Commercial Litigation and Arbitration

Spoliation — Bad Faith Still Required for Adverse Inference Instruction for Spoliation of Electronic Data in Criminal Cases (5th Circuit)

United States v. Valas, 2016 U.S. App. LEXIS 9308 (5th Cir. May 20, 2016):

A jury convicted Raymond Valas of engaging in a commercial sex act with a minor in violation of 18 U.S.C. § 1591. Valas argues on appeal that the district court improperly instructed his jury on § 1591's scienter requirement. He also raises five alleged errors with his trial, arguing that each error alone--and the cumulative effect of the errors--requires the reversal of his conviction.

I. Background

D. Spoliation Jury Instruction

Agents confiscated Valas's BlackBerry when he was arrested. Valas provided the BlackBerry's password at the time of arrest, but the password expired, "locking out" the phone before the Government could recover its contents. At a status conference on July 1, six weeks after Valas's arrest, the Government told opposing counsel and the district court that it could not access Valas's phone, and stated that if Valas would provide the password, it would speed things up. The record does not indicate whether Valas provided his password at or around the July 1 hearing. An attempt by the National Guard to reset Valas's password failed. Despite efforts by federal agents at the crime lab in Quantico, no one could access the locked phone due to its encryption [*15]  software. Ultimately, all data on the phone was destroyed when a Quantico technician attempted to access the data by removing the phone's chip. The Government gave to defense counsel all information from the phone acquired from the service provider.

Valas asked for a spoliation jury instruction, arguing that the Government should have alerted defense counsel and the district court if it thought that that evidence on the phone was going to be destroyed in testing. The Government objected, arguing that a spoliation instruction requires a finding of bad faith, which the defense had not shown. The district court denied the jury instruction. This court reviews for abuse of discretion a district court's denial of a spoliation jury instruction. See United States v. Wise, 221 F.3d 140, 156 (5th Cir. 2000). To receive a spoliation jury instruction, the party seeking the instruction must demonstrate bad faith or bad conduct by the other party. See id. Valas has not shown that the Government acted in bad faith. While it is true that Valas provided his password to his arresting officers, prosecutors did not have the password at a status conference six weeks later. The Government asked defense counsel for the password at that time, but the record does [*16]  not indicate whether Valas provided it. Without the password, the Government tried to access the BlackBerry in several different ways, but was ultimately unsuccessful. Valas has not shown that the Government's actions rose to the level of bad faith, and the district court did not abuse its discretion in denying his request for a spoliation instruction.


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