Spoliation — Second Circuit Reaffirms Negligence Standard for Adverse Inference Instruction — Physical Evidence (Same Post 37(e)?) — Same Standard in Criminal as Civil Case — Government Department’s Policy No Excuse for Spoliation
United States v. Garcia, 2015 U.S. App. LEXIS 392 (2d Cir. Jan. 7, 2015):
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED and that the defendant-appellant's claim of ineffective assistance of counsel is DISMISSED.
Luis Garcia appeals from the November 21, 2013 judgment of the United States District Court for the Eastern District of New York (Gleeson, J.), convicting him, after a jury trial, of conspiring to commit money laundering, in violation of 18 U.S.C. 1956(h), and sentencing him principally to 210 months' imprisonment. On appeal, Garcia contends that: (1) the district court abused its discretion in denying his [*2] motion for an adverse inference instruction; (2) his sentence was procedurally and substantively unreasonable; and (3) his right to effective legal representation was denied. We assume the parties' familiarity with the underlying facts, procedural history, and specification of issues for review.
Adverse Inference Instruction
On appeal, Garcia argues that the district court abused its discretion by declining to instruct the jury that it could draw an adverse inference from the government's destruction of surveillance recordings from a remote video camera trained on the exterior of Garcia's jewelry store. Government agents testified at trial that the camera provided a limited view of the front of Garcia's store, and was used to determine whether and when to conduct in-person surveillance of the location. According to the agents, the recordings were purged every few weeks, absent a determination to preserve the footage, due to storage-capacity limitations.
A district court's decision on a motion for discovery sanctions is subject to review for abuse of discretion. Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 162 (2d Cir. 2012). "A district court abuses its discretion when [inter alia] it bases its ruling on an erroneous view of the law . . . ." United States v. Vayner, 769 F.3d 125, 129 (2d Cir. 2014). However, [*3] "[a]bsent a showing of prejudice, the jury's verdict should not be disturbed." Chin, 685 F.3d at 162 (internal quotation marks omitted).
"'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.'" Id. (alteration omitted) (quoting Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002)).
Here, the district court may have erred by analyzing Garcia's request for an adverse inference instruction in terms of whether the government acted in bad faith in destroying the video footage. We have held that bad faith "need not be shown to justify an inference of spoliation," Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 109 (2d Cir. 2001), and that an adverse inference instruction "may be appropriate in some cases involving the negligent destruction of evidence," Residential Funding, 306 F.3d at 108 (noting that a district court fails to apply the proper legal standard where it analyzes only whether a party "acted in 'bad faith' or with 'gross negligence'").
However, even assuming that [*4] the district court thus erred, Garcia "has not met the required showing that the missing [evidence] be 'material in the sense that its suppression undermined confidence in the outcome of the trial.'" United States v. Sommer, 815 F.2d 15, 17 (2d Cir. 1987) (quoting United States v. Bagley, 473 U.S. 667, 678 (1985)). The destroyed video recordings held limited exculpatory weight given the remote camera's apparently obstructed view of the exterior of Garcia's shop and the government's concession that Garcia carried on legitimate business there. Considering the weight of the testimonial and documentary evidence offered by the government at trial that the video recording might show legitimate customers entering the shop is insufficient to undermine our confidence in the outcome of the trial. Accordingly, we will not disturb the jury's verdict.
While we find that the government here has borne "the heavy burden of demonstrating that no prejudice resulted to the defendant," we reiterate our prior admonition that we "look with an exceedingly jaundiced eye" upon the government's efforts to explain that the spoilation of evidence has occurred due to "department policy" or "established practice." United States v. Bufalino, 576 F.2d 446, 449 (2d Cir. 1978). There remains no "excuse for official ignorance regarding the mandate of the law." Id.
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