Spoliation — In Criminal Cases, Bad Faith Is Essential to Support Adverse Inference Instruction Even in Circuits Not Requiring Bad Faith in Civil Cases (Dissent Questions Whether This Is True in All Cirs. — This Case Makes It True in 6th Cir.)

United States v. Brasswell, 2017 U.S. App. LEXIS 16144 (6th Cir. Aug. 21, 2017):

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 [*2]  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 Braswell 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 The officer checked the status of Braswell's license and discovered that it had been revoked.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 [*3]  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., PageID #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 [*4]  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 searched the bushes and found a large bag containing approximately twenty-five grams of marijuana and a loaded .45 caliber handgun, "right on top of each other." (Id. at 1855, 1859.) The gun did not appear to have been there very long, since it was not rusted and did not have any dew or dirt on it. It did, however, have visible fingerprints on it. The officers, however, never tested the gun for fingerprints.

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 [*5]  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, 682 F.3d 448, 452 (6th Cir. 2012) (citing United States v. Tackett, 486 F.3d 230, 232 (6th Cir. 2007). "When the district court has denied the motion to suppress, we review all evidence in a light most favorable to the Government." Id. (quoting United States v. Coffee, 434 F.3d 887, 892 (6th Cir. 2006)). "A factual finding is clearly erroneous when, although there may be evidence to support it, the reviewing court, utilizing the entire evidence, is left with the definite and firm conviction that a mistake has been committed." United States v. Sanford, 476 F.3d 391, 394 (6th Cir. 2007) (quotation omitted). Factual findings are not [*6]  clearly erroneous "where there are two permissible views of the evidence." Id. (alterations and quotation omitted). Furthermore, this Court gives "deference to the district court's assessment of credibility inasmuch as the court was in the best position to make such a determination." United States v. Hill, 195 F.3d 258, 264-65 (6th Cir. 1999).

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, 682 F.3d at 453 (quoting United States v. Blair, 524 F.3d 740, 748 (6th Cir. 2008)). "It is well established that a police officer may lawfully stop a car when he has probable cause to believe that a civil traffic violation has occurred, or reasonable suspicion of an ongoing crime." Id. (citations omitted).

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 second encounter. Specifically, Officer Piazza stated that he noticed a green [*7]  car driving down the street with its headlights off, even though it was dark outside. Officer Piazza began to follow the car in his own patrol car, which also did not have the headlights illuminated. When the car began to slow down in front of the abandoned house, Officer Piazza turned on his headlights. The car rapidly sped up and, after a short distance, turned on its headlights. The car then reached an intersection and ran a stop sign. Officer Piazza then turned on his blue lights and pulled Braswell over.

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.1 The magistrate judge, however, noted that the video "does show unequivocally that it was dark outside and that defendant ran through a stop sign making no effort to even slow down." (R. 72, R&R, PageID #583.) The magistrate judge further found Officer Piazza's testimony that Braswell had been driving without his headlights illuminated to be credible and agreed with Officer Piazza that it was dark outside and [*8]  was at least thirty minutes after dusk when the incident occurred. Consequently, Braswell violated Tenn. Code Ann. § 55-9-406(a), which requires headlights to be illuminated when driving beginning thirty minutes after sunset. The magistrate judge further found that Officer Piazza had probable cause to stop Braswell because he witnessed Braswell failing to stop at a stop sign, in violation of Tenn. Code Ann. § 55-8-149(c).

1   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.)

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, PageID # 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 [*9]  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, Braswell 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 determinations were largely based on the magistrate judge's finding that Officer Piazza was credible. Such "[f]indings of fact anchored in credibility assessments are generally not subject to reversal upon appellate review." United States v. Hudson, 405 F.3d 425, 442 (6th Cir. 2005) (alteration in original) (quoting United States v. Taylor, 956 F.2d 572, 576 (6th Cir. 1992) (en banc)).

To the extent that this Court [*10]  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, 413 F. App'x 841, 843 (6th Cir. 2011) (quotation omitted), those circumstances are not present here. Contrary to Braswell's argument that the video contradicts Officer Piazza's testimony, we find that the video simply does not show the events in question, given that the video recording began after the alleged infractions had already occurred. Therefore the video neither confirms nor disproves the government's argument that Braswell was driving without his headlights and ran a stop sign.

Indeed, the video, to some extent, actually aids the government's argument. Specifically, the district court found that Braswell'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 [*11]  probable cause, the district court properly denied Braswell's motion to suppress the evidence obtained as a result of the traffic stop. See Jackson, 682 F.3d at 453.

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, 502 F.3d 521, 527 (6th Cir. 2007) (citing United States v. Prince, 214 F.3d 740, 761 (6th Cir. 2000)). In so doing, "we review jury instructions as a whole to determine whether they fairly and adequately submitted the issues and applicable law to the jury." United States v. Franklin, 415 F.3d 537, 553 (6th Cir. 2005) (quoting United States v. Williams, 952 F.2d 1504, 1512 (6th Cir. 1991)). A "refusal to deliver the requested instruction is reversible only if that instruction is (1) a correct statement of the law, (2) not substantially covered by the charge actually delivered to the jury, and (3) concerns a point so important in the trial that the failure to give it substantially impairs the defendant's defense." Id. (quoting Williams, 952 F.3d at 1512; and citing United States v. Gibbs, 182 F.3d 408, 432 (6th Cir. 1999)).

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 [*12]  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 by the child in the bathtub. The district court found that the evidence was not destroyed in bad faith, and that finding is not disputed on appeal.

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 [*13]  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, PageID #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 [*14]  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, 715 F.3d 165, 177 (6th Cir. 2013) (quoting Beaven v. U.S. Dep't of Justice, 622, F.3d 540, 553 (6th Cir. 2010)). Braswell further argues that the "culpable state of mind" includes negligence and recklessness, see Beaven, 622 F.3d at 554, which arguably were present here given Officer Piazza's failure to preserve the photographs.

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, 715 F.3d at 177 ("When the requirements for an adverse inference instruction are met, the district court should issue an instruction."). Braswell contends that the district court explicitly found spoliation, given the court's use of the term during the context of the charge conference. Thus, the district court erred by not including the mandatory instruction. However, in the alternative, Braswell [*15]  argues that the district court abused its discretion in not giving a spoliation instruction, given that the three prongs listed above were all satisfied.

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.2 For example, in United States v. Boxley, 373 F.3d 759 (6th Cir. 2004), the defendant requested a spoliation instruction based on the government's failure to preserve fingerprints. Id. at 762. The Court noted that "[s]poliation is defined as the intentional destruction of evidence that is presumed to be unfavorable to the party responsible for its destruction." Id. (citing Nationwide Mut. Fire Ins. Co. v. Ford Motor Co., 174 F.3d 801, 804 (6th Cir. 1999), overruled by Adkins v. Wolever, 554 F.3d 650 (6th Cir. 2009) (en banc)). The Court further found that there was little chance that the government could have preserved the fingerprints regardless of their methods. Id. More importantly, the Court noted that "intentional destruction" is "removal with the 'purpose of rendering it inaccessible or useless to the defendant in preparing its case; that is spoiling it.'" Id. (quoting Nationwide, 174 F.3d at 804.) In that case, as in Braswell's case here, "there is nothing to indicate that the officers did [*16]  so in bad faith." Id. at 763. The Court ultimately agreed with the district court that "the most that has been shown is that the policemen did not maintain and control the evidence in a manner consistent with good police tactics. But there was no bad faith involved." Id. Based on that conclusion, coupled with the unlikelihood that the fingerprints could have been re

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