United States of America v. Kyle Nelson

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-3789
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UNITED STATES OF AMERICA
v.
KYLE NELSON,
Appellant
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Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 4-10-cr-00231-001)
District Judge: Honorable Christopher C. Conner
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Submitted Under Third Circuit LAR 34.1(a)
May 21, 2012
Before: RENDELL, FUENTES, and HARDIMAN, Circuit Judges
(Opinion Filed: June 6, 2012)
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OPINION OF THE COURT
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After a jury trial, defendant Kyle Nelson was found guilty of possession of
contraband by an inmate in violation of 18 U.S.C. §§ 1791(a)(2), (b)(3), and (d)(1)(B).
Nelson appeals his judgment of conviction, contending that the District Court abused its
discretion in denying his request for a spoliation jury instruction. Because we agree with
the District Court’s sound reasoning in denying that request, we will affirm.

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I.
Nelson was incarcerated at the United States Penitentiary in Allenwood,
Pennsylvania, while serving a prison term on a 2004 conviction. On the morning of April
15, 2009, Allenwood prison officials selected Nelson’s unit, which housed 128 inmates,
for a random search for weapons and contraband. Prior to the search, inmates were
required to leave their respective cells and the unit. Three inmates, one of whom was
Nelson, refused to do so.
In order to remove these inmates from their individual cells, an extraction team
was assembled, consisting of seven guards, one of whom operated a hand-held video
camera to record the extraction process. After the extraction team failed to gain Nelson’s
cooperation, pepper gas was released into his cell through the opening under the cell
door. After the gas took effect on Nelson, the extraction team unlocked the cell door,
entered the cell, and restrained him. During the extraction process, a crudely-made knife,
or a “shank,” was dislodged from the bottom of Nelson’s cell door, and fell to the floor.
The guard operating the hand-held video camera filmed the shank on the floor.
In addition to the hand-held camera, there were eight fixed cameras located
throughout the unit in which Nelson was housed. Pursuant to prison policy, tapes
produced by these cameras are maintained for 30 days and then recorded over, unless
there is a request that they be preserved for longer.
Within a month after the incident, an institutional disciplinary proceeding was
held. Nelson was informed of his right to request that evidence, including the video from
the fixed cameras, be preserved. Nelson did not request that evidence be preserved.

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After the hearing, he was found guilty, and received time in a special housing unit as
punishment.
On August 12, 2010, Nelson was charged with possession of contraband by an
inmate in violation of 18 U.S.C. §§ 1791(a)(2), (b)(3), and (d)(1)(B). In anticipation of
trial, Nelson requested production of the video tapes from the fixed cameras located
throughout the unit in which Nelson was housed. Nelson was informed that, pursuant to
prison policy, the tapes had been recycled 30 days after the incident, and that they no
longer existed. On the first day of trial, Nelson requested a spoliation-of-evidence jury
instruction regarding the destruction of the video tapes taken from the fixed cameras.
Nelson alleged that, by recycling the video tapes, the government destroyed evidence
relevant to his defense. Specifically, Nelson alleged that the video tape would have
shown a prison guard prying loose the shank from the bottom of Nelson’s cell door.
The prison official who viewed the video tapes immediately after the April 15,
2009 incident testified to the District Court that only one fixed video camera would have
provided any reasonable view of Nelson’s cell door, and the video tape from that camera
had been recycled 30 days after the incident. He further pointed out that Nelson did not
request preservation of the tapes when given the opportunity. Finally, even had Nelson
requested that the video tape from that camera be preserved, it would have been of little
assistance due to the camera’s angle and distance from Nelson’s cell.
After a lengthy and thoughtful review of the evidence and arguments presented by
both parties, the District Court denied the requested jury instruction.

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II.1
“Spoliation occurs when evidence is destroyed or altered, or when a party fails to
preserve evidence in instances where litigation is pending or reasonably foreseeable.”
Bull v. United Parcel Serv., Inc., 665 F.3d 68, 73 (3d Cir. 2012) (citation omitted).
“When the contents of a document are relevant to an issue in a case, the trier of fact
generally may receive the fact of the document’s nonproduction or destruction as
evidence that the party that has prevented production did so out of the well-founded fear
that the contents would harm him.” Brewer v. Quaker State Oil Refining Corp., 72 F.3d
326, 334 (3d Cir. 1995).
A spoliation instruction is warranted when certain requirements are met. First, it
is essential that “the evidence in question be within the party’s control.” Id. Second, “it
must appear that there has been an actual suppression or withholding of the evidence.”
Id. However, “no unfavorable inference arises when the circumstances indicate that the
document or article in question has been lost or accidentally destroyed, or where the
failure to produce it is otherwise properly accounted for.” Id.; see also Bull, 665 F.3d at
73-74 (discussing requirements for spoliation).
Neither party disputes that the evidence in question—the video tape from the
stationary camera with a view of Nelson’s door—was within the control of the
government. Additionally, the parties do not dispute that the tape was destroyed
1 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291. We review the District Court’s denial of a request for a
spoliation instruction for abuse of discretion. See United States v. Leahy, 445 F.3d 634,
642 (3d Cir. 2006).

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approximately 30 days after the incident. They do dispute, however, the circumstances
under which the tape was destroyed.
Nelson contends that the prison’s policy to recycle the tapes is simply pretext to
destroy any potentially damaging evidence. The District Court, however, correctly
concluded that, where there is no showing that the evidence was destroyed in order to
prevent it from being used by the adverse party, a spoliation instruction is improper. See
In re Hechinger Inv. Co. of Del., Inc., 489 F.3d 568, 579 (3d Cir. 1994) (denying
spoliation inference in part because there was no evidence that the destroying party did so
in order to prevent the adverse party from accessing the evidence). Here, there was no
evidence that prison officials destroyed the video tape so as to prevent Nelson from using
it in his defense. Rather, the video tape was recycled pursuant to a prison policy that is
even-handedly applied.
III.
Accordingly, we conclude that the District Court did not abuse its discretion in
denying the spoliation jury instruction, and we will affirm the judgment below.

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