Petition for Writ of Certiorari — Clay Melton Denton, Petitioner v. United States

No.

In the

Supreme Court of the United States

_________________________________________________

CLAY MELTON DENTON,

Petitioner

vs.

UNITED STATES OF AMERICA,

Respondent

_________________________________________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

_________________________________________________

PETITION FOR A WRIT OF CERTIORARI

_________________________________________________

BRUCE ANTON

Counsel of Record

Texas Bar No. 01274700

UDASHEN ANTON

8150 North Central Expy.

Suite M1101

Dallas, Texas 75206

214-468-8100

214-468-8104 (fax)

ba@udashenanton.com

Counsel for Petitioner

i

QUESTION PRESENTED

If critical evidence, which is at a minimum

potentially exculpatory, is lost as a result of

government’s failure to preserve it, when is a

defendant entitled to an instruction that permits the

jury to consider the spoliation of said critical evidence

and apply an adverse inference therefrom?

ii

LIST OF PARTIES

All parties appear in the caption of the case on

the cover page.

STATEMENT OF RELATED PROCEEDINGS

1. United States of America v. Clay Melton Denton,

4:19-cr-00241-ALM-KPJ-1 (Eastern District of

Texas, Sherman Division) (criminal judgment

entered January 7, 2022).

2. United States of America v. Clay Melton Denton,

No.22-40020 (5th Circuit Court of Appeals)

(conviction and sentence affirmed January 10,

2023).

iii

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

LIST OF PARTIES ...................................................... ii

STATEMENT OF RELATED PROCEEDINGS ......... ii

TABLE OF AUTHORITIES ....................................... .v

PETITION FOR A WRIT OF CERTIORARI.............. 1

OPINION BELOW ...................................................... 1

JURISDICTION .......................................................... 1

RELEVANT CONSTITUTIONAL PROVISIONS ...... 1

STATEMENT OF THE CASE .................................... 1

REASONS FOR GRANTING THE WRIT .................. 8

The Fifth Circuit’s conclusions conflict with

decisions of this Court and other United States

courts of appeals on this same important matter

that impacts defendant’s due process rights. ......... 8

CONCLUSION .......................................................... 16

INDEX TO APPENDIX

Appendix A

Opinion in the United States Court of Appeals for the

Fifth Circuit

(January 10, 2023) .............................................. App. 1

Appendix B

Judgment in the United States District Court for the

Eastern District of Texas

(January 7, 2022) ................................................ App. 5

iv

Appendix C

Verdict of the Jury in the United States District

Court for the Eastern District of Texas

(June 11, 2021) ................................................. App. 21

Appendix D

Proposed Jury Instruction in the United States District Court for the Eastern District of Texas

(June 1, 2021) ................................................... App. 23

Appendix E

First Superseding Indictment in the United States

District Court for the Eastern District of Texas

(April 15, 2021) ................................................. App. 30

Appendix F

Notice of Penalty in the United States District Court

for the Eastern District of Texas

(April 15, 2021) ................................................. App. 43

Appendix G

Motion for Dismissal of Indictment in the United

States District Court for the Eastern District of

Texas

(July 2, 2020) .................................................... App. 46

v

TABLE OF AUTHORITIES

Cases

Page

Aramburu v. Boeing Co.,

112 F.3d 139 (10th Cir. 1997) ................................ 11

Arizona v. Youngblood,

488 U.S. 51 (1988) .......................................... 7, 9, 10

Bashir v. Amtrak,

119 F.3d 929 (11th Cir. 1997) ................................ 11

Blinzler v. Marriott Int'l,

81 F.3d 1148 (1st Cir. 1996) .................................. 11

Bracey v. Grondin,

712 F.3d 1012 (7th Cir. 2013) ................................ 12

Brewer v. Quaker State Oil Rig Corp.,

72 F.3d 326 (3d Cir. 1995) ..................................... 13

Buckley v. Mukasey,

538 F.3d 306 (4th Cir. 2008) .................................. 11

California v. Trombetta,

467 U.S. 479 (1984) ........................................ 7, 8, 15

Dalcour v. City of Lakewood,

492 F. App’x 924 (10th Cir. 2012) ......................... 13

Grosdidier v. Broad Bd. Of Governors,

709 F.3d 19 (D.C. Cir. 2013) .................................. 13

Gumbs v. Int'l Harvester, Inc.,

718 F.2d 88 (3d Cir. 1983) ..................................... 11

Guzman v. Jones,

804 F.3d 707 (5th Cir. 2015) ............................... 8, 12

Hallmark Cards, Inc. v. Murley,

703 F.3d 456 (8th Cir. 2013) .................................. 12

vi

Hodge v. Wal-Mart Stores, Inc.,

360 F.3d 446 (4th Cir. 2004) ............................ 12, 13

Killian v. United States,

368 U.S. 231 (1961) .................................................. 9

Mali v. Federal Ins. Co.,

720 F.3d 387 (2d Cir. 2013) ..................................... 7

Napue v. Illinois,

360 U.S. 264 (1959) .............................................. 10

Nation-Wide Check Corp. v. Forest Hills Distribs.,

Inc., 692 F.2d 214 (1st Cir. 1982) .......................... 11

Reiff v. Marks,

511 F. App’x 220 (3d Cir. 2013) ............................. 13

Residential Funding Corp. v. DeGeorge Fin. Corp.,

306 F.3d 99 (2d Cir. 2002) ............................... 11, 13

Sacramona v. Bridgestone/Firestone, Inc.,

106 F.3d 444 (1st Cir. 1997) .................................. 13

Stocker v. United States,

705 F.3d 255 (6th. Cir. 2013) ........................... 11, 13

Vodusek v. Bayliner Marine Corp.,

71 F.3d 148 (4th Cir. 1995) .............................. 11, 12

United States v. Artero,

121 F.3d 1256 (9th Cir. 1997) ................................ 11

United States v. Denton, No.22-40020, 2023 WL

143169 (5th Cir. Jan. 10, 2023) ............... 1, 7, 10, 12

United States v. Johnson,

996 F.3d 200 (4th Cir. 2021) .................................. 15

United States v. Laurent,

607 F.3d 895 (1st Cir. 2010) .................................. 11

vii

United States v. McNealy,

625 F.3d 858 (5th Cir. 2010) .................................. 10

United States v. Nelson,

481 F. App’x 40 (3d Cir. 2012) ............................... 12

United States v. Rodriguez,

821 F. App’x 371 (5th Cir. 2020) ........................... 13

United States v. Valenzuela-Bernal,

458 U.S. 858 (1982) ................................................ 15

United States v. Wise,

221 F.3d 140 (5th Cir. 2000) ............................ 12, 14

Statutes

18 U.S.C. § 2252A ........................................................ 7

28 U.S.C. § 1254 .......................................................... 1

Constitutional Provision

U.S. CONST. AMEND. V.................................................. 1

Other Authorities

4 L. Sand et al., Modern Federal Jury Instructions

§ 75.01 (2010) ......................................................... 11

Hon. Shira A Scheindlin & Natalie M. Orr, The

Adverse Inference Instruction After Revised Rule

37(e): An Evidence-Based Proposal, 83 Fordham

L. Rev. 1299 (2014) .......................................... 14, 15

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner Clay Melton Denton respectfully petitions for a writ of certiorari to review the judgment

of the Fifth Circuit Court of Appeals.

OPINION BELOW

The Fifth Circuit Court of Appeals’ opinion affirming Petitioner’s conviction and sentence can be

found at United States v. Denton, No.22-40020, 2023

WL 143169 (5th Cir. Jan. 10, 2023) (concluding the

district court did not err denying Petitioner’s motion

to dismiss the indictment or refusing his request for a

spoliation instruction because he did not show that the

government acted in bad faith). See Appendix. A.

JURISDICTION

The United States Court of Appeals for the

Fifth Circuit affirmed Petitioner’s conviction and

sentence on January 10, 2023. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL PROVISIONS

The Fifth Amendment to the United States

Constitution provides that no person shall “be deprived of life, liberty, or property, without due process

of law[.]” U.S. CONST. AMEND. V.

STATEMENT OF THE CASE

In 2018, law enforcement was conducting an

investigation into a peer-to-peer file sharing network,

eDonkey. Through that investigation, a particular

internet protocol (IP) address was identified as being

associated with files containing and sharing suspected

child pornography. Special Agent Craanen with the

2

FBI, conducted an investigation through the

registered internet provider and discovered that the

IP address was assigned to a business – DS Services.

DS Services’ address was a residential address.

Petitioner resided at this address with his wife and

children. Petitioner owned DS Services, which was a

computer consulting company specializing in

clustering technology. A cluster is a collection of

computers that are configured to act as one computer.

This would enable, for example, a business’s web

server to run. Clustering enables a computer system

to act as one and if one computer failed or was in need

of maintenance and rebooted, the system’s services are

automatically provided by the other computers to

prevent an outage or downtown. DS Services itself

operated its web server through a cluster system in

Petitioner’s residence.

As part of his investigation into DS Services, a

simple Google search revealed to Agent Craanen that

Petitioner was an IT specialist with several

accreditations and licenses including being the

President of DS Services. Agent Craanen sought a

search warrant for Petitioner’s residence based on the

IP addresses’ connection to suspected child

pornography. In the affidavit supporting the

application for a search warrant, Agent Craanen

provided the following specifics regarding the search

and seizures of computers:

SPECIFICS

REGARDING

THE

SEARCH AND SEIZURE OF COMPUTERS

28. Based on my training and experience,

I am aware that the search of computers

3

and digital devices often requires agents

to download or copy information from the

computers and their components, or seize

most or all computer items (computer

hardware, computer software, and computer related documentation) to be processed later by a qualified computer expert in a laboratory or other controlled

environment. This is almost always true

because of the following two reasons:

a. Computer storage devices…can

store the equivalent of millions of pages

of information. Especially when the user

wants to conceal criminal evidence, he or

she often stores it in random order with

deceptive file names. This requires

search authorities to examine all the

stored data that is available in order to

determine whether it is included in the

warrant that authorizes the search. This

sorting process can take days or weeks,

depending on the volume of data stored,

and is generally difficult to accomplish

on-site.

b. Searching computer systems for

criminal evidence is a highly technical

process requiring expert skill and a

properly controlled environment. The

vast array of computer hardware and

software available requires even computer experts to specialize in some systems and applications, so it is difficult to

know before a search which expert

4

should analyze the system and its data.

The search of a computer system is an exacting scientific procedure that is designed to protect the integrity of the evidence and to recover even hidden, erased,

compressed, password-protected, or encrypted files. Since computer evidence is

extremely vulnerable to tampering or destruction (which may be caused by malicious code or normal activities of an operating system), the controlled environment of a laboratory is essential to complete and [sic] accurate analysis.

29. In order to fully retrieve data from a

computer system, the analyst needs all

magnetic storage devices as well as the

central processing unit (CPU). In cases

involving child pornography where the

evidence consists party of graphics files,

the monitor(s) may be essential for a

thorough and efficient search due to software and hardware configuration issues.

In addition, the analyst needs all the system software (operating systems or interfaces, and hardware drivers) and any applications software which may have been

used to create the data (whether stored

on hard drives or on external media).

On April 25, 2018, law enforcement executed

their search warrant. Despite being aware that a

computer consulting business, specializing in

clustering technologies, was listed at the residential

address, Agent Craaneen testified that he did not

5

anticipate or prepare to conduct a business search

warrant. Upon arrival at Petitioner’s residence, law

enforcement encountered a vast array of complex

networked computer devices with routers, storage

area network switches, servers, which took up a large

amount of space in the residence. Agent Craanen

acknowledged that the system within the home was

atypical for a residence and was akin to a complex

business computer system or that of a data center. The

system was unlike any computer set up that Agent

Craanen had seen in his career with racks of servers

and easily 10,000 pieces of digital equipment in the

home. Yet, despite attesting in his affidavt that an

analyst would need to collect electronic all storage

devices and processing units to fully retrieve the

relevant data in this type of investigation and the

search of computers requires the seizure of most or all

computer items to be processed later by a qualified

computer expert, which is a process that could take

weeks, agents simply pulled the power to some of the

computer system and seized approximately 80 items

from Petitioner’s residence. For example, in a

clustered computer system, such as the one in

Petitioner’s residence, the system’s storage used a

form of shared storage called a “SAN,” a storage area

network tied in via a SAN switch and controllers. Here

only some of the systems within the cluster were

taken, the SAN switch itself was not taken, and all of

the SAN controllers were not taken. Law enforcement

elected not to seize switches, routers, and were unable

to map the computer system or reconfigure the system

in the lab because only some items were seized. A

standard controlled shutdown of the system was not

performed and the system could not be reconstituted

6

in the lab. The computer network was also not backed

up before it was shut down resulting in the potential

for data loss.

Agent Craanen testified that the volume of

items in the residence, the time it would have taken to

log, 1 map, shutdown, and seize all of these items, as

well as Petitioner’s lack of cooperation explained the

failure to preserve the integrity of the computer

system in the home. Agent Craanen testified that he

conducted the search warrant as he would any other

home despite the extensive data-center like system

encountered. Law enforcement acknowledged the

possibility of remote access into the system and the

potential for data loss. Petitioner called an expert

witness who likewise testified that information stored

on routers or switches within the system could be lost

if the system was simply powered down or

disconnected/taken down without proper shutdowns

and mapping including logs that could provide means

to determine if there had been hacking. Petitioner

himself testified to the business use of his system and

the risk of data loss because power was simply pulled

from the servers. Petitioner testified he believed he

had been hacked.

Ultimately, child pornography and file titles or

hash values associated with those identified in the

initial investigation. Petitioner was eventually

1 A detective testified he estimated it could take weeks to map a

configuration of the network system present in the residence. But

a defense expert and Petitioner both testified that a proper mapping and shutdown of the system to preserve its data would have

likely taken minimal time such as hours not weeks.

7

charged by superseding indictment with one count of

distributing child pornography, one count of receiving

child pornography, and possession of child

pornography. 18 U.S.C. § 2252A(a)(2)(A), (a)(5)(B) &

(b)(1)-(2).

Before trial, Petitioner filed a pretrial motion to

dismiss the indictment alleging that the government

violated his due process rights by failing to preserve or

destroying exculpatory or potentially useful evidence.

See California v. Trombetta, 467 U.S. 479, 485 (1984);

Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988);

Appendix G. The district court held a hearing on the

motion and ultimately elected to carry the motion with

the trial. At the conclusion of the evidence, Petitioner

re-urged his motion for dismissal and made a motion

for directed verdict. The district court denied both

motions. Before the case was returned to the jury,

Petitioner also requested that the district court

include a spoliation of evidence instruction in the jury

charge instructions that would permit, but not

require, the jurors to consider an adverse inference

from the spoliation of evidence if they found that the

government failed to preserve or caused evidence to be

lost. See Mali v. Federal Ins. Co., 720 F.3d 387 (2d Cir.

2013); Appendix D. The district court denied

Petitioner’s request. The jury convicted Petitioner on

all counts. Appendix C.

Petitioner appealed. The Fifth Circuit found

that to “prevail on his motion to dismiss the

indictment, [Petitioner] was required to show that

potentially useful evidence was lost or destroyed by

the Government in bad faith. Denton, 2023 WL 143169

at * 1 (citing Youngblood, 488 U.S. at 57-58); Appendix

8

A. The Fifth Circuit concluded that district court did

not err finding there was “no evidence that law

enforcement personnel intentionally lost or destroyed

any digital evidence in order to impede [Petitioner’s]

defense.” Id. Petitioner also challenged the district

court’s refusal to give a spoliation jury instruction. Id.

The Fifth Circuit concluded it was bound by circuit

precedent to require a demonstration of bad faith

meaning that any spoliation of evidence was for the

purpose of hiding adverse evidence. Id. (citing

Guzman v. Jones, 804 F.3d 707, 713 (5th Cir. 2015)

(addressing spoliation in the civil context)). The Fifth

Circuit concluded that nothing in the record

established that law enforcement agents acted

intentionally for the purpose of hiding exculpatory

evidence. Id. Petitioner’s conviction and sentence were

affirmed. Id.

REASONS FOR GRANTING THE WRIT

The Fifth Circuit’s conclusions conflict

with decisions of this Court and other

United States courts of appeals on this

same important matter that impacts

defendant’s due process rights.

Due process guarantees defendants the right to

a fundamentally fair trial and as such requires “that

criminal defendants be afforded a meaningful

opportunity to present a complete defense.” California

v. Trombetta, 467 U.S.479, 485 (1984). In Trombetta,

two defendants were stopped on suspicion of drunk

driving and each submitted to an “Intoxilyzer” breath

test. Id. at 482. Each defendant attempted to suppress

the results of said test on grounds that the arresting

officers had failed to preserve the samples of breath

9

despite it being feasible to do so claiming the samples,

if preserved, would have enabled them to impeach the

test results. Id. at 482-83. The California Court of

Appeals ruled in the defendant’s favor finding that

due process required law enforcement to preserve the

evidence for use by the defendant. Id. at 483. This

Court, however, reversed finding the failure to retain

the samples did not violate the Constitution reasoning

that “[i]n failing to preserve the breath samples . . . the

officers . . . were acting ‘in good faith and in accord

with their normal practice . . .” Id. at 488 (citing

Killian v. United States, 368 U.S. 231, 242 (1961)).

The Court found that the constitutional duty to

preserve evidence is “limited to evidence that might be

suspected to play a significant role in the suspect’s

defense” meaning the evidence possesses both “an

exculpatory value that was apparent before the

evidence was destroyed, and be of such a nature that

the defendant would be unable to obtain comparable

evidence by other reasonably available means.” Id. at

488-89. Due process considerations are violated when

the government fails to preserve evidence, which

possessed an apparent exculpatory value. Id. at 489.

This Court has also said that when the

government fails to preserve potentially useful

evidence due process is violated upon a showing of bad

faith on the part of law enforcement. Arizona v.

Youngblood, 488 U.S. 51, 57-58 (1988).

In

Youngblood, the Arizona Court of Appeals reversed

the defendant’s convictions based on the State’s

failure to preserve biological and phsyical evidence.

Id. at 55. This Court reversed holding that the Due

Process Clause of the Fourteenth Amendment did not

10

require Arizona to preserve biological samples in this

sexual assault case even though the samples might

have been useful to the defense. Id. at 57. 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 constitute a

denial of due process of law.” Id. at 58. “The presence

or absence of bad faith by the police for purposes of the

Due Process Clause must necessarily turn on the

police’s knowledge of the exculpatory value of the

evidence at the time it was lost or destroyed.” Id. at

56-57 n. * (citing Napue v. Illinois, 360 U.S. 264, 269

(1959)).

Here, The Fifth Circuit employed a standard for

bad faith, which required proof that failure to preserve

evidence was done intentionally to impede Petitioner’s

defense. Denton, 2023 WL 143169 at * 1 (citing United

States v. McNealy, 625 F.3d 858, 870 (5th Cir. 2010)

(finding no evidence of bad faith in absence of evidence

that government intended to destroy evidence in order

to impede defendant’s defense)). This standard

conflicts with the standard imposed by this Court in

Youngblood, which does not require that law

enforcement acted with intent to impede the defense.

If the potential exculpatory value of evidence was

known to law enforcement when it was destroyed that

should be sufficient to establish bad faith. Otherwise,

defendants will never be able to establish bad faith in

this context.

In addition to seeking the dismissal of the

indictment on due process grounds, Petitioner sought

a spoliation jury instruction allowing an adverse

inference from the failure to preserve evidence. A

11

spoliation instruction “is commonly appropriate in

both civil and criminal cases 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) (citing 4 L. Sand et al., Modern Federal

Jury Instructions § 75.01 (instruction 75-7), at 75-16

to -18 (2010)). As the First Circuit has recognized, “the

case law is not uniform in the culpability needed for

the instruction.” Id. 2 The Sixth Circuit, for example,

has held that a spoliation instruction may be

warranted through a “showing that the evidence was

destroyed knowingly, even if without intent to breach

a duty to preserve it, but even negligent conduct may

suffice to warrant spoliation sanctions under the

appropriate circumstances.” Stocker v. United States,

705 F.3d 255, 235 (6th. Cir. 2013); see also Vodusek v.

2 n. 5 (citing e.g., Buckley v. Mukasey, 538 F.3d 306, 322-23 (4th

Cir. 2008) (mere negligence not enough, intentional conduct —

but not bad faith — required); United States v. Artero, 121 F.3d

1256, 1259-60 (9th Cir. 1997) (bad faith required), cert. denied,

522 U.S. 1133 (1998); Bashir v. Amtrak, 119 F.3d 929, 931 (11th

Cir. 1997) (same); Aramburu v. Boeing Co., 112 F.3d 1398, 1407

(10th Cir. 1997) (same); Gumbs v. Int'l Harvester, Inc., 718 F.2d

88, 96 (3d Cir. 1983) (suppression of the evidence must be intentional, not accidental); Residential Funding Corp. v. DeGeorge

Fin. Corp., 306 F.3d 99, 101, 108-10 (2d Cir. 2002) (negligent destruction is enough if other indications suggest the evidence

would have favored the party affected by the destruction). Our

own decision in Nation-Wide Check Corp. v. Forest Hills Distribs.,

Inc., 692 F.2d 214, 217-20 (1st Cir. 1982), is not entirely clear on

this point. See also Blinzler v. Marriott Int'l, 81 F.3d 1148, 1159

(1st Cir. 1996) (stating that the factfinder is "free to reject" the

adverse inference when it believes the evidence was "destroyed

accidentally or for an innocent reason")).

12

Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir.

1995) (requiring evidence of a knowing spoliation of

relevant evidence by willful conduct that resulted in

loss or destruction); Hodge v. Wal-Mart Stores, Inc.,

360 F.3d 446, 450 (4th Cir. 2004) (holding that an

adverse inference may not be drawn from merely

negligent loss or destruction but requires a showing

that willful conduct – something less than bad faith –

resulted in the loss or destruction). The Fifth Circuit,

consistent with its sister circuits, applied civil circuit

precedent in considering whether the district court

erred to refuse Petitioner’s request for a spoliation

instruction. Denton, 2023 WL 143169 at *1 (citing

Guzman, 804 F.3d at 713 (addressing spoliation in the

civil context and imposed a bad faith standard to

“means destruction for the purposes of hiding adverse

evidence.”)); see also United States v. Wise, 221 F.3d

140, 156 (5th Cir. 2000). However, what is not

consistent among the circuits is how the standard for

spoliation applies in the context of criminal

proceedings given the wide variation among the

circuits applying spoliation instructions in civil cases.

To be sure, some circuits require a showing of bad

faith before the jury will be permitted to consider the

spoliation of evidence. 3 But the First, Second, Fourth,

3 See, e.g., Bracey v. Grondin, 712 F.3d 1012, 1018 (7th Cir. 2013)

(“In this circuit, when a party intentionally destroys evidence in

bad faith, the judge may instruct the jury to infer the evidence

contained incriminatory content.”); Hallmark Cards, Inc. v.

Murley, 703 F.3d 456, 461 (8th Cir. 2013) (“[W]e conclude that a

district court must issue explicit findings of bad faith and prejudice prior to delivering an adverse inference instruction.”);

United States v. Nelson, 481 F. App’x 40, 42 (3d Cir. 2012) (noting

that “where there is no showing that the evidence was destroyed

13

Sixth, and D.C. circuits have all found that a

spoliation instruction may be warranted even in the

absence

of

bad

faith.

Sacramona

v.

Bridgestone/Firestone, Inc., 106 F.3d 444, 447 (1st

Cir. 1997) (“Certainly bad faith is a proper and

important consideration…But bad faith is not

essential. If such evidence is mishandled through

carelessness, and the other side is prejudiced, we

think the district court is entitled to consider imposing

sanctions, including exclusion of the evidence.”);

Residential Funding Corp. v. DeGeroge Financial

Corp., 306 F.3d 99, 108 (2d Cir. 2002) (“The sanction

of an adverse inference may be appropriate in some

cases involving the negligent destruction of evidence

because each party should bear the risk of its own

negligence.”); Hodge v., 360 F.3d at 450; Stocker, 705

F.3d at 235; Grosdidier v. Broad Bd. Of Governors, 709

F.3d 19, 27 (D.C. Cir. 2013) (“the spoliation inference

was appropriate in light of the duty of preservation

notwithstanding the fact that the destruction was

negligent.”). Whereas, the Fifth Circuit requires a

showing of bad faith. See United States v. Rodriguez,

821 F. App’x 371, 373 (5th Cir. 2020) (“An adverse

inference against the spoliator is permitted only upon

a showing of bad faith or bad conduct” and “bad faith

generally means destruction for the purpose of hiding

in order to prevent it from being used by the adverse party, a

spoliation instruction is improper”); Dalcour v. City of Lakewood,

492 F. App’x 924, 937 (10th Cir. 2012) (both permissive and mandatory adverse inference instructions require showing of bad

faith). But see Reiff v. Marks, 511 F. App’x 220, 224 (3d Cir. 2013)

(applying standard of “actual suppression or withholding of the

evidence” with no discussion of bad faith (quoting Brewer v.

Quaker State Oil Rig Corp., 72 F.3d 326, 334 (3d Cir. 1995)).

14

adverse evidence.”); see also Wice, 221 F.3d at 156. The

Fifth Circuit’s standard requires that a defendant,

who can no longer access the spoiled evidence at issue,

be able to establish that said evidence had apparent

exculpatory value known to law enforcement and that

law enforcement intentionally destroyed the evidence

for the purpose of hiding it. In this way, in order to

have the jury consider a spoliation defense raised by

the evidence, a defendant is required to establish he

was entitled to have the indictment dismissed or the

evidence suppressed by showing bad faith. More

fundamentally, if potentially exculpatory evidence is

at issue – and that evidence has been lost or destroyed

– it is impossible for a defendant to establish that the

evidence was adverse to the government’s case. The

Fifth circuit’s standards essentially ensure that no

criminal defendant will ever be entitled to have a jury

instruction on the spoliation of evidence. That the

Fifth Circuit provides no lesser standard for the

inclusion of a spoliation jury instruction is in conflict

with other circuit courts of appeals.

This Court should grant Petitioner’s petition to

address the applicability of a spoliation jury

instruction in criminal cases wherein there is evidence

of a failure to preserve evidence. Doing so would allow

the Court to create a uniform standard for when an

adverse inference instruction was appropriate.

Currently, applying civil precedents, the circuits

“employ widely divergent approaches with respect to

the level of culpability required.” 4 Defendants in

4 Hon. Shira A Scheindlin & Natalie M. Orr, The Adverse Infer-

ence Instruction After Revised Rule 37(e): An Evidence-Based

15

criminal cases have a due process right to present a

meaningful and complete defense. Trombetta, 467

U.S. at 485. “To safeguard that right, the Court has

developed ‘what might loosely be called the area of

constitutionally guaranteed access to evidence.” Id.

(citing United States v. Valenzuela-Bernal, 458 U.S.

858, 867 (1982)). However, even absent a due process

violation that warrants dismissal of an indictment or

the suppression of evidence, a criminal defendant may

be entitled to an adverse inference instruction if

spoliation is raised by the evidence. See United States

v. Johnson, 996 F.3d 200, 206 (4th Cir. 2021) (“In order

to draw the inference, there must be “a showing that

the party knew the evidence was relevant to some

issue at trial and that his willful conduct resulted in

its loss or destruction.”).

Here, Petitioner’s defense was that his system

had been hacked. Petitioner testified he believed he

had been hacked and provided expert testimony

regarding the data and logs lost as a result of the

government’s execution of the search warrant. The

government’s execution of the search warrant did not

comply with the procedures laid out in its own

affidavit. Despite encountering racks of servers, a

clustering system running a business server, and

thousands of pieces of digital equipment, which

government agents acknowledged were akin to that of

a business computer system or data center, law

enforcement elected to simply pull the power plug on

the servers and disconnect the internet. Law

Proposal, 83 Fordham L. Rev. 1299, 1300 (2014) (noting that

about half of the circuits require a showing of bad faith).

16

enforcement executed a search warrant on Petitioner’s

system as it would any other residential search

warrant despite their advance knowledge that a

computer consulting company was headquartered in

the residence. Law enforcement acknowledged the

possibility of remote hacking into the system but

powered it down without mapping the configuration,

backing up the system, or ensuring that data was not

lost. Law enforcement acknowledged the possibility

that a result of this, data could have been lost. Yet, the

district court here refused to dismiss the indictment or

provide a spoliation jury instruction because

Petitioner was obviously unable to prove that law

enforcement intentionally destroyed data it knew to be

adverse to its case. This is not consistent with the

principles of fundamental fairness and due process.

Moreover, there is a significant split in the circuits

regarding what standard applies to a request for an

adverse inference instruction when a criminal

defendant seeking to present a complete and

meaningful defense produces evidence of spoliation or

the failure to preserve evidence. This Court should

grant Petitioner’s petition to answer this question.

CONCLUSION

The error raised in this petition involves an

important matter concerning whether and when

defendants are entitled to have a jury consider the

government’s failure to preserve evidence. The circuits

employ a wide range of standards based on divergent

standards in civil law cases. This Court should grant

the petition to resolve the conflicting approaches

taken by the lower courts and answer an important

question of federal law that has not been settled.

17

Respectfully submitted,

/s/ Bruce Anton

BRUCE ANTON

Counsel of Record

Texas Bar No. 01274700

UDASHEN ANTON

8150 North Central Expy.

Suite M1101

Dallas, Texas 75206

214-468-8100

214-468-8104 (fax)

ba@udashenanton.com

Counsel for Petitioner