NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0484n.06 No. 16-6092 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LARRY BRASWELL, Defendant-Appellant

. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE

BEFORE: GUY, CLAY, and WHITE, Circuit Judges. CLAY, Circuit Judge. Defendant Larry Braswell was c onvicted of one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and was sentenced to 235 months’ imprisonment. On appeal, Defe ndant challenges both hi s conviction and his sentence. Specifically, he challe nges the district court’s denial of the motion to suppress the evidence of the gun, as well as the sufficiency of the evidence. Defendant further argues that the district court erred in not including a spoliation instruction in the jury instructions. Defendant also contends that there was prosecutorial misconduct based on statements made by the government during closing arguments. Finally, Defendant challenges his classification as an armed career criminal. For the reasons set forth below, we AFFIRM the judgment of the district

court. BACKGROUND On February 23, 2014, Chattanooga Police Offi cer Benjamin Piazza saw Defendant Larry Braswell walking away from the bushes in front of an abandoned house in a condemned publicNo. 16-6092

2 housing project in Chattanooga, Tenn essee. A car containing a fe male passenger was parked in front of the house. When Officer Piazza appro ached Braswell, he said he had come to the housing project to talk with his passenger, Jasmine Is om, and left the car in order to urinate in the bushes. Ms. Isom was visibly upset, and she to ld Officer Piazza that she thought she was going to jail. As Officer Piazza was talking to Bras well and Ms. Isom, he noticed a strong smell of marijuana. After searching th e car with Braswell’s consent and not finding anything, Officer Piazza concluded that the marijuana was either con cealed in the car’s center console or had just been removed from the car. The officer checked the status of Braswell’ s license and discovered that it had been revoked. Nevertheless, he to ld Braswell to leave the area and drive Ms. Isom home. He also told Braswell not to drive anymore until his licens e was reinstated and especially not to return to the area, orelse he would go to jail. After Braswell left, Officer Piazza returned to his patrol car, which was parked between two abandoned houses with its lights off, and began filling out paperwork regarding this interaction. Less than an hour later, anothe r car entered the abandoned housing complex and drove along the same street where Officer Piaz za had just encountered Braswell. It was now dark outside, and the car did not ha ve its headlights on. The car also started to slow to a stop in front of the same house where Braswell had previ ously been seen. When Officer Piazza turned his patrol car’s headlights on, the other vehicle also turned on its headligh ts and then drove away fairly rapidly. The car ran a stop sign in the pr ocess, after which Officer Piazza activated his emergency lights and pulled the vehicle over. Officer Piazza heard the driver say something such as “[W]ell, I guess I’m going to jail.” (R. 136, Trial Tr., PageID #1852.) It turns out that Braswell was the driver, and this time he was accompanied by a male passenger.No. 16-6092

3 Officer Piazza then arrested Braswell for driving on a revoked licen se. While conducting a search incident to that arrest, Officer Pi azza found more than $1,100 in cash, as well as a digital scale covered in what appe ared to be marijuana residue in Braswell’s pocket. Braswell was placed in the back of the patrol car and read his Miranda rights. Officer Piazza and a K-9 officer then returned to the abandoned house wh ere Officer Piazza first encountered Braswell walking away from the bushes after allegedly urinating. The drug-sni ffing dog alerted several times on the bushes in front of that house. The officers searched the bushes and found a large bag containing approximately twenty-five grams of marijuana and a loaded .45 caliber handgun, “right on top of each other.” (Id. at 1855, 1859.) The gun did not appear to have been there very long, since it was not rusted and di d not have any dew or dirt on it. It did, however, have visible fingerprints on it. The officers, however, never tested the gun for fingerprints. During the search of the abandoned property, Braswell was confined in the back of the patrol car. At various points, Braswell apparently mumbled to himself, and those statements were captured by a video recordin g device in the patrol car. Within seconds of the officers finding the gun and marijuana, Br aswell, who had been intently watching the officers discover the contraband, said what sounded like “[Expletive], man . . . prints are all over this [expletive].” ( Id. at 1879–81; Gov’t Ex. 5 at 19:49:00.) Braswell was indicted on May 28, 2014 for bei ng a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Following th e denial of multiple motions to suppress the evidence, Braswell proceeded to trial. A jury trial was held on September 29 and 30, 2015 and resulted in a guilty verdict. Braswell was sentenced to 235 months of imprisonment, as he was determined to be an armed career criminal. Judgment was entered on June 28, 2016, and this timely appeal followed.No. 16-6092

4 DISCUSSION
I. Suppression of the Evidence A. Standard of Review “When reviewing the district court’s ru ling on a motion to suppress,” this Court “review[s] findings of fact for clear error and legal conc lusions de novo.” United States v. Jackson , 682 F.3d 448, 452 (6th Cir. 2012) (citing United States v. Tackett , 486 F.3d 230, 232 (6th Cir. 2007). “When the district court has denied the motion to suppress, we review all evidence in a light most favor able to the Government.” Id. (quoting United States v. Coffee , 434 F.3d 887, 892 (6th Cir. 2006)). “A factual fi nding is clearly erroneous when, although there may be evidence to support it, the reviewing court, utilizing the enti re evidence, is left with the definite and firm conviction that a mistake has been committed.” United States v. Sanford , 476 F.3d 391, 394 (6th Cir. 2007) (quotation omitted). Factual findings are not clearly erroneous “where there are two permissi ble views of the evidence.” Id. (alterations and quotation omitted). Furthermore, this Court gives “deference to the district cour t’s assessment of credibility inasmuch as the court was in the best pos ition to make such a determination.” United States v. Hill , 195 F.3d 258, 264–65 (6th Cir. 1999).
B. Analysis “An ordinary traffic stop by a police officer is a ‘seizure’ within the meaning of the Fourth Amendment. Accordingly, any evidence seized during an illegal traffic stop must be suppressed as fruits of the poisonous tree.” Jackson , 682 F.3d at 453 (quoting United States v. Blair , 524 F.3d 740, 748 (6th Cir. 2008)). “It is well established that a police officer may lawfully stop a car when he has probable cause to believe that a civil traffic violation has occurred, or reasonable susp icion of an ongoing crime.” Id. (citations omitted).No. 16-6092

5 Before the trial, Braswell filed a motion to suppress the evidence based on a lack of probable cause for the traffic stop. In orde r to resolve the motion, the magistrate judge conducted a hearing at which only one witness, Of ficer Piazza, testified. The officer recounted his first interaction with Braswell, and then tes tified regarding the traffi c violations he observed during their second encounter. Spec ifically, Officer Piazza stated that he noticed a green car driving down the street with its headlights off, even though it was dark outside. Officer Piazza began to follow the car in his own patrol car, wh ich also did not have the headlights illuminated. When the car began to slow dow n in front of the abandoned house, Officer Piazza turned on his headlights. The car rapidly sped up and, after a s hort distance, turned on its headlights. The car then reached an intersection and ran a stop sig n. Officer Piazza then turned on his blue lights and pulled Braswell over. In order to rebut Officer Pi azza’s testimony, Braswell offered in to evidence a video of the second encounter between Officer Piazza and hims elf, during which he allegedly committed the two traffic violations. This video did not show Braswell driving with his headlights off. 1 The magistrate judge, however, noted that the vide o “does show unequivocally that it was dark outside and that defendant ran th rough a stop sign making no effort to even slow down.” (R. 72, R&R, PageID #583.) The magistrate judge further found O fficer Piazza’s testimony that Braswell had been driving withou t his headlights illuminated to be credible and agreed with Officer Piazza that it was dark outside and was at least thirty minutes after dusk when the incident occurred. Consequent ly, Braswell violated Tenn. C ode Ann. § 55-9-406(a), which requires headlights to be illuminated when drivi ng beginning thirty minut es after sunset. The

1 According to Officer Piazza’s testimony, videos recorded by the cameras in police cars are continuously recorded over un til some triggering event occu rs, such as the police officer illuminating his flashing lights. ( Id. at 582–83.)No. 16-6092

6 magistrate judge further found that Officer Piaz za had probable cause to stop Braswell because he witnessed Braswell failing to stop at a stop sign, in viol ation of Tenn. Code Ann. § 55-8- 149(c). After reviewing Braswell’s objections to the magistrate judge’s Report and Recommendation, the district court largely accepted the magistrate judge’s findings of facts and denied the motion to suppress. The districtcourt deferred to the magistrate judge’s determination that Officer Piazza’s testimony wa s credible. After inde pendently viewing the video of the encounter, the districtcourt further determined that th e magistrate judge “did not err in finding that it was very dark at the time Offi cer Piazza testified that Defendant was driving without his headlights on.” (R. 77, Order on Mo t. to Suppress, PageID # 608). Finally, in response to Braswell’s argument that the video does not actually show him running a stop sign, the district court stated that “Defendant is correct to point out that the video first shows Defendant’s car slightly after it had passed the stop sign in question.” ( Id. ) The district court further stated, “The rate of sp eed at which Defendant’s car was traveling at this point, however, coupled with Officer Piazza’s cred ible testimony that he saw th e Defendant run the stop sign, leads the Court to conclude that Officer Piazza had probable cause for the traffic stop.” ( Id. (footnote omitted).) Relying largely on the video, Braswell continues to argue on appeal that there was no proof that he was driving without his headlights on or that he ran a stop si gn. However, we find his argument unpersuasive. The magistrate judge, and later the district court, both found that Braswell had been driving without his headli ghts on when he was required to have them illuminated under Tennessee law. Both the magistratejudge and the district court also found that Braswell failed to stop at a stop sign. These fa ctual determinations were largely based on theNo. 16-6092

7 magistrate judge’s finding that O fficer Piazza was credible. Such “[f]indings of fact anchored in credibility assessments are ge nerally not subject to revers al upon appellate review.” United States v. Hudson , 405 F.3d 425, 442 (6th Cir. 2005) (a lteration in original) (quoting United States v. Taylor , 956 F.2d 572, 576 (6th Cir. 1992) (en banc)). To the extent that this Court could overtur n the credibility determination because “the testimony was implausible, internal ly inconsistent, or against the weight of the evidence, such that no reasonable fact-fi nder would credit it,” United States v. Miller , 413 F. App’x 841, 843 (6th Cir. 2011) (quotation omitted), those circum stances are not present here. Contrary to Braswell’s argument that the video contradicts O fficer Piazza’s testimony, we find that the video simply does not show the events in question, gi ven that the video reco rding began after the alleged infractions had already occurred. Therefor e the video neither conf irms nor disproves the government’s argument that Braswell was driving without his headlights and ran a stop sign. Indeed, the video, to some extent, actually ai ds the government’s argument. Specifically, the district court found that Bras well’s car was traveling at a hi gh rate of speed, which, in the district court’s eyes, supported O fficer Piazza’s testimony that Braswe ll failed to stop at the stop sign. This evidence, coupled with the officer’s credible testimony, suppor ts the conclusion that the district court did not clearly err in de termining that Braswell committed two traffic violations. Because these two tr affic violations were supported by probable cause, the district court properly denied Braswell’s motion to supp ress the evidence obtainedas a result of the traffic stop. See Jackson , 682 F.3d at 453.No. 16-6092

8 II. Spoliation Jury Instruction A. Standard of Review “This Court reviews a district court’s choice of jury instructio ns for abuse of discretion.” United States v. Ross , 502 F.3d 521, 527 (6th Cir. 2007) (citing United States v. Prince , 214 F.3d 740, 761 (6th Cir. 2000)). In so doing, “we review jury instructions as a whole to determine whether they fairly and adequately submitted th e issues and applicable law to the jury.” United States v. Franklin , 415 F.3d 537, 553 (6th Cir. 2005) (quoting United States v. Williams , 952 F.2d 1504, 1512 (6th Cir. 1991)). A “refusal to de liver the requested instruction is reversible only if that instruction is (1) a correct statement of the law, (2) not substantially covered by the charge actually delivered to the jury, and (3) concerns a point so important in the trial that the failure to give it substantially impairs the defendant’s defense.” Id. (quoting Williams , 952 F.3d at 1512; and citing United States v. Gibbs , 182 F.3d 408, 432 (6th Cir. 1999)). B. Analysis Braswell argues that the district court abused its discretion in not including an instruction regarding spoliation of evidence by the police o fficers involved in this case. Officer Piazza originally testified at trial that he did not take any photographs of the gun and marijuana while at the scene. However, defense counsel subsequen tly played a video that revealed that Officer Piazza had taken pictures of the evidence on the hood of his car. The distri ct court ordered the government to turn over the photographs the next day. Wh en court reconvened the next morning, the government informed the court that the pictures could not be produced because they were taken on Officer Piazza ’s personal cell phone. That phone was later given to Officer Piazza’s child and dropped by the child in the bath tub. The district court found that the evidence was not destroyed in bad faith, and thatfinding is not dis puted on appeal.No. 16-6092

9 Based on the loss of the photographs, Br aswell proposed the following spoliation instruction for the district court: The government has a duty to gather, preserve, and produce at trial evidence which may possess exculpatory value. Such evidence must be of such a nature that Mr. Braswell would be unabl e to obtain comparable evidence through reasonably available means. The governmen t has no duty to gather or indefinitely preserve evidence considered by a qualified person to have no exculpatory value, so that an as yet unknown defendantmay later examine the evidence. If, after considering all the proof, you find that the government failed to gather or preserve evidence, the contents or qualities of which are at issue and the production of which would more probably th an not be of benefit to Mr. Braswell, you may infer that the absent evidence would be favorable to Mr. Braswell. (R. 140, Joint Stipulation, PageID #2145.) After this charge was rejected by the district court, based on the court’s skepticism that the photographs constituted exculpatory evidence, Braswell suggested the First Circuit’s pattern jury instruction for spo liation, which reads: If you find that [party] destroyed or oblit erated a document that it knew would be relevant to a contested issue in this case and knew at the time it did so that there was a potential for prosecuti on, then you may infer (but you are not required to infer) that the contents of the destroye d evidence were unfavorable to [party]. ( Id. at 2147 (alterations in original). ) This instruction, t oo, was rejected by the district court. On appeal, Braswell argues that the standard for spoliation instructions used in this Circuit for civil cases also applies in the context of a criminal case. That standard is as follows: A party seeking an adverse inference instruction based on the destruction of evidence must establish (1) that the part y having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party’s claim or defense su ch that a reasonable trier of fact could find that it would support that claim or defense. Flagg v. City of Detroit , 715 F.3d 165, 177 (6th Cir. 2013) (quoting Beaven v. U.S. Dep’t of
Justice , 622, F.3d 540, 553 (6th Cir. 2010 )). Braswell further argues that the “culpable state ofNo. 16-6092

10 mind” includes negligence and recklessness, see Beaven , 622 F.3d at 554, which arguably were present here given Officer Piazza’s failu re to preserve th e photographs. Braswell also argues that, based on language in Flagg , once the district court finds that there was spoliation, the court is then re quired to give a spoliation instruction. See Flagg , 715 F.3d at 177 (“When the requirements for an adverse inference instruction are met, the district court should issue an instruction.”). Bras well contends that the di strict court explicitly found spoliation, given the court’s use of the term during the context of the charge conference. Thus, the district court erred by not including the mandatory instruction. However, in the alternative, Braswell argues that the district court abused its discretion in not giving a spoliation instruction, given that th e three prongs listed abov e were all satisfied. We find Braswell’s argument unavailing. This Court has previously found that it was not an abuse of discretion for the district court, in a criminal case, to refuse to give a spoliation instruction based on the failure to preser ve evidence in the absence of bad faith. 2 For example,
in United States v. Boxley , 373 F.3d 759 (6th Cir. 2004), the de fendant requested a spoliation instruction based on the government’s fa ilure to preserve fingerprints. Id. at 762. The Court

2 According to the concurrence, because Boxley relied on Nationwide Mutual Fire Insurance Co. , a case which has since been overruled, Boxley has been abrogated as well. However, this logic does not hold up under closer scrutiny. Nationwide imported the bad faith standard from Ohio law, as it was a civil case based on diversity jurisdiction. 174 F.3d at 804. The case overruling it, Adkins v. Wolever , 554 F.3d 650 (6th Cir. 2009) (en banc), changed the standards we use when deciding civil cases base d on diversity jurisdiction. As the concurrence notes, Adkins stated that this Court should no longer apply state law for evidentiary matters, but instead should apply federal evidentiary ru les, including for spoliation instructions. Id. at 651– 52. However, Adkins does not have any bearing on federa l criminal cases, for which federal evidentiary rules always applied. Boxley can only logically be readas adopting the bad faith requirement for spoliation instructions, described in Nationwide , for all criminal cases in this circuit. This is all the more evident considering Boxley originated in the Western District of Tennessee, meaning Ohio state la w could only have been persuasi ve authority. Thus, the fact that Nationwide was overruled does not impact the precedential value of Boxley , and we continue to apply its established test for spoliation instructions.No. 16-6092

11 noted that “[s]poliation is defined as the intenti onal destruction of eviden ce that is presumed to be unfavorable to the party res ponsible for its destruction.” Id. (citing Nationwide Mut. Fire Ins. Co. v. Ford Motor Co. , 174 F.3d 801, 804 (6th Cir. 1999), overruled by Adkins v. Wolever , 554 F.3d 650 (6th Cir. 2009) (en banc)). The Court further found that there wa s little chance that the government could have preserved the fing erprints regardless of their methods. Id. More importantly, the Court noted that “intentional destruction” is “removal with the ‘purpose of rendering it inaccessible or useless to the defendant in preparing its case; that is spoiling it.’” Id. (quoting Nationwide , 174 F.3d at 804.) In that case, as in Braswell’s case here, “there is nothing to indicate that the office rs did so in bad faith.” Id. at 763. The Court ultim ately agreed with the district court that “the most that has been s hown is that the policemen did not maintain and control the evidence in a manner consistent with good police tactics. But there was no bad faith involved.” Id. Based on that conclusion, coupled with the unlikelihood th at the fingerprints could have been recovered regardless of the officer s’ actions, the Court determined that the jury instruction on spoliation was properly denied. Id. Relying on the definition of spoliation announced in Boxley , this Court later concluded that a spoliation instruction was properly deni ed in a case involving the destruction of a McDonald’s sandwich carton from which pr ints of the defenda nt were lifted. United States v. Spalding , 438 F. App’x 464, 465, 467 (6th Cir. 2011). The Court agreed that the required intent—namely, having “the purpose of rendering it inaccessible or useless to the defendant in preparing [his] case—was not present. Id. at 467 (alteration in original) (quoting Boxley , 373 F.3d at 762). Other circuits similarly require a finding of bad faith in order to warrant a spoliation instruction in a criminal case. For example, the First Circuit has stated that a spoliationNo. 16-6092

12 instruction “usually makes sense only where the evidence permits a finding of bad faith destruction; ordinarily negligent destruction would not support th e logical inference that the evidence was favorable to the defendant.” United States v. Laurent , 607 F.3d 895, 902 (1st Cir. 2010). The Fifth Circuit also requ ires a showing of bad faith. See United States v. Wise , 221 F.3d 140, 156 (5th Cir. 2000) (collecting cases). Similarly, the Ninth Circ uit requires that, in order for a spoliation instruction to be given, “a criminal defenda nt must establish (1) that the evidence was destroyed in bad faith, and (2) th at he was prejudiced by its destruction.” United States v. Romo-Chavez , 681 F.3d 955, 961 (9th Cir. 2012) (citations omitted). But see United
States v. Fries , 781 F.3d 1137, 1152 (9th Ci r. 2015) (recognizing that there may be an intracircuit split in the Ninth Circuit over whether bad faith is required for a spoliation instruction, but declining to resolve the issue). Based on these cases, we hold that the dist rict court did not abuse its discretion in denying Braswell’s request to include a spoliation instruction to the jury. The district court explicitly found that Officer Pia zza did not act in bad faith wh en he failed to preserve the photographs. While noting that th e officer clearly was not diligent in his handling of evidence, the district court further opine d, “I don’t see any evidence that there was any tampering with evidence, any attempt to spoliate exculpatory ev idence.” (R. 137, at 2003.) As made clear in Boxley , spoliation only occurs when the party w ho destroyed the evidence acted with “the purpose of rendering it inaccessible or useless.” 373 F.3d at 762. While the effect of Officer Piazza’s actions was to render the photographs usel ess, the district court found that his actions were not undertaken in bad faith, but were instead th e result of shoddy polic e work. Given these factual findings, to which this Court must defer, we agree that the spoliation instruction was notNo. 16-6092

13 required. Therefore the district court did not abuse its discre tion in declining to give the spoliation instruction to the jury. III. Prosecutorial Misconduct A. Standard of Review “In reviewing a trial court’s evidentiary determinations, this court reviews de novo the court’s conclusions of law and reviews for clear error the court’s factua l determinations that underpin its legal conclusions.” United States v. Jenkins , 345 F.3d 928, 935 (6th Cir. 2003) (quoting United States v. Salgado, 250 F.3d 438, 451 (6th Cir. 2001)). Admission of tape recordings is reviewed for abuse of discretion. United States v. Robinson , 707 F.2d 872, 876 (6th Cir. 1983).
B. Analysis Braswell argues that the district court abused its discretion by admitting the video and audio recording of his mumblings from the back of the patrol car. While Braswell admits that the admission of videotapes is within the sound di scretion of the district court, he essentially argues that the tapes should have been exclude d because the “unintelligible portions are so substantial as to rende r the recordings as a whole untrustworthy.” United States v. Robinson , 707 F.3d 872, 876 (6th Cir. 1983) (quoting United States v. Jones , 540 F.2d 465, 470 (10th Cir. 1976)). Braswell first points to the statements of the di strict court, as the c ourt first appeared to agree with Braswell at the pre-trial suppression hearing that the tapes were unintelligible, stating, “I heard a couple of expletives in there, but I’ ll be honest, I didn’t hear much more.” (R. 42, Suppression Hr’g Tr., PageID #178.) Only af ter listening again did the court revise its assessment, explaining, “[w]ell, you know, that time, that time I heard, prints all over, it soundsNo. 16-6092

14 like.” ( Id. ) At the same hearing, Braswell also intr oduced the testimony of a court reporter who stated that she was unable to understand or transc ribe the recording. Give n the district court’s initial impressions and the statements of that cour t reporter, Braswell now argues that the district court abused its discretion in allowing the recording into evidence. Braswell also argues that the pr osecutor, in his closing stat ement, impermissibly stated what he thought was on the audio recording, even though the recording was unintelligible. Braswell notes that the district court had previously determined that a transcript could not be admitted given that large portions of the tape could not be transcribed. Therefore, only the recording itself was admitted into evidence and played for the jury. Despite the fact that a transcript was not admitted and the jury was supposed to determine for itself what was on the tape, the government argued the foll owing in its closing statement: What does the video tell us, though[ ?] Defendant admits it. The defendant confesses. Watch the video. It was about 19:49:06 on the time, you’ll see when Piazza says they found it. A nd three seconds later, remember the defendant can see it, he’s watching out the window of the car, and we talked about that, three sec onds later, the defendant cusses , cusses, says something about cussing about the gun, and my prints are all over that mf’r within three seconds of them finding it. Watch the video as well. And when I say that, listen to Exhibit 5, that’s where it’s isolated where you can just hear the defendant in the back of the car. It’s easier to hear what he’s saying. It’s hard when both mikes are playing, but watch, also, listening to Exhibit 5 as he watches the officer walk and Piazza pointed to you on the left si de of the screen where th e bush was kind of right off where the video could see on the left side. And watch the defendant’s reaction every time the officers walk over there to those bushes. Before he admits that his prints are on it and before they find the gun, he starts cussing every time they walk over near those bushes he’s saying an expletive. He’s admitting that his prints are on the gun.No. 16-6092

15 Why was the gun not sent for fingerprints? Why do you need to when the defendant tells you that they’re there? Th e circumstantial proof is very strong. (R. 137, at 2022–23.) Based on these statements, Braswell argues th at the prosecutor impermissibly brought “to the attention of the jury facts not in evidence,” and vouched for the credibility of the evidence. United States v. Emuegbunam , 268 F.3d 377, 404 (6th Cir. 2001). Moreover, Braswell claims that it was highly prejudicial for the prosecutor to state his interp retation of the recording, given that Braswell’s alleged confession was the only direct evidence linking him to the gun. Thus, Braswell argues that the district court abused its discretion in allowing the government to argue that Braswell admitted his prints were all over the gun. The government agrees that for a video to be properly admitted into evidence, it must be “audible and sufficiently comprehensible for the jury to consider the contents.” Robinson , 707 F.2d at 876. However, the government argues thatthe recording was sufficiently clear to be admissible. Although the district court initially expr essed skepticism that the recording was intelligible, the district court later concluded th at tape was admissible because sections were “easily discernable.” (R. 108, Order, PageID 1206–07.) The government also contends that the relevant portions of the tape can be understoo d. Noting that this Court generally “will leave rulings about admissibility undisturbed unless . . . le ft with the definite and firm conviction that the district court committed a clear error in judgment,” United States v. Dixon , 413 F.3d 540, 544 (6th Cir. 2005), the government argues that the vi deo was not so unintelli gible as to make the district court’s admission of the video a clear error in judgment. As for the argument that the government im permissibly opined about what Defendant said on the recording, the government argues that it did not commit any misconduct. The government argues that its statements were not im proper, given that it was “merely argu[ing] itsNo. 16-6092

16 interpretation of the evidence which had been presen ted at trial.” (Gov’t Br . at 23.) It therefore contends that, “[o]nce the district court determin ed that the recording was admissible and played it for the jury, both sides were free to argue thei r interpretations of it during closing argument.” ( Id. at 24.) We agree with the government that no misc onduct requiring a new tr ial occurred. The following test applies for claims of prosecutorial misconduct: firs t, we determine “whether the prosecutor’s conduct and remarks were improper.” Cristini v. McKee , 526 F.3d 888, 899 (6th Cir. 2008) (quoting United States v. Carter , 236 F.3d 777, 783 (6th Cir. 2001)). If so, we then decide “whether the impropriety was fl agrant and thus warrants reversal.” Id. Flagrancy is examined by looking at the following for factor s: “(1) whether the prosecutor’s remarks or conduct tended to mislead the jury or prejudice the accused; (2) whether the remarks were isolated or extensive; (3) whether the remarks we re accidentally or delibe rately made; and (4) the overall strength of the evid ence against the accused.” United States v. Barnett , 398 F.3d 516, 522 (6th Cir. 2005). This test is meant to re flect that prosecutorial misconduct must be “so pronounced and persistent that it permeate[d] the entire atmosphere of the trial.” United States v. Bond , 22 F.3d 662, 667 (6th Cir. 1994) (quoting United States v. Payne , 2 F.3d 706, 712 (6th Cir. 1993) (per curiam)). Generally courts “afford wide latitude to a prosecutor during closing argument, analyzing disputed comments in the context of the trial as a whole.” United States v. Henry , 545 F.3d 367, 377 (6th Cir. 2008). Prosecutors are also allowed to “forcefully assert reasonable inferences from the evidence.” Bates v. Bell , 402 F.3d 635, 646 (6th Cir. 2005). Given this broad leeway, we conclude that the district court did not abuse its discreti on in allowing the video to be admitted. After listening to the video recording, it is apparent that, while some of Braswell’sNo. 16-6092

17 statements are unintelligible mu tterings, others can be understood. Specifically, the relevant comment here, where Braswell allegedly admits that his prints are on the gun, can in fact be understood. Because portions of the tape can be understood, the district court did not incorrectly admit a tape that was too unintelligible to be trustworthy. Moreover, given that this Court “leave[s] rulings about admissib ility undisturbed unless . . . leftwith the definite and firm conviction that the district court committed a clear error in judgment,” Dixon , 413 F.3d at 544, we conclude that the video is not so clearly unintelligi ble as to warrant reversal. We furthermore hold that the government did not commit prosecutorial misconduct when it stated its interpretation of Braswell’s stat ements during closing arguments. Although Braswell argues that the prosecution, in eff ect, introduced a transc ript when they were not allowed to, we do not agree. We first note that the government’s statements were not cl early improper, as they reasonably could be characterized as making inferences from the admitted evidence. In addition, as noted above, Braswell can be heard on the reco rding saying something that sounds remarkably close to “prints all ov er that [expletive].” (Gov’t Ex. 5 at 19:49:00.) Therefore, the government’s statements were unlikely to prejudi ce the jury, given that they likely would have heard the same thing regardless of what the government said in its closing argument. Furthermore, the government only made the alle gedly improper statements during its closing argument, and not before the jury had had the opportunity to listen to the tapes. The jury also had the opportunity to listen to the tapes repeatedly during thei r deliberation, and in fact, the government encouraged them to do s o. Given the fairly isolated na ture of the comments, as well as the likely lack of prejudice to Braswell, we conclude that the gove rnment’s comments do not amount to prosecutorial misconduct that was so flagrant as to warrant reversal.No. 16-6092

18 IV. Sufficiency of the Evidence A. Standard of Review This Court reviews a challenge to the suffici ency of the evidence supporting a criminal conviction de novo

. United States v. Pritchett , 749 F.3d 417, 430 (6th Cir. 2014). This Court reviews a district court’s decisi on to deny a motion for a new trial for clear and manifest abuse of discretion. United States v. Ashworth , 836 F.2d 260, 266 (6th Cir. 1988).
B. Analysis A defendant challenging the sufficiency of the evidence “bears a very heavy burden.” United States v. Davis , 397 F.3d 340, 344 (6th Cir. 2005) (citation omitted). This Court must determine “whether, after viewing the evidence inthe light most favorable to the prosecution,

any rational trier of fact could have found th e essential elements of the crime beyond a reasonable doubt.” Id. (citations omitted). When engaging in this analysis, the court “neither independently weighs the evidence, nor judges the credibility of witn esses who testified at trial.” United States v. Howard , 621 F.3d 433, 460 (6th Cir. 2010) (citation omitted). Braswell argues that the jury’s verdict was ag ainst the weight of the evidence because no evidence links him to the handgun he was charged with illegally possessing. Specifically, no one saw him drop or place anything in the bushes. In addition, no one testified that they had seen him with the handgun or the marijuana accompa nying it. The gun was also not located in Braswell’s car or house, but inst ead it was in the bushes in front of an abandoned house. Therefore, according to Braswell, it was unreasonable for the jury to infer that he possessed the handgun, and the verdict was the result of impermissible inference-stacking. In support of his argument, Braswell contrasts United States v. Lowe , 795 F.3d 519 (6th Cir. 2015), with United States v. Garcia , 758 F.3d 714 (6th Cir. 2014). In Lowe , this CourtNo. 16-6092

19 determined that it was unreasonable to in fer that the defendant had downloaded child pornography even though the defe ndant owned the laptop on which the images were found and used a nickname close to his real name when downloading software and visiting websites. 795 F.3d at 523. Because two other people had access to the laptop, the Court determined that the evidence was insufficient to show that the de fendant was the one wh o downloaded the child pornography. Id. at 523–24. In contra st, the evidence in Garcia was strong enough to support a conviction for being a felon in pos session of a firearm where an o fficer saw items fall out of the defendant’s pocket as he fled from the officer s. 758 F.3d at 721. The gun was found in fresh snow, with the handle and barrel buried in the snow but the cylin der lying on top of the snow. Id. The jurors were also allowed to infer that the defendant’s flight indicated that he had possessed the firearm. Id. In comparing these two cases, Braswell argues that his case is similar to Lowe

. Specifically, like the laptop that others had access to, other had driven by the area where the gun and handgun were found. In addition, Officer Piazza had credibility issues , given his incorrect testimony that he did not take pi ctures at the scene when the ev idence revealed that he did. Therefore, Braswell argues that the jury was not allowed to “(1) link Mr. Braswell’s presence near an abandoned house with a bag of marijuana, and then (2) link the discovery of that bag to a handgun found nearby, in order to reach a verdic t beyond a reasonable doubt.” (Def.’s Br. at 38.) We disagree. The evidence in the instant case was indeed sufficient to support the conviction, given that all reasonab le inferences must be drawn in favor of the government. The evidence shows that Braswell was seen walking away from the bushes where the gun and marijuana were found. Braswell’s car strongly sme lled of marijuana, such that Officer PiazzaNo. 16-6092

20 thought marijuana was either still present or had just been there. Braswell was given a break when he was allowed to drive away despite his revoked license. Nevertheless he returned to the area less than an hour later, after switching cars, even though he was told that if he returned he would likely go to jail. Therefore, it was reasonabl e for the jury to infer that Braswell returned to the abandoned house, risking jail, for an important purpose, such as to retrieve the gun and the marijuana. Furthermore, Braswell was found with a substantial amount of cash on him, as well as digital scales with marijuana residue. The marijuana was very fragrant, like the marijuana smell from the first car, and f ound lying directly on top of the firearm. Moreover, when the officers found the marijuana with the gun, Braswe ll uttered something that sounded a lot like, “prints all over that [expletive] .” (Gov’t Ex. 5 at 19:49:00.) Given the inferences that can be drawn fr om that evidence, it was not unreasonable for the jury to conclude that Braswell possessed the gun. While the government’s case could have been stronger, this Cour t does not weigh the evidence or “cons ider the potential magnitude of the evidence not presented.” Garcia , 758 F.3d at 721. Instead, looki ng at the evidence in the light most favorable to the government, it is apparentthat impermissible in ference-stacking did not occur here. Indeed, the circumstantial evidence all points to a rational inference that Braswell had been in possession of the firearm. Thus, the district court did not err in denying Defendant’s motion for acquittal or motion fo r a new trial based on the lack of sufficient evidence, and we affirm Braswell’s conviction. V. Designation as an Armed Career Criminal A. Standard of Review This Court reviews de novo “whether a conviction qualifies as a ‘violent felony’” under the Armed Career Criminal Act (the “ACCA”). United States v. Hockenberry , 730 F.3d 645,No. 16-6092

21 663 (6th Cir. 2013) (citing United States v. Johnson , 707 F.3d 655, 658 (6th Cir. 2013)); see also United States v. Eubanks , 617 F.3d 364, 366 (6th Cir. 2010) (reviewing de novo whether a conviction that the defendant argued should ha ve been expunged qualified for purposes of the ACCA). B. Analysis The ACCA provides, in pertinent part: In the case of a person w ho violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstandi ng any other provision of law, the court shall not suspend the sentence of, or gran t a probationary sentence to, such person with respect to the conv iction under section 922(g). 18 U.S.C. § 924(e)(1). Braswell argues that he was improperly designated an armed career criminal for two reasons. First, he contends that two of his f our convictions in Tennessee for aggravated robbery or attempted aggravated robbery are void under Tennessee law, meaning they cannot be counted for purposes of the ACCA. Second, he argues that aggravated r obbery and attempted aggravated robbery under Tennessee law are not categorically violent felonies and thus do not count as predicate crimes under the ACCA. Each of th ese arguments is addressed in turn below. 1. Voidness of Two of Defendant’s Convictions for Aggravated Robbery Braswell argues that two of his four convi ctions, specifically the two aggravated robberies committed on June 30, 1994 and July 1, 1994, are void under Tennessee law and therefore were improperly included as predicate o ffenses for determining whether he is an armed career criminal. Braswell first notes that, fo r purposes of the ACCA, “[w]hat constitutes a conviction of such a crime,” meaning a “crime puni shable by imprisonment for a term exceedingNo. 16-6092

22 one year,” “shall be determined in accordance with the law of the jurisdiction in which the proceedings were held.” 18 U.S.C. § 921(a)(20). In this case, the two relevant crimes occurred and were prosecuted in Tennessee, meaning Tennessee law controls. Braswell next contends that these two c onvictions are void under Tennessee law. He notes that, as is apparent on th e face of his guilty plea for three counts of aggravated robbery and one count of attempted especially aggravated ro bbery, he was sentenced to concurrent sentences for all four crimes pursuant to a plea agreement. However, Braswell cont ends that his sentences were required, at least in part , to be consecutive sentences inst ead of concurrent sentences. Braswell committed the third and fourth aggravatedburglaries, which occurred in June and July, while out on bail for the first two crimes—the aggravated robbery committed on March 2, 1994, and the attempted especially aggravated r obbery committed on March 8, 1994. Under Tennessee law, “[i]n any case in which a defendant commits a felony while the defendant was released on bail . . . and the defendant is convicted of both offenses, the trial j udge shall not have the discretion as to whether the sentences shall run co ncurrently or cumulativel y, but shall order that the sentences be served cumulatively.” Tenn. Code Ann. § 40-20- 111(b). The Supreme Court of Tennessee has recognized that sentences imposed incontradiction of § 40- 20-111(b) are illegal. McLaney v. Bell , 59 S.W.3d 90, 93 (Tenn. 2001), overruled in part on other grounds by
Summers v. State , 212 S.W.3d 251 (Tenn. 2007). Moreover, under Tennessee law, the illegality of the senten ce affects both the underlying conviction as well as the sentence, as Braswell received the conc urrent eight year sentences as part of a guilty plea. The Supreme Court of Tennessee has recognized that “[w]hen a defendant bargains for and receives an illegal sentence, th e defendant will have the option of resentencing on the original plea or withdrawal of the pl ea and recommencement of the prosecution.” Smith v.No. 16-6092

23 Lewis , 202 S.W.3d 124, 129 (Tenn. 2006). Th e court further clarified th at “where ‘the sentence bargained for is otherwise illegal, the defenda nt is entitled to withdraw the plea.’” Id. (quoting McLaney , 59 S.W.3d at 95). Therefore, according to Braswell, because his sentences for the two later aggravated robberies were illegal and were the result of a plea bargain, his convictions are voided in their entir ety, given that he has the right to withdraw the plea altogether. Consequently, Braswell argues th at his convictions should not be considered as predicate offenses for the ACCA given that th ey have no legal effect in Tennessee. 3 Notably, however, Braswell has not actually obtained relief from th e Tennessee courts in relation to his claimed illegal sentence. We hold that the district court correctly determined that Braswell is unable to challenge his state aggravated robbery conv ictions in the contex t of a federal sentencing. As we have previously recognized, the Supreme Court, in Custis v. United States , 511 U.S. 485 (1994), “held that a defendant could not collaterally attack a state court conviction used for purposes of enhancement under the Armed Career Criminal Act unless the challenge was based on a violation of the right to counsel.” United States v. Aguilar-Diaz , 626 F.3d 265, 269 (6th Cir. 2010) (citing Custis , 511 U.S. at 496). Indeed, this Court “has interpreted Custis as recognizing right-to-counsel violations as the sole non-statutory grounds on which a co llateral attack may be entertained at sentencing.” Id. at 270. This rule has routinel y been applied by this Court, including in United States v. Lalonde , 509 F.3d 750 (6th Cir. 2007), in which a defendant argued that his prior Kentucky theft conviction was inva lid because it was based on a guilty plea entered

3 Indeed, Braswell points to several cases where the Tennessee Court of Criminal Appeals noted that facially in valid judgments cannot be usedto enhance punishments in subsequent Tennessee prosecutions. See State v. Posey , 99 S.W.3d 141, 144 (Tenn. Crim. App. 2002); Clifton v. State , No. W2004-01385-CCA-R3-HC, 2005 WL 1363104, at *5 (Tenn. Crim. App. June 9, 2005).No. 16-6092

24 in abstentia

. 4 Id. at 767. While recognizing that the de fendant’s prior conviction likely was invalid as a matter of Kentucky law, we held: Nevertheless, no Kentucky court had decl ared Lalonde’s 1989 conviction invalid prior to his sentencing in the instant case. Thus, because Lalonde’s challenge to his conviction was not based upon an alleged violation of the right to counsel, the district court was bound . . . not to allo w Lalonde to collaterally challenge the validity of the conviction at sentencing. . . . Accordingly, we find that, even if Lalonde is correct in asserting the invalid ity of his prior state law conviction, the district court properly incl uded this conviction in its calculation of Lalonde’s criminal history category.
Id. at 768. Similarly, in Aguilar-Diaz , this Court again determined that Custis prevented a defendant from collaterally attacking his pr ior state court convictions as part of a federal sentencing. 626 F.3d at 269. In that case, the defendant argued that a prior Ohio conviction was void because the state court failed to impose required post-releas e supervision as part of his sentencing. Id. at 267. However, after finding that the defendant’s claim was “quite similar” to the claim rejected
in Lalonde , the Court determined that the defendant’s claim was “precluded as a collateral attack on a state conviction.” Id. at 270. Braswell argues that Custis does not, in fact, prevent him from challenging his state court convictions during sentencing. First, Braswell argues that Custis is inapplicable to cases where the issue is what counts as a “conviction,” given that Custis addressed only cases where it was assumed that there was a prior conviction. For support, Braswell cites this Court’s decision in United States v. Houston , 813 F.3d 282 (6th Cir. 2016), in wh ich the Court addressed whether a Tennessee conviction was properly considered a predicate under the ACCA’s definition of

4 Lalonde involved a challenge to the district court’s calculation of the defendant’s criminal history score, not whether the defendant was an armed career criminal. 509 F.3d at 766. However, Lalonde applied the rule announced in Custis , which specifically applies to the ACCA. Id. at 767 (applying Custis , 511 U.S. at 487).No. 16-6092

25 “conviction,” given that the stat e conviction was still in the process of being appealed. Id. at 292. Braswell argues that th e fact that the Court in Houston did not make reference to Custis reveals that Custis does not apply to the case at hand. We find Braswell’s argument s unavailing. The Court in Houston was not deciding whether the defendant was an armed career crimin al, but was instead tasked with determining whether a prior Tennessee conviction, which was st ill pending on direct appeal in state court, was a conviction such that the defendant was pr ohibited from possessing a firearm. 813 F.3d at 292. The defendant in that case wa s not trying to argue that th e conviction was void or invalid for some reason, but just that the timing of the federal and state cases meant that the Tennessee conviction did not make him a felon in possess ion because his felony c onviction was not final and it therefore was not illegal for him to possess a firearm. Id. Thus, the Court in that case had no reason to discuss Custis

. Defendant also argues that hi s challenge is authorized under Custis because it is authorized by statute—specifically that his challenge is allo wed based on the definition of “conviction” in § 921(a)(20). While it is true that, under Custis , “a defendant may collaterally attack a prior conviction used for purposes of se ntence enhancement only if (1) such attack is provided by statute, or (2) such attack is a constitutional one premised on a lack of counsel,” United States v. Reed , 141 F.3d 644, 652 (6th Cir. 1998), the Supreme Court was contemplating statutes such as 21 U.S.C. § 851, which “sets fort h specific procedures allowing a defendant to challenge the validity of a prio r conviction used to enhance the sentence for a federal drug offense.” Custis , 511 U.S. at 491. The Supreme Court fu rther opined that “[t]he language of § 851(c) shows that when Congress intended to au thorize collateral attack s on prior convictions at the time of sentencing, it knew how to do s o. Congress’ omission of similar language inNo. 16-6092

26 § 924(e) indicates that it did not intend to give defendants the right to ch allenge the validity of prior convictions under this statute.” Id. at 492. After examining the relevant statutory provisions, we conclude that the definitional section that applies to the ACCA, codified in § 921, is not the sort of statute that contains the ex press authorization to ch allenge prior convictions contemplated in Custis . Instead, the clear language of Custis holds that prior convictions cannot be collaterally attacked thr ough a sentencing for being an arme d career criminal pursuant to § 924(e). Braswell also attempts to distinguish his case from Aguilar-Diaz , given differences in Ohio and Tennessee law regarding void convictions . Braswell argues that it was important that,
in Aguilar-Diaz , only the sentence was considered void under Oh io law and not the underlying determination of guilt. 626 F.3d at 268. In Tennessee, by contrast, Braswell’s entire conviction, including both the sentence and the determination of guilt, is considered void because the illegal sentence was bargained for in a plea deal. Smith , 202 S.W.3d at 129. This argument, too, is unpersuasive. First, Aguilar-Diaz did not rely solely on the fact that the underlying determination of guilt was still in place when determining that Custis barred the defendant’s attack on his prior convictions. In fact, the Court specifically noted that “it is not necessary for us to determine whether Aguilar-Di az’s forgery conviction is void in Ohio or, if it is, whether it would still be valid for fede ral sentencing purposes.” 626 F.3d at 269. Furthermore, Judge Batchelder wrote separately, in her words, to “highlight an ambiguity in Ohio case law,” given that the Ohio Supreme Court has not clarified whether only the sentence is void, or both the sentence and the determination of guilt. Id. at 271. Therefore, Aguilar-Diaz cannot be distinguished based on the fact that the underlying determina tion of guilt was still intact in that case.No. 16-6092

27 Moreover, in Custis , the Supreme Court noted that th e definition of “conviction” in § 921(a)(20) provided that “[a]ny conviction whic h has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter.” 511 U.S. at 491 (quoting 18 U.S.C. § 921(a)(20)). The Court found that “[t]he provision that a court may not count a conviction ‘w hich has been . . . set aside’ creates a clear negative implication that courts may count a convictions that has not been set aside.” Id. (quoting 18 U.S.C. § 921(a)(20)). This language indicates that Braswell’s prior convictions were properly counte d, given that no Tennessee court has set them aside based on their voidness or illegality. Finally, this Court’s disposition in United States v. Watt , 162 F. App’x 486 (6th Cir. 2006), does not mandate the opposite outcome. In that case, the defendant made the same argument as Braswell in this case—that his pr ior convictions were i nvalid under Tennessee law because he was sentenced concurrently when he was required to be sentenced consecutively. Id. at 489. The defendant there ultimately obtained relief from his career offender enhancement in federal court. However, Watt is different for two key reasons. First, the defendant in that case actually had his state convictions set aside by the Tennessee state courts. Id. Second, Watt was a case brought pursuant to 28 U.S.C. § 2255, and not on direct appeal from a federal sentencing. Id. at 493. Custis specifically held that co llateral attacks on prior convi ctions could not be made during federal sentencing proceedings, but noted th at the prior convictions could be challenged on federal habeas review. 511 U.S. at 497. Therefore, the Watt Court found that “Watt followed the procedure contemplated by Custis . He successfully challenged his state convictions in state court, and only then did he seek § 2255 relief from the federal sentence enhancement that had been predicated on those convict ions.” 162 F. App’x at 493.No. 16-6092

28 In contrast, Braswell here sought to cha llenge his prior convict ions during a federal sentencing proceeding, which is specifically disallowed by Custis . Moreover, Braswell’s convictions have not been set aside by any cour t in Tennessee, despite his argument that he clearly would be enti tled to such relief. 5 We therefore hold that Braswell’s prior convictions were properly counted as predicate offenses under the ACCA. 6
2. Aggravated Robbery as Violent Felony Under the ACCA Braswell also argues that his four convicti ons—three for aggravated robbery and one for attempt of especially aggravat ed robbery—do not qualify as viol ent felonies under the ACCA in light of Johnson v. United States , 559 U.S. 133, 140 (2010). Howeve r, Braswell admits that this argument is foreclosed based on binding circuit precedent and that he is only raising this argument here in order to preser ve the issue for further appeal. Indeed, this Court has repeated ly held that aggravated robbery under Tennessee law is a violent felony under the “use of force” clause of the ACCA. See United States v. Gloss , 661 F.3d 317, 319 (6th Cir. 2011); United States v. Bailey , 634 F. App’x 473, 476 (6th Cir. 2015). Therefore, the district court properly determined that Braswell’s prior convictions for aggravated

5 Braswell asserts that he cannot obtain relief in Tennessee gi ven that he is no longer in custody and has already served his sentence. See State v. Wooden , 478 S.W.3d 585, 591 (Tenn. 2015); State v. Brown , 479 S.W.3d 200, 211–12 (Tenn. 2015). I ndeed, Braswell applied for state post-conviction relief but was denied relief for just that reason. State v. Braswell , Nos. 201324, 201325, 203114, 203483 (Crim. Ct. Hamilton Cty. Tenn. Dec. 22, 2015), available at R. 111-4, PageID #1307. At the federal sentencing, defense c ounsel stated that Bras well’s appeal of that decision was pending in the Tenn essee courts. The record c ontains no further information regarding the state proceedings. Regardless, this Court, when faced with the same argument in Aguilar-Diaz , held that it is immaterial whether “state-based relief is currently available.” 626 F.3d at 271.

6 This holding is without prejudice to Braswe ll’s ability to raise these issues in an appropriate § 2255 proceeding.No. 16-6092

29 robbery and attempted especially aggravated robb ery qualify as predicate offenses for purposes of the ACCA. CONCLUSION For the reasons stated above, we AFFIRM Braswell’s conviction and sentence for being a felon in possession of a firearm. Specifically, we conclude that the district court properly denied Braswell’s motion to s uppress the evidence obtained as result of the traffic stop. Moreover, the district court did not abuse it s discretion by declining to give a spoliation instruction or by admitting the recording of Bras well into evidence. Similarly, the government did not commit misconduct so flagrant as to require reversal by ch aracterizing what was said on the tape as a confession. Fu rthermore, the evidence was sufficient to find Braswell guilty. Finally, Braswell was properly cons idered an armed career crimin al and correctly barred from challenging his state convicti ons in the context of a fe deral sentencing hearing.No. 16-6092

30 HELENE N. WHITE, CircuitJudge, concurring. I concur in all but Part II.B of the majority opinion. I write separately because I do not agree that the i ssue whether a criminal defendant must show bad-faithconduct by the government to justify even the mildest of spoliation sanctions—a permissive adverse-inference instruction—is settled in this circuit. Further, it is unnecessary to deci de the question in this case.
I. The majority relies on United States v. Boxley , 373 F.3d 759 (6th Cir. 2004), and United States v. Spalding , 438 F. App’x 464 (6th Cir. 2011). Boxley , however, relied on Nationwide Mutual Fire Insurance Co. v. Ford Motor Co. , 174 F.3d 801 (6th Cir. 1999), for its understanding of spoliation sanctions. Boxley , 373 F.3d at 762. And Nationwide , following then-current circuit precedent, applied state law regarding spoliation sa nctions. 174 F.3d at 804 (“The rules that apply to the spoiling of evid ence and the range of appropriate sanctions are defined by state law; in this case, Ohio.”) (citation omitted). In Adkins v. Wolever , 554 F.3d 650 (6th Cir. 2009) (en banc), however, the court rej ected the application of state law to spoliation issues, explaining that “a spoliati on ruling is evidentiary in natu re and federal courts generally apply their own evidentiary rules in both federal question and diversity matters.” Id. at 652 (citation omitted). In doing so, the court overr uled “earlier opinions that applied state law to determine whether spoliation sanctions were available,” including Nationwide specifically. Id. at 651. 1 Thus, because Boxley relied on Nationwide ’s statement of Ohio law, it is not clear that the

1 The majority states that the Nationwide court applied Ohio law because Nationwide was a diversity case. See Maj. Op. at 10 n.2. In fact, prior to Adkins , this court applied state spoliation law in all civil cases, even those based on federal-question jurisdiction. Adkins , 554 F.3d at 652 (“Our circuit’s applica tion of state law to spoliation sanctions in federal question cases finds its origins in Welsh v. United States , 844 F.2d 1239 [(6th Cir. 1988)], a Federal Tort Claims Act case.”); see, e.g. , Beck v. Haik , 377 F.3d 624, 628 (6th Cir. 2004) (applying Michigan spoliation law in a § 1983 civil rights action), overruled by Adkins , 554 F.3d 650.No. 16-6092

31 rule applied in Boxley correctly states the federal law applicable here. 2 Spalding was decided after Adkins , but Spalding relies exclusively on Boxley , and does not address the fact that Adkins overruled Nationwide

. Spalding , 438 F. App’x at 467. Further, Spalding is unpublished. It is also not clear whether or to what ex tent we should rely on cases from outside this circuit, and where that should le ad us. True, the First Circui t has stated that a spoliation instruction in a criminal case “usually makes sense only where the evidence permits a finding of bad faith destruction; ordinarily negligent destruction would not suppo rt the logical inference that the evidence was favorable to the defendant.” United States v. Laurent , 607 F.3d 895, 902 (1st Cir. 2010) (emphasis in original) (citation omitted). However, the Laurent court went on to say that “the case law is not uniform in the culp ability needed for the in struction,” and “negligent destruction of a particular piece of evidence likely to be exculp atory” might justify a spoliation instruction. Id. at 902–03 (citations omitted); see United States v. Flores-Rivera , 787 F.3d 1, 19 & n.13 (1st Cir. 2015) (stating that the government’s negligent destruction of probative evidence did not justify a new trial, but that the defendant s “likely would have been entitled to a spoliation instruction” had they requested one). The Fifth Circuit’s decision in United States v. Wise , 221 F.3d 140, 156 (5 th Cir. 2000), which the majority also cites, has little persua sive value. Wise is a criminal case, and it does conclude that evidence of bad faith is n ecessary to support a s poliation instruction. Id. But Wise relies on civil cases for its conclu sions about spoliation sanctions. Id. And it appears that at least at the time Wise was decided, bad faith was required to ju stify a spoliation instruction in civil cases in the Fifth Circuit. Id. By contrast, and as the major ity recognizes, bad faith is not

2 The majority concludes that Boxley remains good law because “ Boxley can only logically be read as adopting the bad faith requirement for spoliation instructions, described in Nationwide , for all criminal cases in this circuit,” especially since Boxley originated in the Western District of Tennessee. Maj. Op. at 10 n.2. But Boxley does not even acknowledge the choice-of-standard question, or any distinction between civil and criminal cases, much less analyze those issues. 373 F.3d at 762–63. It simply rep eats the standards stated in Nationwide

.No. 16-6092

32 required for a spoliation instruction in a civil case in our circuit. Beaven v. U.S. Dep’t of Justice , 622 F.3d 540, 554 (6th Cir. 2010). Further, as the majority acknowledges, the Ni nth Circuit is split on this very issue. Compare United States v. Romo-Chavez , 681 F.3d 955, 961 (9th Cir. 2012) (“a criminal defendant must establish . . . that the evidence was destroyed in bad faith”), with United States v. Sivilla , 714 F.3d 1168, 1173 (9th Cir. 2013) (holding that “[b]ad faith is the wrong legal standard for a remedial jury instructi on,” and, instead, “[c]ourts must balance the quality of the Government’s conduct against the degree of pr ejudice to the accused, where the government bears the burden of justifying its conduct and the accused of demonstrating prejudice”) (citation and quotation marks omitted). As for other circuits, the Eighth Circuit ha s assumed—but not actual ly decided—that its bad-faith requirement for a spoliati on instruction in a civil case also applies in criminal cases. See United States v. Davis , 690 F.3d 912, 922 (8th Cir. 2012), cert. granted, judgment vacated on other grounds , 133 S. Ct. 2852 (2013). The EleventhCircuit has not decided whether spoliation instructions based on the government’s failure to preserve evidence are ever appropriate in criminal cases. United States v. Lanzon , 639 F.3d 1293, 1302 (11th Cir. 2011) (declining to decide the question because the defendant would not be entitled to an instruction under the civil standard, which in the Eleventh Circuit includes a bad-faith requirement). And the Second, Third, Fourth, Sevent h, Tenth, and D.C. Circuits do not appear to have addressed this issue. All of this is to say that, given the circumstances, Boxley , Spalding , and the cases from other circuits do not provide a definitive answer to the questi on whether bad-faith conduct by theNo. 16-6092

33 government is a necessary predicat e to a district court in this circuit granting a permissive adverse-inference instruc tion in a criminal case.
II. Under the facts of this case, it is not necessa ry to decide which standard should apply to requests for a spoliation instruction in a criminal cas e, because even if the district court erred by not giving a spoliation instruc tion, that error was harmless. “Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.” Fed. R. Crim. P. 52(a). Braswell does not contend th at the spoliation issue here is of constitutional magnitude, so any error is harmless if there “is ‘a preponderance of the evidence that the error did not materially affect the verdict.’” United States v. Hendrickson , 822 F.3d 812, 824 & n.5 (6th Cir. 2016). (e mphasis in original) (quoting United States v. Kilpatrick , 798 F.3d 365, 378 (6th Cir. 2015)). Given the circumstances of this case, that standard is easily satisfied. A permissive adverse-inference instruction is “simply a formali zation of what the jurors would be entitled to do even in the absence of a specific instruction.” West v. Tyson Foods, Inc. , 374 F. App’x 624, 635 (6th Cir. 2010). At trial, defense counsel wa s permitted to, and did, argue strenuously that the jurors should infer that the missing photograp hs would have shown something unfavorable to the government. Braswell is corr ect that an instruction from th e court generally carries more weight than argument from counsel. See Arch Ins. Co. v. Broan-NuTone, LLC , 509 F. App’x 453, 459 (6th Cir. 2012). Here, however, defense counsel laid the groundwork for his argument by successfully using the dashcam video to fo rce Officer Piazza to re verse his testimony and admit he had taken photographs of the evidence. If the juro rs were not willing to drawNo. 16-6092

34 inferences in Braswell’s favor after this drama tic and effective cross-examination, there is no reason to think a spoliation instructio n would have changed their minds. Braswell argues that the photog raphs might have shown that there were fingerprints on the gun—fingerprints that Officer Piazza never identified—and thus a spoliation instruction was necessary to compensate for the photographs’ absence. But Officer Piazza testified that there were visible fingerprints on the gun. Photographs showing the same thing would not have added anything to Braswell’s defense. Nor would Braswell have been helped by an instruction telling the jurors they could infer something that Officer Piazza had already admitted. In truth, there was simply no favorable inference to be draw n from the destructio n of the photographs. 3 Further, as the majority’s opinion explains, ther e is substantial evidence connecting Braswell to the gun. True, the evidence is la rgely circumstantial. But Bras well’s recorded statements are powerful evidence of guilt. And nothing the jurors might have inferred from the photographs— or their absence—would have changed what Braswe ll said to himself when he saw the officers discover the gun and the marijuana. In sum, the absence of a spoliation instructi on did not affect Braswe ll’s substantial rights and was, at most, harmless error.

3 Below, Braswell suggested the photographs might have shown that the gun had dirt or leaves on it, or that the marijuana was not fresh. Braswell does not raise those ar guments on appeal. Regardless, Officer Piazza admitted under cross-examination that the gun was covered with leaves. And while the jurors might have inferred from the absence of the photographs that the mari juana was not as fresh as Officer Piazza said it was, there is no reason to think this would have changed the outcome of the trial, given Braswell’s recorded st atements and Officer Piazza’s otherwise uncontested description of events.