Commercial Litigation and Arbitration

Spoliation — Negligence Is Generally Insufficient to Justify an Inference of Spoliation in the First Circuit — Some Indication of Bad Faith Is Usually Required

United States v. Montoya, 2016 U.S. App. LEXIS 22503 (1st Cir. Dec. 19, 2016) (Context:  Entrapment defense.  Issue:  Is spoliation a “plus factor?”  From the opinion:  “To lay the groundwork for a finding that the government did more than create an opportunity for the commission of a crime, a defendant may identify ‘plus’ factors — factors that suffice to transform run-of-the-mill stage-setting into improper government inducement.”):

[E]ven if an inference of spoliation could constitute a "plus" factor — a matter that we need not resolve — no such inference is warranted here. An inference of spoliation is appropriate "where there is evidence from which a reasonable jury might conclude that evidence favorable to one side was destroyed by the other." United States v. Laurent, 607 F.3d 895, 902 (1st Cir. 2010). However, negligent destruction of evidence is generally insufficient to justify a spoliation instruction; some indication of bad faith is required. See id. at 902-03.


Even assuming that the missing call logs and Facebook messages might have contained favorable evidence, an inference of spoliation would still not be justified because the [*9]  defendant adduced no evidence suggesting that the government neglected to preserve the records in bad faith. The opposite is true: the failure to retain call logs was at most careless, and -- considering the CW's imminent entry into the witness protection program -- there was good reason for scrubbing his Facebook account. In fact, with respect to both the call logs and the Facebook messages, the defendant's lawyer acknowledged at trial that he did not think that "there was any bad faith on anyone's part."1


1   The defendant argues in passing that the district court's failure to charge the jury concerning an inference of spoliation constituted instructional error. That argument is specious. The defendant did not request such an instruction at trial, nor did he object when the court did not give one. As a result, we review this argument only for plain error. See Fed. R. Crim. P. 30(d) (citing Fed. R. Crim. P. 52(b)); United States v. McPhail, 831 F.3d 1, 9 (1st Cir. 2016); United States v. Paniagua-Ramos, 251 F.3d 242, 245-46 (1st Cir. 2001). For reasons already alluded to, see text supra, there was no error, plain or otherwise.

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