PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JESUS FRANCISCO FERNANDEZ, Defendant - Appellant. No. 20-2106

________________ _________________ Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:17-C R-03237-JAP-1)

________________ _________________ Esperanza S. Lujan, Assistant Federal Pub lic Defender (Kurt Mayer, Research & Writing Attorney, with her on the briefs), Office of the Federa l Public Defender, Albuquerque, New Mexico, for Defe ndant - Appellant. Emil J. Kiehne, Assistant United States Attorn ey (Fred J. Federici, Acting United States Attorney, with him on the brief), Office of the United St ates Attorney, District of New Mexico, Albuquerque, New Mexi co, for Plaintiff - Appellee.

________________ _________________ Before TYMKOVICH , Chief Judge, HARTZ , and MORITZ , Circuit Judges.

________________ _________________ HARTZ , Circuit Judge.

________________ _________________ A jury convicted Jesus Francisc o Fernandez of possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The methamphetamine was discovered during a se arch at the Albuque rque Greyhound bus FILED United States Court of Appeals Tenth Circuit 

### December 17, 2021 Christopher M. Wolpert Clerk of Court Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 12 terminal of luggage on a bus on which Mr . Fernandez was a passenger. On appeal Mr. Fernandez argues (1) that his convi ction was not supported by sufficient evidence that the luggage was his, (2) that the search of the luggage by lawenforcement officers violat ed his Fourth Amendment ri ghts, and (3) that he was denied due process by Greyhound’s failure to record or pr eserve terminal surveillance video, allegedly as the agen t of law-enforcement officers. Exercising jurisdiction under 28 U.S. C. § 1291, we affirm.
I. BACKGROUND Greyhound buses arriving at the Albuquerque terminal often stop for a layover. Passengers disembark so that the bus may be cleaned and refueled in a separate washbay and maintenance area. During such layove rs Jarrell Perry, a sp ecial agent for the United States Drug Enforcement Administrati on (DEA), regularly conducts what he calls “checking the bus.” R., Vol. IV at 1082. He looks at luggage on the bus for signs of drug trafficking after the bus has been serviced and be fore the passengers reboard. Examining luggage may include lo oking for nametags (a lack of which raises suspicion), lifting bags to gauge we ight, and smelling bags for substances often used to mask the scent of drugs (such as dryer sheets, perfume, mustard, or coffee). He then speaks to passengers after they reboard, looking for suspicious behavior. Once he checks the bus, Agent Perry talks to passengers w ho had originally been on the bus but are now waiting inside the term inal for the bus to which they will transfer. Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 23 Agent Perry encountered Mr. Fernandez on two layovers in la te October 2017. On the first occasion, on October 22, he did not discover any criminal activity. Mr. Fernandez had arrived on a bus from Phoeni x and was standing inside the terminal awaiting the bus from El Paso that would be taking him north. He was wearing what Agent Perry described as a distinctive black hat bearing some sort of logo referencing New York. He had a black duffel bag at his feet. Agent Perry walked up to Mr. Fernandez and identified himself as a DEA agent. Mr. Fernand ez agreed to speak with him. Agent Perry reviewed Mr. Ferna ndez’s bus ticket, which was issued to a “Frank Dreke” and showed that he was trave ling to Colorado Springs. R., Vol. IV at 1082–83. Agent Perry asked for identificat ion. Mr. Fernandez retrieved a stack of papers from the black duffel bag and gave th e papers to the agent. The documents, apparently medical-discharge paperwork from a Colorado hospital, bore the name “Jesus F. Fernandez-Rodriguez.” Id. at 1083. Mr. Fernandez consented to a pat-down search of his person and a search of the bag; neither turned up contraband. Agent Perry thanked Mr. Fernandez and went on to speak with other travelers. Three days later, Agent Perry was again on duty at the bus station, joined this time by DEA special agent Kirk Lemmon. A Greyhound bus arrived that morning for a layover of about 75 minutes. The passengers got off, a nd the bus was cleaned and refueled. After the bus pulled out of the wash bay, but before the passengers returned, the agents boarded the bus and began exam ining the luggage stored inside. Agent Perry noticed a large black duffel bag in the overhead co mpartment near the rear on the driver’s side of the bus. The bag was “drooping,” id. at 1058, because it was not Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 34 filled to capacity. But wh en he lifted the bag, it fe lt “very, very heavy.” Id. It had no name tag. He surmised that the bag contained illegal narcot ics. He passed the bag to Agent Lemmon to show him what he had obse rved and then returned the bag to the overhead compartment. Altogether, this in teraction with the bag lasted about 30 seconds. Agent Perry told Agent Lemmon that he wanted to find out who owned the bag. The officers then left the bus and it was driven to the boarding area. The officers reboarded the bus as th e passengers began to get on. As the passengers were taking their seats, Agent Perry approached each of them, identified himself as a law-enforcemen t officer, asked about trav el plans and luggage, and sometimes asked to search the passenger’s belongings. Agent Lemmon stood behind the bus driver’s seat to obs erve passengers and ensure Ag ent Perry’s safety. A digital audio device on a lanyard under Agent Perry’s shirt recorded all hi s interactions with the passengers. A video camera at the termin al also recorded a view from outside the bus, showing Agent Perry’s movements down the aisle. According to Agent Lemmon, when Mr. Fernandez boarded and saw Agent Lemmon, he “gave a face of surprise, al most panic.” R., Vol. IV at 1249. Mr. Fernandez sat down near the middle of th e bus. He intermittently peered over his shoulder and appeared to be observing Ag ent Perry’s conversations with other passengers. Soon, Mr. Fernandez left his seat and entered th e lavatory at the back of the bus. About a minute later, he opened th e lavatory door, peeked out to see Agent Perry talking to another passenger close by, and closed the door again. Another minute later, Mr. Fernandez exited the lava tory and returned to his seat near the Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 45 middle of the bus. He continued looking ov er his shoulder every so often toward Agent Perry. Agent Perry approached Mr. Fernandez, displayed his DEA badge, and asked for permission to talk. Mr . Fernandez responded, “A gain?” and laughed before agreeing to talk. Id. at 1078. Unprompted, Mr. Fernandez gave Agent Perry his bus ticket, which again bore the name “Frank Dreke.” Id. at 1081. Upon seeing the name, Agent Perry recognized Mr. Fernandez from th eir encounter three days earlier. He asked whether they had spoke n before, and Mr. Fernandez confirmed that they had. Agent Perry asked if he had luggage with him; Mr. Fernandez answered, “I don’t got nothing with me today.” Suppl. R., Vol. I at 46. Agent Perry repeated his question; again, Mr. Fernandez denied having luggage . Agent Perry then asked if he had any luggage on the previous trip; Mr. Ferna ndez responded, “Nah, I leave it at house— short trip.” Id. Agent Perry said, “Ok, so you don’t have any luggage.” Id. Mr. Fernandez said, “Nah.” Id. Mr. Fernandez consented to a pat-down search, which turned up nothing. Agent Perry said, “I thought you had a bag the other day though?” Id. Mr. Fernandez confirmed that he had a bl ack or brown bag on the previous trip. Agent Perry thanked him and proceeded to speak with the other passengers. No passenger claimed the black duffel bag that had piqued the agents’ interest. Eventually, Agent Perry grabbed the black duffel bag and, starting from the rear of the bus, carried the bag up th e aisle, asking each passenge r about the bag. Once he reached Mr. Fernandez, the ag ent asked if the bag was hi s. Mr. Fernandez replied, “Yeah, that’s my bag,” and asked, “You wa nt to check it out?” R ., Vol. IV at 1091. Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 56 Agent Perry asked for and received permissi on to search the bag. He placed it in the vacant seat in front of Mr . Fernandez, opened it, and discovered an oblong bundle wrapped in brown tape, which he recognized as consistent with the packaging of illegal drugs. Agent Perry arrested Mr. Fern andez. As he was being arrested, Mr. Fernandez said, unprompted, “That’s not my ba g, that’s not my bag.” Suppl. R., Vol.
I at 52. A grand jury indicted Mr. Ferna ndez on one count of possession of methamphetamine with intent to distribut e. He moved to suppr ess evidence from the bag on the ground that Agent Perry had unlaw fully seized and sear ched the bag. To support the suppression mo tion, he subpoenaed all re cordings from Greyhound surveillance cameras at the te rminal for the relevant ti me period on October 25. But he was informed that there was no video av ailable from several of the cameras. He moved to hold the government responsible for destruction of the video-surveillance footage on the ground that Greyhound was acti ng as a government agent with respect to its handling of the surveillance cameras and video recordings. The district court conducted evidentiary hearings on both the agency issue and the motion to suppress. It ruled that Greyhound was not acting as an agent of the government and denied the motion to suppress. Mr. Fernandez was then trie d twice. The first jury co uld not reach a verdict, and the district court declar ed a mistrial. But the sec ond jury found Mr. Fernandez guilty. The district court sentenced Mr. Fernandez to 180 months’ imprisonment. Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 67 II. DISCUSSION On appeal Mr. Fernandez challenges his conviction on three grounds: (1) there was insufficient evidence of guilt, (2) the methampheta mine evidence should have been suppressed because it wa s seized in violation of hi s Fourth Amendment rights, and (3) he was denied due process becaus e the government was responsible for the destruction of or failure to preserve pot entially exculpatory video recorded at the terminal.
A. Sufficiency of evidence We review de novo the sufficiency of the evidence, viewing all evidence and any reasonable inferences drawn therefro m in the light most favorable to the conviction. See United States v. Christy , 916 F.3d 814, 843 (10th Cir. 2019). “We will reverse a conviction fo r insufficient evidence only when no reasonable jury could find the defendant guilty beyond a reasonable doubt.” Id . at 843. “To support a conviction of possession of [an unlawful drug] with intent to distribute in violation of 21 U.S.C. § 841(a)(1), the evidence must prove beyond a reasonable doubt the following elements: (1) the de fendant knowingly possessed the illegal drug; and (2) the defendant possessed the drug with the specific intent to distribute it.” United
States v. Reece , 86 F.3d 994, 996 (10th Cir. 1996) (internal quotation marks omitted). Since Mr. Fernandez does not challenge the su fficiency of the evidence to support the intent-to-distribute element, we address only possession. See, e.g. , Christy , 916 F.3d at 844–53 (analyzing only whethe r sufficient evidence supported mens rea element of Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 78 money-laundering offense wh en defendant did not contest whether government proved other elements). The evidence of possession was strong. When the black duffel bag containing methamphetamine was in front of him, Mr. Fernandez said, “Yeah, that’s my bag,” and he asked Agent Perry, “You want to check it out?” R., Vol. IV at 1091. Moreover, the bag contained medical paperwork bearing Mr . Fernandez’s name and a distinctive black hat that Ag ent Perry recognized as the one that Mr. Fernandez had worn three days before his arrest. The jury also heard ci rcumstantial evidence suggesting consciousness of guilt: Mr. Ferna ndez was traveling w ith a name that bears little resemblance to hi s real name; he seemed con cerned when he first saw the DEA agents on the bus; he constantly looked at Agent Perry to observe his interactions with other pass engers; and he phys ically distanced himself from the bag containing methamphetamine by sitting severa l rows away from it, even though there were few passengers or bags on the bus. Mr. Fernandez argues that the incrim inatory evidence was not credible. He points to his daughter’s trial testimony that his English is poor and argues that his purported admission of ownership resulted from his poor grasp of English; he explains that he regularly uses the na me “Frank Dreke,” which derives from a common nickname for his middle name, Franci sco, and his grandmother’s last name, Dreke; he doubts that Agent Lemmon, ha ving never met him before, could recognize surprise or panic in his fa cial expressions; and he sugg ests that Agent Perry lied about finding his medical paperw ork and the black hat in the bag. But it is the jury’s Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 89 duty, not ours, to weigh conflicting ev idence and judge witness credibility. See, e.g. , United States v. Brooks , 438 F.3d 1231, 1236 (10th Ci r. 2006). A reasonable juror could have credited the incriminatory evidence and found guilt beyond a reasonable doubt. Mr. Fernandez also contends that Agen t Perry’s testimony that he recognized the black hat as Mr. Fernandez’s should no t be considered because the testimony violated an order in limine. 1 But “when considering a cha llenge to the sufficiency of the evidence, we consider all evidence admitted at trial, even if admitted improperly.” Davis v. Workman , 695 F.3d 1060, 1078–79 (10th Cir. 2012).
B. Fourth Amendment claims Mr. Fernandez contends that the district court erred in denying his motion to suppress the evidence found in the black duffel bag. He challenges as unlawful two different interactions with the bag: the agents’ handling of the bag both before the passengers reboarded the bus and after they had reboarded. This unlawfulness, he argues, tainted his consent to the search of the bag, rendering it legally ineffective. See United States v. Shrum , 908 F.3d 1219, 1233–40 (10t h Cir. 2018) (suppressing contraband found dur ing search of house because defe ndant’s consent to search the house was tainted by earlier unlawful securi ng (that is, seizure) of house by police).

1 Mr. Fernandez does not separately se ek reversal on the ground that the evidence was errone ously admitted. Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 910 1. First alleged violation After the bus had been serviced but before it was boarded by passengers, the DEA agents entered it to look for suspici ous luggage. They noted the black duffel bag on the bus’s overhead rack and removed it from the rack . The district court said that the handling of the bag did not ex ceed what “a commercial bus passenger would reasonably expect” because neither agent “squeezed” or “manipul ated” the bag. R., Vol. I at 235. On appeal Mr. Fernandez focuses on the testimony by the officers that they held the bag for about 30 seconds, and he argues that their hand ling of it for that long a period of time constituted an illegal s earch even if the ag ents did not squeeze or manipulate the bag. This unlawfulness, he argues, require s suppression of the evidence later discovered in the bag. The government contends that any suppression argument based on the duration of lifting has been waived because it was not raised in district court. We agree with the government. A defendant must raise a motion to suppr ess evidence before trial unless there is good cause for the delay. See Fed. R. Crim. P. 12(b)(3 )(C), (c)(3). Absent such good cause, the is sue is waived. See United States v. Burke , 633 F.3d 984, 988 (10th Cir. 2011) (plain-error review on appeal is unavailable for waived motions to suppress); United States v. Bowline , 917 F.3d 1227, 1236 (10th Cir. 2019) (“Because the 2014 amendments [to Rule 12] did not ch ange the standard for appellate review, Burke remains good law.”), cert. denied , 140 S. Ct. 1129 (2020). “This waiver rule applies not only when a defendant fails to file any pretrial mo tion to suppress, but Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 1011 also when a defendant fails to assert a particular argum ent in a pretrial suppression motion that he did file.” United States v. White , 584 F.3d 935, 948 (10th Cir. 2009). Mr. Fernandez has not argued that he ha d good cause for failing to raise the lifting-duration issue in distri ct court. We therefore addr ess only his argument that it was adequately raised below. Before filing his district-court brief in support of his motion to suppress, Mr. Fernandez had been provided the police report stating that the DEA agents had lifted the black duffel bag while the passenge rs were not on the bus. Yet the brief challenged only Agent Perry’s “act of gr abbing his bag and carrying it up and down the aisle of the bus” once the passengers had reboarded. R., Vol. I at 42. Mr. Fernandez contends th at the lifting-duration issue was raised at the hearing on the motion to suppress, but we are not pe rsuaded. He points to a discussion at the hearing after presentation of the evidence. Before the closing argument the district court asked defense counsel to “address the question of how what Agent Perry did exceeds the scope of a permissible handling of bags.” R., Vol. IV at 396. When counsel turned to that ques tion, he said the following: Now, what does handle mean? The testimony would suggest all [the DEA agents] did was lift [the bag] up and feel its heft, is I think the phrasing that Agent Lemmon had. I can’t say that they squeezed it. They deny squeezing it. Agent Perry c oncedes he may have sniffed it or smelled it. He doesn’t remember, he states. Id. at 405. But counsel did not suggest that the agents ’ testimony indicated any illegality. And when the dist rict court again brought up how the bag was handled, counsel’s response was definitive: Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 1112 THE COURT: The direct testimony by both is that he did not manipulate the bag or squeeze it. [DEFENSE COUNSEL]: I understa nd. I understand that’s their testimony. THE COURT: Well, let me ask you where they we nt over the limits in the manner that they handled the—t hat Agent Perry handled the bag

. [DEFENSE COUNSEL]: I th ink the moment occurs when he’s on board and passengers are in their seats . He’s already conducted encounters with the passengers, and he’s going to go get that bag. At that moment in time, that’s an interfe rence with the owner of the bag. That’s owner’s possessory interest. Id. at 406–07 (emphases added). Counsel failed to make an issue of how the bag was handled before passengers reboarded. Nor was the issue raised in Mr. Fern andez’s motion for reconsideration after the motion to suppress was denied. Although the motion summarizes facts relevant to the lifting-duration argument, it does not deri ve any argument from these facts. Fairly read, the motion sought reconsiderati on based on recently obtained evidence suggesting that Agent Perry “pre-searched” bags left on buses during layovers and that the agent therefore had committed perjury at the suppression hearing in describing how he had handled Mr. Fernandez’s bag before the passengers reboarded. R., Vol. I at 618–20. The motion requested that the suppression evidentiary hearing be reopened to explore the matter. There was no hint of an argument that even if the bag was not squeezed or mani pulated by the agents, there was nevertheless a Fourth Amendment violation because of the time it was in their hands. Finally, Mr. Fernandez argues that the lifting-duration issue was preserved even if he did not raise it, because it was “passed upon” by the district court in its Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 1213 opinion. Reply Br. at 4 (inter nal quotation marks omitted) . True, we sometimes reach issues that were not presente d to the district court but we re nevertheless addressed by that court. See United States v. Hernandez-Rodriguez , 352 F.3d 1325, 1328 (10th Cir. 2003). That, however, is not what happened he re. In relevant part, the district court wrote the following in its order denying the motion to suppress: In this case, as in [ United States v. Nicholson , 144 F.3d 632 (10th Cir. 1998)], SA Perry and SA Lemmon boar ded the bus outside the wash bay area to look at bags pa ssengers had left onboard. SA Perry testified that he removed the Protégé bag from the ove rhead rack in an effort to locate a name tag, causing him to note the ba g’s heft as compar ed to its size. However, there is no evidence here that the agents squeezed or manipulated the bag, or pressed in th e sides of the bag with their hands to determine its contents in the manner found to be a search in Nicholson . It is not unusual on a common car rier for other passengers to push, move, and even momentarily remove an item from a common luggage area, such as an overhead r ack or compartment, in order to make room for their own carry-on bags. SA Perry’s actions did not depart from the type of handling a commercial bus passenger would reasonably expect his baggage to be subjected to, and therefore did not constitute a search with in the meaning of the Fourth Amendment. R., Vol. I at 235–36. Nowhere in this passage did the district court address a liftingduration argument. Although the district court held generally that the agents’ handling of the bag did not run afoul of the Fourth Amendment, it did not specifically address the “particular argument,” White , 584 F.3d at 948, that the agents crossed the line by lifting the bag for 30 seconds while the passengers were gone. There is no reason to believe that the court was even th inking about how long the agents held the bag, much less was considering whether that period of time was unconstitutionally excessive. Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 1314 Thus, Mr. Fernandez’s lifting- duration argument is waived, see Fed. R. Crim. P. 12(c)(3), and plain-error review of the issue (which, in any event, he does not seek) is unavailable, see Burke , 633 F.3d at 988–91.
2. Second alleged violation According to Mr. Fernandez, when Ag ent Perry grabbed the black duffel bag off the overhead rack a nd carried it from passenger to passenger, the agent unlawfully seized the bag. Bu t the district court ruled th at Agent Perry’s action could not have violated Mr. Fernandez’s F ourth Amendment rights because he had abandoned the bag. “A warrantless search and seizure of abandoned property is not unreasonable under the Fourth Amendment.” United States v. Hernandez , 7 F.3d 944, 947 (10th Cir. 1993). This court has said that “[a]bandonment occurs if either (1) the owner subjectively intended to relinquish ownershi p of the property or (2) the owner lacks an objectively reasonable expectati on of privacy in the property.” United States v. Easley , 911 F.3d 1074, 1083 (10th Cir. 2018) . “[I]n order to satisfy the ‘reasonableness’ requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that mu st regularly be made by agents of the government . . . is not that they always be correct, but that they always be reasonable.” Illinois v. Rodriguez , 497 U.S. 177, 185 (1990); cf. id. at 188 (“As with other factual determinations bearing upon search and seizure, determination of consent to enter must be judged against an objective standard: would the facts available to the officer at the moment warrant a man of reasonable caution in the Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 1415 belief that the consenting party had authority over the premises?” (ellipsis and internal quotation marks omitted)). Thus, “[t] he question . . . is whether a reasonable officer in Agent Perry’s position would ha ve believed that [Mr. Fernandez] had relinquished any property interests [he] possessed in the [bag] based on [his] voluntary words and actions.” Easley , 911 F.3d at 1083. The district court ruled that “any subject ive expectation of privacy that [Mr. Fernandez] might have had in the bag was not objectively reasonable under the circumstances.” R., Vol. I at 242. We revi ew for clear error the district court’s findings of historical fact underlying that ruling, but we review de novo whether, given those facts, it was re asonable for Agent Perry to believe that Mr. Fernandez had relinquished his in terest in the bag. See United States v. Juszczyk , 844 F.3d 1213, 1214 (10th Cir. 2017). We affirm the district court’s ruling that Mr. Fernandez abandoned his bag. The court found that Mr. Fernandez “responde d three times in English, clearly and unambiguously” to Agent Perry that he did not have any luggage with him. R., Vol. I at 240. In response to Mr. Fe rnandez’s argument that his an swers merely reflected his lack of fluency in English, the court said that “the evidence esta blishes that although [Mr. Fernandez] spoke with a thic k accent, he understo od and responded appropriately to [Agent] Perry’s questions.” Id. at 241. And there was further evidence that Mr. Fernandez was trying to disassociate himself from the bag. The court noted that “the bus was not crowde d, yet the bag was located several rows behind [Mr. Fernandez’s] seat on the op posite side of the bus, indicating [his] Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 1516 subjective intent to distan ce himself from the bag.” Id. at 241. The court’s findings are not clearly erroneous. And given those findings, it was reasonable for Agent Perry to conclude that Mr. Fernandez ha d abandoned any rights he had in the bag before Agent Perry removed it from th e rack and carried it up the aisle. Mr. Fernandez contends that abandonmen t could not be inferred since he was not asked specifically about the bag cont aining methamphetamine. But Agent Perry had asked, “Okay, do you ha ve luggage, do you have luggage on the bus with us?” Suppl. R., Vol. I at 46. And Mr. Ferna ndez responded, “No, not (inaudible) I don’t got nothing with me today.” Id. To confirm the answer, Agent Perry asked again, “Do you have luggage with you?” Id. And Mr. Fernandez answered again, “No.” Id. Then, after asking about luggage on Mr. Fernandez’s prior trip, Agent Perry asked, “Ok, so you don’t have any luggage?” and Mr. Fernandez answered, “Nah.” Id. The import of Mr. Fernandez’s answers was clear. We do not require la w-enforcement officers to adopt speculative, contorted meanings of what suspects say. When Mr. Fernandez said that he did not have any luggage, it was more than re asonable for Agent Perry to infer that there was no luggage on the bus being claimed by Mr. Fernandez. Mr. Fernandez argues that United States v. Garzon , 119 F.3d 1446 (10th Cir. 1997), supports his argument that Agent Pe rry had to ask him about a specific item before it could be deemed abandoned. We disagree. In Garzon , law-enforcement officers ordered passengers on a bus to di sembark with their personal belongings and walk by drug-sniffing dogs. See id. at 1450. The defendant le ft without taking two of his backpacks. See id. When the officers found the backpacks still on board, they Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 1617 searched them without a warrant and found contraband. See id. at 1448. Opposing a motion to suppress, the government argue d that the warrantless search was reasonable because the defendant had aba ndoned the backpacks by leaving them on board despite the officers’ order to re move all personal belongings from the bus. See id. at 1449. We rejected the argument, holdi ng that the officers’ order that the passengers remove their belongings from the bus was illegal under the Fourth Amendment and defendant’s abandonment could not be premised on such an unconstitutional order. See id . at 1452–53. Our holding wa s not based on the officers’ failure to ask about a sp ecific item. Nothing in Garzon compels reversal of the district court’s ruling on aban donment. Mr. Fernandez also directs us to cases in which the law-enforcement officers did in fact ask the suspect whether a specific item was his, but none of thes e cases said that such a sp ecific inquiry was necessary to support a finding of abandonment.
C. Agency Before trial Mr. Fernandez subpoen aed from Greyhound all video footage recorded from the surveillance cameras at the Albuquerque bus station on the morning he was arrested. But Greyhound re sponded with recordings from only a few of the cameras. Mr. Fernandez moved for an order requiring Greyhound to show cause why it should not be held in contempt and requested an evidentiary hearing to determine whether Greyhound was acting as an agent of the DEA in destroying or failing to preserve potentially exculpatory evidence. After an ev identiary hearing the district court ruled that Greyhound was not acting as an agent of the DEA with Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 1718 respect to the video recordings and denied a request by Mr. Fernandez for further in camera proceedings. On appeal Mr. Fernandez asks us to re verse the agency ru ling. Although his opening brief does not state what his endgame is or even cite the relevant Supreme Court authority, our understanding is that he would ultimately seek relief (perhaps including dismissal of the charges) on th e ground that destruction of the video recordings by an agent of the gove rnment denied him due process. Under California v. Trombetta , 467 U.S. 479, 488–89 (1984), the government may violate a defendant’s due-process rights if it fails to preserve evidence whose exculpatory value was apparent before de struction of the evidence when “the defendant would be unable to obtain comparable evidence by other reasonably available means”; and Arizona v. Youngblood , 488 U.S. 51, 58 (1988), held th at the government may violate a defendant’s due-process rights if it dest roys in bad faith “potentially useful evidence” whose actual exculpat ory value is unknown. We question whether Mr. Fernandez ha s made an adequate showing under Trombetta or Youngblood that the unproduced videos ha d exculpatory value that was apparent before they were de stroyed (or simply not recorded ) or that anyone acted in bad faith in destroying or fa iling to preserve videos. Bu t we need not resolve those issues because the district court did not co mmit reversible error in determining that Greyhound was not acting as an agent of the DEA with respect to the failure to preserve video recordings. Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 1819 1. Background An extended account of the relevant proceedings will be helpful. Before trial, on November 21, 2017, Mr. Fernandez’s counsel sent a letter to Greyhound asking that it preserve al l video and audio recordings from its Albuquerque bus station from 8 a.m. to 1 p.m. on October 25, 2017. On December 28 Greyhound received a subpoena duces tecum for su ch recordings, except that the time span was reduced to only 9:55 to 11:15 a.m. In response, however, Greyhound produced footage from fewer than all its cameras. Of particular concern to Mr. Fernandez, there was no footage from camer as inside the terminal or at the maintenance bay, despite Greyhound’s acknow ledgement that it operated cameras in those areas. He was also suspicious becau se some of the video footage that was produced was stored on DV Ds labeled as “Official Use Only” DEA discs. Mr. Fernandez moved the district court to order Greyhound to show cause why it should not be held in contempt for disobeying the subpoe na and to hold an evidentiary hearing to exam ine what happened. In add ition, the motion sought to attribute to the government Greyhound’s a lleged shortcomings in responding to the subpoena, suggesting that Greyhound was acting as an agent of the DEA. The district court conducted an evidentiary hearing, which lasted almost five hours. Five witnesses testified—two were Greyhound employees, one was an investigator employed by the public de fender, and two were DEA agents. The testimony of the DEA agents was c onstrained by instructions in a letter from Kyle Williamson, Special Agent in Charge of the DEA El Paso Division. The Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 1920 letter was referred to dur ing the proceedings as a Touhy letter, referencing the Supreme Court decision in United States ex rel. Touhy v. Ragen , 340 U.S. 462 (1951), which held that the Attorney General could forbid subordinates from disclosing Department of Justice record s in court without permission from the Attorney General. Mr. Williamson had sent the letter to defense counsel after several Albuquerque-based DEA agents were subpoenaed to testify at the hearing. He said that he was acting in accord ance with Department of Just ice (DOJ) regulations after consultation with the United States Attorney’s office. The letter’s purpose was to ensure that the testifying DEA agents woul d not reveal privileged information, such as information about confidential s ources or investigative techniques. See 28 C.F.R. § 16.23 (DOJ general disclosure authority in federal proceedings in which United States is a party); id . § 16.26(b), (c) (DOJ will not approve disclosures that “would reveal a confidential source or informant” or “disclose investigative techniques and procedures the effectiveness of which would thereby be impaired” unless “the administration of justice requires disclosure”); Gaines v. Hess , 662 F.2d 1364, 1367 (10th Cir. 1981) (addressing informant privilege); United States v. Winner , 641 F.2d 825, 831 (10th Cir. 1981) (addressing law-enforcement investigative privilege). The Touhy letter authorized the agents to testify regard ing (1) “their formal education, qualifications, trai ning, and experience”; (2) “t he facts and circumstances of their encounter with, a nd the arrest of, Juan [sic ] Francisco-Fernandez at Greyhound’s Albuquerque Statio n on October 25, 2017”; and (3) “their interaction, and any arrangements or agreements, w ith Greyhound employees at Greyhound’s Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 2021 Albuquerque Station, includi ng Greyhound’s City Manager and Security Operations Manager, regarding the recording, preser vation and/or production of video evidence.” Suppl. R., Vol. III, Aplee. Ex. 1. The third category included “the witnesses’ knowledge of DEA’s procedures for obt aining video from Greyhound’s Albuquerque Station, their knowledge or any use of th e station’s surveillance system, and their knowledge regarding the use of any DEA discs by Greyhound employees in Albuquerque for the purpose of recording video.” Id. But the letter sa id that the DEA agents were not authorized to testify a bout anything that would “reveal classified information,” “reveal a confidential source or informant,” or “interfere with enforcement proceedings or disclose inve stigative techniques and procedures, the effectiveness of which woul d thereby be impaired.” Id. The Touhy letter is reproduced in the Appendix to this opinion. Greyhound’s recording, preservation, and production of video-surveillance footage were explored at length before and during the hearing. An affidavit from Marie Avila, a former Greyhound manage r who had handled Mr. Fernandez’s presubpoena preservation request , was attached to Greyhoun d’s response to his motion for order to show cause. It discussed in general term s the locations of the bus station’s 52 motion-activated cameras, the use of four digital video recorders to collect footage from the cameras, and the process for preservi ng video from those cameras and recorders. The affidavit stat ed that Ms. Avila had been unable to download footage from four cameras near th e maintenance bay because of technical problems with the cameras a nd recording equipment. Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 2122 At the hearing, defense counsel questi oned both Ms. Avila and David Streiff, Greyhound’s security operati ons manager for North Amer ica. Ms. Avila confirmed that Greyhound’s response to the subpoena was incomplete because its camera and video-recording equipment we re malfunctioning. She and St reiff testified, however, that the DEA had never directed or sugge sted how to handle defense attorneys’ preservation requests or subpoe nas. Ms. Avila also said that the DEA had never provided funds or influenced in any way the conduct of security operations at the Albuquerque terminal. Mr. Streiff stated that a password was necessary to download video from the digital-video recorders, a nd this task would be performed by the terminal manager or her designee; and he sa id that he was unaware of any training of Greyhound personnel by anyone associated with the DEA. Agent Perry and DEA Agent Jeffrey Armijo, a group supervisor in the Albuquerque district office, al so testified. They said that they had not known that Mr. Fernandez had requested anything from Greyho und; that they had never advised Ms. Avila on how to respond to preservation re quests or subpoenas; and that they had nothing to do with Greyhound’s video-su rveillance, recording, or preservation protocols. Regarding the “Offi cial Use Only” DEA discs, Agent Perry testified that he had once given 100 blank DEA discs to Greyhound as a courtesy—Greyhound had run out of DVDs to fulfill a DEA video re quest, so Agent Perry gave Greyhound a spindle of DEA discs. (Ms. Avila testified that she had not used any of the DEA discs to make copies of surveilla nce videos for Agent Perry but had used them on other Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 2223 occasions, as when there was an accidental stabbing or a slip-and-fall case at the terminal.) One occasion explored by defense couns el was an April 2017 meeting of Ms. Avila, Mr. Streiff, Agent Armijo, and Ag ent Perry. On March 30, Mr. Streiff had emailed Ms. Avila, asking her to set up a m eeting with the DEA agent assigned to the Albuquerque bus station and hi s supervisor. One line in th e email read, “I need to meet with him to discuss these defenda nts attorneys’ requests for video and information and . . . what are [sic] future response w ill be. We want to ensure continued partnership with them, but we need to go over some understandings with them.” R., Vol. IV at 96. At the hearing, Mr. Streiff explained why he worded his email to Ms. Avila that way: I was referencing the numerous subpoe nas that we were receiving in Albuquerque. The number of subpoe nas in Albuquerque far outweighed any other location within the United Stat es, so therefore, we felt that by streamlining the areas that any law enforcement agency would operate in our terminal would assist us in being able to more accurately and readily respond to subpoenas. Id. at 121–22. Mr. Streiff further testified that “the entire focus of the meeting” was where DEA agents “can and cannot ope rate” within the Greyhound terminal. Id. at 123. For his part, Agent Perry considered the meeting something like a “meet and greet.” Id. at 185. Regarding subpoenas, Agent Perry a nd Agent Armijo recalled Mr. Streiff saying that if the DEA wanted to subpoe na Greyhound, the subpoena should be sent directly to him. Also, Mr. St reiff testified that as he a nd Ms. Avila were leaving the Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 2324 meeting, the two discussed, almost as an afterthought, how to handle defense attorneys’ preservation reque sts and subpoenas going forwar d. He told her that she did not need to immediately respond to pr eservation requests and subpoenas that did not come from Greyhound’s corporate offices and that she should forward them to corporate counsel before taking any action. But none of the four meeting participants recalled any discussion of how Greyhound should respond to defense attorneys’ attempts to obtain video footage other th an the conversation between Ms. Avila and Mr. Streiff; and if the DEA agents were even within hearing range of this brief conversation, they said nothing.
No Touhy -related objection was posed to any of defense counsel’s questions to Greyhound or DEA employees relating in any way to the video surveillance. Defense counsel also asked about the relationship between DEA agents and personnel at the Greyhound terminal. He extensively questioned the Greyhound employees and DEA agents about the agen ts’ access to Greyhound’s facilities. According to Ms. Avila, law- enforcement officers like Agent Perry had Greyhound’s permission to enter parts of the Albuquerq ue terminal not usually accessible to the public, including the warehouse, the mainte nance bay, and the employee break room. Except in the maintenance bay, where o fficers were to be accompanied by the maintenance bay’s manager, 2 Greyhound policy allowed o fficers to move through

2 Greyhound policy on law-enforcement officers’ access to the maintenance bay apparently changed at some point, a nd defense counsel questioned the witnesses about this policy change. Agent Perry testified that he believ ed for a time that he had permission to enter the maintenance bay unes corted, but then Ms. Avila told him he Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 2425 Greyhound’s facilities relatively freely, al though they would almost always be in view of some Greyhound employee. Aske d by defense counsel about his use of Greyhound computers, Agent Perry testifie d that, aside from checking his email on a Greyhound employee’s computer, he did no t have access to Greyhound computers. Ms. Avila described her rela tionship with Agent Perry as a friendly professional relationship. She sometimes saw him in the bus terminal, and they sometimes chatted in her office. The two had even ex changed small gifts for Christmas. 3 Ms. Avila testified, however, that she was not a DE A informant, nor, to her knowledge, was any other Greyhound employee. Also, defense counsel asked Mr. Streiff why he had characterized the Greyhound-DEA relationship as a “partnership” in his email to Ms. Avila to set up the meeting w ith Agents Armijo and Perry . R., Vol. IV at 123. Mr. Streiff responded that the relationship was a “community outreach partnership, no more different than any other agency asking to participate in our terminal such as the Salvation Army dealing with the homeless, an NGO, or local law enforcement . . . .” Id. at 123–24. Of particular interest to defense counsel was Agent Perry’s access to passenger manifests, which contain information on the passenge rs on each bus. Greyhound drivers, ticket agents, term inal managers, various supe rvisors, and the company’s

needed an escort so, to avoid any probl ems, he has stopped entering that area altogether, escorted or not. 3 Agent Perry gave the gifts, such as DEA coins or patches, to other Greyhound employees as well. Ms. Avila may have given him a Greyhound stuffed dog. Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 2526 legal department all have access to passe nger manifests. Greyhound policy prohibited any employee from sharing this inform ation outside the company without a supervisor’s permission. But despite the po licy Agent Perry testif ied that he obtains Greyhound passenger manifests. During the hearing the government objected only three times on grounds raised by the Touhy letter to questions posed by defe nse counsel. Each objection was during cross-examination of Agent Perry. First, the government objected when Agent Perry was asked whether he had ever used the computer in a certain Greyhound employee’s office; the district court ove rruled the objection, and Agen t Perry answered that he had checked his email on that computer. Second, the government objected when Agent Perry was asked whether he pays to get Greyhound’s passenger manifests; 4 the district court sustained the objection, deciding that the question implicated investigative techniques. Third, the gove rnment objected when Agent Perry was asked whether he used confidential informants at Greyhound; this time, the court did not resolve the objection and instead or dered briefing on the effect of the Touhy letter on the admissibility of eviden ce. Defense counsel then said that he would “avoid the questions that would draw obj ections with the understanding th at perhaps, if we need to go in camera, we can do that.” R., Vol. IV at 209. After a few more questions on cross-examination, the hearing concluded.

4 Defense counsel knew that Agent Perry ha d testified in a prior case that he had paid a Greyhound employee for in formation from a passenger manifest. See United States v. McKenzie , 779 F. Supp. 2d 1246, 1252 (D.N.M. 2011), aff’d , 532 F. App’x 793 (10th Cir. 2013). Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 2627 In his brief to the district court on th e privilege issue, Mr . Fernandez listed a number of areas of inquiry that he was allegedly prevented from pursuing at the hearing because of the governme nt’s objections based on the Touhy letter. But he had pursued, without objection from the governme nt, most of these subjects at the hearing. And, more importantly, aside from the issue of whether Agent Perry paid for passenger manifests, he has fa iled to provide any reason (much less a sound reason) for thinking that he would have been restri cted in pursuing any of the listed areas, other than those relating to Agent Perry ’s access to the ma nifests and use of informants. In particular, he has provide d no excuse for failing to pursue any additional questions he may have had concerning the surv eillance cameras and video recordings; and a plausible excuse seems highly unlikely since the Touhy letter explicitly approves such que stioning and the government had posed no objections to any of defense counsel’s questions on the subject. After reviewing the briefs and the eviden ce, the district court ruled that there was no agency relationship between the DEA and Greyhound. See R., Vol. I at 222 (“Defendant has failed to establish that Gr eyhound or Ms. Avila acted as agents of the DEA. Accordingly, any failure by Grey hound or Ms. Avila to properly preserve videotape cannot be attributed to the gove rnment.”). The court declined to hear further testimony in camera about Agent Perry’s relationship with a confidential informant employed by Greyhound, finding that any such testimony would be irrelevant to the agency issue. Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 2728 2. Analysis On appeal Mr. Fernandez challenges bot h the district court’s conclusion on agency and its refusal to hol d an in camera hearing befo re reaching that conclusion. The defendant bears the burden of proving a Trombetta

- Youngblood violation.
See United States v. Beckstead , 500 F.3d 1154, 1158 (10th Cir. 2007). This circuit has twice suggested that a due-process violation under Trombetta or Youngblood can be predicated on conduct by a nongovernment al actor on the grou nd that the actor was an agent of the government. See Beckstead , 500 F.3d at 1158 n.3 (private company specializing in cl eaning crime scenes was st ate agent for purposes of defendant’s Trombetta

- Youngblood theory); Bullock v. Carver , 297 F.3d 1036, 1055– 57 (10th Cir. 2002) (therapist was not state agent, so Trombetta

- Youngblood theory could not be premised on her acts). In Beckstead we said only that we would treat the action of the private company as gove rnment action because the “company’s employees . . . acted only at the specific direction of police officers.” 500 F.3d at
1158 n.3. In Bullock we held that a child therapist who had destroyed the notes of her interviews with the defenda nt’s victims was not an ag ent of the government even though most of her employer’s financing came from a state agency. We noted (1) that the employer “was privately run and depend ed upon funding sources besides the state contract,” (2) that the em ployer “developed and implemen ted its own practices and procedures without . . . direction from the st ate or the police,” a nd (3) that the police had not “condoned” the th erapist’s failure to r ecord her interviews. Bullock , 297 F.3d Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 2829 at 1057. Neither opinion attempted to estab lish a comprehensive test for determining agency in the Trombetta

- Youngblood context. It may be tempting simply to apply th e common-law principles of agency, as expressed in the Restatements or civil caselaw; and certa inly that doctrine can be informative, see United States v. Ackerman , 831 F.3d 1292, 1301 (10th Cir. 2016) (Gorsuch, J.) (referencing common-law doctrin e in determining that private party was government agent in Fourth Amendment c ontext). But the fact ors that drive the determination of whether the government is bound by private action in the criminal context may be rather different from thos e that are most relevant to determine whether a principal is liable under tort or c ontract law for the actions of an agent. As just one example, under common-law agency principles the agency relationship is a voluntary one. See Restatement (Third) of Agency § 1.01 & cmt. c. But a defendant could surely prevail on a suppression moti on based on a search by a private person who was coerced by law-enforcement agents into conducting the search. Not only is the concept of agent in the criminal-law context not entirely controlled by common-law doctrine, but the concept may even depend on the constitutional right at stake. We recognized this proposition in United States v. Alexander , 447 F.3d 1290 (10th Cir. 2006), wh ere we considered whether a defendant’s Fifth Amendment rights were violated when a private person allegedly acting as an agent of the government que stioned the defendant. We summarized our precedent for determining “whether a search by a private person s hould be classified as a government search” and then stated th at “[w]hile this framework has not been Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 2930 explicitly adopted in the Fifth Amendment context, it is noneth eless instructive.” Id.
at 1295. As in our prior opinions on the subject, we can resolve the agen cy issue in this case without setting forth a comprehensiv e framework for determining when the intentional or negligent loss of evidence by a private pers on is attributable to the government under Trombetta or Youngblood

. To begin with, there is no evidence that the DEA had any contact with Greyhound regarding how to respond to defe nse counsel’s request for preservation or the subpoena; on the contrary, the uncontrad icted testimony was that the DEA agents did not even know of the request or the subpoena before Greyhou nd responded to the subpoena. Further, there is no evidence that the DEA had ever communicated with Greyhound regarding how to respond to such requests, much less evidence that Greyhound had trained or advised Greyhou nd personnel on the matter. Nor was there any evidence that the DEA had ever commu nicated with Greyhound regarding where to place cameras, how to reco rd what the cameras detected, or how to preserve video recordings. The only relevant contact be tween Greyhound and the DEA regarding the general operation of the surveillance system was that Agent Perry had provided 100 blank discs when a Greyhound employee had sa id that the terminal was out of discs on which to download a video requested by the DEA. There was no evidence that any condition was placed on the use of the discs; on the contrary, Ms. Avila testified that she had never provided a disc to the DEA but had used the discs on several occasions to download videos of noncri minal incidents. In any event, the only purpose that Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 3031 could be served by supplying discs to Greyhound would be to facilitate its preservation of information; it would be bizar re to use this act as a ground for holding the DEA responsible for Greyhound’s failure to preserve information for Mr. Fernandez. Mr. Fernandez complains that the govern ment’s invocation of the informant privilege prevented him from establishing an agency relationship between the DEA and Greyhound. To be sure, an informant who provides manifests could be acting as an agent of the DEA. But the only issue before the court was whether someone at Greyhound was acting as an agent of the DEA in not producing the video footage sought by Mr. Fernandez. And Mr. Fernandez had no reason to believe that he would be restricted in any way from asking whet her a Greyhound employee (whether or not an informant) was acting under some di rection from the DEA regarding the video surveillance and the preservation of reco rdings. Indeed, defense counsel asked multiple questions on the topic. 5 Perhaps the defense theory was that a ll that was necessary to hold the DEA responsible for Greyhound’s fa ilure to preserve the request ed recordings was to show that Greyhound had acted as an agent of the DEA for some purpose. But this theory misconceives the concept of ag ent. The existence of an agency relationship between

5 When defense counsel wa s questioning Agent Perry about his informant, he may have been pursuing a theory that the informant himself or herself had something to do with the video recordings. But not hing in the questions suggested that approach, defense counsel never tried to ju stify his questions on that ground, and we can see no reason why such a roundabo ut approach would be necessary. Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 3132 the government and a person with respect to one matter does not make that person an agent for all other matters. This is a fundame ntal proposition of common-law agency. As stated in Restatement (Third ) of Agency § 1.01 cmt. c: Despite their agency relationship, a principal and an agent retain separate legal personalities. Agen cy does not merge a principal’s personality into that of the agent, nor is an agent, as an autonomous person or organization with distinct legal persona lity, merged into the principal. The fact that an agent acts on behalf of , or represents, another person implies the existence of lim its on the scope of the agency relationship and on the extent to wh ich the principal is accountable for the agent’s acts. The metaphor of identifi cation, which merges an agent’s distinct identity with the principal’s, is potentially misleading and not helpful as a st arting point for analysis. (emphasis added). Roughly speaking, a princi pal is liable for the tortious conduct of the agent only if the conduct was tied to the subject matte r of the agency. See AlfaroHuitron v. Cervant es Agribusiness , 982 F.3d 1242, 1252 (10th Cir. 2020); Restatement (Third) of Agency § 7.04 (“A principal is subject to liability to a third party harmed by an agent’s conduct when th e agent’s conduct is within the scope of the agent’s actual authority or ra tified by the principal . . . .”); id. § 7.07(1) (“An employer is subject to vicarious liability for torts committed by its employee acting within the scope of employment.”). We see no justification for departing from this proposition in the due-process context. The touchstone of due process is “prevaili ng notions of fundamental fairness.” Trombetta , 467 U.S. at 485. That is, the de fendant is entitled to relief when the government’s conduct is fundamentally unfair. Fundamental unfairness is presumably a higher bar than the notions of fairness that govern the common law, Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 3233 which determines when it is fair to hold a person liable in contract or tort. We conclude that when common-law agency doctrine would not hold the government responsible for the conduct of a purported agent, ordinarily th e government also would not be held responsible for the alleged agent’s acts under the Trombetta

Youngblood doctrine. On occasion there may arise difficult questions concerning the scope of an agent’s authority and whether fundamental fairness requires that the government be held responsible for conduct by an ag ent who acts beyond what is expressly authorized by the government. Bu t this is not a close case. Nothing before us raises a substantial challenge to the testimony at the district-court h earing that the DEA simply had nothing to do with how Greyhound operated or maintained its system of video surveillance, including its recording and preserva tion of videos. We cannot read Trombetta or Youngblood as supporting a notion of f undamental fairness that would require the government to be held responsible for whatever caused Greyhound not to be able to provide Mr. Ferna ndez with the recordings he requested. Mr. Fernandez suggests that it wa s enough that Greyhound and the DEA shared a common goal—reducing the use of Greyhound buses for crime. But sharing a common goal does not transform an i ndependent actor into an agent. See Alexander , 447 F.3d at 1296 (inmate friend volun teered to convince defendant to confess; government agreed to let frie nd try; although gove rnment “hoped [the friend] would be successful,” friend’s “ purpose [a reduced sentence for defendant] was completely divorced fro m [government’s] hope”); United States v. Leffall , 82 Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 3334 F.3d 343, 346–47, 34 9 (10th Cir. 1996) (airline employee who “personally and independently made the decision to open the package because he felt it contained some type of contraband or something illega l” was not motivated to act on behalf of the government, even though police officer wa tched and did not object). In any event, a common goal of generally preventing crime says little about the specific agency issue in this case—whe ther Greyhound acted as the government’s agent when Greyhound failed to preserve poten tially exculpatory video evidence

. Finally, Mr. Fernandez has no legitimate complaint about the district court’s refusal to conduct an in camera hearing. To prevail on the agency issue he needed to establish ties between the DEA and Greyhou nd with respect to the surveillance system and the recording and preservation of video surveillance. But, as previously noted, he was not restricted in any wa y from developing such evidence during the evidentiary hearing already conducted. The district court did not err in findi ng that Greyhound was not acting as an agent of the DEA with resp ect to the preservation and production of surveillance video or, in particular, in its response to Mr. Fernandez’s preservation request and subpoena.
III. CONCLUSION
We AFFIRM Mr. Fernandez’s conviction. Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 34APPENDIX Dear [Defense Counsel]: This letter is in re ference to your subpoenas for the testimony of Drug Enforcement Administration (DEA) Special Agents (SAs) Jeff Ar mijo, Kirk Lemmon and Jarrell Perry at a show cause hearing before the Honorable James A. Parker on June 19, 2018, at 1:00 p.m. We also are in receipt of your lett er dated May 15, 2018, providing a summary of the testimony sought. As you know, the disclosure of offici al information by the DEA and its employees is governed by applicable Depart ment of Justice re gulations, 28 CFR §§ 16.21 to 16.29 (known as the Touhy regulations). Pursuant to these regulations, we have reviewed the subpoenas and your letter . In consultation with the United States Attorney’s Office for the Dist rict of New Mexico, we have considered the factors set forth in 28 CFR § 16.26, including appli cable rules of procedure and relevant substantive law concerning privilege, in determining whether disclosure is appropriate in this instance. Consequently, we authorize SAs Ar mijo, Lemmon and Perry to provide testimony relating to the following matters only : 1. their formal education, qualificat ions, training, and experience; 2. the facts and circumstances of their en counter with, and the arrest of, Juan Francisco-Fernandez at Greyhound’s Albuquerque Stati on on October 25, 2017; and 3. their interaction, and any arrangeme nts or agreements, with Greyhound employees at Greyhound’s Albuquerque Station, including Greyhound’s City Manager and Security Operations Ma nager, regarding the recording, preservation and/or producti on of video evidence. This includes the witnesses’ knowledge of DEA’s procedures fo r obtaining video from Greyhound’s Albuquerque Station, their knowledge or any use of the station’s surveillance system, and their knowledge regard ing the use of any DEA discs by Greyhound employees in Albuquerque fo r the purpose of recording video. In accordance with 28 CFR § 16.26(b) , SAs Armijo, Lemmon and Perry are not authorized to testify about any matter, or otherwise make any disclosure, that would:
1. violate a statute, a rule of pro cedure, or a specific regulation; 2. reveal classified information; 3. reveal a confidential s ource or informant; or Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 354. interfere with enforcemen t proceedings or disclose investigative techniques and procedures, the effectiveness of which would thereby be impaired. In particular, it is our position that, while questions relating to the witnesses’ relations with employees at Greyhound’s Albuque rque Station may be appropriate, any attempt to elicit testimony regarding the identity of, or payments or benefits to, any DEA confidential source or informant w ould not be appropriate. Nor would it be appropriate to attempt to elicit testimony regarding DEA’ s investigative techniques, procedures or policy relating to searches of public tran sportation. Such information relating to confidential sources or investigative techniques, if it exists, is privileged and not relevant to this proceeding unde r F.R.E. 401 nor material to preparing a defense under F.R.Cr.P. 16(a). More specifically , such information is not relevant or material to the questions of : (1) whether Greyhound was acting as an agent of the Government in the preservation or produc tion of (or any failure to preserve or produce) video evidence in this case; (2) whether the Government knew of or acquiesced in Greyhound employees’ acti ons in response to the Defendant’s preservation request and sub poena to Greyhound in this case; or (3) whether any Greyhound employee who preser ved or produced video evidence in this case did so intending to assist law enfo rcement efforts or to furt her his or her own ends. We have instructed SAs Armijo, Lemmon and Perry that, if asked to testify about any matter beyond the scope of that for which they are authorized, they should respectfully decline to answer and explai n that they are precluded from doing so. We note that a DEA employee may not be he ld in contempt for failing to produce information in response to a subpoena or other demand if the employee has not been authorized to make such a disclosure pursuant to the Touhy regulations. See United States ex rel. Touhy v. Ragen , 340 U.S. 462 (1951). If you have any questions, please contact Division Counsel Gregory Stevens at [redacted]. Sincerely, Kyle W. Williamson Special Agent in Charge Suppl. R., Vol. III, Aplee. Ex. 1. Appellate Case: 20-2106 Document: 010110620691 Date Filed: 12/17/2021 Page: 36