UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-4392

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

ARTHUR FLEMING MOLER,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Columbia. Joseph F. Anderson, Jr., Senior

District Judge. (3:14-cr-00393-JFA-1)

Submitted: March 21, 2016 Decided: May 27, 2016

Before WILKINSON and DIAZ, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Joshua Snow Kendrick, KENDRICK & LEONARD, P.C., Greenville, 

South Carolina; Victor K. Li, LI LAW FIRM, LLC, Columbia, South 

Carolina, for Appellant. William N. Nettles, United States 

Attorney, T. DeWayne Pearson, Assistant United States Attorney, 

Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Arthur Fleming Moler appeals his convictions of trafficking 

in counterfeit goods,1 in violation of 18 U.S.C. §§ 2, 2320(a) 

(2012); smuggling unapproved medications into the United States, 

in violation of 18 U.S.C. § 545 (2012) and 21 U.S.C. 

§§ 352(f)(1), (2) (2012); and theft of government funds or 

property, in violation of 18 U.S.C. § 641 (2012). On appeal, 

Moler alleges that the district court erred in: (1) failing to 

grant his motion to dismiss the trafficking count or suppress 

evidence as a result of the destruction of evidence; 

(2) permitting expert testimony, and failing to safeguard 

against jury confusion; (3) allowing the admission of testimony 

regarding a prior civil seizure of counterfeit goods; and 

(4) failing to suppress evidence as the fruit of an illegal 

search and seizure. We affirm.

In reviewing a denial of a motion to dismiss or suppress, 

we review the district court’s factual findings for clear error 

and its legal conclusions de novo. United States v. Abramski, 

706 F.3d 307, 313-14 (4th Cir. 2013). The Government’s duty to 

preserve evidence is triggered when that evidence “possess[es] 

an exculpatory value that was apparent before the evidence was 

 1 The indictment alleged trafficking in counterfeit Coach, 

TaylorMade, Golf Pride, Beats by Dre, Adobe, Ray-Ban, National 

Football League, Viagra, and Cialis products. 
3

destroyed, and [is] of such a nature that the defendant would be 

unable to obtain comparable evidence by other reasonably 

available means.” California v. Trombetta, 467 U.S. 479, 488-89 

(1984). 

However, where, as here, the Government fails “to preserve 

evidentiary material of which no more can be said than that it 

could have been subjected to tests, the results of which might 

have exonerated the defendant,” no due process violation occurs 

“unless a criminal defendant can show bad faith on the part of 

the police.” Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988). 

Bad faith requires that the Government “have intentionally 

withheld the evidence for the purpose of depriving the 

[defendant] of the use of that evidence during his criminal 

trial.” Jean v. Collins, 221 F.3d 656, 663 (4th Cir. 2000) (en 

banc) (Wilkinson, J., concurring)2; United States v. Fridie, 442 

F. App’x 839, 842 (4th Cir. 2011) (per curiam); see also Jones 

v. McCaughtry, 965 F.2d 473, 477 (7th Cir. 1991) (“[T]o show bad 

 2 In Jean, the district court was affirmed by an equally 

divided court in a per curiam opinion. Judge Wilkinson wrote a 

concurrence for six judges, Judge Murnaghan wrote a dissent for 

five judges, and Judge Luttig issued a dissenting opinion. The 

definition of “bad faith” in Judge Wilkinson’s concurrence, 

however, appears to have had the support of a majority of the 

court. See Jean, 221 F.3d at 679 (Luttig, J., dissenting) 

(explaining that the court should remand the case to allow the 

plaintiff “the opportunity to establish on remand that [the 

government] intentionally withheld the evidence in question for 

the purpose of preventing him from using it at trial”).
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faith, Petitioner must prove ‘official animus’ or a ‘conscious 

effort to suppress exculpatory evidence.’” (quoting United 

States v. Nesbitt, 852 F.2d 1502, 1520 (7th Cir. 1988))). 

Although Blazer Investigations, the custodian of the 

evidence in question, is a third party, we conclude that its 

relationship with the Government is sufficient to establish an 

agency relationship. Fourth Amendment protections apply “when a 

private individual conducts a search ‘as an instrument or agent 

of the Government.’” United States v. Richardson, 607 F.3d 357, 

364 (4th Cir. 2010) (quoting Skinner v. Ry. Labor Execs. Ass’n, 

489 U.S. 602, 614 (1989)). However, Moler’s claim fails because 

he has not demonstrated that the evidence was destroyed in bad 

faith. Blazer Investigations maintained a standard retention 

policy under which it would destroy counterfeit goods after 

ninety days unless a law enforcement agency indicates that the 

evidence should be retained. Here, Blazer destroyed the 

evidence pursuant to that retention policy, militating against a 

finding of bad faith. United States v. Montieth, 662 F.3d 660, 

666 n.1 (4th Cir. 2011). 

While Moler presents some evidence in support of his claim 

of bad faith, the evidence merely indicates that criminal 

prosecution was a possibility, not that prosecution was certain 

or even probable. The evidence therefore supports, at most, an 

inference of negligence on the part of the Government or
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recklessness in failing to insure the preservation of the

evidence. It falls short, however, of establishing that the 

Government “intentionally withheld the evidence for the purpose 

of depriving [Moler] of the use of that evidence during his 

criminal trial.” Jean, 221 F.3d at 663 (Wilkinson, J., 

concurring).

Regarding Moler’s arguments that the district court erred 

in admitting the expert testimony of Wayne Grooms, we review 

evidentiary rulings, as well as a district court’s decision to 

qualify an expert witness, for abuse of discretion. United 

States v. Garcia, 752 F.3d 382, 390 (4th Cir. 2014). In 

reviewing for abuse of discretion, we do not substitute our 

judgment for that of the district court; reversal is warranted 

only if, in consideration of the law and facts of the case, the 

district court’s determination was arbitrary or capricious. 

United States v. Mason, 52 F.3d 1286, 1289 (4th Cir. 1995).

A witness who is qualified as an expert by knowledge, 

skill, experience, training or education may testify

in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other 

specialized knowledge will help the trier of fact 

to understand the evidence or to determine a fact 

in issue;

(b) the testimony is based on sufficient facts or 

data;

(c) the testimony is the product of reliable 

principles and methods; and
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(d) the expert has reliably applied the 

principles and methods to the facts of the case.

Fed. R. Evid. 702. Grooms testified that he had 30 years of 

experience in trademark investigations and, during those 30 

years, “worked over 8,000 trademark cases in 43 different states 

and eight foreign countries.” He had contracts to investigate 

trademark infringement for TaylorMade, Adobe, Beats by Dre, 

Coach, Golf Pride, and Ray-Ban. Grooms attended short training 

seminars given by these companies to assist in detecting 

counterfeit products. 

Considering the totality of Grooms’ training and 

experience, we cannot conclude that the district court abused 

its discretion in qualifying him as an expert witness. See

United States v. Wilson, 484 F.3d 267, 275-76 (4th Cir. 2007) 

(district court did not abuse its discretion in qualifying an 

individual as an expert where he had 9 years of experience 

related mostly to the subject matter to which he was 

testifying); Garcia, 752 F.3d at 391 (finding that the witness 

qualified as an expert based on her 5 years of experience in the 

field). 

Furthermore, Grooms reliably applied acceptable methodology 

in his testimony. He noted which features on each item varied 

from its authentic counterpart, and explicitly noted that these 

issues formed the basis of his opinion that the items were 
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counterfeit. Grooms admitted when he was unable to determine 

that a product was counterfeit, or when he could not make such 

an assertion based on his knowledge of a specific product. 

Admittedly, there are instances where Grooms’ testimony was 

conclusory, and he sometimes failed to explain exactly how he 

gained certain knowledge. However, these deficiencies relate to 

the weight, rather than the admissibility, of his testimony. 

Therefore, we conclude that the testimony satisfied the 

requirements of Rule 702, and the district court did not abuse 

its discretion in admitting it.

We next turn to Moler’s argument that Grooms’ expert 

testimony was not sufficiently distinct from his fact testimony. 

Because this issue was not raised in the district court, it is 

subject to plain error review. United States v. Catone, 769 

F.3d 866, 871 (4th Cir. 2014). “To establish plain error, 

[Moler] must show (1) that the court erred, (2) that the error 

is clear and obvious, and (3) that the error affected his 

substantial rights, meaning that it ‘affected the outcome of the 

district court proceedings.’” Id. (quoting United States v. 

Olano, 507 U.S. 725, 732–34 (1993)). Even if those three 

factors are met, we will deny relief “unless the district 

court’s error ‘seriously affects the fairness, integrity or 

public reputation of judicial proceedings.’” Id. (quoting Olano, 

507 U.S. at 736).
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We have “recognized that individuals who testify as expert 

and fact witnesses can cause jury confusion, and such a manner 

of proceeding is only acceptable where the district court took 

adequate steps to make certain that the witness’s dual role did 

not prejudice or confuse the jury.” Garcia, 752 F.3d at 392 

(internal ellipses, brackets, and quotation marks omitted). 

Such safeguards might include requiring the witness to 

testify at different times, in each capacity; giving a 

cautionary instruction to the jury regarding the basis 

of the testimony; allowing for cross-examination by 

defense counsel; establishing a proper foundation for 

the expertise; or having counsel ground the question 

in either fact or expertise while asking the question.

Id. 

While Grooms testified both as a fact witness and an expert 

witness, certain safeguards were in place to prevent jury 

confusion. First, a proper foundation was laid for the basis of 

Grooms’ expert opinion. As discussed previously, Grooms 

testified to his expertise in the field of trademark 

investigations, and testified regarding each specific feature on 

the items that allowed him to determine that the items were 

counterfeit. Second, many of the prosecution’s questions were 

phrased in such a way as to clarify that Grooms was providing 

his expert opinion. Finally, Moler was able to cross examine 

Grooms about the bases for his conclusions that the goods were 

counterfeit. Given the safeguards in place, and the relatively 
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straightforward manner of Grooms’ testimony, we conclude that 

Moler has not sustained his burden of demonstrating plain error.

Moler further argues that the district court erred in 

permitting testimony of a prior civil seizure of counterfeit 

goods. Failure to object at trial will generally subject an 

issue to plain error review on appeal. United States v. Basham, 

561 F.3d 302, 334 (4th Cir. 2009). However, where a party has 

explicitly abandoned an argument, it is deemed waived and will 

not be reviewed on appeal. Id. at 335. If a party files a 

motion in limine and the district court fails to “clearly and 

definitively rule[] on the motion . . . and the party that 

brought the motion in limine does not at trial either object to 

a ruling by the district court or at least renew his request for 

a ruling, he waives for appeal the issue in the motion.” United 

States v. Lighty, 616 F.3d 321, 353 n.36 (4th Cir. 2010). 

Here, Moler filed a motion in limine seeking to exclude any 

testimony relating to the prior civil seizure of counterfeit 

goods. The district court took under advisement possible 

limitations on the admissibility of the evidence, but did not 

clearly and definitively rule on the motion. As Moler concedes, 

he failed to renew the objection at trial; by doing so, he 

waived this argument.

Finally, Moler argues that the district court erred in 

failing to suppress evidence obtained during the search of the 
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warehouse. Parties are required to raise motions to suppress 

evidence prior to trial. Fed. R. Crim. P. 12(b)(3)(C). “The 

failure to file a suppression motion by the specified pretrial 

deadline operates as a waiver unless the court grants relief 

from the waiver for good cause.” United States v. Moore, 769 

F.3d 264, 267 (4th Cir. 2014) (internal quotation marks and 

brackets omitted). 

Moler concedes that he failed to file a motion to suppress 

prior to trial, and failed to make any objection to the 

admission of the evidence during trial. Moreover, Moler fails 

to point to any good cause for the failure to file a pretrial 

motion, and we discern none from the record. Absent such a 

showing, Moler has waived review of this issue. United 

States v. Whorley, 550 F.3d 326, 337 (4th Cir. 2008).

Accordingly, we affirm Moler’s convictions. We dispense

with oral argument because the facts and legal contentions are 

adequately presented in the materials before this court and 

argument would not aid the decisional process.

AFFIRMED