United States v. Jabar Evans

U.S. COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 24-2156

UNITED STATES OF AMERICA

v.

JABAR EVANS,

also known as JB, also known as Hood,

Appellant

_____________________________

Appeal from U. S. District Court, D.N.J.

Judge William J. Martini,

No. 2:21-cr-00899-001

Before: RESTREPO, MCKEE AND AMBRO, Circuit Judges

Argued Nov. 10, 2025;

Decided May 19, 2026

_____________________________

OPINION OF THE COURT

RESTREPO, CIRCUIT JUDGE

Jabar Evans appeals his convictions for drug and

firearm offenses that followed a search of his hotel room

pursuant to a warrant. He alleges three trial court errors on

appeal, none of which warrant relief. His claim that the District

Court erred by admitting improper lay opinion testimony has

merit, but any error was harmless in light of the evidence. For

the following reasons, we will affirm the judgments of

sentence.

I.

A. Facts

On April 23, 2021, Evans checked into Room 306 of the

Haiban Inn Hotel in Jersey City, New Jersey. Two months

later, on June 21, 2021, Evans asked the hotel manager for a

larger room and was given Room 207. That night, Evans and

his friends moved his belongings into the larger room. Evans

returned the keys for Room 306 to the hotel manager the next

morning.

The hotel’s housekeeping staff cleaned Room 306 later

that day. A plastic bag containing two handguns and some

letters with distinctive handwriting was found inside the

room’s open safe. A housekeeper brought the bag to the hotel

manager, who then called the police to report the guns. Patrol

officers responded and collected the guns—a .45 handgun

loaded with hollow point bullets and a 9 mm handgun with a

defaced serial number and a missing magazine. The manager

gave the officers a copy of Evans’ driver’s license and told

them that Evans was there in his new hotel room. From Evans’

identification, police determined that there was an outstanding

warrant for his arrest.

On the night of June 22, 2021, officers from the Jersey

City Police Department’s Emergency Services Unit (ESU)

assembled outside the door of Room 207. Evans initially

responded to an officer announcing their presence but became

silent after they identified themselves as police. While the

officers were attempting to persuade Evans to come to the door,

Evans leaned out of the window and made eye contact with the

officer positioned outside. After forty minutes of no response

from Evans, the officers forced entry into the room. They

found Evans on his bed and arrested him without incident.

2

Because Evans was recovering from a prior gunshot wound,

the officers took him to the hospital for treatment.

Meanwhile, Jersey City detectives obtained a warrant to

search Room 207 for further evidence of weapons offenses,

such as the missing magazine from the confiscated gun or

“identifiers” that would link any firearms or firearm

accessories to the resident of the room. Appx. 3. The warrant

was executed in the early morning hours of June 23, 2021.

Upon entering the room, the officers immediately found a

small shoebox filled with bundled heroin. Nearby was a

garbage bag filled with bundled heroin and boxes of empty

glassine bags. Throughout the room were stamped glassine

bags that contained controlled drug substances. Also recovered

from the room were stamp pads and various stamps, as well as

drug packaging materials covered in a white powdery residue:

a mirror, scales, measuring cups, small scoops, a press, a

grinder, a pestle, a strainer, and substances used to augment or

“cut” different narcotics.

During the search, a detective noticed a piece of tile

from the room’s drop ceiling on the bed. Standing on the bed,

the detective pushed on the broken tile and a gun magazine fell

from the ceiling. From that position, he was able to pull down

two duffel bags and a backpack. The backpack contained

different types of drugs—crystal methamphetamine, cocaine,

crack cocaine, codeine, fentanyl and heroin—and

approximately $8,000 in cash. One of the duffel bags, which

Evans was seen on surveillance footage carrying from Room

306 to Room 207, contained fentanyl, bundled glassine bags

and other drug packaging materials. Also in the duffel was a

letter with the same distinctive handwriting as the letters found

in the safe. The other duffel bag contained marijuana in

different sized packaging, ranging from large Ziploc bags to

glassine packets.

All told, the officers found approximately 13,000

glassine bags of controlled drug substances in the hotel room.

3

Some of the glassine bags were stamped with stamps found in

the room, and some of the bags matched the bags of heroin

found in Evans’ possession on the night he was shot.1

B. Procedural History

A grand jury returned a three-count indictment against

Evans, charging him with being a felon in possession of guns

in violation of 18 U.S.C. § 922(g)(1); possessing with the intent

to distribute fentanyl and methamphetamine in violation of 21

U.S.C. §§ 841(a)(1) and (b)(1)(A); and possessing a gun in

furtherance of a drug-trafficking crime in violation of 18

U.S.C. § 924(c).2

Among other pre-trial motions, Evans moved to

suppress the evidence recovered from Room 207. The District

Court denied the motion, ruling that the “warrant laid out

sufficient facts to support a probable cause determination that

evidence of unlawful possession of a weapon would be found

in [R]oom 207, including identifying information of who might

be the owner of the two firearms found in 306.” Appx. 4. The

Court further found that, even if the facts were insufficient to

support probable cause, the officers acted “with objective good

faith in obtaining the warrant and acted within its scope,” and

therefore the good-faith exception to the exclusionary rule

would apply. Id.

1

Evans was shot several times the night of April 23, 2021. The

officer who responded to the scene of the shooting found

approximately 200 stamped glassine bags of heroin next to

Evans. In the search that followed his arrest, officers found

both the stamp and glassine bags of heroin stamped with the

same mark in his hotel room.

2

At trial, a firearms expert testified that the two guns were

manufactured outside of New Jersey. Their discovery in a New

Jersey hotel room meant that each gun “traveled and affected

interstate commerce.” Appx. 578.

4

At trial, Detective William Costigan testified for the

government as to his role in executing the search warrant in

Room 207. After providing his experience and credentials,

Costigan identified the different types of narcotics found,

described how they were packaged, and explained how the

items seized were connected to drug manufacturing. Evans

objected, and then moved for a mistrial, on the ground that

Costigan was improperly offered as a lay witness in violation

of Federal Rule of Evidence 701(c). The District Court denied

both the objection and the motion, finding that Costigan’s

testimony was “not scientific [nor] highly technical” and

therefore did not constitute expert testimony. Appx. 423.

Instead, the Court ruled that the detective’s testimony was

consistent with what a lay person would conclude upon seeing

the seized evidence.

The jury found Evans guilty of all three charges.3 The

District Court sentenced him to 192 months’ imprisonment

followed by five years’ supervised release. This appeal

followed.4

3

With respect to the charge for possessing with the intent to

deliver fentanyl and methamphetamine in violation of 21

U.S.C. §§ 841(a)(1) and (b)(1)(A), the jury found that Evans

possessed 400 grams or more of fentanyl and 50 grams or more

of methamphetamine.

4

The District Court had subject matter jurisdiction under 18

U.S.C. § 3231, and this Court has jurisdiction under 28 U.S.C.

§ 1291.

5

II.

A. The search of the ceiling and the seizure of

contraband found therein was proper

Evans argues the seizure of evidence found by searching

the ceiling above his hotel room violated his Fourth

Amendment rights. We disagree.

The warrant authorized a search of Room 207 of the

Haiban Inn Hotel for evidence of unlawful firearm possession.

The accompanying affidavit requested authorization to search

for “clothing, contraband, projectiles, shell casings, firearms,

writings, papers, electronic devices, DNA, fingerprints, other

items of evidentiary value and other instrumentalities” that

would establish an unlawful firearm possession charge under

New Jersey law. Appx. 22. In litigating the motion to suppress,

Evans argued the ceiling went beyond the scope of the warrant.

The District Court found no error and denied the motion. We

now review that decision de novo. United States v. Ramos, 443

F.3d 304, 307 n.3 (3d Cir. 2006).

Assuming arguendo that Evans had a legitimate

expectation of privacy in the ceiling, the search pursuant to the

warrant was proper. “A lawful search of fixed premises

generally extends to the entire area in which the object of the

search may be found and is not limited by the possibility that

separate acts of entry or opening may be required to complete

the search.” United States v. Ross, 456 U.S. 798, 820–21

(1982). A “warrant encompasses the authority to search” all

the parts of the premises where “the person who is the target of

the search has access to or control over.” Torres v. United

States, 200 F.3d 179, 187 (3d Cir. 1999). Moreover, warrants

are to be “read in a common sense, non-technical fashion.”

Doe v. Groody, 361 F.3d 232, 239 (3d Cir. 2004). For example,

a warrant to search for guns, or evidence tying the target of the

search to the guns, authorizes law enforcement “to open

closets, chests, drawers, and containers in which the weapon

6

might be found.” Ross, 456 U.S. at 821. Judicial review of

how a warrant was executed focuses on whether the search was

reasonable. Dalia v. United States, 441 U.S. 238, 258 (1979);

see also United States v. Ramirez, 523 U.S. 65, 71 (1998) (“The

general touchstone of reasonableness which governs Fourth

Amendment analysis governs the method of execution of the

warrant” (citation omitted)). Such reasonableness “must be

determined by the particular facts of each case.” United States

v. Becker, 929 F.2d 442, 446 (9th Cir. 1991).

Given these particular facts, law enforcement acted

reasonably in searching the ceiling. The detective looked

above the ceiling tiles after realizing that Evans had likely done

the same, as indicated by the piece of ceiling tile on the bed. A

gun magazine fell out when the ceiling tile was pushed,

establishing that the space contained the evidence sought.

Evans had been in the room for forty minutes before the

officers entered, giving him plenty of time to access areas

beyond the room’s drawers and closets. Searching the ceiling

meant efficiently completing the search, and “[t]here is no

indication that [the] intrusion went beyond what was

necessary.” Dalia, 441 U.S. at 258 n.20; see, e.g., United

States v. Weinbender, 109 F.3d 1327, 1329–30 (8th Cir. 1997)

(holding that officers acted reasonably by removing drywall

that looked to have been recently repaired to find hidden

contraband); Becker, 929 F.2d at 446–47 (concluding that

officers acted reasonably by jackhammering a concrete slab

that appeared to have been recently installed to find drug-

making materials).

Because the officers’ actions were reasonable under the

circumstances, there was no Fourth Amendment violation.

United States v. Stiver, 9 F.3d 298, 302 (3d Cir. 1993). The

incriminating nature of the drugs and drug packaging materials

found inside the bags taken from the ceiling was immediately

apparent and justified their lawful seizure. United States v.

Menon, 24 F.3d 550, 559 (3d Cir. 1994) (citing Horton v.

California, 496 U.S. 128, 136 (1990)). For these reasons, we

7

will affirm the District Court’s denial of the motion to

suppress.5

B. Admittance of improper lay opinion testimony was

harmless error

Next, Evans re-argues on appeal that the District Court

abused its discretion by admitting lay opinion testimony in

violation of Federal Rule of Evidence 701. He claims

Detective Costigan improperly offered expert testimony as to

how drug dealers operate, which went beyond his personal

observations of the evidence and required expert knowledge.

Whether the District Court abused its discretion in this instance

is a close call. After close review, we conclude that aspects of

the detective’s testimony went beyond the scope of Rule 701

and should not have been admitted as lay opinion testimony,

but that any error was harmless given the overwhelming

evidence of Evans’ guilt.

Detective Costigan was part of the team that searched

Evans’ hotel room and therefore personally observed the

evidence that was seized. He testified that he had been

employed by the Jersey City Police Department for eighteen

years and had, in that time, handled “[o]ver a thousand” drug

cases and received additional training in drug trafficking

crimes. Appx. 352. As a result of this experience, he stated

that he was familiar “with how illegal drugs are packaged for

distribution.” Appx. 353. During the course of his testimony,

Costigan explained that drug trafficking is a “cash business,”

5

Evans supports his Fourth Amendment claim by citing United

States v. Irizarry, 673 F.2d 554 (1st Cir. 1982), which addressed

a warrantless “security check” search of a hotel room. The

Irizarry Court held that seizing the evidence from the hotel

room’s ceiling violated the Fourth Amendment because the

officer “launched himself on an exploratory search” that was

“not justified by any exigent circumstances.” Id. at 559. Here,

in contrast, there was a lawfully executed warrant that

authorized the search of the ceiling.

8

and that guns are used by dealers to protect their cash proceeds.

Appx. 355-56. He described the drugs and drug packaging

materials found in the room, opining that traffickers use stamps

to brand drugs for sale and that it was uncommon for street-

level dealers to possess such “branding paraphernalia.” Appx.

374. Costigan described the process of pressing narcotics to

package them for sale and how drug manufacturers dilute the

product to create more supply. He explained how the items

seized would be used to manufacture drugs, and why the

bundles of cash found in the room indicated drug trafficking

rather than individual sales. Costigan provided terms used to

describe different types and quantities of drugs, and confirmed

that everything one “would need to manufacture and package

narcotics” was found in the hotel room. Appx. 414.

After Costigan testified, Evans moved for a mistrial on

the grounds of improperly admitted expert testimony. The

government countered that Costigan did not offer expert

opinions but only explained to the jury “why items were seized

pursuant to this investigation.” Appx. 417. The District Court

denied Evans’ motion, finding that Costigan had personal

knowledge of “drug distribution” and “drug manufacturing,”

and that his testimony was consistent with what a lay person

would conclude seeing the items seized. Appx. 431. The

District Court also noted that Evans’ defense was that the items

belonged to someone else, and that strategy was not affected

by Detective Costigan’s testimony.

We review the District Court’s evidentiary ruling that

Detective Costigan’s opinions were admissible under Rule 701

for abuse of discretion. Donlin v. Philips Lighting N. Am.

Corp., 581 F.3d 73, 80 (3d Cir. 2009). Even if we conclude the

District Court’s ruling constituted error, we will reverse Evans’

convictions only if the error was prejudicial and not harmless.

Id. (citing Becker v. ARCO Chem. Co., 207 F.3d 176, 205 (3d

Cir. 2000)).

9

The admissibility of non-expert opinion testimony is

governed by Rule 701, which reads:

If a witness is not testifying as an expert,

testimony in the form of an opinion is limited to

one that is: (a) rationally based on the witness’s

perception; (b) helpful to clearly understanding

the witness’s testimony or to determining a fact

in issue; and (c) not based on scientific,

technical, or other specialized knowledge within

the scope of Rule 702.

Fed. R. Evid. 701.

Rule 701’s first requirement, that the opinion be

“rationally based on the witness’ perception,” requires that the

witness “have firsthand knowledge of the factual predicates

that form the basis for the opinion.” Gov’t of V. I. v. Knight,

989 F.2d 619, 629 (3d Cir. 1993) (citing Fed. R. Evid. 701(a)).

The personal perception requirement ensures that the lay

opinion is based on the witness’s own exposure to the facts,

and that the witness’s logical inferences are based on that

exposure. See United States v. Allen, 10 F.3d 405, 414 (7th Cir.

1993); see also 29 Wright & Miller’s Fed. Prac. & Proc. Evid.

§ 6254 at 152 (2d ed. 2026) (“[T]he quality and quantity of the

perception must be sufficient to logically permit the witness to

base an opinion thereon.”). We have allowed professionals

with specialized training in the relevant field to testify as lay

witnesses and give opinions based on their personal knowledge

of the evidence. United States v. DeMuro, 677 F.3d 550, 561–

62 (3d Cir. 2012).

The second requirement demands that the lay opinion

help the fact-finder understand testimony or determine a fact

in issue. Fed. R. Evid. 701(b). To be helpful, the witness must

“have a reasonable basis grounded either in experience or

specialized knowledge for arriving at the opinion” expressed.

Asplundh Mfg. Div. v. Benton Harbor Eng’g., 57 F.3d 1190,

1201 (3d Cir. 1995); see also United States v. Savage, 970 F.3d

10

217, 286 (3d Cir. 2020) (“In the time since Congress amended

Rule 701, we have repeatedly affirmed our holding in Asplundh

that the reliability of lay opinion testimony should be assessed

in light of the witness’s relevant and specialized knowledge

and experience.”). The witness must offer an opinion that “aids

or clarifies an issue that the jury would not otherwise be as

competent to understand.” United States v. Fulton, 837 F.3d

281, 297 (3d Cir. 2016) (quoting Lauria v. Nat’l RR Passenger

Corp., 145 F.3d 593, 600 (3d Cir. 1998)). Lay opinions that

simply interpret facts the jury is equally qualified to understand

“usurp the fact-finding function of the jury” and should be

deemed inadmissible. Id. at 292 (quoting United States v.

Garcia, 413 F.3d 201, 210-11 (2d Cir. 2005)); see also United

States v. Diaz, 951 F.3d 148, 156 (3d Cir. 2020) (noting that lay

opinions should “offer[] insight the jury could not itself have

gleaned from the evidence” rather than “provide the conclusion

the government wanted the jury to reach”).

Finally, subsection 701(c), added in 2000, requires that

lay opinion testimony not be based on knowledge held only by

experts. Whereas a lay opinion may be premised on

specialized knowledge or experience, an expert opinion

demands additional qualifications that ensure a higher level of

reliability. Rather than testify to reasoning “which can be

mastered only by specialists in the field,” lay opinions must

“result[] from a process of reasoning familiar in everyday life.”

Fed. R. Evid. 701 advisory committee’s notes to 2000

amendment (internal quotations omitted). Subsection 701(c)’s

requirements are meant to prevent a party from “conferring an

aura of expertise” on a lay witness without meeting Rule 702’s

requirements for expert testimony. Donlin, 581 F.3d at 81

(quoting Garcia, 413 F.3d at 215). At bottom, if a lay witness

offers an opinion based on information outside of what they

perceived and reasoning beyond their level of qualification

under the Federal Rules of Evidence, the testimony should not

be admitted under Rule 701.

11

Drawing a distinction between expert and lay opinions

is not always a straightforward task. Generally, we defer to the

District Court’s discretion, acknowledging that both lay and

expert opinions may be based on the witness’s firsthand

observations and professional experience. This Circuit has

long held that knowledge gained from work experiences can

foster permissible lay opinions that are technical or specialized

in nature. See, e.g., Lightning Lube, Inc. v. Witco Corp., 4 F.3d

1153, 1175 (3d Cir. 1993) (ruling no abuse of discretion in

admitting lay opinion testimony as to damages where

knowledge was gleaned from witness’s “participation in the

day-to-day affairs of his business”); see also Donlin, 581 F.3d

at 81 (“The Advisory Committee's notes to the 2000

amendment to Rule 701 specifically address Lightning Lube

and note that its holding remains undisturbed by the

amendment.”). But a lay opinion based on knowledge gained

through work experience is only admissible if the witness

personally perceived the facts underlying the inferred opinion.

See, e.g., Hirst v. Inverness Hotel Corp., 544 F.3d 221, 226 (3d

Cir. 2008) (holding that president of a security company’s lay

opinion of hotel’s security measures was inadmissible because

it was not based on firsthand knowledge of that location);

Fulton, 837 F.3d at 291 (recognizing that Rule 701 permits a

lay witness “to give her opinion or interpretation of an event

when she has some personal knowledge of that incident”).

Here, Detective Costigan gained specialized knowledge

of drug packaging and manufacturing through his experiences

as a narcotics officer. He was therefore qualified to help the

fact-finder interpret the evidence of drug trafficking found in

Room 207, and the opinions premised on his personal

observations of the items seized from the hotel room were

admissible under Rule 701.6 The government laid a foundation

6

For example, Detective Costigan’s observation of the stamps,

stamp pads and stamped glassine baggies in Evans’ hotel room

underlay his opinion that the items indicated drug trafficking.

His opinion that the items found covered in a white powdery

12

for the detective’s familiarity with the items, both generally

through his experience as a narcotics officer assigned to drug

trafficking cases and specifically through his role as one of the

officers that executed the search of Room 207. See Fed. R.

Evid. 701 advisory committee’s notes to 2000 amendment

(“[C]ourts have permitted lay witnesses to testify that a

substance appeared to be a narcotic, so long as a foundation of

familiarity with the substances is established. . . . Such

testimony is not based on specialized knowledge within the

scope of Rule 702, but rather is based upon a layperson’s

personal knowledge.”). It was therefore within the District

Court’s discretion to allow Costigan to offer his opinion,

subjected to cross-examination, as to how the items seized

were tied to drug trafficking.

However, Detective Costigan’s testimony regarding

drug traffickers’ general practices, which was not tied to his

perceptions of the underlying facts of this case, should have

been deemed outside the scope of a lay opinion and

inadmissible under Rule 701. Opinions where the detective

“seem[ed] to infer the knowledge for his testimony” from facts

or experiences not before the jury were improperly admitted.

United States v. Jackson, 849 F.3d 540, 554 (3d Cir. 2017).

These included the opinions arising from his “training and

experience” and not the evidence—such as how traffickers

generally process and package drugs for sale and why firearms

are necessary to protect a trafficker’s product and cash profits.

residue, which included a strainer, pestle, grinder, spoon,

measuring cups and playing card, were used to manufacture

and package drugs was inferred from his perception of the

seized evidence. Similarly, his opinion that the chemical

quinine is used as a “cutting agent” for heroin was guided by

the officers’ seizure of three bottles of the substance. Appx.

384. The detective’s opinion that a liquid recovered from the

room was promethazine, which he explained was an ingredient

of the drug “Leen,” was technical in nature but based on his

seeing the substance in Room 207 and therefore constituted

permissible lay opinion testimony. Fulton, 837 F.3d at 301.

13

Also improper was Costigan’s opinion, offered without

connection to the evidence, that the denomination of a seller’s

cash profits can indicate the level of drug distribution. Finally,

the detective’s opinion that everything one “would need to

manufacture and package narcotics” was found in the hotel

room fell beyond the scope of lay witness testimony. Appx.

414. He presented the jury with a conclusion about the

evidence that necessarily drew on his general knowledge of

drug dealing. Opinions that rely on experiences not associated

with the facts of record constitute “argument by way of lay

opinion testimony” and usurp the jury’s role as fact-finder.

Diaz, 951 F.3d at 158.7

Even though some of Detective Costigan’s lay opinions

were admitted in error, we conclude that the result of any

error—considered alone or in the aggregate—was harmless. In

reaching this conclusion, we “must be able to say that it is

highly probable that the error did not contribute to the jury’s

judgment of conviction.” Knight, 989 F.2d at 630 (citing Gov’t

of the V.I. v. Toto, 529 F.2d 278, 284 (3d Cir. 1976)). Given the

sheer amount of drugs, manufacturing tools and packaging

7

In essence, this interpretation is in keeping with the Advisory

Committee Notes from the amendment creating Rule 701(c),

which was enacted to prevent a witness from “proffering an

expert in lay witness clothing” in order to avoid civil and

criminal rules of disclosure. By way of example, the Note

draws a distinction between a lay opinion identifying a

particular drug where a “foundation of familiarity” had been

established based on the witness’s use of that drug and an

expert opinion describing how drugs are manufactured and

distributed. Fed. R. Evid. 701 advisory committee’s note to

2000 amendment (citing United States v. Figueroa-Lopez, 125

F.3d 1241, 1246 (9th Cir. 1997)) (concluding that police

officer’s opinion that defendant’s behavior was that of an

experienced trafficker constitutes expert testimony).

Consistent with the Note’s reasoning, we distinguish opinions

based on specific pieces of evidence personally observed from

those describing the usual practices of traffickers as a general

matter.

14

materials found in Room 207, it is highly probable that

Detective Costigan’s improper opinions regarding the modus

operandi of drug dealers did not contribute to the jury’s

decision to convict. Indeed, Evans barely disputed that the

evidence was indicative of drug manufacturing and

distribution. Rather, his defense at trial was that the evidence

did not belong to him. During his closing, Evans all but

conceded that Room 207 contained evidence of drug

trafficking, arguing instead that there was no proof he himself

distributed drugs despite “hav[ing] all of this laboratory

equipment and drugs knowingly in the hotel room.” Appx.

1103-04. In light of the record, we conclude Detective

Costigan’s impermissible opinions concerning general drug

trafficking practices did not prejudice Evans at trial.8 Under

these circumstances, therefore, relief is not warranted.

C. No abuse of discretion where Evans was not entitled

to spoliation instruction

Lastly, Evans argues that the District Court erred in

denying his request for a spoliation instruction regarding the

absence of body camera footage of the hotel room search. He

claims the lack of explanation for the footage’s absence is

8

In his reply brief, Evans argues that the District Court erred

in allowing Detective Costigan to offer opinions that addressed

elements of the crimes charged and “helped the jury” find him

guilty. Reply Brief at 8. If the requirements of Rule 701 are

met, and the opinion testimony is not offered to “dictate a

certain conclusion,” it is permissible to have lay opinion

testimony address the elements of the crimes charged so as to

help the jury decide the case. Fulton, 837 F.3d at 291. In fact,

if the lay opinion is not helpful to the fact-finder, it should be

deemed inadmissible. Evans is correct that the detective’s

testimony “regarding the operations of narcotics dealers” not

tied to the evidence was improperly admitted under Rule 701.

Reply Brief at 8. But we conclude that the evidence of drug

trafficking recovered from his hotel room was such that it is

highly improbable this improper lay opinion testimony

contributed to the jury’s findings of guilt.

15

evidence of bad faith. Evans asserts he suffered prejudice

because the footage would have “either corroborated or

refuted” the officers’ testimony that the seized items were in

plain view and in close propinquity to his other belongings.

Brief for Appellant, 21. We review the District Court’s

decision not to give such an instruction for abuse of discretion.

United States v. Leahy, 445 F.3d 634, 642 (3d Cir. 2006). Upon

review, we conclude no abuse of discretion occurred.

“Spoliation occurs when evidence is destroyed or

altered, or when a party fails to preserve evidence in instances

where litigation is pending or reasonably foreseeable.” Bull v.

United Parcel Serv., Inc., 665 F.3d 68, 73 (3d Cir. 2012) (citing

Micron Technology, Inc. v. Rambus Inc., 645 F.3d 1311, 1320

(Fed. Cir. 2011)). When the destroyed, altered, or unpreserved

evidence is “relevant to an issue in a case, the trier of fact

generally may receive the fact of the document's

nonproduction or destruction as evidence that the party that has

prevented production did so out of the well-founded fear that

the contents would harm him.” Brewer v. Quaker State Oil

Refining Corp., 72 F.3d 326, 334 (3d Cir. 1995). In such cases,

the opposing party may request a spoliation instruction. Such

an instruction permits the fact-finder to infer “that the

destroyed evidence would have been unfavorable to the

position of the offending party.” McMunn v. Babcock & Wilcox

Power Generation Grp., Inc., 869 F.3d 246, 268 (3d Cir. 2017)

(quoting Schmid v Milwaukee Elec. Tool Corp., 13 F.3d 76, 78

(3d Cir. 1994)).

A spoliation instruction is only appropriate if certain

requirements are met. First, it must be established “that the

evidence in question [was] within the [offending] party’s

control.” Brewer, 72 F.3d at 334. And second, “it must appear

that there has been an actual suppression or withholding of the

evidence.” Id. An instruction is not warranted if there is no

indication of intentional misconduct. “No unfavorable

inference arises when the circumstances indicate that the

document or article in question has been lost or accidentally

16

destroyed, or where the failure to produce it is otherwise

properly accounted for.” Id.

The District Court did not abuse its discretion in

denying Evans’ request for a spoliation instruction. Evans is

correct there was no footage of the search introduced at trial,

but he failed to establish the appearance of intentional

suppression by the police.9 He never attempted to ascertain

whether such footage existed, much less whether the police

purposefully concealed the footage to hide harmful evidence.

Instead, Evans argued a spoliation instruction was appropriate

because the footage was “inexplicably unavailable, missing,

[or] destroyed negligently.” Appx. 1127. In so arguing, he

conceded there was a plausible non-nefarious explanation for

the missing evidence. See Brewer, 72 F.3d at 334 (finding that

the failure to produce evidence could have been due to many

reasons unrelated to the lawsuit). Where, as here, there is no

showing that the police had intentionally prevented the footage

from becoming evidence, a spoliation instruction would have

been inappropriate.

Further, Evans did not prove he was prejudiced by the

footage’s absence. He failed to allege the missing evidence

would have had any apparent exculpatory value. Whether the

officers found the evidence in plain view or close to his other

belongings would have been, at most, potentially helpful to his

defense. The unintentional absence of only potentially helpful

evidence does not warrant an unfavorable inference against the

9

Footage from Officer O’Neill Arroyo’s body camera was

introduced at trial and showed Evans’ arrest in his hotel room.

Footage from Officer Tyler Wendt’s body camera was also

introduced and showed Evans leaning out of his hotel window

while the police were at his hotel room’s door. As part of the

defense, Evans played Officer Arroyo’s body camera footage

of his interview of the hotel’s housekeeper. Regarding the

search, Detective Costigan testified he was not wearing a body

camera and did not know what the other officers did with their

cameras’ footage.

17

government. Bull, 665 F.3d at 73–74. Finally, Evans

repeatedly communicated to the jury that the absence of

footage of the search was suspicious, both indirectly through

his cross-examination of Detective Costigan and directly

during his closing argument. That the jury nevertheless found

him guilty does not substantiate his claim of court error.

* * * *

For these above-stated reasons, we will affirm the

judgments of sentence below.

Counsel for Appellant

Blair R. Zwillman

Emma Enright [Argued]

Klingeman Cerimele

Counsel for Appellee(s)

Jane M. Dattilo [Argued]

Mark E. Coyne

Office of United States Attorney

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