United States of America v. Arthur Fleming Moler

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4392
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ARTHUR FLEMING MOLER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., Senior
District Judge. (3:14-cr-00393-JFA-1)
Submitted: March 21, 2016 Decided: May 27, 2016
Before WILKINSON and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Joshua Snow Kendrick, KENDRICK & LEONARD, P.C., Greenville,
South Carolina; Victor K. Li, LI LAW FIRM, LLC, Columbia, South
Carolina, for Appellant. William N. Nettles, United States
Attorney, T. DeWayne Pearson, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Arthur Fleming Moler appeals his convictions of trafficking
in counterfeit goods,1 in violation of 18 U.S.C. §§ 2, 2320(a)
(2012); smuggling unapproved medications into the United States,
in violation of 18 U.S.C. § 545 (2012) and 21 U.S.C.
§§ 352(f)(1), (2) (2012); and theft of government funds or
property, in violation of 18 U.S.C. § 641 (2012). On appeal,
Moler alleges that the district court erred in: (1) failing to
grant his motion to dismiss the trafficking count or suppress
evidence as a result of the destruction of evidence;
(2) permitting expert testimony, and failing to safeguard
against jury confusion; (3) allowing the admission of testimony
regarding a prior civil seizure of counterfeit goods; and
(4) failing to suppress evidence as the fruit of an illegal
search and seizure. We affirm.
In reviewing a denial of a motion to dismiss or suppress,
we review the district court’s factual findings for clear error
and its legal conclusions de novo. United States v. Abramski,
706 F.3d 307, 313-14 (4th Cir. 2013). The Government’s duty to
preserve evidence is triggered when that evidence “possess[es]
an exculpatory value that was apparent before the evidence was
1 The indictment alleged trafficking in counterfeit Coach,
TaylorMade, Golf Pride, Beats by Dre, Adobe, Ray-Ban, National
Football League, Viagra, and Cialis products.

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destroyed, and [is] of such a nature that the defendant would be
unable to obtain comparable evidence by other reasonably
available means.” California v. Trombetta, 467 U.S. 479, 488-89
(1984).
However, where, as here, the Government fails “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,” no due process violation occurs
“unless a criminal defendant can show bad faith on the part of
the police.” Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988).
Bad faith requires that the Government “have intentionally
withheld the evidence for the purpose of depriving the
[defendant] of the use of that evidence during his criminal
trial.” Jean v. Collins, 221 F.3d 656, 663 (4th Cir. 2000) (en
banc) (Wilkinson, J., concurring)2; United States v. Fridie, 442
F. App’x 839, 842 (4th Cir. 2011) (per curiam); see also Jones
v. McCaughtry, 965 F.2d 473, 477 (7th Cir. 1991) (“[T]o show bad
2 In Jean, the district court was affirmed by an equally
divided court in a per curiam opinion. Judge Wilkinson wrote a
concurrence for six judges, Judge Murnaghan wrote a dissent for
five judges, and Judge Luttig issued a dissenting opinion. The
definition of “bad faith” in Judge Wilkinson’s concurrence,
however, appears to have had the support of a majority of the
court. See Jean, 221 F.3d at 679 (Luttig, J., dissenting)
(explaining that the court should remand the case to allow the
plaintiff “the opportunity to establish on remand that [the
government] intentionally withheld the evidence in question for
the purpose of preventing him from using it at trial”).

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faith, Petitioner must prove ‘official animus’ or a ‘conscious
effort to suppress exculpatory evidence.’” (quoting United
States v. Nesbitt, 852 F.2d 1502, 1520 (7th Cir. 1988))).
Although Blazer Investigations, the custodian of the
evidence in question, is a third party, we conclude that its
relationship with the Government is sufficient to establish an
agency relationship. Fourth Amendment protections apply “when a
private individual conducts a search ‘as an instrument or agent
of the Government.’” United States v. Richardson, 607 F.3d 357,
364 (4th Cir. 2010) (quoting Skinner v. Ry. Labor Execs. Ass’n,
489 U.S. 602, 614 (1989)). However, Moler’s claim fails because
he has not demonstrated that the evidence was destroyed in bad
faith. Blazer Investigations maintained a standard retention
policy under which it would destroy counterfeit goods after
ninety days unless a law enforcement agency indicates that the
evidence should be retained. Here, Blazer destroyed the
evidence pursuant to that retention policy, militating against a
finding of bad faith. United States v. Montieth, 662 F.3d 660,
666 n.1 (4th Cir. 2011).
While Moler presents some evidence in support of his claim
of bad faith, the evidence merely indicates that criminal
prosecution was a possibility, not that prosecution was certain
or even probable. The evidence therefore supports, at most, an
inference of negligence on the part of the Government or

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recklessness in failing to insure the preservation of the
evidence. It falls short, however, of establishing that the
Government “intentionally withheld the evidence for the purpose
of depriving [Moler] of the use of that evidence during his
criminal trial.” Jean, 221 F.3d at 663 (Wilkinson, J.,
concurring).
Regarding Moler’s arguments that the district court erred
in admitting the expert testimony of Wayne Grooms, we review
evidentiary rulings, as well as a district court’s decision to
qualify an expert witness, for abuse of discretion. United
States v. Garcia, 752 F.3d 382, 390 (4th Cir. 2014). In
reviewing for abuse of discretion, we do not substitute our
judgment for that of the district court; reversal is warranted
only if, in consideration of the law and facts of the case, the
district court’s determination was arbitrary or capricious.
United States v. Mason, 52 F.3d 1286, 1289 (4th Cir. 1995).
A witness who is qualified as an expert by knowledge,
skill, experience, training or education may testify
in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact
to understand the evidence or to determine a fact
in issue;
(b) the testimony is based on sufficient facts or
data;
(c) the testimony is the product of reliable
principles and methods; and

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(d) the expert has reliably applied the
principles and methods to the facts of the case.
Fed. R. Evid. 702. Grooms testified that he had 30 years of
experience in trademark investigations and, during those 30
years, “worked over 8,000 trademark cases in 43 different states
and eight foreign countries.” He had contracts to investigate
trademark infringement for TaylorMade, Adobe, Beats by Dre,
Coach, Golf Pride, and Ray-Ban. Grooms attended short training
seminars given by these companies to assist in detecting
counterfeit products.
Considering the totality of Grooms’ training and
experience, we cannot conclude that the district court abused
its discretion in qualifying him as an expert witness. See
United States v. Wilson, 484 F.3d 267, 275-76 (4th Cir. 2007)
(district court did not abuse its discretion in qualifying an
individual as an expert where he had 9 years of experience
related mostly to the subject matter to which he was
testifying); Garcia, 752 F.3d at 391 (finding that the witness
qualified as an expert based on her 5 years of experience in the
field).
Furthermore, Grooms reliably applied acceptable methodology
in his testimony. He noted which features on each item varied
from its authentic counterpart, and explicitly noted that these
issues formed the basis of his opinion that the items were

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counterfeit. Grooms admitted when he was unable to determine
that a product was counterfeit, or when he could not make such
an assertion based on his knowledge of a specific product.
Admittedly, there are instances where Grooms’ testimony was
conclusory, and he sometimes failed to explain exactly how he
gained certain knowledge. However, these deficiencies relate to
the weight, rather than the admissibility, of his testimony.
Therefore, we conclude that the testimony satisfied the
requirements of Rule 702, and the district court did not abuse
its discretion in admitting it.
We next turn to Moler’s argument that Grooms’ expert
testimony was not sufficiently distinct from his fact testimony.
Because this issue was not raised in the district court, it is
subject to plain error review. United States v. Catone, 769
F.3d 866, 871 (4th Cir. 2014). “To establish plain error,
[Moler] must show (1) that the court erred, (2) that the error
is clear and obvious, and (3) that the error affected his
substantial rights, meaning that it ‘affected the outcome of the
district court proceedings.’” Id. (quoting United States v.
Olano, 507 U.S. 725, 732–34 (1993)). Even if those three
factors are met, we will deny relief “unless the district
court’s error ‘seriously affects the fairness, integrity or
public reputation of judicial proceedings.’” Id. (quoting Olano,
507 U.S. at 736).

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We have “recognized that individuals who testify as expert
and fact witnesses can cause jury confusion, and such a manner
of proceeding is only acceptable where the district court took
adequate steps to make certain that the witness’s dual role did
not prejudice or confuse the jury.” Garcia, 752 F.3d at 392
(internal ellipses, brackets, and quotation marks omitted).
Such safeguards might include requiring the witness to
testify at different times, in each capacity; giving a
cautionary instruction to the jury regarding the basis
of the testimony; allowing for cross-examination by
defense counsel; establishing a proper foundation for
the expertise; or having counsel ground the question
in either fact or expertise while asking the question.
Id.
While Grooms testified both as a fact witness and an expert
witness, certain safeguards were in place to prevent jury
confusion. First, a proper foundation was laid for the basis of
Grooms’ expert opinion. As discussed previously, Grooms
testified to his expertise in the field of trademark
investigations, and testified regarding each specific feature on
the items that allowed him to determine that the items were
counterfeit. Second, many of the prosecution’s questions were
phrased in such a way as to clarify that Grooms was providing
his expert opinion. Finally, Moler was able to cross examine
Grooms about the bases for his conclusions that the goods were
counterfeit. Given the safeguards in place, and the relatively

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straightforward manner of Grooms’ testimony, we conclude that
Moler has not sustained his burden of demonstrating plain error.
Moler further argues that the district court erred in
permitting testimony of a prior civil seizure of counterfeit
goods. Failure to object at trial will generally subject an
issue to plain error review on appeal. United States v. Basham,
561 F.3d 302, 334 (4th Cir. 2009). However, where a party has
explicitly abandoned an argument, it is deemed waived and will
not be reviewed on appeal. Id. at 335. If a party files a
motion in limine and the district court fails to “clearly and
definitively rule[] on the motion . . . and the party that
brought the motion in limine does not at trial either object to
a ruling by the district court or at least renew his request for
a ruling, he waives for appeal the issue in the motion.” United
States v. Lighty, 616 F.3d 321, 353 n.36 (4th Cir. 2010).
Here, Moler filed a motion in limine seeking to exclude any
testimony relating to the prior civil seizure of counterfeit
goods. The district court took under advisement possible
limitations on the admissibility of the evidence, but did not
clearly and definitively rule on the motion. As Moler concedes,
he failed to renew the objection at trial; by doing so, he
waived this argument.
Finally, Moler argues that the district court erred in
failing to suppress evidence obtained during the search of the

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warehouse. Parties are required to raise motions to suppress
evidence prior to trial. Fed. R. Crim. P. 12(b)(3)(C). “The
failure to file a suppression motion by the specified pretrial
deadline operates as a waiver unless the court grants relief
from the waiver for good cause.” United States v. Moore, 769
F.3d 264, 267 (4th Cir. 2014) (internal quotation marks and
brackets omitted).
Moler concedes that he failed to file a motion to suppress
prior to trial, and failed to make any objection to the
admission of the evidence during trial. Moreover, Moler fails
to point to any good cause for the failure to file a pretrial
motion, and we discern none from the record. Absent such a
showing, Moler has waived review of this issue. United
States v. Whorley, 550 F.3d 326, 337 (4th Cir. 2008).
Accordingly, we affirm Moler’s convictions. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED

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