United States of America v. Jabar Evans, also known as JB, also known as Hood

U.S. COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 24-2156
UNITED STATES OF AMERICA
v.
JABAR EVANS,
also known as JB, also known as Hood,
Appellant
_____________________________
Appeal from U. S. District Court, D.N.J.
Judge William J. Martini,
No. 2:21-cr-00899-001
Before: RESTREPO, MCKEE AND AMBRO, Circuit Judges
Argued Nov. 10, 2025;
Decided May 19, 2026
_____________________________
OPINION OF THE COURT
RESTREPO, CIRCUIT JUDGE
Jabar Evans appeals his convictions for drug and
firearm offenses that followed a search of his hotel room
pursuant to a warrant. He alleges three trial court errors on
appeal, none of which warrant relief. His claim that the District
Court erred by admitting improper lay opinion testimony has
merit, but any error was harmless in light of the evidence. For

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the following reasons, we will affirm the judgments of
sentence.
I.
A. Facts
On April 23, 2021, Evans checked into Room 306 of the
Haiban Inn Hotel in Jersey City, New Jersey. Two months
later, on June 21, 2021, Evans asked the hotel manager for a
larger room and was given Room 207. That night, Evans and
his friends moved his belongings into the larger room. Evans
returned the keys for Room 306 to the hotel manager the next
morning.
The hotel’s housekeeping staff cleaned Room 306 later
that day. A plastic bag containing two handguns and some
letters with distinctive handwriting was found inside the
room’s open safe. A housekeeper brought the bag to the hotel
manager, who then called the police to report the guns. Patrol
officers responded and collected the guns—a .45 handgun
loaded with hollow point bullets and a 9 mm handgun with a
defaced serial number and a missing magazine. The manager
gave the officers a copy of Evans’ driver’s license and told
them that Evans was there in his new hotel room. From Evans’
identification, police determined that there was an outstanding
warrant for his arrest.
On the night of June 22, 2021, officers from the Jersey
City Police Department’s Emergency Services Unit (ESU)
assembled outside the door of Room 207. Evans initially
responded to an officer announcing their presence but became
silent after they identified themselves as police. While the
officers were attempting to persuade Evans to come to the door,
Evans leaned out of the window and made eye contact with the
officer positioned outside. After forty minutes of no response
from Evans, the officers forced entry into the room. They
found Evans on his bed and arrested him without incident.

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Because Evans was recovering from a prior gunshot wound,
the officers took him to the hospital for treatment.
Meanwhile, Jersey City detectives obtained a warrant to
search Room 207 for further evidence of weapons offenses,
such as the missing magazine from the confiscated gun or
“identifiers” that would link any firearms or firearm
accessories to the resident of the room. Appx. 3. The warrant
was executed in the early morning hours of June 23, 2021.
Upon entering the room, the officers immediately found a
small shoebox filled with bundled heroin. Nearby was a
garbage bag filled with bundled heroin and boxes of empty
glassine bags. Throughout the room were stamped glassine
bags that contained controlled drug substances. Also recovered
from the room were stamp pads and various stamps, as well as
drug packaging materials covered in a white powdery residue:
a mirror, scales, measuring cups, small scoops, a press, a
grinder, a pestle, a strainer, and substances used to augment or
“cut” different narcotics.
During the search, a detective noticed a piece of tile
from the room’s drop ceiling on the bed. Standing on the bed,
the detective pushed on the broken tile and a gun magazine fell
from the ceiling. From that position, he was able to pull down
two duffel bags and a backpack. The backpack contained
different types of drugs—crystal methamphetamine, cocaine,
crack cocaine, codeine, fentanyl and heroin—and
approximately $8,000 in cash. One of the duffel bags, which
Evans was seen on surveillance footage carrying from Room
306 to Room 207, contained fentanyl, bundled glassine bags
and other drug packaging materials. Also in the duffel was a
letter with the same distinctive handwriting as the letters found
in the safe. The other duffel bag contained marijuana in
different sized packaging, ranging from large Ziploc bags to
glassine packets.
All told, the officers found approximately 13,000
glassine bags of controlled drug substances in the hotel room.

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Some of the glassine bags were stamped with stamps found in
the room, and some of the bags matched the bags of heroin
found in Evans’ possession on the night he was shot.1
B. Procedural History
A grand jury returned a three-count indictment against
Evans, charging him with being a felon in possession of guns
in violation of 18 U.S.C. § 922(g)(1); possessing with the intent
to distribute fentanyl and methamphetamine in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(A); and possessing a gun in
furtherance of a drug-trafficking crime in violation of 18
U.S.C. § 924(c).2
Among other pre-trial motions, Evans moved to
suppress the evidence recovered from Room 207. The District
Court denied the motion, ruling that the “warrant laid out
sufficient facts to support a probable cause determination that
evidence of unlawful possession of a weapon would be found
in [R]oom 207, including identifying information of who might
be the owner of the two firearms found in 306.” Appx. 4. The
Court further found that, even if the facts were insufficient to
support probable cause, the officers acted “with objective good
faith in obtaining the warrant and acted within its scope,” and
therefore the good-faith exception to the exclusionary rule
would apply. Id.
1 Evans was shot several times the night of April 23, 2021. The
officer who responded to the scene of the shooting found
approximately 200 stamped glassine bags of heroin next to
Evans. In the search that followed his arrest, officers found
both the stamp and glassine bags of heroin stamped with the
same mark in his hotel room.
2 At trial, a firearms expert testified that the two guns were
manufactured outside of New Jersey. Their discovery in a New
Jersey hotel room meant that each gun “traveled and affected
interstate commerce.” Appx. 578.

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At trial, Detective William Costigan testified for the
government as to his role in executing the search warrant in
Room 207. After providing his experience and credentials,
Costigan identified the different types of narcotics found,
described how they were packaged, and explained how the
items seized were connected to drug manufacturing. Evans
objected, and then moved for a mistrial, on the ground that
Costigan was improperly offered as a lay witness in violation
of Federal Rule of Evidence 701(c). The District Court denied
both the objection and the motion, finding that Costigan’s
testimony was “not scientific [nor] highly technical” and
therefore did not constitute expert testimony. Appx. 423.
Instead, the Court ruled that the detective’s testimony was
consistent with what a lay person would conclude upon seeing
the seized evidence.
The jury found Evans guilty of all three charges.3 The
District Court sentenced him to 192 months’ imprisonment
followed by five years’ supervised release. This appeal
followed.4
3 With respect to the charge for possessing with the intent to
deliver fentanyl and methamphetamine in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(A), the jury found that Evans
possessed 400 grams or more of fentanyl and 50 grams or more
of methamphetamine.
4 The District Court had subject matter jurisdiction under 18
U.S.C. § 3231, and this Court has jurisdiction under 28 U.S.C.
§ 1291.

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II.
A. The search of the ceiling and the seizure of
contraband found therein was proper
Evans argues the seizure of evidence found by searching
the ceiling above his hotel room violated his Fourth
Amendment rights. We disagree.
The warrant authorized a search of Room 207 of the
Haiban Inn Hotel for evidence of unlawful firearm possession.
The accompanying affidavit requested authorization to search
for “clothing, contraband, projectiles, shell casings, firearms,
writings, papers, electronic devices, DNA, fingerprints, other
items of evidentiary value and other instrumentalities” that
would establish an unlawful firearm possession charge under
New Jersey law. Appx. 22. In litigating the motion to suppress,
Evans argued the ceiling went beyond the scope of the warrant.
The District Court found no error and denied the motion. We
now review that decision de novo. United States v. Ramos, 443
F.3d 304, 307 n.3 (3d Cir. 2006).
Assuming arguendo that Evans had a legitimate
expectation of privacy in the ceiling, the search pursuant to the
warrant was proper. “A lawful search of fixed premises
generally extends to the entire area in which the object of the
search may be found and is not limited by the possibility that
separate acts of entry or opening may be required to complete
the search.” United States v. Ross, 456 U.S. 798, 820–21
(1982). A “warrant encompasses the authority to search” all
the parts of the premises where “the person who is the target of
the search has access to or control over.” Torres v. United
States, 200 F.3d 179, 187 (3d Cir. 1999). Moreover, warrants
are to be “read in a common sense, non-technical fashion.”
Doe v. Groody, 361 F.3d 232, 239 (3d Cir. 2004). For example,
a warrant to search for guns, or evidence tying the target of the
search to the guns, authorizes law enforcement “to open
closets, chests, drawers, and containers in which the weapon

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might be found.” Ross, 456 U.S. at 821. Judicial review of
how a warrant was executed focuses on whether the search was
reasonable. Dalia v. United States, 441 U.S. 238, 258 (1979);
see also United States v. Ramirez, 523 U.S. 65, 71 (1998) (“The
general touchstone of reasonableness which governs Fourth
Amendment analysis governs the method of execution of the
warrant” (citation omitted)). Such reasonableness “must be
determined by the particular facts of each case.” United States
v. Becker, 929 F.2d 442, 446 (9th Cir. 1991).
Given these particular facts, law enforcement acted
reasonably in searching the ceiling. The detective looked
above the ceiling tiles after realizing that Evans had likely done
the same, as indicated by the piece of ceiling tile on the bed. A
gun magazine fell out when the ceiling tile was pushed,
establishing that the space contained the evidence sought.
Evans had been in the room for forty minutes before the
officers entered, giving him plenty of time to access areas
beyond the room’s drawers and closets. Searching the ceiling
meant efficiently completing the search, and “[t]here is no
indication that [the] intrusion went beyond what was
necessary.” Dalia, 441 U.S. at 258 n.20; see, e.g., United
States v. Weinbender, 109 F.3d 1327, 1329–30 (8th Cir. 1997)
(holding that officers acted reasonably by removing drywall
that looked to have been recently repaired to find hidden
contraband); Becker, 929 F.2d at 446–47 (concluding that
officers acted reasonably by jackhammering a concrete slab
that appeared to have been recently installed to find drug-
making materials).
Because the officers’ actions were reasonable under the
circumstances, there was no Fourth Amendment violation.
United States v. Stiver, 9 F.3d 298, 302 (3d Cir. 1993). The
incriminating nature of the drugs and drug packaging materials
found inside the bags taken from the ceiling was immediately
apparent and justified their lawful seizure. United States v.
Menon, 24 F.3d 550, 559 (3d Cir. 1994) (citing Horton v.
California, 496 U.S. 128, 136 (1990)). For these reasons, we

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will affirm the District Court’s denial of the motion to
suppress.5
B. Admittance of improper lay opinion testimony was
harmless error
Next, Evans re-argues on appeal that the District Court
abused its discretion by admitting lay opinion testimony in
violation of Federal Rule of Evidence 701. He claims
Detective Costigan improperly offered expert testimony as to
how drug dealers operate, which went beyond his personal
observations of the evidence and required expert knowledge.
Whether the District Court abused its discretion in this instance
is a close call. After close review, we conclude that aspects of
the detective’s testimony went beyond the scope of Rule 701
and should not have been admitted as lay opinion testimony,
but that any error was harmless given the overwhelming
evidence of Evans’ guilt.
Detective Costigan was part of the team that searched
Evans’ hotel room and therefore personally observed the
evidence that was seized. He testified that he had been
employed by the Jersey City Police Department for eighteen
years and had, in that time, handled “[o]ver a thousand” drug
cases and received additional training in drug trafficking
crimes. Appx. 352. As a result of this experience, he stated
that he was familiar “with how illegal drugs are packaged for
distribution.” Appx. 353. During the course of his testimony,
Costigan explained that drug trafficking is a “cash business,”
5 Evans supports his Fourth Amendment claim by citing United
States v. Irizarry, 673 F.2d 554 (1st Cir. 1982), which addressed
a warrantless “security check” search of a hotel room. The
Irizarry Court held that seizing the evidence from the hotel
room’s ceiling violated the Fourth Amendment because the
officer “launched himself on an exploratory search” that was
“not justified by any exigent circumstances.” Id. at 559. Here,
in contrast, there was a lawfully executed warrant that
authorized the search of the ceiling.

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and that guns are used by dealers to protect their cash proceeds.
Appx. 355-56. He described the drugs and drug packaging
materials found in the room, opining that traffickers use stamps
to brand drugs for sale and that it was uncommon for street-
level dealers to possess such “branding paraphernalia.” Appx.
374. Costigan described the process of pressing narcotics to
package them for sale and how drug manufacturers dilute the
product to create more supply. He explained how the items
seized would be used to manufacture drugs, and why the
bundles of cash found in the room indicated drug trafficking
rather than individual sales. Costigan provided terms used to
describe different types and quantities of drugs, and confirmed
that everything one “would need to manufacture and package
narcotics” was found in the hotel room. Appx. 414.
After Costigan testified, Evans moved for a mistrial on
the grounds of improperly admitted expert testimony. The
government countered that Costigan did not offer expert
opinions but only explained to the jury “why items were seized
pursuant to this investigation.” Appx. 417. The District Court
denied Evans’ motion, finding that Costigan had personal
knowledge of “drug distribution” and “drug manufacturing,”
and that his testimony was consistent with what a lay person
would conclude seeing the items seized. Appx. 431. The
District Court also noted that Evans’ defense was that the items
belonged to someone else, and that strategy was not affected
by Detective Costigan’s testimony.
We review the District Court’s evidentiary ruling that
Detective Costigan’s opinions were admissible under Rule 701
for abuse of discretion. Donlin v. Philips Lighting N. Am.
Corp., 581 F.3d 73, 80 (3d Cir. 2009). Even if we conclude the
District Court’s ruling constituted error, we will reverse Evans’
convictions only if the error was prejudicial and not harmless.
Id. (citing Becker v. ARCO Chem. Co., 207 F.3d 176, 205 (3d
Cir. 2000)).

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The admissibility of non-expert opinion testimony is
governed by Rule 701, which reads:
If a witness is not testifying as an expert,
testimony in the form of an opinion is limited to
one that is: (a) rationally based on the witness’s
perception; (b) helpful to clearly understanding
the witness’s testimony or to determining a fact
in issue; and (c) not based on scientific,
technical, or other specialized knowledge within
the scope of Rule 702.
Fed. R. Evid. 701.
Rule 701’s first requirement, that the opinion be
“rationally based on the witness’ perception,” requires that the
witness “have firsthand knowledge of the factual predicates
that form the basis for the opinion.” Gov’t of V. I. v. Knight,
989 F.2d 619, 629 (3d Cir. 1993) (citing Fed. R. Evid. 701(a)).
The personal perception requirement ensures that the lay
opinion is based on the witness’s own exposure to the facts,
and that the witness’s logical inferences are based on that
exposure. See United States v. Allen, 10 F.3d 405, 414 (7th Cir.
1993); see also 29 Wright & Miller’s Fed. Prac. & Proc. Evid.
§ 6254 at 152 (2d ed. 2026) (“[T]he quality and quantity of the
perception must be sufficient to logically permit the witness to
base an opinion thereon.”). We have allowed professionals
with specialized training in the relevant field to testify as lay
witnesses and give opinions based on their personal knowledge
of the evidence. United States v. DeMuro, 677 F.3d 550, 561–
62 (3d Cir. 2012).
The second requirement demands that the lay opinion
help the fact-finder understand testimony or determine a fact
in issue. Fed. R. Evid. 701(b). To be helpful, the witness must
“have a reasonable basis grounded either in experience or
specialized knowledge for arriving at the opinion” expressed.
Asplundh Mfg. Div. v. Benton Harbor Eng’g., 57 F.3d 1190,
1201 (3d Cir. 1995); see also United States v. Savage, 970 F.3d

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217, 286 (3d Cir. 2020) (“In the time since Congress amended
Rule 701, we have repeatedly affirmed our holding in Asplundh
that the reliability of lay opinion testimony should be assessed
in light of the witness’s relevant and specialized knowledge
and experience.”). The witness must offer an opinion that “aids
or clarifies an issue that the jury would not otherwise be as
competent to understand.” United States v. Fulton, 837 F.3d
281, 297 (3d Cir. 2016) (quoting Lauria v. Nat’l RR Passenger
Corp., 145 F.3d 593, 600 (3d Cir. 1998)). Lay opinions that
simply interpret facts the jury is equally qualified to understand
“usurp the fact-finding function of the jury” and should be
deemed inadmissible. Id. at 292 (quoting United States v.
Garcia, 413 F.3d 201, 210-11 (2d Cir. 2005)); see also United
States v. Diaz, 951 F.3d 148, 156 (3d Cir. 2020) (noting that lay
opinions should “offer[] insight the jury could not itself have
gleaned from the evidence” rather than “provide the conclusion
the government wanted the jury to reach”).
Finally, subsection 701(c), added in 2000, requires that
lay opinion testimony not be based on knowledge held only by
experts. Whereas a lay opinion may be premised on
specialized knowledge or experience, an expert opinion
demands additional qualifications that ensure a higher level of
reliability. Rather than testify to reasoning “which can be
mastered only by specialists in the field,” lay opinions must
“result[] from a process of reasoning familiar in everyday life.”
Fed. R. Evid. 701 advisory committee’s notes to 2000
amendment (internal quotations omitted). Subsection 701(c)’s
requirements are meant to prevent a party from “conferring an
aura of expertise” on a lay witness without meeting Rule 702’s
requirements for expert testimony. Donlin, 581 F.3d at 81
(quoting Garcia, 413 F.3d at 215). At bottom, if a lay witness
offers an opinion based on information outside of what they
perceived and reasoning beyond their level of qualification
under the Federal Rules of Evidence, the testimony should not
be admitted under Rule 701.

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Drawing a distinction between expert and lay opinions
is not always a straightforward task. Generally, we defer to the
District Court’s discretion, acknowledging that both lay and
expert opinions may be based on the witness’s firsthand
observations and professional experience. This Circuit has
long held that knowledge gained from work experiences can
foster permissible lay opinions that are technical or specialized
in nature. See, e.g., Lightning Lube, Inc. v. Witco Corp., 4 F.3d
1153, 1175 (3d Cir. 1993) (ruling no abuse of discretion in
admitting lay opinion testimony as to damages where
knowledge was gleaned from witness’s “participation in the
day-to-day affairs of his business”); see also Donlin, 581 F.3d
at 81 (“The Advisory Committee's notes to the 2000
amendment to Rule 701 specifically address Lightning Lube
and note that its holding remains undisturbed by the
amendment.”). But a lay opinion based on knowledge gained
through work experience is only admissible if the witness
personally perceived the facts underlying the inferred opinion.
See, e.g., Hirst v. Inverness Hotel Corp., 544 F.3d 221, 226 (3d
Cir. 2008) (holding that president of a security company’s lay
opinion of hotel’s security measures was inadmissible because
it was not based on firsthand knowledge of that location);
Fulton, 837 F.3d at 291 (recognizing that Rule 701 permits a
lay witness “to give her opinion or interpretation of an event
when she has some personal knowledge of that incident”).
Here, Detective Costigan gained specialized knowledge
of drug packaging and manufacturing through his experiences
as a narcotics officer. He was therefore qualified to help the
fact-finder interpret the evidence of drug trafficking found in
Room 207, and the opinions premised on his personal
observations of the items seized from the hotel room were
admissible under Rule 701.6 The government laid a foundation
6 For example, Detective Costigan’s observation of the stamps,
stamp pads and stamped glassine baggies in Evans’ hotel room
underlay his opinion that the items indicated drug trafficking.
His opinion that the items found covered in a white powdery

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for the detective’s familiarity with the items, both generally
through his experience as a narcotics officer assigned to drug
trafficking cases and specifically through his role as one of the
officers that executed the search of Room 207. See Fed. R.
Evid. 701 advisory committee’s notes to 2000 amendment
(“[C]ourts have permitted lay witnesses to testify that a
substance appeared to be a narcotic, so long as a foundation of
familiarity with the substances is established. . . . Such
testimony is not based on specialized knowledge within the
scope of Rule 702, but rather is based upon a layperson’s
personal knowledge.”). It was therefore within the District
Court’s discretion to allow Costigan to offer his opinion,
subjected to cross-examination, as to how the items seized
were tied to drug trafficking.
However, Detective Costigan’s testimony regarding
drug traffickers’ general practices, which was not tied to his
perceptions of the underlying facts of this case, should have
been deemed outside the scope of a lay opinion and
inadmissible under Rule 701. Opinions where the detective
“seem[ed] to infer the knowledge for his testimony” from facts
or experiences not before the jury were improperly admitted.
United States v. Jackson, 849 F.3d 540, 554 (3d Cir. 2017).
These included the opinions arising from his “training and
experience” and not the evidence—such as how traffickers
generally process and package drugs for sale and why firearms
are necessary to protect a trafficker’s product and cash profits.
residue, which included a strainer, pestle, grinder, spoon,
measuring cups and playing card, were used to manufacture
and package drugs was inferred from his perception of the
seized evidence. Similarly, his opinion that the chemical
quinine is used as a “cutting agent” for heroin was guided by
the officers’ seizure of three bottles of the substance. Appx.
384. The detective’s opinion that a liquid recovered from the
room was promethazine, which he explained was an ingredient
of the drug “Leen,” was technical in nature but based on his
seeing the substance in Room 207 and therefore constituted
permissible lay opinion testimony. Fulton, 837 F.3d at 301.

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Also improper was Costigan’s opinion, offered without
connection to the evidence, that the denomination of a seller’s
cash profits can indicate the level of drug distribution. Finally,
the detective’s opinion that everything one “would need to
manufacture and package narcotics” was found in the hotel
room fell beyond the scope of lay witness testimony. Appx.
414. He presented the jury with a conclusion about the
evidence that necessarily drew on his general knowledge of
drug dealing. Opinions that rely on experiences not associated
with the facts of record constitute “argument by way of lay
opinion testimony” and usurp the jury’s role as fact-finder.
Diaz, 951 F.3d at 158.7
Even though some of Detective Costigan’s lay opinions
were admitted in error, we conclude that the result of any
error—considered alone or in the aggregate—was harmless. In
reaching this conclusion, we “must be able to say that it is
highly probable that the error did not contribute to the jury’s
judgment of conviction.” Knight, 989 F.2d at 630 (citing Gov’t
of the V.I. v. Toto, 529 F.2d 278, 284 (3d Cir. 1976)). Given the
sheer amount of drugs, manufacturing tools and packaging
7 In essence, this interpretation is in keeping with the Advisory
Committee Notes from the amendment creating Rule 701(c),
which was enacted to prevent a witness from “proffering an
expert in lay witness clothing” in order to avoid civil and
criminal rules of disclosure. By way of example, the Note
draws a distinction between a lay opinion identifying a
particular drug where a “foundation of familiarity” had been
established based on the witness’s use of that drug and an
expert opinion describing how drugs are manufactured and
distributed. Fed. R. Evid. 701 advisory committee’s note to
2000 amendment (citing United States v. Figueroa-Lopez, 125
F.3d 1241, 1246 (9th Cir. 1997)) (concluding that police
officer’s opinion that defendant’s behavior was that of an
experienced trafficker constitutes expert testimony).
Consistent with the Note’s reasoning, we distinguish opinions
based on specific pieces of evidence personally observed from
those describing the usual practices of traffickers as a general
matter.

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materials found in Room 207, it is highly probable that
Detective Costigan’s improper opinions regarding the modus
operandi of drug dealers did not contribute to the jury’s
decision to convict. Indeed, Evans barely disputed that the
evidence was indicative of drug manufacturing and
distribution. Rather, his defense at trial was that the evidence
did not belong to him. During his closing, Evans all but
conceded that Room 207 contained evidence of drug
trafficking, arguing instead that there was no proof he himself
distributed drugs despite “hav[ing] all of this laboratory
equipment and drugs knowingly in the hotel room.” Appx.
1103-04. In light of the record, we conclude Detective
Costigan’s impermissible opinions concerning general drug
trafficking practices did not prejudice Evans at trial.8 Under
these circumstances, therefore, relief is not warranted.
C. No abuse of discretion where Evans was not entitled
to spoliation instruction
Lastly, Evans argues that the District Court erred in
denying his request for a spoliation instruction regarding the
absence of body camera footage of the hotel room search. He
claims the lack of explanation for the footage’s absence is
8 In his reply brief, Evans argues that the District Court erred
in allowing Detective Costigan to offer opinions that addressed
elements of the crimes charged and “helped the jury” find him
guilty. Reply Brief at 8. If the requirements of Rule 701 are
met, and the opinion testimony is not offered to “dictate a
certain conclusion,” it is permissible to have lay opinion
testimony address the elements of the crimes charged so as to
help the jury decide the case. Fulton, 837 F.3d at 291. In fact,
if the lay opinion is not helpful to the fact-finder, it should be
deemed inadmissible. Evans is correct that the detective’s
testimony “regarding the operations of narcotics dealers” not
tied to the evidence was improperly admitted under Rule 701.
Reply Brief at 8. But we conclude that the evidence of drug
trafficking recovered from his hotel room was such that it is
highly improbable this improper lay opinion testimony
contributed to the jury’s findings of guilt.

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evidence of bad faith. Evans asserts he suffered prejudice
because the footage would have “either corroborated or
refuted” the officers’ testimony that the seized items were in
plain view and in close propinquity to his other belongings.
Brief for Appellant, 21. We review the District Court’s
decision not to give such an instruction for abuse of discretion.
United States v. Leahy, 445 F.3d 634, 642 (3d Cir. 2006). Upon
review, we conclude no abuse of discretion occurred.
“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) (citing
Micron Technology, Inc. v. Rambus Inc., 645 F.3d 1311, 1320
(Fed. Cir. 2011)). When the destroyed, altered, or unpreserved
evidence is “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). In such cases,
the opposing party may request a spoliation instruction. Such
an instruction permits the fact-finder to infer “that the
destroyed evidence would have been unfavorable to the
position of the offending party.” McMunn v. Babcock & Wilcox
Power Generation Grp., Inc., 869 F.3d 246, 268 (3d Cir. 2017)
(quoting Schmid v Milwaukee Elec. Tool Corp., 13 F.3d 76, 78
(3d Cir. 1994)).
A spoliation instruction is only appropriate if certain
requirements are met. First, it must be established “that the
evidence in question [was] within the [offending] party’s
control.” Brewer, 72 F.3d at 334. And second, “it must appear
that there has been an actual suppression or withholding of the
evidence.” Id. An instruction is not warranted if there is no
indication of intentional misconduct. “No unfavorable
inference arises when the circumstances indicate that the
document or article in question has been lost or accidentally

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destroyed, or where the failure to produce it is otherwise
properly accounted for.” Id.
The District Court did not abuse its discretion in
denying Evans’ request for a spoliation instruction. Evans is
correct there was no footage of the search introduced at trial,
but he failed to establish the appearance of intentional
suppression by the police.9 He never attempted to ascertain
whether such footage existed, much less whether the police
purposefully concealed the footage to hide harmful evidence.
Instead, Evans argued a spoliation instruction was appropriate
because the footage was “inexplicably unavailable, missing,
[or] destroyed negligently.” Appx. 1127. In so arguing, he
conceded there was a plausible non-nefarious explanation for
the missing evidence. See Brewer, 72 F.3d at 334 (finding that
the failure to produce evidence could have been due to many
reasons unrelated to the lawsuit). Where, as here, there is no
showing that the police had intentionally prevented the footage
from becoming evidence, a spoliation instruction would have
been inappropriate.
Further, Evans did not prove he was prejudiced by the
footage’s absence. He failed to allege the missing evidence
would have had any apparent exculpatory value. Whether the
officers found the evidence in plain view or close to his other
belongings would have been, at most, potentially helpful to his
defense. The unintentional absence of only potentially helpful
evidence does not warrant an unfavorable inference against the
9 Footage from Officer O’Neill Arroyo’s body camera was
introduced at trial and showed Evans’ arrest in his hotel room.
Footage from Officer Tyler Wendt’s body camera was also
introduced and showed Evans leaning out of his hotel window
while the police were at his hotel room’s door. As part of the
defense, Evans played Officer Arroyo’s body camera footage
of his interview of the hotel’s housekeeper. Regarding the
search, Detective Costigan testified he was not wearing a body
camera and did not know what the other officers did with their
cameras’ footage.

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government. Bull, 665 F.3d at 73–74. Finally, Evans
repeatedly communicated to the jury that the absence of
footage of the search was suspicious, both indirectly through
his cross-examination of Detective Costigan and directly
during his closing argument. That the jury nevertheless found
him guilty does not substantiate his claim of court error.
* * * *
For these above-stated reasons, we will affirm the
judgments of sentence below.
Counsel for Appellant
Blair R. Zwillman
Emma Enright [Argued]
Klingeman Cerimele
Counsel for Appellee(s)
Jane M. Dattilo [Argued]
Mark E. Coyne
Office of United States Attorney

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