Lead Opinion
Defendant Larry Braswell was convicted of one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and was sentenced to 235 months’ imprisonment. On appeal, Defendant challenges both his conviction and his sentence. Specifically, he challenges the district court’s denial of the motion to suppress the evidence of the gun, as well as the sufficiency of the evidence. Defendant further argues that the district court erred in not including a spoliation instruction in the jury instructions. Defendant also contends that there was prosecutorial misconduct based on statements made by the government during closing arguments. Finally, Defendant challenges his classification as an armed career criminal. For the reasons set forth below, we AFFIRM the judgment of the district court.
BACKGROUND
On February 23, 2014, Chattanooga Police Officer Benjamin Piazza saw Defendant Larry Braswell walking away from the bushes in front of an abandoned house in a condemned public housing project in Chattanooga, Tennessee. A car containing a female passenger was parked in front of the house. When Officer Piazza approached Braswell, he said he had come to the housing project to talk with his passenger, Jasmine Isom, and left the car in order to urinate in the bushes. Ms. Isom was visibly upset, and she told Officer Piazza that she thought she was going to jail. As Officer Piazza was talking to Bras-well and Ms. Isom, he noticed a strong smell of marijuana. After searching the car with Braswell’s consent and not finding anything, Officer Piazza concluded that the marijuana was either concealed in the car’s center console or had just been removed from the car. The officer checked the status of Braswell’s license and discovered that it had been revoked. Nevertheless, he told Braswell to leave the area and drive Ms. Isom home. He also told Braswell not to drive anymore until his license was reinstated and especially not to return to the area, or else he would go to jail.
After Braswell left, Officer Piazza returned to his patrol car, which was parked between two abandoned houses with its lights off, and began filling out paperwork regarding this interaction. Less than an hour later, another car entered the abandoned housing complex and drove along the same street where Officer Piazza had just encountered Braswell. It was now dark outside, and the car did not have its headlights on. The car also started to slow to a stop in front of the same house where' Braswell had previously been seen. When Officer Piazza turned his patrol car’s headlights on, the other vehicle also turned on its headlights and then drove away fairly rapidly. The car ran a stop sign in the process, after which Officer Piazza activated his emergency lights and pulled the vehicle over. Officer Piazza heard the driver say something such as “[W]ell, I guess I’m going to jail.” (R. 136, Trial Tr,, Pa-gelD #1852.) It turns out that Braswell was the driver, and this time he was accompanied by a male passenger.
Officer Piazza then arrested Braswell for driving on a revoked license. While conducting a search incident to that arrest, Officer Piazza found more than $1,100 in cash, as well as a digital scale covered in what appeared to be marijuana residue in Braswell’s pocket. Braswell was placed in the back of the patrol car and read his Miranda rights. Officer Piazza and a K-9 officer then returned to the abandoned house where Officer Piazza first encountered Braswell walking away from the bushes after allegedly urinating. The drug-sniffing dog alerted several times on the bushes in front of that house. The officers
During the search of the abandoned property, Braswell was confined in the back of the patrol car. At various points, Braswell apparently mumbled to himself, and those statements were captured by a video recording device in the patrol car. Within seconds of the officers finding the gun and marijuana, Braswell, who had been intently watching the officers discover the contraband, said what sounded like “[Expletive], man ... prints are all over this [expletive].” (Id. at 1879-81; Gov’t Ex. 5 at 19:49:00.)
Braswell was indicted on May 28, 2014 for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Following the denial of multiple motions to suppress the evidence, Braswell proceeded to trial. A jury trial was held on September 29 and 30, 2015 and resulted in a guilty verdict. Braswell was sentenced to 235 months of imprisonment, as he was determined to be an armed career criminal. Judgment was entered on June 28, 2016, and this timely appeal followed.
DISCUSSION
I. Suppression of the Evidence
A. Standard of Review
“When reviewing the district court’s ruling on a motion to suppress,” this Court “review[s] findings of fact for clear error and legal conclusions de novo.” United States v. Jackson,
B. Analysis
“An ordinary traffic stop by a police officer is a ‘seizure’ within the meaning of the Fourth Amendment. Accordingly, any evidence seized during an illegal traffic stop must be suppressed as fruits of the poisonous tree.” Jackson,
Before the trial, Braswell filed a motion to suppress the evidence based on a lack of probable cause for the traffic stop. In order to resolve the motion, the magistrate judge conducted a hearing at which only one witness, Officer Piazza, testified. The officer recounted his first interaction with Braswell, and then testified regarding the traffic -violations he observed during their
In order to rebut Officer Piazza’s testimony, Braswell offered into evidence a video of the second encounter between Officer Piazza and himself, during which he allegedly committed the two traffic violations. This video did not show Braswell driving with his headlights off.
After reviewing Braswell’s objections to the magistrate judge’s Report and Recommendation, the district court largely accepted the magistrate judge’s findings of facts and denied the motion to suppress. The district court deferred to the magistrate judge’s determination that Officer Piazza’s testimony was credible. After independently viewing the video of the encounter, the district court further determined that the magistrate judge “did not err in finding that it was very dark at the time Officer Piazza testified that Defendant was driving without his headlights on.” (R. 77, Order on Mot. to Suppress, PagelD # 608). Finally, in response to Braswell’s argument that the video does not actually show him running a stop sign, the district court stated that “Defendant is correct to point out that the video first shows Defendant’s car slightly after it had passed the stop sign in question.” (Id.) The district court further stated, “The rate of speed at which Defendant’s car was traveling at this point, however, coupled with Officer Piazza’s credible testimony that he saw the Defendant run the stop sign, leads the Court to conclude that Officer Piazza had probable cause for the traffic stop.” (Id. (footnote omitted).)
Relying largely on the video, Bras-well continues to argue on appeal that there was no proof that he was driving without his headlights on or that he ran a stop sign. However, we find his argument unpersuasive. The magistrate judge, and later the district court, both found that Braswell had been driving without his headlights on when he was required to have them illuminated under Tennessee law. Both the magistrate judge and the district court also found that Braswell failed to stop at a stop sign. These factual
To the extent that this Court could overturn the credibility determination because “the testimony was implausible, internally inconsistent, or against the weight of the evidence, such that no reasonable fact-finder would credit it,” United States v. Miller,
Indeed, the video, to some extent, actually aids the government’s argument. Specifically, the district court found that Bras-well’s car was traveling at a high rate of speed, which, in the district court’s eyes, supported Officer Piazza’s testimony that Braswell failed to stop at the stop sign. This evidence, coupled with the officer’s credible testimony, supports the conclusion that the district court did not clearly err in determining that Braswell committed two traffic violations. Because these two traffic violations were supported by probable cause, the district court properly denied Braswell’s motion to suppress the evidence obtained as a result of the traffic stop. See Jackson,
II. Spoliation Jury Instruction
A. Standard of Review
“This Court reviews a district court’s choice of jury instructions for abuse of discretion.” United States v. Ross,
B. Analysis
Braswell argues that the district court abused its discretion in not including an instruction regarding spoliation of evidence by the police officers involved in this case. Officer Piazza originally testified at trial that he did not take any photographs of the gun and marijuana while at the scene. However, defense counsel subsequently played a video that revealed that Officer Piazza had taken pictures of the evidence on the hood of his car. The district court ordered the government to turn over the photographs the next day. When court reconvened the next morning, the government informed the court that the pictures could not be produced because they were taken on Officer Piazza’s personal cell phone. That phone was later given to Officer Piazza’s child and dropped
Based on the loss of the photographs, Braswell proposed the following spoliation instruction for the district court:
The government has a duty to gather, preserve, and produce at trial evidence which may possess exculpatory value. Such evidence must be of such a nature that Mr. Braswell would be unable to obtain comparable evidence through reasonably available means. The government has no duty to gather or indefinitely preserve evidence considered by a qualified person to have no exculpatory value, so that an as yet unknown defendant may later examine the evidence.
If, after considering all the proof, you find that the government failed to gather or preserve evidence, the contents or qualities of which are at issue and the production of which would more probably than not be of benefit to Mr. Braswell, you may infer that the absent evidence would be favorable to Mr. Braswell.
(R. 140, Joint Stipulation, PagelD #2145.) After this charge was rejected by the district court, based on the court’s skepticism that the photographs constituted exculpatory evidence, Braswell suggested the First Circuit’s pattern jury instruction for spoliation, which reads:
If you find that [party] destroyed or obliterated a document that it knew would be relevant to a contested issue in this case and knew at the time it did so that there was a potential for prosecution, then you may infer (but you are not required to infer) that the contents of the destroyed evidence were unfavorable to [party].
(Id. at 2147 (alterations in original).) This instruction, too, was rejected by the district court.
On appeal, Braswell argues that the standard for spoliation instructions used in this Circuit for civil cases also applies in the context of a criminal case. That standard is as follows:
A party seeking an adverse inference instruction based on the destruction of evidence must establish (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.
Flagg v. City of Detroit,
Braswell also argues that, based on language in Flagg, once the district court finds that there was spoliation, the court is then required to give a spoliation instruction. See Flagg,
We find Braswell’s argument unavailing. This Court has previously found that it was not an abuse of discretion for the district court, in a criminal case, to refuse to give a spoliation instruction based on the failure to preserve evidence in the absence of bad faith.
Relying on the definition of spoliation announced in Boxley, this Court later concluded that a spoliation instruction was properly denied in a case involving the destruction of a McDonald’s sandwich carton from which prints of the defendant were lifted. United States v. Spalding,
Other circuits similarly require a finding of bad faith in order to warrant a spoliation instruction in a criminal case. For example, the First Circuit has stated that á spoliation instruction “usually makes sense only where the evidence permits a
Based on these cases, we hold that the district court did not abuse its discretion in denying Braswell’s request to include a spoliation instruction to the jury. The district court explicitly found that Officer Piazza did not act in bad faith when he failed to preserve the photographs. While noting that the officer clearly was not diligent in his handling of evidence, the district court further opined, “I don’t see any evidence that there was any tampering with evidence, any attempt to spoliate exculpatory evidence.” (R. 137, at 2003.) As made clear in Boxley, spoliation only occurs when the party who destroyed the evidence acted with “the purpose of rendering it inaccessible or useless.”
III. Prosecutorial Misconduct
A. Standard of Review
“In reviewing a trial court’s evidentiary determinations, this court reviews de novo the court’s conclusions of law and reviews for clear error the court’s factual determinations that underpin its legal conclusions.” United States v. Jenkins,
B. Analysis
Braswell argues that the district court abused its discretion by admitting the video and audio recording of his mumblings from the back of the patrol car. While Braswell admits that the admission of videotapes is within the sound discretion of the district court, he essentially argues that the tapes should have been excluded because the “unintelligible portions are so substantial as to render the recordings as a whole untrustworthy.” United States v. Robinson,
Braswell first points to the statements of the district court, as the court first appeared to agree with Braswell at the pre-trial suppression hearing that the tapes were unintelligible, stating, “I heard a couple of expletives in there, but I’ll be honest, I didn’t hear much more.” (R. 42, Suppression Hr’g Tr., PagelD #178.) Only after listening again did the court revise its assessment, explaining, “[w]ell, you know, that time, that time I heard, prints
Braswell also argues that the prosecutor, in his closing statement, impermissibly stated what he thought was on the audio recording, even though the recording was unintelligible. Braswell notes that the district court had previously determined that a transcript could not be admitted given that large portions of the tape could not be transcribed. Therefore, only the recording itself was admitted into evidence and played for the jury. Despite the fact that a transcript was not admitted and the jury was supposed to determine for itself what was on the tape, the government argued the following in its closing statement:
What does the video tell us, thought?] Defendant admits it. The defendant confesses. Watch the video. It was about 19:49:06 on the time, you’ll see when Piazza says they found it. And three seconds later, remember the defendant can see it, he’s watching out the window of the car, and we talked about that, three seconds later, the defendant cusses, cusses, says something about cussing about the gun, and my prints are all over that mfr within three seconds of them finding it.
Watch the video as well. And when I say that, listen to Exhibit 5, that’s where it’s isolated where you can just hear the defendant in the back of the car. It’s easier to hear what he’s saying. It’s hard when both mikes are playing, but watch, also, listening to Exhibit 5 as he watches the officer walk and Piazza pointed to you on the left side of the screen where the bush was kind of right off where the video could see on the left side. And watch the defendant’s reaction every time the officers walk over there to those bushes. Before he admits that his prints.are on it and before they find the gun, he starts cussing every time they walk over near those bushes he’s saying an expletive. He’s admitting that his prints are on the gun.
Why was the gun not sent for fingerprints? Why do you need to when the defendant tells you that they’re there? The circumstantial proof is very strong.
(R. 137, at 2022-23.)
Based on these statements, Bras-well argues that the prosecutor impermis-sibly brought “to the attention of the jury facts not in evidence,” and vouched for the credibility of the evidence. United States v. Emuegbunam,
The government agrees that for a video to be properly admitted into evidence, it must be “audible and sufficiently comprehensible for the jury to consider the contents.” Robinson,
As for the argument that the government impermissibly opined about what Defendant said on the recording, the government argues that it did not commit any misconduct. The government argues that its statements were not improper, given that it was “merely argu[ing] its interpretation of the evidence which had been presented at trial.” (Gov’t Br. at 23.) It therefore contends that, “[o]nce the district court determined that the recording was admissible and played it for the jury, both sides were free to argue their interpretations of it during closing argument.” (Id. at 24.)
We agree with the government that no misconduct requiring a new trial occurred. The following test applies for claims of prosecutorial misconduct: first, we determine “whether the prosecutor’s conduct and remarks were improper.” Cristini v. McKee,
Generally courts “afford wide latitude to a prosecutor during closing argument, analyzing disputed comments in the context of the trial as a whole.” United States v. Henry,
We furthermore hold that the government did not commit prosecutorial misconduct when it stated its interpretation of Braswell’s statements during closing arguments. Although Braswell argues that the prosecution, in effect, introduced a transcript when they were not allowed to, we do not agree. We first note that the gov
IV. Sufficiency of the Evidence
A. Standard of Review
This Court reviews a challenge to the sufficiency of the evidence supporting a criminal conviction de novo. United States v. Pritchett,
B. Analysis
A defendant challenging the sufficiency of the evidence “bears a very heavy burden.” United States v. Davis,
Braswell argues that the jury’s verdict was against the weight of the evidence because no evidence links him to the handgun he was charged with illegally possessing.' Specifically, no one saw him drop or place anything in the bushes. In addition, no one testified that they had seen him with the handgun or the marijuana accompanying it. The gun was also not located in Braswell’s car or house, but instead it was in the bushes in front of an abandoned house. Therefore, according to Braswell, it was unreasonable for the jury to infer that he possessed the handgun, and the verdict was the result of impermissible inference-stacking.
In support of his argument, Braswell contrasts United States v. Lowe,
In comparing these two cases, Braswell argues that his case is similar to Lowe. Specifically, like the laptop that others had access to, other had driven by the area where the gun and handgun were found. In addition, Officer Piazza had credibility issues, given his incorrect testimony that he did not take pictures at the scene when the evidence revealed that he did. Therefore, Braswell argues that the jury was not allowed to “(1) link Mr. Braswell’s presence near an abandoned house with a bag of marijuana, and then (2) link the discovery of thát bag to a handgun found nearby, in order to reach a verdict beyond a reasonable doubt.” (Def.’s Br. at 38.)
We disagree. The evidence in the instant case was indeed sufficient to support the conviction, given that all reasonable inferences must be drawn in favor of the government. The evidence shows that Bras-well was seen walking away from the bushes where the gun and marijuana were found. Braswell’s car strongly smelled of marijuana, such that Officer Piazza thought marijuana was either still present or had just been there. Braswell was given a break when he was allowed to drive away despite his revoked license. Nevertheless he returned to the area less than an hour later, after switching cars, even though he was told that if he returned he would likely go to jail. Therefore, it was reasonable for the jury to infer that Bras-well returned to the abandoned house, risking jail, for an important purpose, such as to retrieve the gun and the marijuana. Furthermore, Braswell was found with a substantial amount of cash on him, as well as digital scales with marijuana residue. The marijuana was very fragrant, like the marijuana smell from the first car, and found lying directly on top of the firearm. Moreover, when the officers found the marijuana with the gun, Braswell uttered something that sounded a lot like, “prints all over that [expletive].” (Gov’t Ex. 5 at 19:49:00.)
Given the inferences that can be drawn from that evidence, it was not unreasonable for the jury to conclude that Braswell possessed the gun. While the government’s case could have been stronger, this Court does not weigh the evidence or “consider the potential magnitude of the evidence not presented.” Garcia,
V. Designation as an Armed Career Criminal
A. Standard of Review
This Court reviews de novo “whether a conviction qualifies as a ‘violent felony’ ” under the Armed Career Criminal Act (the “ACCA”). United States v. Hockenberry, 730 F.3d 645, 663 (6th Cir. 2013) (citing United States v. Johnson,
B. Analysis
The ACCA provides, in pertinent part:
In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).
18 U.S.C. § 924(e)(1).
Braswell argues that he was improperly designated an armed career criminal for two reasons. First, he contends that two of his four convictions in Tennessee for aggravated robbery or attempted aggravated robbery are void under Tennessee law, meaning they cannot be counted for purposes of the ACCA. Second, he argues that aggravated robbery and attempted aggravated robbery under Tennessee law are not categorically violent felonies and thus do not count as predicate crimes under the ACCA. Each of these arguments is addressed in turn below.
1. Yoidness of Two of Defendant’s Convictions for Aggravated Robbery
Braswell argues that two of his four convictions, specifically the two aggravated robberies committed on June 30, 1994 and July 1,1994, are void under Tennessee law and therefore were improperly included as predicate offenses for determining whether he is an armed career criminal. Bras-well first notes that, for purposes of the ACCA, “[w]hat constitutes a conviction of such a crime,” meaning a “crime punishable by imprisonment for a term exceeding one year,” “shall be determined in accordance with the law of the jurisdiction in which the proceedings were held.” 18 U.S.C. § 921(a)(20). In this case, the two relevant crimes occurred and were prosecuted in Tennessee, meaning Tennessee law controls.
Braswell next contends that these two convictions are void under Tennessee law. He notes that, as is apparent on the face of his guilty plea for three counts of aggravated robbery and one count of attempted especially aggravated robbery, he was sentenced to concurrent sentences for all four crimes pursuant to a plea agreement. However, Braswell contends that his sentences were required, at least in part, to be consecutive sentences instead of concurrent sentences. Braswell committed the third and fourth aggravated burglaries, which occurred in June and July, while out on bail for the first two crimes — the aggravated robbery committed on March 2, 1994, and the attempted especially aggravated robbery committed on March 8, 1994. Under Tennessee law, “[i]n any case in which a defendant commits a felony while the defendant was released on bail ... and the defendant is convicted of both offenses, the trial judge shall not have the discretion as to whether the sentences shall run concurrently or cumulatively, but shall order that the sentences be served cumulatively.” Tenn. Code Ann. § 40-20-111(b). The Supreme Court of Tennessee has recognized that sentences imposed in contradiction of § 40-20-111(b) are illegal. McLaney v. Bell,
Moreover, under Tennessee law, the illegality of the sentence affects both the un
We hold that the district court correctly determined that Braswell is unable to challenge his state aggravated robbery convictions in the context of a federal sentencing. As we have previously recognized, the Supreme Court, in Custis v. United States,
Nevertheless, no Kentucky court had declared Lalonde’s 1989 conviction invalid prior to his sentencing in the instant case. Thus, because Lalonde’s challenge to his conviction was not based upon an alleged violation of the right to counsel, the district court was bound ... not to allow Lalonde to collaterally challenge the validity of the conviction at sentencing.... Accordingly, we find that, even if Lalonde is correct in asserting the invalidity of his prior state law conviction, the district court properly included this conviction in its calculation of La-londe’s criminal history category.
Id. at 768.
Similarly, in Aguilar-Diaz, this Court again determined that Custis prevented a
Braswell argues that Custis does not, in fact, prevent him from challenging his state court convictions during sentencing. First, Braswell argues that Custis is inapplicable to cases where the issue is what counts as a “conviction,” given that Custis addressed only cases where it was assumed that there was a prior conviction. For support, Braswell cites this Court’s decision in United States v. Houston,
We find Braswell’s arguments unavailing. The Court in Houston was not deciding whether the defendant was an armed career criminal, but was instead tasked with determining whether a prior Tennessee conviction, which was still pending on direct appeal in state court, was a conviction such that the defendant was prohibited from possessing a firearm.
Defendant also argues that his challenge is authorized under Custis because it is authorized by statute — specifically that his challenge is allowed based on the definition of “conviction” in § 921(a)(20). While it is true that, under Custis, “a defendant may collaterally attack a prior conviction used for purposes of sentence enhancement only if (1) such attack is provided by statute, or (2) such attack is a constitutional- one premised on a lack of counsel,” United States v. Reed,
This argument, too, is unpersuasive. First, Aguilar-Diaz did not rely solely on the fact that the underlying determination of guilt was still in place when determining that Custis barred the defendant’s attack on his prior convictions. In fact, the Court specifically noted that “it is not necessary for us to determine whether Aguilar-Diaz’s forgery conviction is void in Ohio or, if it is, whether it would still be valid for federal sentencing purposes.”
Moreover, in Custis, the Supreme Court noted that the definition of “conviction” in § 921(a)(20) provided that “[ajny conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter.”
Finally, this Court’s disposition in Watt v. United States,
In contrast, Braswell here sought to challenge his prior convictions during a federal sentencing proceeding, which is specifically disallowed by Custis. Moreover, Braswell’s convictions have not been set aside by any court in Tennessee, despite his argument that he clearly would
2. Aggravated Robbery as Violent Felony Under the ACCA
Braswell also argues that his four convictions — three for aggravated robbery and one for attempt of especially aggravated robbery — do not qualify as violent felonies under the ACCA in light of Johnson v. United States,
Indeed, this Court has repeatedly held that aggravated robbery under Tennessee law is a violent felony under the “use of force” clause of the ACCA. See United States v. Gloss,
CONCLUSION
For the reasons stated above, we AFFIRM Braswell’s conviction and sentence for being a felon in possession of a firearm. Specifically, we conclude that the district court properly denied Braswell’s motion to suppress the evidence obtained as result of the traffic stop. Moreover, the district court did not abuse its discretion by declining to give a spoliation instruction or by admitting the recording of Braswell into evidence. Similarly, the government did not commit misconduct so flagrant as to require reversal by characterizing what was said on the tape as a confession. Furthermore, the evidence was sufficient to find Braswell guilty. Finally, Braswell was properly considered an armed career criminal and correctly barred from challenging his state convictions in the context of a federal sentencing hearing.
Notes
. According to Officer Piazza’s testimony, videos recorded by the cameras in police cars are continuously recorded over until some triggering event occurs, such as the police officer illuminating his flashing lights. (Id. at 582-83.)
. According to the concurrence, because Box-ley relied on Nationwide Mutual Fire Insurance Co., a case which has since been overruled, Boxley has been abrogated as well. However, this logic does not hold up under closer scrutiny. Nationwide imported the bad faith standard from Ohio law, as it was a civil case based on diversity jurisdiction,
. Indeed, Braswell points to several cases where the Tennessee Court of Criminal Appeals noted that facially invalid judgments cannot be used to enhance punishments in subsequent Tennessee prosecutions. See State v. Posey,
. Lalonde involved a challenge to the district court’s calculation of the defendant’s criminal history score, not whether the defendant was an armed career criminal.
. Braswell asserts that he cannot obtain relief in Tennessee given that he is no longer in custody and has already served his sentence. See State v. Wooden,
. This holding is without prejudice to Bras-well’s ability to raise these issues in an appropriate § 2255 proceeding.
Concurrence Opinion
concurring.
I concur in all but Part II.B of the majority opinion. I write separately because I do not agree that the issue whether a criminal defendant must show bad-faith conduct by the government to justify even the mildest of spoliation sanctions — a permissive adverse-inference instruction— is settled in this circuit. Further, it is unnecessary to decide the question in this case.
I.
The majority relies on United States v. Boxley,
It is also not clear whether or to what extent we should rely on cases from outside this circuit, and where that should lead us. True, the First Circuit has stated that a spoliation instruction in a criminal case “usually makes sense only where the evidence permits a finding of bad faith destruction; ordinarily negligent destruction would not support the logical inference that the evidence was favorable to the defendant.” United States v. Laurent,
The Fifth Circuit’s decision in United States v. Wise,
Further, as the majority acknowledges, the Ninth Circuit is split on this very issue. Compare. United States v. Romo-Chavez,
As for other circuits, the Eighth Circuit has assumed — but not actually decided— that its bad-faith requirement for a spoliation instruction in a civil case also applies in criminal cases. See United States v. Davis,
All of this is to say that, given the circumstances, Boxley, Spalding, and the cases from other circuits do not provide a definitive answer to the question whether bad-faith conduct by the government is a necessary predicate to a district court in this circuit granting a permissive adverse-inference instruction in a criminal case.
II.
Under the facts of this case, it is not necessary to decide which standard should apply to requests for a spoliation instruction in a criminal case, because even if the district court erred by not giving a spoliation instruction, that error was harmless.
“Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.” Fed. R. Crim. P. 52(a). Braswell does not contend that the spoliation issue here is of constitutional magnitude, so any error is harmless if there “is ‘a preponderance of the evidence that the error did not materially affect the verdict.’” United States v. Hendrickson,
Given the circumstances of this case, that standard is easily satisfied. A permissive adverse-inference instruction is “simply a formalization of what the jurors would be entitled to do even in the absence of a specific instruction.” West v. Tyson Foods, Inc.,
Braswell argues that the photographs might have shown that there were fingerprints on the gun — fingerprints that Officer Piazza never identified — and thus a spoliation instruction was necessary to compensate for the photographs’ absence. But Officer Piazza testified that there were visible fingerprints on the gun. Photographs showing the same thing would not have added anything to Braswell’s defense. Nor would Braswell have been helped by an instruction telling the jurors they could infer something that Officer Piazza had already admitted. In truth, there was simply no favorable inference to be drawn from the destruction of the photographs.
In sum, the absence of a spoliation instruction did not affect Braswell’s substantial rights and was, at most, harmless error.
. The majority states that the Nationwide court applied Ohio law because Nationwide was a diversity case. See Maj. Op. at 534 n.2. In fact, prior to Adkins, this court applied state spoliation law in all civil cases, even those based on federal-question jurisdiction. Adkins,
. The majority concludes that Boxley remains good law because "Boxley can only logically be read as adopting the bad faith requirement for spoliation instructions, described in Nationwide, for all criminal cases in this circuit,” especially since Boxley originated in the Western District of Tennessee. Maj. Op. at 534 n.2. But Boxley does not even acknowledge the choice-of-standard question, or any distinction between civil and criminal cases, much less analyze those issues.
. Below, Braswell suggested the photographs might have shown that the gun had dirt or leaves on it, or that the marijuana was not fresh. Braswell does not raise those arguments on appeal. Regardless, Officer Piazza admitted under cross-examination that the gun was covered with leaves. And while the jurors might have inferred from the absence of the photographs that the marijuana was not as fresh as Officer Piazza said it was, there is no reason to think this would have changed the outcome of the trial, given Bras-well’s recorded statements and Officer Piazza’s otherwise uncontested description of events.