United States v. David Chappell Fey

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11373
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID CHAPPELL FEY,
SHARI LYNN GUNTER,
Defendants-Appellants.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 5:20-cr-00059-JA-PRL-1
____________________
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2 Opinion of the Court 22-11373
Before WILLIAM PRYOR, Chief Judge, and ROSENBAUM and ABUDU,
Circuit Judges.
WILLIAM PRYOR, Chief Judge:
This appeal requires us to decide whether evidentiary rul-
ings made during a criminal trial mandate the reversal of the con-
victions of David Fey and Shari Lynn Gunter for distributing meth-
amphetamine and conspiring to kill and killing a witness to their
crimes. We must resolve three issues: first, whether the district
court abused its discretion by admitting evidence that Fey tried to
hire someone to kill a witness cooperating with federal officials and
if so, whether that error was harmless; second, whether the district
court plainly erred by declining to instruct the jury on spoliation;
and third, whether the district court erred by overruling Fey and
Gunter’s objection to testimony about a coconspirator’s death and
by declining to declare a mistrial. Because any error in the admis-
sion of the evidence of the attempted murder for hire was harm-
less, the failure to give a spoliation instruction was not plain error,
and the admission of the testimony about a coconspirator’s death,
even if error, was harmless, we affirm.
I. BACKGROUND
David Fey and his girlfriend, Shari Lynn Gunter, were the
subjects of a federal investigation of methamphetamine distribu-
tion in Ocala, Florida. In January 2016, one of the distributors’ cus-
tomers, Kristin Brown, agreed to cooperate with the investigators.
After Fey and Gunter learned that Brown was cooperating with
federal officials, they plotted to kill her by giving her a “hot shot,”
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22-11373 Opinion of the Court 3
a syringe containing a lethal amount of methamphetamine and fen-
tanyl.
Fey, Gunter, their customer Marcia Jennings, and their
friend David Greene were at Fey and Gunter’s house in April 2016
when they executed their plan. When Brown arrived, Fey told her
that he had something for her in the master bathroom. Brown
went into the master bathroom and emerged with a syringe.
Brown then took the syringe to a second bathroom next to the liv-
ing room and closed the door. Moments later, Jennings heard a
thud. Gunter then emerged from the master bedroom and tried to
open the door to the second bathroom, but Brown’s body blocked
the door. After forcing her way in, Gunter dragged Brown’s uncon-
scious body out of the bathroom and kicked her head.
A few minutes later, Fey, Gunter, and Greene, all wearing
latex gloves, carried Brown from the house and placed her in her
car. After they wiped down the car, they drove away with two of
them following in a truck. Jennings saw these events happen but
did not participate. Fearing for her safety, she called her daughter
to come pick her up. Before Jennings’s daughter arrived, Fey, Gun-
ter, and Greene returned with Brown still in the passenger seat of
her car. Greene entered the house and said, “She’s coming out of
it.” Greene then entered the master bedroom and emerged with
another syringe, which one of them administered to Brown. They
departed again in Brown’s car with two of them following in the
truck.
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4 Opinion of the Court 22-11373
The next day, Brown was found dead in her car at a ceme-
tery less than a mile from her house. Her body was slumped in the
driver’s seat, and there were two syringes on the center console
and two more in her purse. The syringes tested positive for meth-
amphetamine. Because tests for fentanyl were unavailable to the
sheriff’s office, the syringes were not tested for that drug.
The chief medical examiner performed an autopsy the next
day. She submitted samples of Brown’s blood, eye fluid, liver, and
urine to a toxicology lab, which reported lethal levels of metham-
phetamine and fentanyl. The medical examiner concluded in her
report that drug toxicity caused Brown’s death and that her death
was accidental. The sheriff’s office closed the investigation into
Brown’s death.
In August 2016, Fey was in the Marion County Jail on
charges unrelated to this appeal. A fellow inmate, Ricky Zackery,
told officials that he had heard Fey discussing Brown’s death. Zack-
ery agreed to wear a recording device and meet with Fey. While
wearing the device, Zackery and Fey discussed the hot shots used
to kill Brown. Fey implied to Zackery that Gunter gave Brown the
first hot shot and that Fey gave Brown the second hot shot. Based
on this conversation, a federal agent investigating Fey and Gunter
decided to interview Gunter. During the interview, Gunter admit-
ted that she and Brown had been at Fey and Gunter’s house the
day Brown died. The agent reported this information to the state
attorney’s office and was told that another agent would follow up,
but no follow-up occurred.
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22-11373 Opinion of the Court 5
In 2020, Drug Enforcement Administration officer Jason
Webb reopened the case. Contrary to what the sheriff’s office had
determined in 2016, Webb believed there was foul play in Brown’s
death. Key evidence raised his suspicions: there were multiple sy-
ringes found at the scene, and those syringes had not been used and
were on the car’s console and in Brown’s purse instead of on her
body; phone records established that Brown had driven from Fey’s
house past her own home to arrive at the cemetery; and the pas-
senger door was ajar, which suggested that Brown was with an-
other person when she died.
Webb interviewed Fey and Gunter. Gunter denied involve-
ment in Brown’s death and told Webb that Fey falsely bragged
about being involved to impress girls. But Fey told Webb that Gun-
ter had given two hot shots to Brown: the first was the syringe
Brown used in the bathroom of Fey and Gunter’s home, and the
second was administered by Gunter in Brown’s car. Fey said that
Greene drove Brown’s body to the cemetery and that Gunter and
Greene staged the scene to make it look like an overdose. Fey told
Webb that he knew before her death that Brown was an informant.
He denied involvement and did not mention that Jennings was also
present that night. Fey disclosed that he previously discussed
Brown’s murder with a former girlfriend and a customer.
Webb also interviewed Fey’s former girlfriend, who told
Webb that Jennings witnessed Brown’s death. So Webb went to
Jennings’s house and identified himself as a Drug Enforcement Ad-
ministration agent. Jennings immediately told Webb what she had
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6 Opinion of the Court 22-11373
seen the night of Brown’s death. Webb also tried to locate Greene
but could not interview him because Greene had died of an over-
dose in 2018.
A grand jury indicted Fey and Gunter. The indictment
charged them with conspiracy to kill Brown with the intent to pre-
vent her from sharing information about the possible commission
of a federal offense, 18 U.S.C. §§ 1512(a)(1)(C), (a)(3)(A), (k); id.§ 1111; killing Brown with the intent to prevent communication
with federal officials, id. §§ 1512(a)(1)(C), (a)(3)(A); id. § 1111; id.
§ 2; conspiring to distribute a mixture of fentanyl and methamphet-
amine to Brown, causing her death, 21 U.S.C. §§ 846, 841(b)(1)(C);
and distributing methamphetamine, id. §§ 841(a)(1), (b)(1)(C); 18
U.S.C. § 2.
While in jail, Fey spoke to another detainee, Joshua Reed,
about the criminal charges. Fey and Reed already knew each other
and had previously discussed Brown’s death. In jail, Fey told Reed
that he had been charged with murder and implied that Jennings
was a witness for the prosecution. Fey asked Reed to kill Jennings
by burning her mobile home while she occupied it. Fey told Reed
that if he could kill Jennings, Fey’s problems would go away. Reed,
also a friend of Jennings, was shocked by Fey’s request and told a
jail investigator about it. The investigator alerted Webb, and Webb
obtained surveillance footage of Fey and Reed’s meeting.
Before trial, Fey and Gunter moved to exclude Brown’s au-
topsy results. The lab had destroyed Brown’s samples in June 2018
under its retention policy because the medical examiner did not
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22-11373 Opinion of the Court 7
request their preservation and the sheriff had closed the investiga-
tion of Brown’s death. The prosecutors filed the medical exam-
iner’s report and the toxicology report with the district court. Fey
and Gunter then withdrew their motion to exclude and instead re-
quested a jury instruction that officials had negligently destroyed
Brown’s tissue samples before the defense’s expert pathologist or
doctor could examine them. The district court denied the request
on the ground that no evidence supported a finding that officials
had been negligent. The district court told Fey and Gunter that
they could explore the issue at trial and request the jury instruction
again before the jury deliberated. Fey and Gunter did not raise the
issue again.
Fey and Gunter also objected to prosecutors calling Reed to
testify about Fey’s solicitation of someone to murder Jennings. In
their pretrial brief, prosecutors previewed that a witness could tes-
tify about the threat Fey made on Jennings’s life. Prosecutors men-
tioned Reed and the threat against Jennings only in the section of
their pretrial brief that described the underlying facts. The prose-
cutors did not identify the threat as character evidence under Fed-
eral Rule of Evidence 404(b). In the section of their pretrial brief
about evidence to be admitted under Rule 404(b), the prosecutors
stated only that they would offer testimony about Fey’s and Gun-
ter’s “efforts to conceal their illegal conduct from law enforce-
ment.”
The prosecutors provided notice of Reed’s testimony in
their proposed jury instructions, which were filed the same day as
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8 Opinion of the Court 22-11373
their pretrial brief. In their proposed jury instructions, the prosecu-
tors described Reed’s testimony about the threat against Jennings
as evidence of consciousness of guilt and requested a limiting in-
struction. Fey and Gunter argued that Reed’s testimony was inad-
missible character evidence and that prosecutors had not complied
with the written-notice requirement of Rule 404(b)(3). After Reed
made a proffer, the district court overruled the objection on the
ground that although Reed’s testimony fell within the rule, the
prosecutors’ pretrial brief thoroughly outlined Reed’s testimony
and provided Fey and Gunter ample notice. The district court al-
lowed Reed’s testimony.
Fey and Gunter also objected to prosecutors eliciting testi-
mony from Webb about Greene’s death to imply that Fey and
Gunter were involved. The district court asked the prosecutors if
they intended to introduce evidence that Fey and Gunter killed
Greene. The prosecutors said that they would not. The district
court never barred evidence about Greene’s death.
At a joint trial, two juries were empaneled—one for each de-
fendant. Jennings testified about the night of Brown’s death and
that she knew Reed. On cross-examination, Fey and Gunter at-
tacked Jennings’s credibility and asked her if the prosecution had
paid her for her testimony. Jennings responded that the prosecu-
tion paid for her room in a motel because of a threat on her life.
Reed also testified that Fey had asked him to kill Jennings by burn-
ing her occupied mobile home to make Fey’s problems go away.
The jail investigator testified that Fey and Reed had conversed in
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22-11373 Opinion of the Court 9
the jail, and the prosecutors presented video footage, without au-
dio, of Reed and Fey’s meeting.
The prosecution called the lab toxicologist who tested
Brown’s samples. She testified about her findings, and the district
court admitted her report into evidence. The medical examiner tes-
tified about the toxicology report that the methamphetamine and
fentanyl in Brown’s system killed her and opined that nothing sug-
gested that Brown died of natural causes. She also testified about
the high rate of fentanyl deaths in the county. Fey and Gunter’s
expert, a pathologist, testified that because Brown’s samples had
been destroyed, it was impossible to revisit her cause of death and
verify that it was a homicide.
Webb testified about his investigation of Brown’s death.
The prosecutor asked Webb if he had tried to locate Greene as part
of his investigation. Webb responded that he did. When the prose-
cutor asked what he learned, Webb replied, “I learned that he died
in 2018 from an overdose.” Fey objected on the ground that the
mention of Greene’s manner of death implied foul play. Fey moved
for a mistrial.
The district court overruled the objection and denied the
motion for a mistrial. It found that Webb’s statement did not imply
any foul play, much less Fey and Gunter’s involvement. The dis-
trict court also stated that the juries had heard testimony earlier
from the medical examiner about the high rate of fentanyl over-
doses, which suggested that fentanyl overdoses are common and
not necessarily evidence of foul play.
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10 Opinion of the Court 22-11373
The district court instructed the Fey jury, as the prosecutors
requested, that it could consider Reed’s testimony that Fey had so-
licited a fellow inmate to murder a prosecution witness only for the
limited purpose of proving Fey’s consciousness of guilt. The district
court instructed the Gunter jury that it could not consider Reed’s
testimony about Fey’s threat as evidence of Gunter’s guilt or con-
sciousness of guilt. The juries found Fey and Gunter guilty on all
counts.
II. STANDARDS OF REVIEW
Three standards govern our review. We review evidentiary
rulings for abuse of discretion, United States v. Jiminez, 224 F.3d
1243, 1249 (11th Cir. 2000), but we will not reverse when the error
is harmless, United States v. Barton, 909 F.3d 1323, 1330 (11th Cir.
2018). When a district court denies a pretrial request for a jury in-
struction, and the party requesting the instruction does not raise
the issue again before the district court instructs the jury, we re-
view the denial for plain error. United States v. Iriele, 977 F.3d 1155,
1177 (11th Cir. 2020). We review for abuse of discretion the denial
of a motion for a mistrial based on improper testimony. United
States v. Campa, 529 F.3d 980, 992 (11th Cir. 2008).
III. DISCUSSION
We divide our discussion in three parts. First, we explain
that although prosecutors failed to identify Reed’s testimony that
Fey solicited him to murder Jennings as evidence under Federal
Rule of Evidence 404(b), the error was harmless. Second, we ex-
plain why the district court did not plainly err when it declined to
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22-11373 Opinion of the Court 11
instruct the jury on spoliation. Last, we explain why the district
court did not err by overruling Fey and Gunter’s objection to
Webb’s testimony about Greene’s death.
A. Prosecutors Failed to Identify Reed’s Testimony Under Rule 404(b),
but the Error Was Harmless.
Fey and Gunter challenge the admission of Reed’s testimony
under Federal Rule of Evidence 404(b). They argue that prosecu-
tors failed to provide the required written notice for this evidence,
see FED. R. EVID. 404(b)(3), that Reed’s testimony was not suffi-
ciently supported, and that his testimony was unduly prejudicial.
The United States responds that Rule 404(b) does not apply.
Rule 404(b) governs evidence of any “crime, wrong, or act”
committed by a person. Id. R. 404(b)(1). It prohibits the admission
of evidence of such conduct when offered to prove that, on a par-
ticular occasion, the person acted in accordance with that charac-
ter. Id. But evidence of another crime, wrong, or act may be admit-
ted for other purposes, like “proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack
of accident.” Id. R. 404(b)(2). Rule 404(b) does not apply when evi-
dence of a prior offense is intrinsic to the charged offense. See United
States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007). Evidence of
another crime is intrinsic when the uncharged offense arose out of
the same transaction or series of transactions as the charged of-
fense; the evidence is necessary to complete the story of the crime;
or the evidence is inextricably intertwined with the evidence of the
charged offense. Id.USCA11 Case: 22-11373 Document: 68-1 Date Filed: 12/28/2023 Page: 12 of 22
12 Opinion of the Court 22-11373
The United States argues that the evidence of Fey threaten-
ing Jennings is intrinsic because it was “integral to the charged con-
spiracy” and because without Reed’s testimony, the jury would not
know the whole story of the night of Brown’s death. See United
States v. Estrada, 969 F.3d 1245, 1275 (11th Cir. 2020). It also argues
that Reed’s testimony was evidence of consciousness of guilt and is
thus intrinsic. We disagree.
Reed’s testimony is extrinsic and within the scope of Rule
404(b). Our precedent treats threats against a witness as evidence
of consciousness of guilt and applies Rule 404(b). See, e.g., United
States v. Gonzalez, 703 F.2d 1222, 1223 (11th Cir. 1983) (analyzing a
threat against a witness as consciousness-of-guilt evidence under
Rule 404(b)). And Reed’s testimony does not fall within any cate-
gory of intrinsic evidence that we have recognized. Fey’s solicita-
tion to murder Jennings was not part of the same transaction or
series of transaction as the charged crime; it took place five years
after the conspiracy to kill Brown was completed. Although the at-
tempted murder of a witness could be considered an act to cover
up a conspiracy, those acts are not considered part of the conspir-
acy if they occur after the conspiracy is completed. See United States
v. Knowles, 66 F.3d 1146, 1155 (11th Cir. 1995) (“The Supreme
Court has unambiguously held that acts of concealment are not
part of the original conspiracy. A conspiracy ends after the central
purposes of a conspiracy have been attained.” (footnote, citation,
and internal quotation marks omitted)). The conspiracy to kill
Brown was complete when Brown was murdered, five years before
Fey solicited Reed. Nor was Fey’s solicitation integral to the
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22-11373 Opinion of the Court 13
conspiracy or necessary to tell the whole story of Brown’s death.
See Edouard, 485 F.3d at 1344. Reed was not present the night of
Brown’s death and played no role in the conspiracy to kill her. Con-
sidering the time between the two events, and that Jennings—not
Reed—would tell the story of Brown’s murder, the evidence of the
threat that Fey made is extrinsic and governed by Rule 404(b).
To be admissible under Rule 404(b), Reed’s testimony about
Fey’s solicitation must be relevant to an issue other than Fey’s char-
acter, be supported by sufficient evidence to allow a jury to find
that Fey committed the act, and not be unduly prejudicial under
Rule 403. See United States v. Chavez, 204 F.3d 1305, 1317 (11th Cir.
2000). And, under Rule 404(b)(3), prosecutors must provide reason-
able notice of the evidence of other crimes or wrongs that they in-
tend to offer so that the defendant has a fair opportunity to meet
it, articulate the permitted purpose for which the prosecutors in-
tend to offer the evidence, and provide that notice in writing before
trial or in any form during trial if the district court finds good cause
for lack of pretrial notice. FED. R. EVID. 404(b)(3).
We agree with Fey and Gunter that prosecutors failed to
provide notice as required by Rule 404(b)(3). Rule 404(b) and the
commentary on the 2020 amendments make clear that written no-
tice of character evidence and the non-character purpose for which
it is to be introduced is required absent a finding of good cause. See
id. R. 404(b)(3)(C); id. R. 404(b) advisory committee’s note to 2020
amendments. The prosecutors failed to identify Reed’s testimony
as Rule 404(b) evidence in advance of trial. See FED. R. EVID. 404(b)
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14 Opinion of the Court 22-11373
advisory committee’s note to 2020 amendments. And the district
court did not find good cause for their failure to do so.
Despite the error of failing to provide the required notice,
we “will not overturn an evidentiary ruling and order a new trial
unless the objecting party has shown a substantial prejudicial effect
from the ruling.” Maiz v. Virani, 253 F.3d 641, 667 (11th Cir. 2001).
Substantial prejudice goes to the outcome of the trial. “[W]here an
error had no substantial influence on the outcome, and sufficient
evidence uninfected by error supports the verdict, reversal is not
warranted.” United States v. Drury, 396 F.3d 1303, 1315 (11th Cir.
2005) (citation and internal quotation marks omitted; see also Bar-
ton, 909 F.3d at 1331.
The prosecutors’ error was harmless. Fey and Gunter had
notice of Reed’s expected testimony well before trial even though
the prosecutors failed to identify it as governed by Rule 404(b). The
prosecutors recounted Reed’s expected testimony in their pretrial
brief, which was filed 126 days before trial, giving Fey and Gunter
ample time to prepare. Fey and Gunter could surmise, based on the
pretrial brief, that Reed’s testimony could fall under Rule 404(b).
And the prosecution stated its intention to offer the testimony as
evidence of consciousness of guilt in its proposed jury instructions,
which were filed the same day as its pretrial brief. The proposed
jury instructions and the pretrial brief gave Fey and Gunter notice
that a witness would be called to offer testimony that Fey threat-
ened Jennings’s life.
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22-11373 Opinion of the Court 15
Moreover, there was sufficient evidence to support the ju-
ries’ convictions on the charges related to Brown’s murder, even
without Reed’s testimony about the threat on Jennings’s life. Jen-
nings gave an eyewitness account of the night Brown died and ex-
plained Fey’s and Gunter’s involvement. The medical examiner
testified that methamphetamine and fentanyl killed Brown. Webb
testified about the details of the crime scene that led him to infer
that Brown’s death was a homicide and not a self-inflicted over-
dose. Webb also testified that witnesses he interviewed about
Brown’s death told him that Fey and Gunter killed Brown with hot
shots. Because ample evidence besides Reed’s testimony supports
the conspiracy convictions, the error of admitting Reed’s testimony
did not affect the outcome. See United States v. Harriston, 329 F.3d
779, 789 (11th Cir. 2003) (holding that an error is harmless when
“the error had no substantial influence on the outcome and [other]
sufficient evidence . . . supports the verdict” (citations and internal
quotation marks omitted)).
Fey and Gunter also contend that Reed’s testimony should
not have been admitted because it was not supported by sufficient
evidence. For Rule 404(b) evidence to be sufficiently supported, the
prosecution need only provide enough evidence for the district
court to conclude that the jury could find, by a preponderance of
the evidence, that the earlier bad act had occurred. United States v.
Green, 873 F.3d 846, 864 (11th Cir. 2017). We have held that detailed
testimony satisfies this standard. See, e.g., United States v. Dickerson,
248 F.3d 1036, 1047 (11th Cir. 2001); United States v. Bowe, 221 F.3d
1183, 1192 (11th Cir. 2000). The prosecution made a proffer, in
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16 Opinion of the Court 22-11373
which Reed gave a detailed account of his conversation with Fey
and of the solicitation to murder Jennings. Fey and Gunter argue
that Reed was not credible and that the district court should not
have admitted his testimony. But we must defer to the district
court’s determination that the testimony was credible enough to
allow a jury to find that the act occurred. United States v. Lampley,
68 F.3d 1296, 1299–1300 (11th Cir. 1995); United States v. Brazel, 102
F.3d 1120, 1154 (11th Cir. 1997). And evidence other than Reed’s
proffer supported his testimony. Surveillance video recorded Reed
and Fey’s meeting in the jail, and Jennings confirmed that she knew
Reed and that she had been moved to a hotel for her safety because
of a threat against her.
Fey and Gunter also argue that Reed’s testimony was un-
duly prejudicial. The prejudice standard for Rule 404(b) is the same
as under Rule 403, see Chavez, 204 F.3d at 1317, which allows the
district court to exclude relevant evidence “if its probative value is
substantially outweighed by a danger of . . . unfair prejudice” or
“misleading the jury.” FED. R. EVID. 403. Fey and Gunter argue that
Reed’s testimony misled the jury to believe that Fey’s “character is
so reprehensible that he has no reservations regarding killing any
witness.”
Exclusion for prejudice under Rule 403 “is an extraordinary
remedy which the district court should invoke sparingly, and the
balance should be struck in favor of admissibility.” United States v.
Alfaro-Moncada, 607 F.3d 720, 734 (11th Cir. 2010) (citation and in-
ternal quotation marks omitted). Because the district court “is
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22-11373 Opinion of the Court 17
uniquely situated to make nuanced judgments on questions that
require the careful balancing of fact-specific concepts like proba-
tiveness and prejudice, . . . we are loathe to disturb the sound exer-
cise of its discretion in these areas.” United States v. Troya, 733 F.3d
1125, 1131 (11th Cir. 2013) (citation and internal quotations omit-
ted). “The test under Rule 403 is whether the other acts evidence
was dragged in by the heels solely for prejudicial impact.” United
States v. McNair, 605 F.3d 1152, 1206 (11th Cir. 2010) (alterations
adopted) (citation and internal quotation marks omitted).
Although testimony that Fey sought to have a witness killed
is not flattering, it is not more prejudicial than probative. Reed’s
testimony also was not admitted solely for prejudicial impact; it
was used to counter Fey and Gunter’s theory that Brown had killed
herself or died of natural causes. Evidence that Fey wanted to kill a
witness present on the night of Brown’s death undermines Fey and
Gunter’s argument that they were not involved in Brown’s demise.
The district court also reduced the risk of prejudice by in-
structing the Fey jury that it could consider the solicitation-of-mur-
der evidence only for the limited purpose of proving Fey’s con-
sciousness of guilt. A limiting instruction of this kind reduces the
risk of prejudice so that admitting the evidence of a defendant’s
earlier bad acts is not reversible error. See United States v. Ramirez,
426 F.3d 1344, 1353 (11th Cir. 2005); United States v. Diaz-Lizaraza,
981 F.2d 1216, 1225 (11th Cir. 1993). As for Gunter, the district
court instructed her jury that it could not consider the solicitation-
of-murder evidence as evidence of her guilt or consciousness of
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18 Opinion of the Court 22-11373
guilt. Limiting instructions like these for the consideration of evi-
dence in relation to a codefendant prevent prejudice. See Gonzalez,
703 F.3d at 1224.
B. The District Court Did Not Plainly Err by Declining to Instruct the
Jury on Spoliation.
Fey and Gunter argue that the district court erroneously de-
clined to instruct the jury on spoliation of evidence. Fey’s counsel
requested before trial that the district court instruct the jury that
officials negligently allowed Brown’s tissue samples to be de-
stroyed before the defense’s expert pathologist or doctor could ex-
amine them. The district court denied the pretrial request and
stated that counsel could explore the issue at trial and raise the in-
struction request again. But Fey and Gunter did not raise the issue
before the case went to the jury. Because Fey and Gunter did not
object to the jury instructions before the case went to the jury, we
review this issue only for plain error. See Iriele, 977 F.3d at 1177. To
prevail under plain error review, Fey and Gunter must show that
the district court made an error, that the error was plain, and that
it affected their substantial rights. See United States v. Rodriguez, 398
F.3d 1291, 1298 (11th Cir. 2005).
Fey and Gunter cannot establish plain error. We have never
ruled that a spoliation instruction should be given in a criminal
trial; we have affirmed its use only in civil cases. See United States v.
Lanzon, 639 F.3d 1293, 1302 (11th Cir. 2011) (explaining that we
have never given a spoliation instruction in the criminal context,
but if we did, our precedent from the civil context requires a
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22-11373 Opinion of the Court 19
showing of bad faith). Likewise, the Eighth Circuit has declined to
decide whether a spoliation instruction may be given in a criminal
trial but has stated that if the instruction could be given, it would
be appropriate only upon a showing of bad faith. See United States
v. Warren, 951 F.3d 946, 949–50 (8th Cir. 2020). The Fifth and Sixth
Circuits have approved the spoliation instruction in the criminal
context so long as the destruction was in bad faith. See United States
v. Valas, 822 F.3d 228, 239 (5th Cir. 2016) (applying the spoliation
doctrine in the criminal context and requiring a showing of bad
faith, not negligence); United States v. Boxley, 373 F.3d 759, 762–63
(6th Cir. 2004) (same). The First Circuit too has held that a spolia-
tion instruction may be given in both the civil and criminal contexts
when the evidence permits a finding of bad faith destruction. See
United States v. Laurent, 607 F.3d 895, 902 (1st Cir. 2010). But unlike
the Fifth and Sixth Circuits, the First Circuit noted that unusual cir-
cumstances might warrant an exception to the bad faith require-
ment and allow for a spoliation instruction when the destruction
was negligent. Id. at 902–03. The First Circuit did not explain in
detail when that exception would apply. And it held that the excep-
tion would not apply in Laurent because the evidence was de-
stroyed as part of a routine destruction before the defendant was
arrested. Id. at 903.
We need not decide whether a spoliation instruction may be
given in a criminal trial because our precedent makes clear that
even if it could be given in a criminal trial, the instruction is re-
quired only when the absence of material evidence is predicated on
bad faith. See Lanzon, 639 F.3d at 1302 (citing Bashir v. Amtrak, 119
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20 Opinion of the Court 22-11373
F.3d 929, 931 (11th Cir. 1997)). Negligence is not enough. See Mann
v. Taser Int’l, Inc., 588 F.3d 1291, 1310 (11th Cir. 2009). And, in any
event, an error is plain only if binding precedent resolves the issue.
See United States v. Frank, 599 F.3d 1221, 1239 (11th Cir. 2010). Fey
and Gunter fail to identify any precedent from the Supreme Court
or this Court requiring a spoliation instruction in a criminal trial
when a party alleges that evidence was negligently destroyed.
C. Even if Overruling the Objection to Testimony about Greene’s
Overdose and Declining to Declare a Mistrial Was Error, It Was
Harmless.
Fey and Gunter argue that the district court abused its dis-
cretion by overruling Fey’s objection and denying his motion for a
mistrial after Webb testified about Greene’s death. They argue that
eliciting testimony from Webb that “[Greene] died in 2018 from an
overdose” was prosecutorial misconduct because the testimony
was irrelevant, a Rule 404(b) violation, and a Rule 403 violation.
They argue that this alleged misconduct warranted a mistrial.
Improper questions can rise to prosecutorial misconduct.
See United States v. Rivera, 780 F.3d 1084, 1096 (11th Cir. 2015). But
prosecutorial misconduct requires a new trial only if it prejudiced
the defendant’s substantial rights. See United States v. Hernandez, 145
F.3d 1433, 1438 (11th Cir. 1998). And a defendant’s substantial
rights are prejudiced only “when a reasonable probability arises
that, but for the remarks, the outcome of the trial would have been
different.” United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir.
2006). The district court is best positioned to evaluate the
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22-11373 Opinion of the Court 21
prejudicial effect of a statement on the jury and determine whether
a motion for a mistrial should be granted. United States v. Newsome,
475 F.3d 1221, 1227 (11th Cir. 2007).
Even if Webb’s testimony about Greene’s overdose should
not have been elicited, it did not prejudice Fey and Gunter’s sub-
stantial rights. See Hernandez, 145 F.3d at 1438. The record fails to
establish that there is a reasonable probability that the outcome of
the trial would have been different without Webb’s testimony
about Greene’s death. See United States v. Young, 470 U.S. 1, 12
(1985) (“[T]he remarks must be examined within the context of the
trial to determine whether the prosecutor’s behavior amounted to
prejudicial error.”). Webb testified only that Greene “died in 2018
from an overdose” in response to the prosecutor’s questioning
about Webb’s attempts to locate and investigate Greene. Fey and
Gunter were concerned that the testimony about Greene’s cause
of death could lead the jury to infer that Fey and Gunter played a
role because the prosecution’s theory was that Brown died from
hot shots administered by Fey and Gunter. But as the district court
found, there was no suggestion in Webb’s testimony that Fey and
Gunter were involved or that foul play was suspected in Greene’s
death. Webb’s testimony did not imply that Greene died from a
homicidal hot shot instead of a self-inflicted overdose. And other
evidence reduced the risk that the jury would infer foul play. Ear-
lier that day, the jury heard testimony from the medical examiner
that death from fentanyl overdose is common. Fey and Gunter do
not argue that any evidence or testimony other than Webb’s single
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22 Opinion of the Court 22-11373
statement implied that they were involved in Greene’s death. The
district court did not abuse its discretion in denying a mistrial.
IV. CONCLUSION
We AFFIRM Fey’s and Gunter’s convictions.