United States v. Chris Wright , 260 F.3d 568 ( 2001 )

SILER, J., delivered the opinion of the court, in which NATHANIEL R. JONES, J., joined. GILMAN, J. (pp. 572-74), delivered a separate concurring opinion.

OPINION

SILER, Circuit Judge.

Defendant Chris Wright was convicted on one count of arson in violation of 18 U.S.C. § 844(i). He appeals the district court’s denial of his motion to dismiss his indictment on the ground that government fire investigators’ failure to preserve physical evidence from the scene of the fire violated his due process right to access exculpatory evidence. We affirm.

I. Background

On October 6, 1993, a 124,342 square foot Wal-Mart retail and warehouse building in Memphis, Tennessee was destroyed by fire. The day after the fire, the National Response Team of the Bureau of Alcohol, Tobacco and Firearms (“ATF”) assisted local fire departments with the investigation of that fíre. John Miroeha, an ATF special agent and certified fire investigator, examined the fire scene and interviewed witnesses in order to determine the cause of the fire. After completing his investigation, Miroeha eliminated all accidental causes, including electrical malfunction, from being the cause of the fire. In his opinion, the fire’s cause was arson.

During the course of his investigation, Miroeha learned that there had been a previous fire at the same Wal-Mart on October 1, 1993. In a report from the October 1 fire, a fire lieutenant, who was not a trained fire investigator, had indicated that the cause of that fire appeared to be an electrical wiring problem. Based on his awareness of that report, Miroeha examined the electrical system that was suspected to have been the origin of the October 1 fire. He determined that the electrical system in question had not been the origin of either fire. By examining all relevant electrical evidence, Miroeha determined that the October 6 fire was not electrical. While no electrical evidence was preserved for future inspection, Miro-cha documented and photographed that evidence before it was destroyed.

In September 1997, Wright was indicted on one count of arson in violation of 18 U.S.C. § 844(i) for the October 6, 1993 Wal-Mart fire. He filed a motion to dismiss the indictment, claiming that government investigators, by failing to preserve relevant electrical evidence, “destroyed and/or disposed of all of the critical physical evidence from [the] scene of the fires on October 1,1993 and October 6,1993,” in violation of his due process right to access exculpatory evidence. The district court denied Wright’s motion.

Wright was convicted after a jury trial and was sentenced to fifty-seven months incarceration. He contends that the district court erred by denying his motion to dismiss the indictment.

II. Discussion

a. Standard of Review

Where a defendant moves a district court to dismiss his indictment on the ground that the government failed to preserve exculpatory evidence, we review the district court’s denial of that motion de novo. See United States v. Jobson, 102 F.3d 214, 217 (6th Cir.1996).

b. Analysis

To safeguard a defendant’s due process right to present a complete defense, the Supreme Court has developed “ “what might loosely be called the area of constitutionally guaranteed access to evidence.’ ” California v. Trombetta, 467 U.S. 479, 486, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) (quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982)). Separate tests are applied to determine whether the government’s failure to preserve evidence rises to the level of a due process violation in cases where material exculpatory evidence is not accessible, see Trombetta, 467 U.S. at 489, 104 S.Ct. 2528, versus cases where “potentially useful” evidence is not accessible. See Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988).

In Trombetta, the Court held that the government violates a defendant’s due process rights where material exculpatory evidence is not preserved. See Trombetta, 467 U.S. at 489, 104 S.Ct. 2528. For evidence to meet the standard of constitutional materiality, it “must both possess 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, 104 S.Ct. 2528. The destruction of material exculpatory evidence violates due process regardless of whether the government acted in bad faith. See id. at 488, 104 S.Ct. 2528; Youngblood, 488 U.S. at 57, 109 S.Ct. 333.

In Youngblood, 488 U.S. at 57, 109 S.Ct. 333, the Court held that “the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” The government does not have “an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution.” Id. at 58, 109 S.Ct. 333. For the failure to preserve potentially useful evidence to constitute a denial of due process, a criminal defendant must show bad faith on the part of the government. See id. “The presence or absence of bad faith by the [government actor] for the purposes of the Due Process Clause must necessarily turn on the [government actor’s] knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.” Id. at 56 n. *, 109 S.Ct. 333. Because the Youngblood court found that police did not act in bad faith by failing to preserve potentially useful evidence, it rejected Youngblood’s due process claim without further analysis.

In Jobson, 102 F.3d at 218, we recognized that, where potentially useful evidence is not preserved, bad faith alone will not violate a criminal defendant’s due process right to access exculpatory evidence. For a due process violation to exist, Jobson requires that once a defendant demonstrates bad faith and that the exculpatory value of evidence was apparent before its destruction, principles that we found to be interrelated for the reason stated in Youngblood, he or she must also demonstrate an inability to obtain comparable evidence by other reasonably available means. See id. And, where the government is negligent, even grossly negligent, in failing to preserve potential exculpatory evidence, the bad faith requirement is not satisfied. See id.

Wright contends that fire investigators’ failure to preserve electrical evidence recovered from the October 6, 1993 WalMart fire violated his constitutional right to access exculpatory evidence. Because that evidence was only potentially useful and the government did not act in bad faith by failing to preserve it, Wright’s due process right to access exculpatory evidence was not violated.

While Wright contends that the evidence in question was material exculpatory evidence, the evidence was only potentially useful. The heart of Wright’s argument is that the destruction of electrical evidence prevented his expert from conducting future tests, the results of which may have exonerated him by showing that an electrical malfunction could have been the cause of the fire. Pursuant to Youngblood, such evidence was not material exculpatory evidence. Instead, it was only potentially useful evidence.

Because we find no bad faith on the part of fire investigators who failed to preserve the potentially useful electrical evidence, we, like the Youngblood court, reject Wright’s due process claim without further analysis. The record contains no allegation of official animus toward Wright or of a conscious effort to suppress exculpatory evidence. There is no evidence that any fire investigator considered any electrical apparatus to be the cause of the October 6 fire. Even if the fire investigators were negligent in failing to preserve electrical evidence, negligence does not constitute bad faith.

The record demonstrates that a professional, good faith fire investigation was conducted. Wright argues that Mirocha acted in bad faith because he was aware of a fireman’s report that an October 1 fire at the Wal-Mart was electrical, suggesting that the same electrical apparatus could have caused the October 6 fire, but Miro-cha, a certified fire investigator, independently examined all relevant electrical evidence, including the apparatus suspected to have caused the October 1 fire, before concluding that the October 6 fire was not electrical. Thus, having determined that an electrical malfunction did not cause the October 6 fire, investigators destroyed electrical evidence along with other items which were ruled not to be relevant or material to the fire investigation. The fire scene encompassed over 120,000 square feet of retail and warehouse space and, given the enormity of physical evidence that could have been preserved, we conclude, as did the district court, that the investigators did not act in bad faith by failing to preserve items that it found not to be the source of the fire.

AFFIRMED.