ROBERT NEIL HOWELL, PETITIONER V. UNITED STATES OF AMERICA No. 89-6162 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-7) is not reported. JURISDICTION The judgment of the court of appeals was entered on September 25, 1989. The petition for a writ of certiorari was filed on November 22, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court erred in instructing the jury that it could draw an adverse inference from the government's failure to produce a certain item of evidence only if it found that the government deliberately and in bad faith destroyed the evidence. STATEMENT After a jury trial in the United States District Court for the Middle District of Tennessee, petitioner was convicted of the unlawful possession of an unregistered sawed-off shotgun, in violation of 26 U.S.C. 5861(d). Petitioner was sentenced to imprisonment for a term of one year and one day. The court of appeals affirmed. Pet. App. 1-7. 1. The pertinent facts are summarized in the opinion of the court of appeals. Pet. App. 1-3. On August 13, 1986, employees of the Chrysler Credit Corporation found a sawed-off shotgun concealed beneath the seat of a truck that had been repossessed from petitioner on the preceding day. The Chrysler employees turned the weapon over to a local police officer, who in turn gave it to ATF Agent Chuck Lowe. Before placing the weapon in the evidence room, Agent Lowe measured it and found that the barrel length was 13 1/2 inches and the overall length was 21 1/8 inches. /1/ Agent Lowe did not photograph the weapon. Petitioner subsequently told Agent Lowe that he (petitioner) had purchased the weapon for self-defense and that the weapon was sawed-off at the time he purchased it. 2. Petitioner was ultimately indicted for possession of an unregistered sawed-off shotgun on November 12, 1986. On December 10, 1986, the magistrate issued a standing discovery order allowing petitioner to inspect various documents and tangible exhibits, including the shotgun. C.A. Jt. App. 7-10. Petitioner did not exercise his right to inspect the shotgun. Pet. App. 6. Petitioner's case was continued, and on February 19, 1987, he was placed on pretrial diversion for a term of 18 months. C.A. Jt. App. 3. Petitioner's case was restored to the docket on July 6, 1988, after it was learned that petitioner had breached the conditions of the pre-trial diversion agreement. Pet. App. 2-3; Br. of the Appellant 4-5; Gov't C.A. Br. 6. On the same day that the government moved to have petitioner's case restored to the docket, the shotgun that he was charged with possessing was destroyed by ATF Agent Robert Crofford. In his capacity as supervisor of the Nashville, Tennessee, ATF office, Agent Crofford conducted a status check of various items stored in the evidence room and mistakenly concluded that petitioner's shotgun was not implicated in any pending court action. Based on this mistaken conclusion, Agent Crofford sought and received the permission of ATF headquarters to destroy the weapon. Agent Crofford thereafter destroyed the weapon without checking with either the clerk of court or the United States Attorney's office, and without either measuring or photographing the weapon. Agent Crofford later estimated, however, that the total length of the weapon was 21 inches, noting that the original shoulder stock was cut off into a pistol grip and that the barrel was cut down to make it a very short weapon. Pet. App. 2. At trial, petitioner maintained that the sawed-off shotgun was not a "firearm" subject to registration under 26 U.S.C. 5845(a) since it had a barrel length in excess of 18 inches and an overall length in excess of 26 inches. In support of this defense, petitioner requested a jury instruction that "(w)hen a party deliberately destroys evidence, a presumption arises that if the evidence were produced at trial, it would operate against the party who deliberately destroyed it." Pet. App. 4. The district court refused the proffered instruction. The court instead instructed, Pet. App. 3: There was evidence introduced before you that the weapon mentioned in this indictment was destroyed by agents of the government. If you find that such destruction was deliberate and done in bad faith, you may infer that the production by the prosecution of the weapon before you would have operated against the best interest of the prosecution. If you find that it was not destroyed deliberately and in bad faith, you should not draw any such inference. The jury thereafter returned a verdict of guilty. 3. The court of appeals affirmed. It held that, under the circumstances of the case, petitioner "should (not) have been allowed to benefit by the requested jury instruction upon the government's inability to produce the weapon." Pet. App. 6. Thus, the court of appeals noted that petitioner had access "for nearly two years before trial" to both the firearm and to Agent Lowe's report showing that the dimensions of the firearm were far below the minimums required by Section 5845(a). Pet. App. 6. Despite this, petitioner neither sought "to examine or measure the gun at any time" nor "contested the testimony offered by witnesses regarding the estimated length of the gun." Ibid. As the court of appeals stated, the duty of the government to preserve evidence extends only to material evidence having exculpatory value; however, in this case "there (wa)s not so much as a hint that the shotgun's true dimensions were exculpatory." Ibid. In view of this, the court concluded that the missing evidence instruction as given "adequately informed the jury of relevant considerations and offered a basis in law for framing its decision." Id. at 6-7. ARGUMENT Petitioner contends that the district court should have instructed the jury that an adverse evidentiary presumption arises whenever a party deliberately destroys evidence, irrespective of the materiality of the destroyed evidence or the absence of any bad faith. In Arizona v. Youngblood, 109 S. Ct. 333 (1989), this Court considered the extent to which the Constitution requires the government to preserve evidentiary material that might be useful to a criminal defendant. In that case, a prosecution for sexual assault, the defendant claimed that he was deprived of a fair trial because the government failed to test in a timely fashion fluid samples that had been collected from the victim's clothing or to preserve the clothing under refrigerated conditions that would allow later testing. Although recognizing that "the good or bad faith of the (government) (is) irrelevant when the (government) fails to disclose material exculpatory evidence," the Court stated that a "different" rule is appropriate when the government has merely failed to preserve evidentiary materials that may potentially have some exculpatory value. Id. at 337. In the latter circumstances, the Court held "that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not (violate the Constitution)." Ibid. As the Court explained, the requirement that bad faith be shown "both limits the extent of the police's obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant." Ibid. See also California v. Trombetta, 467 U.S. 479, 488-489 (1984) (constitutional duty to preserve evidence "must be limited to evidence that might be expected to play a significant role in the suspect's defense" in that it "possess(ed) an exculpatory value that was apparent before it was destroyed"). Just as the existence or non-existence of bad faith is relevant in determining whether the failure to preserve potentially exculpatory evidence has deprived a criminal defendant of a fair trial, the existence or non-existence of bad faith is relevant in determining whether an adverse evidentiary inference may appropriately be drawn from the failure to preserve potentially exculpatory evidence. As has been cogently stated, a party's "fabrication or suppression of evidence by bribery or spoliation () is receivable against him as an indication of his consciousness that his case is a weak or unfounded one; and from that consciousness may be inferred the fact itself of the cause's lack of truth and merit." 2 H. Wigmore, Evidence Section 278(2), at 133 (Chadbourne rev. 1979). It has likewise been recognized that when a party resorts to "wrongful devices" sounding in obstruction of justice, "he is said to give ground for believing that his case is weak and not to be won by fair means"; accordingly, such conduct is "commonly regarded as an admission by conduct." McCormick, Evidence Section 273, at 660 (2d ed. 1972). By contrast, when law enforcement officers have not destroyed evidence whose exculpatory value was "apparent before it was destroyed," California v. Trombetta, 467 U.S. at 489, and have not "by their conduct indicate(d) that the (destroyed) evidence could form a basis for exonerating the defendant," Arizona v. Youngblood, 109 S. Ct. at 337, the rationale for applying an adverse evidentiary inference from the destruction of potentially exculpatory evidence is lacking. Simply put, in circumstances that do not indicate a malevolent purpose on the part of a law enforcement officer in failing to preserve evidence, there is no "consciousness" of any weakness in the government's case that might logically support an adverse evidentiary inference. See McCormick, supra, Section 273, at 660-661 ("the circumstances of the act (of destroying evidence) must be in bad faith" since "(m)ere negligence is not enough * * * (to) sustain the inference of consciousness of a weak case"). Accordingly, the courts of appeals that have considered the question -- both in criminal and in civil contexts -- have concluded that an adverse evidentiary inference is inappropriate in the absence of any bad faith on the part of the party responsible for the destruction of evidence. See Brown & Williamson Tobacco Corp. v. Jacobson, 827 F.2d 1119, 1134-1136 (7th Cir. 1987), cert. denied, 108 S. Ct. 1302 (1988); Eaton Corp. v. Appliance Valves Corp., 790 F.2d 874, 878 (Fed. Cir. 1986); United States v. Esposito, 771 F.2d 283, 285-286 (7th Cir. 1985), cert. denied, 475 U.S. 1011 (1986); Coates v. Johnson, 756 F.2d 524, 550-551 (7th Cir. 1985); S.C. Johnson & Son, Inc. v. Louisville & Nashville R.R. Co., 695 F.2d 253, 258-259 (7th Cir. 1982); Alexander v. National Farmers Organization, 687 F.2d 1173, 1205-1206 & n.40 (8th Cir. 1982), cert. denied, 461 U.S. 937 (1983); Valentino v. United States Postal Service, 674 F.2d 56, 73 n.31 (D.C. Cir. 1982); Vick v. Texas Employment Comm'n, 514 F.2d 734, 737 (5th Cir. 1975). /2/ As the court of appeals stated, it is doubtful that petitioner should even "have been allowed to benefit by the requested instruction upon the government's inability to produce the weapon" in view of his failure to inspect the shotgun during the two years that it was available to him, his failure to "challenge() or contest() the testimony offered by witnesses regarding the length of the gun," and the absence in the record of "so much as a hint that the shotgun's true dimensions were exculpatory." Pet. App. 6. But, assuming that the government failed to preserve potentially exculpatory evidence, the instruction given "adequately informed the jury of relevant considerations and offered a basis for framing its decision." Id. at 6-7. Thus, in accordance with the rationale that an adverse inference is appropriately drawn only when the circumstances surrounding the destruction of an item of evidence logically show a consciousness of weakness in the destroying party's case, the district court instructed that an adverse inference could permissibly be drawn if the jury found that the "destruction was deliberate and done in bad faith." Id. at 3. By contrast, the district court instructed that no such inference should be drawn if the weapon "was not destroyed deliberately and in bad faith." Ibid. Against this background, the district court did not abuse its discretion in rejecting petitioner's proffered instruction that would have erroneously required the jury to draw an adverse presumption that the shotgun was in fact longer than that proscribed by Section 5845(a). See United States v. Esposito, 771 F.2d at 286 ("if the doctrine (of spoliation) applied, it would give rise to an inference, not a presumption;" therefore, proffered instruction framed in terms of a presumption was properly rejected). At bottom, the instruction given at trial was entirely consistent with the reasoning of this Court in Youngblood and Trombetta and comported with the approach followed by the various circuits. /3/ Further review of petitioner's claim is unwarranted. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General ROBERT J. ERICKSON Attorney MARCH 1990 /1/ Although neither of the Chrysler employees measured the shotgun at the time it was found, one of the employees testified at trial that its length was approximately 18 inches. /2/ Petitioner errs in claiming (Pet. 7) that Nation-Wide Check Corp. v. Forest Hills Distributors, Inc., 692 F.2d 214 (1st Cir. 1982), and Boyd v. Ozark Air Lines, Inc., 568 F.2d 50 (3rd Cir. 1977), are to the contrary and hold that an adverse evidentiary inference may be appropriately drawn in the absence of bad faith. Although the court in Nation-Wide Check Corp. stated that a bad faith destruction of evidence is not a prerequisite for drawing an adverse evidentiary inference, the court went on to note that such an inference requires that the party be on notice that particular evidence is desired by the opposing party at the time of its destruction and that such an inference "'ordinarily' depend(s) on a showing of bad faith." 692 F.2d at 219. As the court thus explained, "the 'bad faith' label is more useful to summarize the conclusion that an adverse inference is permissible than it is actually to reach the conclusion." Ibid. Recently, in Anderson v. Cryovac, Inc., 862 F.2d 910, 925 (1988), the First Circuit explained that in the case of lost or destroyed evidence "the actor's intent is not immaterial." Relying on Coates v. Johnson, supra, and Vick v. Texas Employment Comm'n, supra, which both required bad faith as a prerequisite for drawing an adverse inference, Anderson explained that it is only "(i)n case of intentional misconduct, as where the concealment was knowing and purposeful," that the rationale supporting an adverse evidentiary inference is justified, id. at 927, and that there is less reason for drawing an adverse inference where the loss was only negligent, id. at 928. The First Circuit's decision in Anderson therefore follows the same rationale as the other circuits. Nor does Boyd v. Ozark Air Lines conflict with the approach taken by other courts of appeals. The court in Boyd merely noted that the destruction of records may give rise to an adverse evidentiary inference, but found no need to consider what circumstances would trigger that inference. 568 F.2d at 53. Nothing in Boyd suggests that the existence or non-existence of bad faith is irrelevant in determining whether an inference should be drawn. /3/ Petitioner asserts that various state courts routinely give adverse instructions whenever law enforcement officers destroy material evidence. Pet. 7-8. That claim does not assist petitioner, for several reasons. First, the shotgun was not "material" since, as the court of appeals correctly noted, there was not the slightest indication that it constituted exculpatory or even potentially exculpatory evidence. Second, even if the state courts had adopted the rule that petitioner urges here, the States are free to adopt their own evidentiary rules. Third, all of the state court cases were decided before Youngblood. In any event, a reading of the cases petitioner cites does not support such a broad proposition. In one case, the court found that there was no need to give an adverse inference instruction. Hedrick v. State, 430 N.E.2d 1150, 1154 (Ind. 1982). In two others, the courts held that deliberateness in the sense of bad faith was necessary before an instruction should be given. State v. Langlet, 283 N.W.2d 330, 333-336 (Iowa 1979); People v. Rosborough, 22 Mich. App. 410, 177 N.W.2d 697, 699 (1970). Another case found actual bad faith. Sanborn v. Kentucky, 754 S.W.2d 534, 539-540 & n.3 (Ky. 1988). In other cases, in dicta the courts merely noted without analysis that such instructions had been given by the trial judge. State v. Hamele, 188 Conn. 372, 449 A.2d 1020, 1024 & n.5(1982); State v. McGill, 324 N.W.2d 378, 379 (Minn. 1982); People v. Hardaway, 67 Mich. App. 82, 240 N.W.2d 276, 278 (1976). In cases in which instructions were held to be appropriate, the courts approved instructions that merely permitted the jury to draw an adverse inference, rather than requiring them to apply an adverse presumption, as petitioner sought. Sanborn v. Kentucky, 754 S.W.2d at 540 & n.3; State v. Gonzalez, 206 Conn. 213, 537 A.2d 460, 466 & n.7 (1988); State v. Maniccia, 355 N.W.2d 256, 258-259 (Iowa App. 1984); State v. Willits, 96 Ariz. 184, 393 P.2d 274, 276, 279 (1964). People v. Zamora, 28 Cal. 3d 88, 651 P.2d 1361, 167 Cal. Rptr. 573 (1980), held that the remedy for a non-bad faith destruction of evidence should be an instruction requiring an adverse assumption of materiality against the responsible party. Zamora, however, rested on a constitutional analysis that this Court subsequently rejected in Youngblood and Trombetta. Thus, the state court decisions cited by petitioner stand for little more than the proposition that trial judges may instruct juries as to the permissibility of drawing adverse evidentiary inferences from the destruction or failure to preserve evidence when the peculiar circumstances of a case would warrant such an inference.