18–207:24].14
14 Defense counsel did not ask Special Agent Harris during the original cross-examination
whether he analyzed data for September 15, 2023. 	See [Nov. 21 Trial Tr. at 195:25–
208:4].
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As this Court previously ruled, the email could not reasonably be deemed Giglio
material until Special Agent Hammer testified that (1) he could not recall whether Special
Agent Harris asked him about specific dates, and/or (2) he did not do any analysis for the
evening of August 13, 2023. See [Nov. 24 Trial Tr. at 112:11–113:2]. If defense counsel
had had possession of the email at this point during cross-examination, counsel could
have potentially used the email thread to attempt to impeach Special Agent Hammer. But
up until this point, the email thread was not exculpatory, and Brady and Giglio did not
require its disclosure. 	Therefore, Defendant’s arguments about his opening statement
are not persuasive.
Even with the Government’s belated disclosure of the email—turning it over to
defense counsel on Sunday, November 23—the Court cannot conclude that Defendant
has shown “a reasonable probability that the outcome of the trial would have been
different had the government disclosed the information earlier.” 	United States v.
Ahrensfield, 698 F.3d 1310, 1319 (10th Cir. 2012) (cleaned up). 	The materiality inquiry
requires this Court to determine whether the “evidence’s significance in relation to the
record as a whole would cause it to shake [the Court’s] confidence in the guilty verdict.”
Dermen, 143 F.4th at 1201 (cleaned up). This bar is not met here. As mentioned above,
the Court permitted defense counsel to re-call Special Agent Hammer on Monday,
November 24 to question him about the email thread. 	[Nov. 24 Trial Tr. at 158:23–
167:23]. 	Among other things, defense counsel elicited testimony from Special Agent
Hammer that (1) Special Agent Harris asked him to review location data for certain time
periods on August 13, August 14, and September 15, 2023, [id. at 161:22–162:13]; and
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(2) his report did not include a timing advance summary for any of those dates, [id. at
161:8–21]. And during closing arguments, defense counsel highlighted this lack of data:
The FBI CAST team cannot put Dylan Miller where Olivia claims he is on
August 13, August 14, or September 15th. Hammer did no timing advance
summary for Olivia’s device and its whereabouts—huge problem, huge hole
in this case. 	Agent Harris over here asked [Special Agent Hammer] to
analyze specifically the dates of August 13, August 14, September 15, and
September 15 matters because Ashley claims that that stalking road rage
incident happened on the day that Loveland High played Thompson [Valley
High School, and] Thompson beat Loveland High for the first time in 18
years; Ashley remembers that. 	So we don’t know actually based on the
testimony when this alleged stalking happened but [when] they look at those
dates, meaning when Hammer does—their expert—they don’t find Mr.
Miller present at Olivia’s softball practice, at the intersection where the
alleged stalking happened, and they didn’t include that very important
evidence of innocence in Hammer’s report . . . . 	They didn’t [put it] in the
report because we got it and that evidence doesn’t fit their evidence of
prosecution—that is, because Mr. Miller was not stalking Olivia.
[Dec. 1 Trial Tr. at 46:16–47:14].
To explain how potential cross-examination on Friday, November 21 would have
been different had the defense had a copy of the email thread, Defendant asserts that
Special Agent Harris had time to prepare for the re-cross-examination, “which he would
not have had the time or opportunity to do had the email string been disclosed before his
testimony.” 	[Doc. 212 at 14 (emphasis omitted)]. 	However, the Court did not order the
Government to make Special Agent Hammer available for additional cross-examination
until approximately 12:00 p.m. on Monday, November 24. [Nov. 24 Trial Tr. at 111:3–10].
Special Agent Hammer took the stand for re-cross-examination at approximately 2:10 that
same day. [Id. at 158:9–22]. The Court is respectfully not persuaded that this two-hour
gap gave Special Agent Hammer significant opportunity prepare for defense counsel’s
questions. Defense counsel was still able to question Special Agent Hammer about the
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email thread and the lack of data for those three dates, and counsel was able to rely on
that line of questioning in arguing that the lack of data weakened the Government’s case.
Because Defendant has not demonstrated a reasonable probability that earlier
disclosure would have affected the outcome of the trial, the Court finds that he has not
met his burden to establish a Brady violation. Cf. Ahrensfield, 698 F.3d at 1320 (finding
that defendant failed to show outcome of trial would have been different where the
defendant was permitted to immediately re-call witness for further cross-examination); cf.
United States v. Cordova, 25 F.4th 817, 826 (10th Cir. 2022) (affirming denial of motion
for new trial based on Brady where the defendant was permitted to re-cross witness,
which “weakened the [witness’s] testimony”).
Finally, Defendant argues that a text message exchanged between Special Agent
Harris and Special Agent Hammer amount to “blatant prosecutorial misconduct and
misconduct by government witnesses that justifies vacating the verdict and granting a
new trial in the interest of justice.” 	[Doc. 212 at 15]. 	The morning of November 24,
presumably during or close-in-time to the Court’s discussion of Defendant’s oral Brady
motion, Special Agent Harris and Special Agent Hammer engaged in the following
conversation:
Special Agent Harris: Hey dude I hate to bother you but I need to see if you
might be able to get on a flight to Denver to be here tonight
Special Agent Harris: Defense is seeking to dismiss case based on CAST
stuff
Special Agent Harris: can’t talk will hit you up when I can
Special Agent Harris: 	Issue with the fact that there was no analysis for
9/15/23 in your report
Special Agent Hammer: Why would that be an issue
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Special Agent Hammer: So we actually just hit the road to Alabama so I’m
still basically in town
Special Agent Hammer: What’s the ask
Special Agent Hammer: 	And is there any way to get it knocked out today
as opposed to tomorrow
[Doc. 212 at 15]; see also [Doc. 212-11].
Defendant’s prosecutorial-misconduct argument does not cite any legal authority,
apply any appreciable legal standards, or contain meaningful analysis. See [Doc. 212 at
5]. 	By not identifying any legal framework through which the Court can review this
assertion, Defendant has waived any argument related to prosecutorial misconduct with
respect to the text message exchange. Cooper, 654 F.3d at 1128 (deeming “inadequately
briefed” arguments waived (quotation omitted)).
The Court has reviewed the evidence both separately and cumulatively, assessing
its utility to the defense and its potentially damaging impact to the prosecution’s case,
Fontenot, 4 F.4th at 1080, and finds that any withheld evidence does not rise to the level
of a constitutional violation. For all of the reasons stated in this Order, Defendant has not
demonstrated that a new trial is warranted. The Motion for New Trial is respectfully
DENIED.
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CONCLUSION
Accordingly, IT IS ORDERED that:
(1) 	Dylan Miller’s Motion for Judgment of Acquittal [Doc. 211] is DENIED; and
(2) 	Dylan Miller’s Motion for a New Trial [Doc. 212] is DENIED.
DATED: April 10, 2026 	BY THE COURT:
_________________________
Nina Y. Wang
United States District Judge
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