Commercial Litigation and Arbitration

Spoliation — ESI — Criminal Cases: Bad Faith Required to Dismiss Indictment (Compare Rule 37(e), Requiring Intent But Not Bad Faith to Dismiss a Civil Complaint)

United States v. White, 2016 U.S. App. LEXIS 15675 (11th Cir. Aug. 25, 2016): 

After a jury trial, Lancy White, Jr., appeals his convictions for using the Internet to attempt to entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). A § 2422(b) conviction requires that the sexual activity the defendant enticed or attempted to entice be a criminal offense. After review, we affirm White's convictions.


According to the trial evidence, law enforcement officer Corporal James Morton, posing as "Cindy," a mother of two young girls aged 9 and 12, placed an ad in the "Casual Encounters" section of Craiglist. White responded to the ad, and, over two days, exchanged emails with "Cindy" in which White discussed meeting "Cindy" to engage in sexual activity with her daughters. When White [*2]  arrived at the arranged meeting place, he was arrested. In a subsequent statement to Corporal Morton, White admitted that he was the person who responded to the Craigslist ad and corresponded via email with "Cindy" and that he had planned to engage in sexual activity, including vaginal and oral sex, with her two daughters.


On appeal, White raises several arguments attacking his convictions.1 For the reasons that follow, none of White's claims have merit.


B. Email Evidence

The district court did not abuse its discretion in admitting the printed copies of the emails between White and Corporal Morton. See United States v. Caldwell, 776 F.2d 989, 1001 (11th Cir. 1985) (explaining that we will not disturb a district court's determination that a particular piece of evidence was appropriately authenticated unless there is no competent evidence in the record to support it). Corporal Morton, a witness with knowledge, testified that the printed emails completely and accurately represented the email exchange between him (posing as "Cindy") and White, which was sufficient to admit them. See Fed. R. Evid. 901(b)(1); United States v. Belfast, 611 F.3d 783, 819 (11th Cir. 2010). Any anomalies and inconsistencies in the emails noted by White may have created a question of authenticity for the jury, but did not affect the admissibility of the documents. See Belfast, 611 F.3d at 819.

The district court also did not abuse its discretion in denying White's motion to dismiss the indictment based on the government's alleged spoliation of the email [*6]  evidence. In cases involving the destruction of evidence, to show a defendant's constitutional right to due process was violated, the defendant must show that, among other things, the government acted in bad faith. United States v. Brown, 9 F.3d 907, 910 (11th Cir. 1993).

At the outset, we note that the record does not appear to support White's claim that the government altered the email evidence. At trial, Corporal Morton testified that he did not alter or change the emails in any way or hide any content of the emails. Furthermore, the government's computer forensic expert explained the anomalies in the emails that White argued showed alteration. Specifically, Corporal Morton used a Gmail account to correspond with White through Craiglist, and Google automatically omits prior messages in a long email chain and inserts the phrase "quoted text hidden" in brackets. In addition, time stamp discrepancies were explained by the fact that Google uses the time in the time zone of the computer the emails are being printed from (in this case Alabama), but the emails also showed Coordinated Universal Time, or "computer time," which would appear to be five hours later, but is actually not.

Nonetheless, even assuming arguendo that the some emails [*7]  were altered or omitted, White did not point to any evidence that the government did so deliberately, much less that the government deleted or altered emails in bad faith. Rather, White's motion to dismiss the indictment based on spoliation of evidence argued that the government's apparent negligence coupled with its failure to explain the anomalies in the emails rose to the level of denial of due process. Thus, the district court did not err in denying White's motion to dismiss the indictment based on spoliation of evidence.


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