United States v. Larry Braswell

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0484n.06

No. 16-6092

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Aug 21, 2017
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
v. ) UNITED STATES
) DISTRICT COURT FOR
LARRY BRASWELL, ) THE EASTERN
) DISTRICT OF
Defendant-Appellant. ) TENNESSEE
)

BEFORE: GUY, CLAY, and WHITE, Circuit Judges.

CLAY, Circuit Judge. 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

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
 No. 16-6092

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that it had been revoked.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 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.

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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 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 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.

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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 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).

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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 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 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

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.)
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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).

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 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

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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 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 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.

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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 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.

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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 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 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

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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 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

2
According to the concurrence, because Boxley relied on Nationwide Mutual Fire
Insurance Co., a case which has since been overruled, Boxley has been abrogated as well.
However, this logic does not hold up under closer scrutiny. Nationwide imported the bad faith
standard from Ohio law, as it was a civil case based on diversity jurisdiction. 174 F.3d at 804.
The case overruling it, Adkins v. Wolever, 554 F.3d 650 (6th Cir. 2009) (en banc), changed the
standards we use when deciding civil cases based on diversity jurisdiction. As the concurrence
notes, Adkins stated that this Court should no longer apply state law for evidentiary matters, but
instead should apply federal evidentiary rules, including for spoliation instructions. Id. at 651–
52. However, Adkins does not have any bearing on federal criminal cases, for which federal
evidentiary rules always applied. Boxley can only logically be read as adopting the bad faith
requirement for spoliation instructions, described in Nationwide, for all criminal cases in this
circuit. This is all the more evident considering Boxley originated in the Western District of
Tennessee, meaning Ohio state law could only have been persuasive authority. Thus, the fact
that Nationwide was overruled does not impact the precedential value of Boxley, and we continue
to apply its established test for spoliation instructions.
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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 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 recovered regardless of the officers’ actions, the Court determined that the jury

instruction on spoliation was properly denied. Id.

Relying on the definition of spoliation announced in Boxley, this Court later concluded

that a spoliation instruction was properly denied in a case involving the destruction of a

McDonald’s sandwich carton from which prints of the defendant were lifted. United States v.

Spalding, 438 F. App’x 464, 465, 467 (6th Cir. 2011). The Court agreed that the required

intent—namely, having “the purpose of rendering it inaccessible or useless to the defendant in

preparing [his] case—was not present. Id. at 467 (alteration in original) (quoting Boxley,

373 F.3d at 762).

Other circuits similarly require a finding of bad faith in order to warrant a spoliation

instruction in a criminal case. For example, the First Circuit has stated that a spoliation

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instruction “usually makes sense only where the evidence permits a finding of bad faith

destruction; ordinarily negligent destruction would not support the logical inference that the

evidence was favorable to the defendant.” United States v. Laurent, 607 F.3d 895, 902 (1st Cir.

2010). The Fifth Circuit also requires a showing of bad faith. See United States v. Wise,

221 F.3d 140, 156 (5th Cir. 2000) (collecting cases). Similarly, the Ninth Circuit requires that, in

order for a spoliation instruction to be given, “a criminal defendant must establish (1) that the

evidence was destroyed in bad faith, and (2) that he was prejudiced by its destruction.” United

States v. Romo-Chavez, 681 F.3d 955, 961 (9th Cir. 2012) (citations omitted). But see United

States v. Fries, 781 F.3d 1137, 1152 (9th Cir. 2015) (recognizing that there may be an intra-

circuit split in the Ninth Circuit over whether bad faith is required for a spoliation instruction, but

declining to resolve the issue).

Based on these cases, we hold that the district court did not abuse its discretion in

denying Braswell’s request to include a spoliation instruction to the jury. The district court

explicitly found that Officer Piazza did not act in bad faith when he failed to preserve the

photographs. While noting that the officer clearly was not diligent in his handling of evidence,

the district court further opined, “I don’t see any evidence that there was any tampering with

evidence, any attempt to spoliate exculpatory evidence.” (R. 137, at 2003.) As made clear in

Boxley, spoliation only occurs when the party who destroyed the evidence acted with “the

purpose of rendering it inaccessible or useless.” 373 F.3d at 762. While the effect of Officer

Piazza’s actions was to render the photographs useless, the district court found that his actions

were not undertaken in bad faith, but were instead the result of shoddy police work. Given these

factual findings, to which this Court must defer, we agree that the spoliation instruction was not

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required. Therefore the district court did not abuse its discretion in declining to give the

spoliation instruction to the jury.

III. Prosecutorial Misconduct

A. Standard of Review

“In reviewing a trial court’s evidentiary determinations, this court reviews de novo the

court’s conclusions of law and reviews for clear error the court’s factual determinations that

underpin its legal conclusions.” United States v. Jenkins, 345 F.3d 928, 935 (6th Cir. 2003)

(quoting United States v. Salgado, 250 F.3d 438, 451 (6th Cir. 2001)). Admission of tape

recordings is reviewed for abuse of discretion. United States v. Robinson, 707 F.2d 872, 876

(6th Cir. 1983).

B. Analysis

Braswell argues that the district court abused its discretion by admitting the video and

audio recording of his mumblings from the back of the patrol car. While Braswell admits that

the admission of videotapes is within the sound discretion of the district court, he essentially

argues that the tapes should have been excluded because the “unintelligible portions are so

substantial as to render the recordings as a whole untrustworthy.” United States v. Robinson,

707 F.3d 872, 876 (6th Cir. 1983) (quoting United States v. Jones, 540 F.2d 465, 470 (10th Cir.

1976)).

Braswell first points to the statements of the district court, as the court first appeared to

agree with Braswell at the pre-trial suppression hearing that the tapes were unintelligible, stating,

“I heard a couple of expletives in there, but I’ll be honest, I didn’t hear much more.” (R. 42,

Suppression Hr’g Tr., PageID #178.) Only after listening again did the court revise its

assessment, explaining, “[w]ell, you know, that time, that time I heard, prints all over, it sounds

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like.” (Id.) At the same hearing, Braswell also introduced the testimony of a court reporter who

stated that she was unable to understand or transcribe the recording. Given the district court’s

initial impressions and the statements of that court reporter, Braswell now argues that the district

court abused its discretion in allowing the recording into evidence.

Braswell also argues that the prosecutor, in his closing statement, impermissibly stated

what he thought was on the audio recording, even though the recording was unintelligible.

Braswell notes that the district court had previously determined that a transcript could not be

admitted given that large portions of the tape could not be transcribed. Therefore, only the

recording itself was admitted into evidence and played for the jury. Despite the fact that a

transcript was not admitted and the jury was supposed to determine for itself what was on the

tape, the government argued the following in its closing statement:

What does the video tell us, though[?] Defendant admits it. The
defendant confesses. Watch the video. It was about 19:49:06 on the time, you’ll
see when Piazza says they found it. And three seconds later, remember the
defendant can see it, he’s watching out the window of the car, and we talked
about that, three seconds later, the defendant cusses, cusses, says something about
cussing about the gun, and my prints are all over that mf’r within three seconds of
them finding it.

Watch the video as well. And when I say that, listen to Exhibit 5, that’s
where it’s isolated where you can just hear the defendant in the back of the car.
It’s easier to hear what he’s saying. It’s hard when both mikes are playing, but
watch, also, listening to Exhibit 5 as he watches the officer walk and Piazza
pointed to you on the left side of the screen where the bush was kind of right off
where the video could see on the left side. And watch the defendant’s reaction
every time the officers walk over there to those bushes. Before he admits that his
prints are on it and before they find the gun, he starts cussing every time they
walk over near those bushes he’s saying an expletive. He’s admitting that his
prints are on the gun.

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Why was the gun not sent for fingerprints? Why do you need to when the
defendant tells you that they’re there? The circumstantial proof is very strong.

(R. 137, at 2022–23.)

Based on these statements, Braswell argues that the prosecutor impermissibly brought “to

the attention of the jury facts not in evidence,” and vouched for the credibility of the evidence.

United States v. Emuegbunam, 268 F.3d 377, 404 (6th Cir. 2001). Moreover, Braswell claims

that it was highly prejudicial for the prosecutor to state his interpretation of the recording, given

that Braswell’s alleged confession was the only direct evidence linking him to the gun. Thus,

Braswell argues that the district court abused its discretion in allowing the government to argue

that Braswell admitted his prints were all over the gun.

The government agrees that for a video to be properly admitted into evidence, it must be

“audible and sufficiently comprehensible for the jury to consider the contents.” Robinson,

707 F.2d at 876. However, the government argues that the recording was sufficiently clear to be

admissible. Although the district court initially expressed skepticism that the recording was

intelligible, the district court later concluded that tape was admissible because sections were

“easily discernable.” (R. 108, Order, PageID 1206–07.) The government also contends that the

relevant portions of the tape can be understood. Noting that this Court generally “will leave

rulings about admissibility undisturbed unless . . . left with the definite and firm conviction that

the district court committed a clear error in judgment,” United States v. Dixon, 413 F.3d 540, 544

(6th Cir. 2005), the government argues that the video was not so unintelligible as to make the

district court’s admission of the video a clear error in judgment.

As for the argument that the government impermissibly opined about what Defendant

said on the recording, the government argues that it did not commit any misconduct. The

government argues that its statements were not improper, given that it was “merely argu[ing] its

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interpretation of the evidence which had been presented at trial.” (Gov’t Br. at 23.) It therefore

contends that, “[o]nce the district court determined that the recording was admissible and played

it for the jury, both sides were free to argue their interpretations of it during closing argument.”

(Id. at 24.)

We agree with the government that no misconduct requiring a new trial occurred. The

following test applies for claims of prosecutorial misconduct: first, we determine “whether the

prosecutor’s conduct and remarks were improper.” Cristini v. McKee, 526 F.3d 888, 899 (6th

Cir. 2008) (quoting United States v. Carter, 236 F.3d 777, 783 (6th Cir. 2001)). If so, we then

decide “whether the impropriety was flagrant and thus warrants reversal.” Id. Flagrancy is

examined by looking at the following for factors: “(1) whether the prosecutor’s remarks or

conduct tended to mislead the jury or prejudice the accused; (2) whether the remarks were

isolated or extensive; (3) whether the remarks were accidentally or deliberately made; and (4) the

overall strength of the evidence against the accused.” United States v. Barnett, 398 F.3d 516,

522 (6th Cir. 2005). This test is meant to reflect that prosecutorial misconduct must be “so

pronounced and persistent that it permeate[d] the entire atmosphere of the trial.” United States v.

Bond, 22 F.3d 662, 667 (6th Cir. 1994) (quoting United States v. Payne, 2 F.3d 706, 712 (6th

Cir. 1993) (per curiam)).

Generally courts “afford wide latitude to a prosecutor during closing argument, analyzing

disputed comments in the context of the trial as a whole.” United States v. Henry, 545 F.3d 367,

377 (6th Cir. 2008). Prosecutors are also allowed to “forcefully assert reasonable inferences

from the evidence.” Bates v. Bell, 402 F.3d 635, 646 (6th Cir. 2005). Given this broad leeway,

we conclude that the district court did not abuse its discretion in allowing the video to be

admitted. After listening to the video recording, it is apparent that, while some of Braswell’s

16
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statements are unintelligible mutterings, others can be understood. Specifically, the relevant

comment here, where Braswell allegedly admits that his prints are on the gun, can in fact be

understood. Because portions of the tape can be understood, the district court did not incorrectly

admit a tape that was too unintelligible to be trustworthy. Moreover, given that this Court

“leave[s] rulings about admissibility undisturbed unless . . . left with the definite and firm

conviction that the district court committed a clear error in judgment,” Dixon, 413 F.3d at 544,

we conclude that the video is not so clearly unintelligible as to warrant reversal.

We furthermore hold that the government did not commit prosecutorial misconduct when

it stated its interpretation of Braswell’s statements during closing arguments. Although Braswell

argues that the prosecution, in effect, introduced a transcript when they were not allowed to, we

do not agree. We first note that the government’s statements were not clearly improper, as they

reasonably could be characterized as making inferences from the admitted evidence. In addition,

as noted above, Braswell can be heard on the recording saying something that sounds remarkably

close to “prints all over that [expletive].” (Gov’t Ex. 5 at 19:49:00.) Therefore, the

government’s statements were unlikely to prejudice the jury, given that they likely would have

heard the same thing regardless of what the government said in its closing argument.

Furthermore, the government only made the allegedly improper statements during its closing

argument, and not before the jury had had the opportunity to listen to the tapes. The jury also

had the opportunity to listen to the tapes repeatedly during their deliberation, and in fact, the

government encouraged them to do so. Given the fairly isolated nature of the comments, as well

as the likely lack of prejudice to Braswell, we conclude that the government’s comments do not

amount to prosecutorial misconduct that was so flagrant as to warrant reversal.

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IV. Sufficiency of the Evidence

A. Standard of Review

This Court reviews a challenge to the sufficiency of the evidence supporting a criminal

conviction de novo. United States v. Pritchett, 749 F.3d 417, 430 (6th Cir. 2014). This Court

reviews a district court’s decision to deny a motion for a new trial for clear and manifest abuse of

discretion. United States v. Ashworth, 836 F.2d 260, 266 (6th Cir. 1988).

B. Analysis

A defendant challenging the sufficiency of the evidence “bears a very heavy burden.”

United States v. Davis, 397 F.3d 340, 344 (6th Cir. 2005) (citation omitted). This Court must

determine “whether, after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Id. (citations omitted). When engaging in this analysis, the court “neither

independently weighs the evidence, nor judges the credibility of witnesses who testified at trial.”

United States v. Howard, 621 F.3d 433, 460 (6th Cir. 2010) (citation omitted).

Braswell argues that the jury’s verdict was against the weight of the evidence because no

evidence links him to the handgun he was charged with illegally possessing. Specifically, no one

saw him drop or place anything in the bushes. In addition, no one testified that they had seen

him with the handgun or the marijuana accompanying it. The gun was also not located in

Braswell’s car or house, but instead it was in the bushes in front of an abandoned house.

Therefore, according to Braswell, it was unreasonable for the jury to infer that he possessed the

handgun, and the verdict was the result of impermissible inference-stacking.

In support of his argument, Braswell contrasts United States v. Lowe, 795 F.3d 519 (6th

Cir. 2015), with United States v. Garcia, 758 F.3d 714 (6th Cir. 2014). In Lowe, this Court

18
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determined that it was unreasonable to infer that the defendant had downloaded child

pornography even though the defendant owned the laptop on which the images were found and

used a nickname close to his real name when downloading software and visiting websites. 795

F.3d at 523. Because two other people had access to the laptop, the Court determined that the

evidence was insufficient to show that the defendant was the one who downloaded the child

pornography. Id. at 523–24. In contrast, the evidence in Garcia was strong enough to support a

conviction for being a felon in possession of a firearm where an officer saw items fall out of the

defendant’s pocket as he fled from the officers. 758 F.3d at 721. The gun was found in fresh

snow, with the handle and barrel buried in the snow but the cylinder lying on top of the snow.

Id. The jurors were also allowed to infer that the defendant’s flight indicated that he had

possessed the firearm. Id.

In comparing these two cases, Braswell argues that his case is similar to Lowe.

Specifically, like the laptop that others had access to, other had driven by the area where the gun

and handgun were found. In addition, Officer Piazza had credibility issues, given his incorrect

testimony that he did not take pictures at the scene when the evidence revealed that he did.

Therefore, Braswell argues that the jury was not allowed to “(1) link Mr. Braswell’s presence

near an abandoned house with a bag of marijuana, and then (2) link the discovery of that bag to a

handgun found nearby, in order to reach a verdict beyond a reasonable doubt.” (Def.’s Br. at

38.)

We disagree. The evidence in the instant case was indeed sufficient to support the

conviction, given that all reasonable inferences must be drawn in favor of the government. The

evidence shows that Braswell was seen walking away from the bushes where the gun and

marijuana were found. Braswell’s car strongly smelled of marijuana, such that Officer Piazza

19
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thought marijuana was either still present or had just been there. Braswell was given a break

when he was allowed to drive away despite his revoked license. Nevertheless he returned to the

area less than an hour later, after switching cars, even though he was told that if he returned he

would likely go to jail. Therefore, it was reasonable for the jury to infer that Braswell returned to

the abandoned house, risking jail, for an important purpose, such as to retrieve the gun and the

marijuana. Furthermore, Braswell was found with a substantial amount of cash on him, as well

as digital scales with marijuana residue. The marijuana was very fragrant, like the marijuana

smell from the first car, and found lying directly on top of the firearm. Moreover, when the

officers found the marijuana with the gun, Braswell uttered something that sounded a lot like,

“prints all over that [expletive].” (Gov’t Ex. 5 at 19:49:00.)

Given the inferences that can be drawn from that evidence, it was not unreasonable for

the jury to conclude that Braswell possessed the gun. While the government’s case could have

been stronger, this Court does not weigh the evidence or “consider the potential magnitude of the

evidence not presented.” Garcia, 758 F.3d at 721. Instead, looking at the evidence in the light

most favorable to the government, it is apparent that impermissible inference-stacking did not

occur here. Indeed, the circumstantial evidence all points to a rational inference that Braswell

had been in possession of the firearm. Thus, the district court did not err in denying Defendant’s

motion for acquittal or motion for a new trial based on the lack of sufficient evidence, and we

affirm Braswell’s conviction.

V. Designation as an Armed Career Criminal

A. Standard of Review

This Court reviews de novo “whether a conviction qualifies as a ‘violent felony’” under

the Armed Career Criminal Act (the “ACCA”). United States v. Hockenberry, 730 F.3d 645,

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663 (6th Cir. 2013) (citing United States v. Johnson, 707 F.3d 655, 658 (6th Cir. 2013)); see also

United States v. Eubanks, 617 F.3d 364, 366 (6th Cir. 2010) (reviewing de novo whether a

conviction that the defendant argued should have been expunged qualified for purposes of the

ACCA).

B. Analysis

The ACCA provides, in pertinent part:

In the case of a person who violates section 922(g) of this title and has three
previous convictions by any court referred to in section 922(g)(1) of this title for a
violent felony or a serious drug offense, or both, committed on occasions different
from one another, such person shall be fined under this title and imprisoned not
less than fifteen years, and, notwithstanding any other provision of law, the court
shall not suspend the sentence of, or grant a probationary sentence to, such person
with respect to the conviction under section 922(g).

18 U.S.C. § 924(e)(1).

Braswell argues that he was improperly designated an armed career criminal for two

reasons. First, he contends that two of his four convictions in Tennessee for aggravated robbery

or attempted aggravated robbery are void under Tennessee law, meaning they cannot be counted

for purposes of the ACCA. Second, he argues that aggravated robbery and attempted aggravated

robbery under Tennessee law are not categorically violent felonies and thus do not count as

predicate crimes under the ACCA. Each of these arguments is addressed in turn below.

1. Voidness of Two of Defendant’s Convictions for Aggravated Robbery

Braswell argues that two of his four convictions, specifically the two aggravated

robberies committed on June 30, 1994 and July 1, 1994, are void under Tennessee law and

therefore were improperly included as predicate offenses for determining whether he is an armed

career criminal. Braswell first notes that, for purposes of the ACCA, “[w]hat constitutes a

conviction of such a crime,” meaning a “crime punishable by imprisonment for a term exceeding

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one year,” “shall be determined in accordance with the law of the jurisdiction in which the

proceedings were held.” 18 U.S.C. § 921(a)(20). In this case, the two relevant crimes occurred

and were prosecuted in Tennessee, meaning Tennessee law controls.

Braswell next contends that these two convictions are void under Tennessee law. He

notes that, as is apparent on the face of his guilty plea for three counts of aggravated robbery and

one count of attempted especially aggravated robbery, he was sentenced to concurrent sentences

for all four crimes pursuant to a plea agreement. However, Braswell contends that his sentences

were required, at least in part, to be consecutive sentences instead of concurrent sentences.

Braswell committed the third and fourth aggravated burglaries, which occurred in June and July,

while out on bail for the first two crimes—the aggravated robbery committed on March 2, 1994,

and the attempted especially aggravated robbery committed on March 8, 1994. Under Tennessee

law, “[i]n any case in which a defendant commits a felony while the defendant was released on

bail . . . and the defendant is convicted of both offenses, the trial judge shall not have the

discretion as to whether the sentences shall run concurrently or cumulatively, but shall order that

the sentences be served cumulatively.” Tenn. Code Ann. § 40-20-111(b). The Supreme Court of

Tennessee has recognized that sentences imposed in contradiction of § 40-20-111(b) are illegal.

McLaney v. Bell, 59 S.W.3d 90, 93 (Tenn. 2001), overruled in part on other grounds by

Summers v. State, 212 S.W.3d 251 (Tenn. 2007).

Moreover, under Tennessee law, the illegality of the sentence affects both the underlying

conviction as well as the sentence, as Braswell received the concurrent eight year sentences as

part of a guilty plea. The Supreme Court of Tennessee has recognized that “[w]hen a defendant

bargains for and receives an illegal sentence, the defendant will have the option of resentencing

on the original plea or withdrawal of the plea and recommencement of the prosecution.” Smith v.

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Lewis, 202 S.W.3d 124, 129 (Tenn. 2006). The court further clarified that “where ‘the sentence

bargained for is otherwise illegal, the defendant is entitled to withdraw the plea.’” Id. (quoting

McLaney, 59 S.W.3d at 95). Therefore, according to Braswell, because his sentences for the two

later aggravated robberies were illegal and were the result of a plea bargain, his convictions are

voided in their entirety, given that he has the right to withdraw the plea altogether.

Consequently, Braswell argues that his convictions should not be considered as predicate

offenses for the ACCA given that they have no legal effect in Tennessee.3 Notably, however,

Braswell has not actually obtained relief from the Tennessee courts in relation to his claimed

illegal sentence.

We hold that the district court correctly determined that Braswell is unable to challenge

his state aggravated robbery convictions in the context of a federal sentencing. As we have

previously recognized, the Supreme Court, in Custis v. United States, 511 U.S. 485 (1994), “held

that a defendant could not collaterally attack a state court conviction used for purposes of

enhancement under the Armed Career Criminal Act unless the challenge was based on a

violation of the right to counsel.” United States v. Aguilar-Diaz, 626 F.3d 265, 269 (6th Cir.

2010) (citing Custis, 511 U.S. at 496). Indeed, this Court “has interpreted Custis as recognizing

right-to-counsel violations as the sole non-statutory grounds on which a collateral attack may be

entertained at sentencing.” Id. at 270. This rule has routinely been applied by this Court,

including in United States v. Lalonde, 509 F.3d 750 (6th Cir. 2007), in which a defendant argued

that his prior Kentucky theft conviction was invalid because it was based on a guilty plea entered

3
Indeed, Braswell points to several cases where the Tennessee Court of Criminal
Appeals noted that facially invalid judgments cannot be used to enhance punishments in
subsequent Tennessee prosecutions. See State v. Posey, 99 S.W.3d 141, 144 (Tenn. Crim. App.
2002); Clifton v. State, No. W2004-01385-CCA-R3-HC, 2005 WL 1363104, at *5 (Tenn. Crim.
App. June 9, 2005).
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in abstentia.4 Id. at 767. While recognizing that the defendant’s prior conviction likely was

invalid as a matter of Kentucky law, we held:

Nevertheless, no Kentucky court had declared Lalonde’s 1989 conviction invalid
prior to his sentencing in the instant case. Thus, because Lalonde’s challenge to
his conviction was not based upon an alleged violation of the right to counsel, the
district court was bound . . . not to allow Lalonde to collaterally challenge the
validity of the conviction at sentencing. . . . Accordingly, we find that, even if
Lalonde is correct in asserting the invalidity of his prior state law conviction, the
district court properly included this conviction in its calculation of Lalonde’s
criminal history category.

Id. at 768.

Similarly, in Aguilar-Diaz, this Court again determined that Custis prevented a defendant

from collaterally attacking his prior state court convictions as part of a federal sentencing. 626

F.3d at 269. In that case, the defendant argued that a prior Ohio conviction was void because the

state court failed to impose required post-release supervision as part of his sentencing. Id. at

267. However, after finding that the defendant’s claim was “quite similar” to the claim rejected

in Lalonde, the Court determined that the defendant’s claim was “precluded as a collateral attack

on a state conviction.” Id. at 270.

Braswell argues that Custis does not, in fact, prevent him from challenging his state court

convictions during sentencing. First, Braswell argues that Custis is inapplicable to cases where

the issue is what counts as a “conviction,” given that Custis addressed only cases where it was

assumed that there was a prior conviction. For support, Braswell cites this Court’s decision in

United States v. Houston, 813 F.3d 282 (6th Cir. 2016), in which the Court addressed whether a

Tennessee conviction was properly considered a predicate under the ACCA’s definition of

4
Lalonde involved a challenge to the district court’s calculation of the defendant’s
criminal history score, not whether the defendant was an armed career criminal. 509 F.3d at 766.
However, Lalonde applied the rule announced in Custis, which specifically applies to the ACCA.
Id. at 767 (applying Custis, 511 U.S. at 487).
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“conviction,” given that the state conviction was still in the process of being appealed. Id. at

292. Braswell argues that the fact that the Court in Houston did not make reference to Custis

reveals that Custis does not apply to the case at hand.

We find Braswell’s arguments unavailing. The Court in Houston was not deciding

whether the defendant was an armed career criminal, but was instead tasked with determining

whether a prior Tennessee conviction, which was still pending on direct appeal in state court,

was a conviction such that the defendant was prohibited from possessing a firearm. 813 F.3d at

292. The defendant in that case was not trying to argue that the conviction was void or invalid

for some reason, but just that the timing of the federal and state cases meant that the Tennessee

conviction did not make him a felon in possession because his felony conviction was not final

and it therefore was not illegal for him to possess a firearm. Id. Thus, the Court in that case had

no reason to discuss Custis.

Defendant also argues that his challenge is authorized under Custis because it is

authorized by statute—specifically that his challenge is allowed based on the definition of

“conviction” in § 921(a)(20). While it is true that, under Custis, “a defendant may collaterally

attack a prior conviction used for purposes of sentence enhancement only if (1) such attack is

provided by statute, or (2) such attack is a constitutional one premised on a lack of counsel,”

United States v. Reed, 141 F.3d 644, 652 (6th Cir. 1998), the Supreme Court was contemplating

statutes such as 21 U.S.C. § 851, which “sets forth specific procedures allowing a defendant to

challenge the validity of a prior conviction used to enhance the sentence for a federal drug

offense.” Custis, 511 U.S. at 491. The Supreme Court further opined that “[t]he language of

§ 851(c) shows that when Congress intended to authorize collateral attacks on prior convictions

at the time of sentencing, it knew how to do so. Congress’ omission of similar language in

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§ 924(e) indicates that it did not intend to give defendants the right to challenge the validity of

prior convictions under this statute.” Id. at 492. After examining the relevant statutory

provisions, we conclude that the definitional section that applies to the ACCA, codified in § 921,

is not the sort of statute that contains the express authorization to challenge prior convictions

contemplated in Custis. Instead, the clear language of Custis holds that prior convictions cannot

be collaterally attacked through a sentencing for being an armed career criminal pursuant to

§ 924(e).

Braswell also attempts to distinguish his case from Aguilar-Diaz, given differences in

Ohio and Tennessee law regarding void convictions. Braswell argues that it was important that,

in Aguilar-Diaz, only the sentence was considered void under Ohio law and not the underlying

determination of guilt. 626 F.3d at 268. In Tennessee, by contrast, Braswell’s entire conviction,

including both the sentence and the determination of guilt, is considered void because the illegal

sentence was bargained for in a plea deal. Smith, 202 S.W.3d at 129.

This argument, too, is unpersuasive. First, Aguilar-Diaz did not rely solely on the fact

that the underlying determination of guilt was still in place when determining that Custis barred

the defendant’s attack on his prior convictions. In fact, the Court specifically noted that “it is not

necessary for us to determine whether Aguilar-Diaz’s forgery conviction is void in Ohio or, if it

is, whether it would still be valid for federal sentencing purposes.” 626 F.3d at 269.

Furthermore, Judge Batchelder wrote separately, in her words, to “highlight an ambiguity in

Ohio case law,” given that the Ohio Supreme Court has not clarified whether only the sentence is

void, or both the sentence and the determination of guilt. Id. at 271. Therefore, Aguilar-Diaz

cannot be distinguished based on the fact that the underlying determination of guilt was still

intact in that case.

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Moreover, in Custis, the Supreme Court noted that the definition of “conviction” in

§ 921(a)(20) provided that “[a]ny conviction which has been expunged, or set aside or for which

a person has been pardoned or has had civil rights restored shall not be considered a conviction

for purposes of this chapter.” 511 U.S. at 491 (quoting 18 U.S.C. § 921(a)(20)). The Court

found that “[t]he provision that a court may not count a conviction ‘which has been . . . set aside’

creates a clear negative implication that courts may count a convictions that has not been set

aside.” Id. (quoting 18 U.S.C. § 921(a)(20)). This language indicates that Braswell’s prior

convictions were properly counted, given that no Tennessee court has set them aside based on

their voidness or illegality.

Finally, this Court’s disposition in United States v. Watt, 162 F. App’x 486 (6th Cir.

2006), does not mandate the opposite outcome. In that case, the defendant made the same

argument as Braswell in this case—that his prior convictions were invalid under Tennessee law

because he was sentenced concurrently when he was required to be sentenced consecutively. Id.

at 489. The defendant there ultimately obtained relief from his career offender enhancement in

federal court. However, Watt is different for two key reasons. First, the defendant in that case

actually had his state convictions set aside by the Tennessee state courts. Id. Second, Watt was a

case brought pursuant to 28 U.S.C. § 2255, and not on direct appeal from a federal sentencing.

Id. at 493. Custis specifically held that collateral attacks on prior convictions could not be made

during federal sentencing proceedings, but noted that the prior convictions could be challenged

on federal habeas review. 511 U.S. at 497. Therefore, the Watt Court found that “Watt followed

the procedure contemplated by Custis. He successfully challenged his state convictions in state

court, and only then did he seek § 2255 relief from the federal sentence enhancement that had

been predicated on those convictions.” 162 F. App’x at 493.

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In contrast, Braswell here sought to challenge his prior convictions during a federal

sentencing proceeding, which is specifically disallowed by Custis. Moreover, Braswell’s

convictions have not been set aside by any court in Tennessee, despite his argument that he

clearly would be entitled to such relief.5 We therefore hold that Braswell’s prior convictions

were properly counted as predicate offenses under the ACCA. 6

2. Aggravated Robbery as Violent Felony Under the ACCA

Braswell also argues that his four convictions—three for aggravated robbery and one for

attempt of especially aggravated robbery—do not qualify as violent felonies under the ACCA in

light of Johnson v. United States, 559 U.S. 133, 140 (2010). However, Braswell admits that this

argument is foreclosed based on binding circuit precedent and that he is only raising this

argument here in order to preserve the issue for further appeal.

Indeed, this Court has repeatedly held that aggravated robbery under Tennessee law is a

violent felony under the “use of force” clause of the ACCA. See United States v. Gloss, 661

F.3d 317, 319 (6th Cir. 2011); United States v. Bailey, 634 F. App’x 473, 476 (6th Cir. 2015).

Therefore, the district court properly determined that Braswell’s prior convictions for aggravated

5
Braswell asserts that he cannot obtain relief in Tennessee given that he is no longer in
custody and has already served his sentence. See State v. Wooden, 478 S.W.3d 585, 591 (Tenn.
2015); State v. Brown, 479 S.W.3d 200, 211–12 (Tenn. 2015). Indeed, Braswell applied for state
post-conviction relief but was denied relief for just that reason. State v. Braswell, Nos. 201324,
201325, 203114, 203483 (Crim. Ct. Hamilton Cty. Tenn. Dec. 22, 2015), available at R. 111-4,
PageID #1307. At the federal sentencing, defense counsel stated that Braswell’s appeal of that
decision was pending in the Tennessee courts. The record contains no further information
regarding the state proceedings. Regardless, this Court, when faced with the same argument in
Aguilar-Diaz, held that it is immaterial whether “state-based relief is currently available.” 626
F.3d at 271.
6
This holding is without prejudice to Braswell’s ability to raise these issues in an
appropriate § 2255 proceeding.
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robbery and attempted especially aggravated robbery qualify as predicate offenses for purposes

of the ACCA.

CONCLUSION

For the reasons stated above, we AFFIRM Braswell’s conviction and sentence for being

a felon in possession of a firearm. Specifically, we conclude that the district court properly

denied Braswell’s motion to suppress the evidence obtained as result of the traffic stop.

Moreover, the district court did not abuse its discretion by declining to give a spoliation

instruction or by admitting the recording of Braswell into evidence. Similarly, the government

did not commit misconduct so flagrant as to require reversal by characterizing what was said on

the tape as a confession. Furthermore, the evidence was sufficient to find Braswell guilty.

Finally, Braswell was properly considered an armed career criminal and correctly barred from

challenging his state convictions in the context of a federal sentencing hearing.

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HELENE N. WHITE, Circuit Judge, concurring. I concur in all but Part II.B of the

majority opinion. I write separately because I do not agree that the issue whether a criminal

defendant must show bad-faith conduct by the government to justify even the mildest of

spoliation sanctions—a permissive adverse-inference instruction—is settled in this circuit.

Further, it is unnecessary to decide the question in this case.

I.

The majority relies on United States v. Boxley, 373 F.3d 759 (6th Cir. 2004), and United

States v. Spalding, 438 F. App’x 464 (6th Cir. 2011). Boxley, however, relied on Nationwide

Mutual Fire Insurance Co. v. Ford Motor Co., 174 F.3d 801 (6th Cir. 1999), for its

understanding of spoliation sanctions. Boxley, 373 F.3d at 762. And Nationwide, following

then-current circuit precedent, applied state law regarding spoliation sanctions. 174 F.3d at 804

(“The rules that apply to the spoiling of evidence and the range of appropriate sanctions are

defined by state law; in this case, Ohio.”) (citation omitted). In Adkins v. Wolever, 554 F.3d 650

(6th Cir. 2009) (en banc), however, the court rejected the application of state law to spoliation

issues, explaining that “a spoliation ruling is evidentiary in nature and federal courts generally

apply their own evidentiary rules in both federal question and diversity matters.” Id. at 652

(citation omitted). In doing so, the court overruled “earlier opinions that applied state law to

determine whether spoliation sanctions were available,” including Nationwide specifically. Id. at

651.1 Thus, because Boxley relied on Nationwide’s statement of Ohio law, it is not clear that the

1
The majority states that the Nationwide court applied Ohio law because Nationwide was a diversity case. See Maj.
Op. at 10 n.2. In fact, prior to Adkins, this court applied state spoliation law in all civil cases, even those based on
federal-question jurisdiction. Adkins, 554 F.3d at 652 (“Our circuit’s application of state law to spoliation sanctions
in federal question cases finds its origins in Welsh v. United States, 844 F.2d 1239 [(6th Cir. 1988)], a Federal Tort
Claims Act case.”); see, e.g., Beck v. Haik, 377 F.3d 624, 628 (6th Cir. 2004) (applying Michigan spoliation law in a
§ 1983 civil rights action), overruled by Adkins, 554 F.3d 650.

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rule applied in Boxley correctly states the federal law applicable here.2 Spalding was decided

after Adkins, but Spalding relies exclusively on Boxley, and does not address the fact that Adkins

overruled Nationwide. Spalding, 438 F. App’x at 467. Further, Spalding is unpublished.

It is also not clear whether or to what extent we should rely on cases from outside this

circuit, and where that should lead us. True, the First Circuit has stated that a spoliation

instruction in a criminal case “usually makes sense only where the evidence permits a finding of

bad faith destruction; ordinarily negligent destruction would not support the logical inference

that the evidence was favorable to the defendant.” United States v. Laurent, 607 F.3d 895, 902

(1st Cir. 2010) (emphasis in original) (citation omitted). However, the Laurent court went on to

say that “the case law is not uniform in the culpability needed for the instruction,” and “negligent

destruction of a particular piece of evidence likely to be exculpatory” might justify a spoliation

instruction. Id. at 902–03 (citations omitted); see United States v. Flores-Rivera, 787 F.3d 1, 19

& n.13 (1st Cir. 2015) (stating that the government’s negligent destruction of probative evidence

did not justify a new trial, but that the defendants “likely would have been entitled to a spoliation

instruction” had they requested one).

The Fifth Circuit’s decision in United States v. Wise, 221 F.3d 140, 156 (5th Cir. 2000),

which the majority also cites, has little persuasive value. Wise is a criminal case, and it does

conclude that evidence of bad faith is necessary to support a spoliation instruction. Id. But Wise

relies on civil cases for its conclusions about spoliation sanctions. Id. And it appears that at least

at the time Wise was decided, bad faith was required to justify a spoliation instruction in civil

cases in the Fifth Circuit. Id. By contrast, and as the majority recognizes, bad faith is not

2
The majority concludes that Boxley remains good law because “Boxley can only logically be read as adopting the
bad faith requirement for spoliation instructions, described in Nationwide, for all criminal cases in this circuit,”
especially since Boxley originated in the Western District of Tennessee. Maj. Op. at 10 n.2. But Boxley does not
even acknowledge the choice-of-standard question, or any distinction between civil and criminal cases, much less
analyze those issues. 373 F.3d at 762–63. It simply repeats the standards stated in Nationwide.

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required for a spoliation instruction in a civil case in our circuit. Beaven v. U.S. Dep’t of Justice,

622 F.3d 540, 554 (6th Cir. 2010).

Further, as the majority acknowledges, the Ninth Circuit is split on this very issue.

Compare United States v. Romo-Chavez, 681 F.3d 955, 961 (9th Cir. 2012) (“a criminal

defendant must establish . . . that the evidence was destroyed in bad faith”), with United States v.

Sivilla, 714 F.3d 1168, 1173 (9th Cir. 2013) (holding that “[b]ad faith is the wrong legal standard

for a remedial jury instruction,” and, instead, “[c]ourts must balance the quality of the

Government’s conduct against the degree of prejudice to the accused, where the government

bears the burden of justifying its conduct and the accused of demonstrating prejudice”) (citation

and quotation marks omitted).

As for other circuits, the Eighth Circuit has assumed—but not actually decided—that its

bad-faith requirement for a spoliation instruction in a civil case also applies in criminal cases.

See United States v. Davis, 690 F.3d 912, 922 (8th Cir. 2012), cert. granted, judgment vacated

on other grounds, 133 S. Ct. 2852 (2013). The Eleventh Circuit has not decided whether

spoliation instructions based on the government’s failure to preserve evidence are ever

appropriate in criminal cases. United States v. Lanzon, 639 F.3d 1293, 1302 (11th Cir. 2011)

(declining to decide the question because the defendant would not be entitled to an instruction

under the civil standard, which in the Eleventh Circuit includes a bad-faith requirement). And

the Second, Third, Fourth, Seventh, Tenth, and D.C. Circuits do not appear to have addressed

this issue.

All of this is to say that, given the circumstances, Boxley, Spalding, and the cases from

other circuits do not provide a definitive answer to the question whether bad-faith conduct by the

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government is a necessary predicate to a district court in this circuit granting a permissive

adverse-inference instruction in a criminal case.

II.

Under the facts of this case, it is not necessary to decide which standard should apply to

requests for a spoliation instruction in a criminal case, because even if the district court erred by

not giving a spoliation instruction, that error was harmless.

“Any error, defect, irregularity, or variance that does not affect substantial rights must be

disregarded.” Fed. R. Crim. P. 52(a). Braswell does not contend that the spoliation issue here is

of constitutional magnitude, so any error is harmless if there “is ‘a preponderance of the

evidence that the error did not materially affect the verdict.’” United States v. Hendrickson, 822

F.3d 812, 824 & n.5 (6th Cir. 2016). (emphasis in original) (quoting United States v. Kilpatrick,

798 F.3d 365, 378 (6th Cir. 2015)).

Given the circumstances of this case, that standard is easily satisfied. A permissive

adverse-inference instruction is “simply a formalization of what the jurors would be entitled to

do even in the absence of a specific instruction.” West v. Tyson Foods, Inc., 374 F. App’x 624,

635 (6th Cir. 2010). At trial, defense counsel was permitted to, and did, argue strenuously that

the jurors should infer that the missing photographs would have shown something unfavorable to

the government. Braswell is correct that an instruction from the court generally carries more

weight than argument from counsel. See Arch Ins. Co. v. Broan-NuTone, LLC, 509 F. App’x

453, 459 (6th Cir. 2012). Here, however, defense counsel laid the groundwork for his argument

by successfully using the dashcam video to force Officer Piazza to reverse his testimony and

admit he had taken photographs of the evidence. If the jurors were not willing to draw

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inferences in Braswell’s favor after this dramatic and effective cross-examination, there is no

reason to think a spoliation instruction would have changed their minds.

Braswell argues that the photographs might have shown that there were fingerprints on

the gun—fingerprints that Officer Piazza never identified—and thus a spoliation instruction was

necessary to compensate for the photographs’ absence. But Officer Piazza testified that there

were visible fingerprints on the gun. Photographs showing the same thing would not have added

anything to Braswell’s defense. Nor would Braswell have been helped by an instruction telling

the jurors they could infer something that Officer Piazza had already admitted. In truth, there

was simply no favorable inference to be drawn from the destruction of the photographs.3

Further, as the majority’s opinion explains, there is substantial evidence connecting Braswell to

the gun. True, the evidence is largely circumstantial. But Braswell’s recorded statements are

powerful evidence of guilt. And nothing the jurors might have inferred from the photographs—

or their absence—would have changed what Braswell said to himself when he saw the officers

discover the gun and the marijuana.

In sum, the absence of a spoliation instruction did not affect Braswell’s substantial rights

and was, at most, harmless error.

3
Below, Braswell suggested the photographs might have shown that the gun had dirt or leaves on it, or that the
marijuana was not fresh. Braswell does not raise those arguments on appeal. Regardless, Officer Piazza admitted
under cross-examination that the gun was covered with leaves. And while the jurors might have inferred from the
absence of the photographs that the marijuana was not as fresh as Officer Piazza said it was, there is no reason to
think this would have changed the outcome of the trial, given Braswell’s recorded statements and Officer Piazza’s
otherwise uncontested description of events.

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