FBI agent Rebekah Morse appears to have lied under oath when she told Chief District Judge B. Lynn Winmill last week that she turned off her phone and wasn't texting while on the witness stand, the judge concluded Tuesday.
But the texts had nothing to do with the case against Diversified Business Services and Investments. Winmill has now turned to deciding just what to tell jurors about the death of Morse, who carried out the criminal investigation into the company.
"At this point we know she was texting," Winmill said Tuesday morning. "It was innocuous banter back and forth with her husband. It was not in any way connected with the case."
DBSI sold percentage ownerships in shopping centers and office buildings in exchange for a guaranteed return of 6 percent or 7 percent, respectively. The company collapsed in fall 2008 when it didn't have the cash to keep making those payments. The government said DBSI was operating a Ponzi scheme in which investments from new investors were used to pay previous investors.
DBSI attorney Mark Ellison, company CEO Douglas Swenson and DBSI secretaries Jeremy Swenson and David Swenson - Douglas Swenson's sons - are accused of a combined 89 counts of conspiracy, fraud and money laundering.
Morse testified at the trial March 18 and 19. She killed herself sometime the evening of Wednesday, March 19, or Thursday morning.
She did leave a note behind; no other new details were given Tuesday morning in the courtroom.
Mid-morning Tuesday, Winmill asked attorneys on each side to submit a proposed instruction for the jury regarding Morse's death and absence from the courtroom.
Court hearings Monday and Tuesday are the first since Morse's death.
Monday, defense attorney Jeffrey Robinson said transcripts of text messages obtained from Morse's phone after her death appear to indicate she had sent a message or messages during the time she was on the stand.
"She made a deliberate decision to say she wasn't texting when she was texting from the witness stand," Robinson said.
A juror notified a court clerk during a break on Wednesday that he or she had seen Morse texting two or three times, according to the court records.
Morse's phone was taken from her under an order from Winmill and placed in a secured court evidence vault. It remained in the vault after Morse died.
In court on Wednesday, Morse explained that she felt her phone vibrate and went to shut it off during a sidebar discussion between Winmill and attorneys. Twice, under questioning from Winmill, Morse denied texting.
She said she turned off the phone "just to ensure that it didn't distract me or make any noise while it was at my side," according to court records unsealed Monday afternoon.
"And there was no texting?" Winmill asked.
"No. No. I just went to shut it off," Morse said, explaining that it took a moment to enter the password.
"But under oath you are saying that you were not communicating using a text feature?" Winmill asked.
"No," Morse replied.
If Morse committed perjury, the credibility of her testimony about DBSI could be undermined, said Robinson, who represents Ellison.
Winmill reviewed transcripts of the text messages in his chambers Monday afternoon. He also asked the U.S. Marshals Service to retain courtroom security camera tapes from the days when Morse testified, according to the unsealed records.
JURORS SAY THEY CAN STILL DO THEIR JOBS
In court Monday, Winmill individually questioned each of the 14 jurors to see if they had learned about Morse's death. He did not mention the FBI agent, but asked them if they had any trouble following his daily admonition to avoid all news stories about the case and a special admonition from Thursday to avoid all local news stories.
The first juror he questioned, a woman identified as Juror No. 33, said someone told her "she died." The juror said she put up her hands and told the other person to stop talking. She did not indicate that she knew who the person was talking about.
Juror No. 7, a man, said he got a phone call from an acquaintance who asked him, "What do you do when you kill off witnesses?" He also didn't seem to be aware of the whom the caller was talking about.
"It was a shocking thing. It bothered me that I would get that call," the juror said.
Both jurors said they could put aside their feelings about those encounters and continue to fairly judge the criminal case.
Winmill asked the jurors not to say anything about what they heard to their fellow jurors. He asked all 14 jurors to continue not to discuss the case among themselves until they're asked to deliberate on it.
Winmill met privately with lawyers on both sides Thursday, Friday and on Monday morning to discuss how to move forward with the case. He decided to reopen the court to the public on Monday.