Appellate Case: 23-5087 Document: 62-1 Date Filed: 10/24/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 24, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-5087 (D.C. No. 4:22-CR-00417-KES-1) LEEROY WENDELL MCQUEARY, II, (N.D. Okla.) a/k/a Lee Roy Wendall McQueary, II, a/k/a Leeroy McQueary, a/k/a Leeroy Wendal McQueary,
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MATHESON, KELLY, and MORITZ, Circuit Judges. _________________________________
A jury convicted Leeroy Wendell McQueary, II of two counts of assault with a
dangerous weapon with intent to do bodily harm in Indian country. On appeal, he
challenges the district court’s (1) denial of an adverse inference jury instruction based on
destroyed portions of surveillance video footage of the incident and (2) order that he pay
restitution to the hospital for damages to a security vehicle.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-5087 Document: 62-1 Date Filed: 10/24/2024 Page: 2
Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm
the district court’s denial of the jury instruction and reverse its restitution order.
I. BACKGROUND
A. Factual Background1
The Incident
On November 4, 2022, Mr. McQueary entered Saint Francis Hospital
(“St. Francis”) in Tulsa, Oklahoma to visit a hospitalized friend. Two front desk workers
tried to assist him but called hospital security after observing Mr. McQueary’s incoherent
and erratic behavior. St. Francis Security Officer Kyle Warlick responded and escorted
Mr. McQueary out of the building to his car in the parking lot. Mr. McQueary swore at
him on the way to the parking lot.
While walking, S.O. Warlick called for backup. Security Officer Mark Young
responded in a St. Francis security vehicle, pulling up behind Mr. McQueary’s vehicle as
he stood next to it with the door open. At S.O. Warlick’s direction, S.O. Young
repositioned the security vehicle to leave space for Mr. McQueary to exit. Security
Officer Rodger Wall then arrived on foot.
Mr. McQueary yelled insults and threats at the security officers before getting into
his vehicle and again through his passenger-side window after backing out of his parking
spot. He then accelerated forward and sideswiped S.O. Young’s vehicle. S.O. Wall and
S.O Warlick ran to the adjacent lane of the parking lot to protect any pedestrians from
1 We draw this factual history from the trial evidence.
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Mr. McQueary on his way to the exit. Mr. McQueary rounded the corner into the lane
where they stood, accelerated, and steered towards them in an apparent attempt to hit
them. The security officers drew and fired their firearms at Mr. McQueary’s vehicle
because they feared for their lives. Mr. McQueary’s vehicle missed both men and sped
out of the parking lot exit.
The Surveillance Video
St. Francis has a surveillance network of over 800 cameras. The system produces
a video with a timestamp, but no audio.
Shortly after the incident on November 4, Tulsa Police Department (“TPD”)
Officers Nhia Yang and Brandon Slater arrived at St. Francis. The officers’ body camera
footage showed them gathering witness statements and reviewing surveillance footage of
the incident with S.O. Wall—one of the assault victims. Officer Yang asked for a copy of
the recording, but St. Francis Security Manager Matthew Hart denied the request, stating
that St. Francis’s general counsel must approve release of any videos.
St. Francis captured the portions of the surveillance footage it deemed relevant
without input from TPD. With its general counsel’s approval, St. Francis released three
clips to TPD and Special Agent Ben Nechiporenko of the Bureau of Alcohol, Tobacco,
Firearms, and Explosives (“ATF”), who assisted in the investigation. The three clips
show:
St. Francis’s lobby, beginning when Mr. McQueary entered and ending when Security Officer Warlick escorted him out.
A wide view of the parking lot, beginning after Mr. McQueary got into his vehicle and ending after he departed the parking lot.
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A zoomed-in view of the parking lot, showing the moment Mr. McQueary’s vehicle almost struck the security officers.
The released footage did not include approximately three minutes of video
showing S.O. Warlick escorting Mr. McQueary to his vehicle and waiting for him to
depart. The two videos of St. Francis’s parking lot no longer had time stamps. Security
Manager Hart explained that the software used to capture the video likely removed the
time stamps.
Law enforcement, satisfied with the footage it received, requested no more. Under
standard procedure, the St. Francis surveillance system automatically recorded over the
footage of the incident 29 to 30 days later. No witness testified that law enforcement was
aware of this practice.
B. Legal Background
Mr. McQueary argues the district court’s failure to instruct the jury on spoliation
of surveillance evidence violated due process. To aid in understanding the district court
proceedings on this issue, we provide a brief overview of the applicable law.
Two Supreme Court decisions, California v. Trombetta, 467 U.S. 479 (1984), and
Arizona v. Youngblood, 488 U.S. 51 (1988), govern whether the destruction of evidence
violates due process.
In Trombetta, the Court held that the government has a duty to preserve “evidence
that might be expected to play a significant role in the suspect’s defense.” 467 U.S.
at 488. Failure to preserve evidence violates due process if (1) the destruction of the
evidence is attributable to the government, id. at 488-89; and (2) the evidence
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“possess[ed] an exculpatory value that was apparent before [it] was destroyed,”
id. at 489.
In Youngblood, the Court extended Trombetta to provide that, “unless a criminal
defendant can show bad faith on the part of the police, failure to preserve potentially
useful evidence does not constitute a denial of due process of law.” 488 U.S. at 58.
“[M]ere negligence on the government’s part in failing to preserve such evidence is
inadequate for a showing of bad faith.” United States v. Bohl, 25 F.3d 904, 912
(10th Cir. 1994). To determine whether the Government acted in bad faith under
Youngblood, this court has considered factors identified in Bohl.
C. Procedural History
Charges
Mr. McQueary, an Indian, was charged by complaint with two counts of assault
with a dangerous weapon with intent to do bodily harm in Indian country under 18 U.S.C.
§§ 1151 and 113(a)(3). A grand jury later indicted him for the same offenses, which are
crimes under the Major Crimes Act, 28 U.S.C. § 1153(a).
Request for Additional Footage and Motion for Adverse Inference Jury Instruction
Mr. McQueary’s counsel was appointed on November 30, 2022—26 days after the
incident. Aplt. Br. at 24. On January 27, 2023, she requested the Government to provide
“all camera footage from every angle in which this incident occurred for at least one hour
prior to the incident and until the completion of any investigation contained on the
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video.” ROA, Vol. I at 32. The Government promptly requested the footage from
St. Francis. St. Francis responded that it no longer had footage from November 4.
Mr. McQueary filed a pretrial motion for an adverse inference jury instruction
based on spoliation of evidence. He argued that the Government destroyed or
manipulated portions of surveillance video that had “apparent” exculpatory value,
violating California v. Trombetta. Id. at 21. Alternatively, he argued that the missing
footage was at least “potentially useful” and that it had been destroyed in bad faith,
violating Arizona v. Youngblood. Id. at 22. Mr. McQueary requested a curative
instruction that would inform the jury that “it may infer that unpreserved video evidence
would have been unfavorable to the Government’s theory of prosecution.” Id. at 18.
The district court deferred its decision on the motion until the jury instruction
conference after the trial evidence.
Trial
During trial, the prosecution called five eyewitnesses who testified regarding the
incident at St. Francis—Security Officers Warlick, Wall, and Young—and two bystanders
from the parking lot—Denver O’Neill and Alicia Case. It also called two St. Francis
front desk workers—Marjorie Lawrence and Jacci Carpio—who had assisted
Mr. McQueary and called hospital security. The prosecution introduced the three
surveillance videos obtained from St. Francis. Officers Slater and Yang discussed the
evidence they gathered. ATF Special Agent Nechiporenko testified about recorded calls
between Mr. McQueary and his mother and the surveillance video evidence.
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The defense called St. Francis’s records custodian who confirmed Mr. McQueary’s
friend was admitted to St. Francis. The defense also called an expert accident
reconstructionist, who testified about the sideswipe of St. Francis’s security vehicle. He
also approximated the distance between the security officers and Mr. McQueary’s vehicle
when they drew their firearms. An investigator from the public defender’s office
testified, reconstructing what Mr. McQueary would have seen as he drove through the
parking lot. Mr. McQueary called St. Francis Security Manager Hart and Security
Director Julie Harris to talk about St. Francis’s surveillance system, the released footage,
and the missing videos. Finally, he called TPD Officer Sergio Natividad, who stated that
he found two bullet holes in Mr. McQueary’s vehicle.
Jury Instruction Conference
At the jury instruction conference after the trial evidence, the district court denied
Mr. McQueary’s proposed instruction. It first found that the destruction was not
attributable to the Government. ROA, Vol. III at 537 (“[T]here isn’t any evidence that the
Government destroyed this evidence.”); id. at 538 (“Here it’s actually the hospital . . . and
not the Government that destroyed the evidence.”).
Even assuming attribution, the district court found that Mr. McQueary had failed
to show under Trombetta that the missing footage had “apparent exculpatory
significance.” Id. at 536-37. The court observed that the lost footage included (1) “a
three-minute time span of video where [he] left the hospital, and he arrived at his car in
the parking lot;” and (2) time stamps on the videos of the parking lot. Id. at 537. It found
that Mr. McQueary “ha[dn’t] alleged that anything specific happened during those time
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periods” and that “individuals involved with capturing the video testified that they
believe that they had captured all of the relevant video footage.” Id.
The district court next considered whether “the Government acted in bad faith in
destroying [potentially useful] evidence” under Youngblood. Id. at 538. Using the Bohl
factors, the court explained that the destruction of footage was done innocently in the
ordinary course of business by St. Francis’s automatic recopying procedure. Id.
at 538-39. It also accepted the Government’s innocent explanation for the lost time
stamps that St. Francis’s software was likely to blame. Id. at 539. The court concluded
that, because the Government was not aware of any potential exculpatory value until
“well after” the 30-day preservation period, even if it had destroyed the footage, it had
not done so in bad faith. Id. at 538-39.
Based on its finding that the Government had not destroyed evidence in violation
of Mr. McQueary’s due process rights under Trombetta-Youngblood, the district court
denied the motion for an adverse inference jury instruction.
Conviction and Sentence
The jury convicted Mr. McQueary of both assault counts. The district court
sentenced him to 70 months in prison for each count, to run concurrently, followed by
three years of supervised release. The court also ordered Mr. McQueary to pay $1,704.09
in restitution to St. Francis for damage to its security vehicle. Mr. McQueary timely
appealed.
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II. DISCUSSION
On appeal, Mr. McQueary argues the district court (A) abused its discretion by
denying his proposed adverse inference jury instruction and (B) plainly erred in awarding
restitution to St. Francis for damage to its security vehicle.
A. Motion for Adverse Jury Instruction
Mr. McQueary contends the district court clearly erred in finding that the
Government did not violate his due process rights under Trombetta or Youngblood, and
that failure to give his proposed instruction thus violated his right to a fair trial. We
disagree.
Standard of Review
“A trial court’s decision to give or refuse an adverse inference [jury] instruction is
reviewed for an abuse of discretion.” Gilbert v. Cosco Inc., 989 F.2d 399, 406
(10th Cir. 1993); accord Smith v. Nichols, 506 F. App’x. 795, 799 (10th Cir. 1993)
(unpublished). “In doing so, we accept the district court’s factual findings unless they are
clearly erroneous.” Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1032
(10th Cir. 2007); see also Moreno v. Taos Cnty. Bd. of Comm’rs, 587 F. App’x. 442, 444
(10th Cir. 2014) (unpublished).2
“We review the district court’s ruling on whether the [missing or destroyed]
evidence bore apparent exculpatory value for clear error.” Johnson v. City of Cheyenne,
2 We cite unpublished cases as persuasive under Fed. R. App. P. 32.1(A) and 10th Cir. R. 32.1.
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99 F.4th 1206, 1228 (10th Cir. 2024). We also review a court’s finding that the
government did not destroy evidence in bad faith for clear error. Bohl, 25 F.3d at 909
(“[B]ad faith presents a mixed question of fact and law in which ‘the quintessential
factual question of intent’ predominates.” (quoting United States v. Richard,
969 F.2d 849, 853 (10th Cir. 1992)). When reviewing for clear error, “we will not disturb
a trial court’s [finding] unless we have a definite and firm conviction that the trial court
made a clear error of judgment.” United States v. Walker, 85 F.4th 973, 979
(10th Cir. 2023).
Analysis
a. California v. Trombetta
We conclude that Mr. McQueary’s Trombetta challenge fails because he has not
shown the district court clearly erred in finding the evidence destruction was not
attributable to the Government or that the missing surveillance evidence had “apparent”
exculpatory value.
i. Attribution
A threshold Trombetta-Youngblood question is whether the Government was
responsible for destruction of evidence. Trombetta, 467 U.S. at 488-89; Youngblood,
488 U.S. at 58. If not, there is no due process violation. See Bullock v. Carver,
297 F.3d 1036, 1056 (10th Cir. 2002). When a nongovernmental entity destroys
evidence, the destruction may be attributed to the government only when the entity acted
as the government’s agent. See, e.g., United States v. Beckstead, 500 F.3d 1154, 1158 n.3
(10th Cir. 2007); Bullock, 297 F.3d at 1055-57.
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Mr. McQueary has not shown that St. Francis acted as a government agent. The
TPD neither instructed nor advised St. Francis on “where to place cameras, how to record
what the cameras detected, or how to preserve video recordings.” United States v.
Fernandez, 24 F.4th 1321, 1337 (10th Cir. 2022). St. Francis—not the police—recorded
over the footage, following its standard procedure. The record lacks evidence that the
Government was even aware of St. Francis’s 30-day automatic destruction procedure
until well after the footage had been destroyed. But even if evidence destruction could be
attributed to the Government, we affirm on the next element of the Trombetta test.
ii. “Apparent” Exculpatory Value
Mr. McQueary argues that St. Francis destroyed (1) approximately three minutes
of footage showing Mr. McQueary being escorted from St. Francis to his vehicle; (2) time
stamps on the preserved clips of Mr. McQueary driving in the parking lot; and (3) “other
potential footage” showing a different angle of Mr. McQueary driving in the parking lot.
Aplt. Br. at 18.3
1) Escort footage
Mr. McQueary has not shown that footage of him being escorted to his vehicle had
“apparent” exculpatory value. He argues it would have shown his peaceful compliance
with S.O. Warlick, which would have “combat[ted] the guard’s testimony that
Mr. McQueary was acting in any way that justified the guard’s actions.” Id. at 21. But he
3 The record does not establish whether unobstructed footage of a different angle ever existed. We assume that it did.
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was not charged for his conduct in exiting the hospital, and calm compliance there would
not exculpate him of attempting to hit the security officers with his car. Nor would such
footage have rebutted the security officers’ testimony that they drew their firearms
primarily out of fear for their lives from an onrushing car. Further, because the video
lacked audio, it would not have rebutted the security officers’ testimony that Mr.
McQueary verbally threatened and insulted them. Mr. McQueary has not shown it is
likely that this footage would have been “expected to play a significant role in [his]
defense.” Trombetta, 467 U.S. at 488.
2) Time stamps
Mr. McQueary has not shown that time stamps missing from the parking lot
footage had “apparent” exculpatory value. He argues they might be “probative” of his
driving speed. Aplt. Br. at 19. But Mr. McQueary has not shown that speed estimates
could not be made without time stamps. Trombetta, 467 U.S. at 490 (finding no violation
where “respondents were [not] without alternative means of demonstrating their
innocence.”). And Trombetta demands more than showing that unpreserved evidence
“might conceivably have contributed to [the] defense[].” Id. at 489. Mr. McQueary’s
argument also fails to account for the Government’s evidence from five eyewitnesses
testifying that he accelerated his vehicle toward the security officers. At best, the
“chances are extremely low” that the time stamps would have been exculpatory, which
does not satisfy Trombetta. Id.
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3) Unobstructed footage
Mr. McQueary points to a physical obstruction depicted in the preserved footage
that blocked the view of his vehicle turning towards the security officers. Aplt. Br. at 18.
He insists that a different angle might have shown that the security officers drew their
firearms before he had completed his turn, making them “the aggressors that day.”
Id. at 21. Mr. McQueary references St. Francis’s surveillance network of over 800
cameras, arguing an unobstructed view must have been recorded. Id. at 18.
But even assuming such footage existed, Mr. McQueary fails to show that it had
“apparent” exculpatory value. His hypothesis that the security officers drew their
firearms before he rounded the corner defies the testimony of five eyewitnesses.
ROA, Vol. III at 133-37 (Wall); 265-67 (Warlick); 308-09 (Young); 324-25 (O’Neill);
332-33 (Case). And the video presented at trial is consistent with the eyewitness
testimony. It shows S.O. Warlick raising his firearm as Mr. McQueary’s vehicle, having
completed the turn, enters the frame. Mr. McQueary offers no more than a “conclusory
argument that the lost [footage] might have contained exculpatory material,” which fails
the Trombetta standard. Snow v. Sirmons, 474 F.3d 693, 716 (10th Cir. 2007).
* * * *
Because Mr. McQueary fails to show that any missing surveillance footage was
attributable to the Government or had “apparent” exculpatory value before it was
destroyed, the district court did not clearly err in finding no Trombetta violation.
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b. Arizona v. Youngblood
Even if Mr. McQueary could make a plausible argument that the missing
surveillance footage was at least “potentially useful” to his defense, there is no evidence
the Government destroyed it in bad faith. Youngblood, 488 U.S. at 58. “[U]nless a
criminal defendant can show bad faith on the part of the police, failure to preserve
potentially useful evidence does not constitute a denial of due process of law.” Id. The
district court therefore did not clearly err.
To determine whether the Government acted in bad faith under Youngblood, we
consider the factors from United States v. Bohl. We summarized those factors in United
States v. Smith as whether: (1) “the government had explicit notice” of the potential
exculpatory value of the evidence; (2) “the claim that the evidence is potentially
exculpatory is conclusory, or instead backed up with objective, independent evidence
giving the government reason to believe that further tests of the [destroyed evidence]
might lead to exculpatory evidence”; (3) “the government could control the disposition of
the evidence [once the defendant] indicated that it might be exculpatory”; (4) “the
evidence was central to the case”; and (5) “the government offers any innocent
explanation for its disposal of the evidence.” 534 F.3d 1211, 1224-25 (10th Cir. 2008)
(citing Bohl, 25 F.3d at 911-13) (quotations omitted). The Bohl factors support the
district court’s finding of no bad-faith evidence destruction.
On the first factor, Mr. McQueary has not shown the Government was on “explicit
notice” that the missing or destroyed evidence had potential exculpatory value.
Id. at 1224; see Bohl, 25 F.3d at 911-12. The escort video preceded the incident, lacked
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audio, and Officer Yang testified he saw nothing “pertinent” in it. ROA, Vol. III
at 399-404. Mr. McQueary has not shown that estimates of his driving speed could not
have been derived by timing the video itself. As for an unobstructed video of the parking
lot, Security Manager Hart and S.O. Wall testified that they collected and produced all
“relevant” footage. Id. at 185, 469, 473-74. Also, the preserved parking lot video, even
with a partial obstruction, allowed a view of the incident that five eyewitnesses
corroborated.
As to the second factor, Mr. McQueary has not offered “objective, independent
evidence” that missing surveillance footage had potentially exculpatory value. Bohl,
25 F.3d at 911. As previously discussed, Mr. McQueary makes conclusory arguments
that the footage would have rebutted the Government’s five eyewitnesses.
On the third factor, once the defendant indicated certain evidence might be
exculpatory, the Government could not control it because St. Francis’s surveillance
system had automatically recorded over it. Id. at 912. Mr. McQueary argues that his
counsel had limited opportunity to request preservation of the footage before it was lost,
but “bad faith necessarily turns on the Government’s knowledge of the evidence’s
potentially exculpatory value.” Beckstead, 500 F.3d at 1159 (citing Youngblood, 488 U.S.
at 56 n.*).
The fourth factor also favors the Government. The unpreserved footage of
Mr. McQueary being escorted to his vehicle was not “obviously critical to the
prosecution” or central to the case. Bohl, 25 F.3d at 912. The Government’s case
focused on the assault.
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Under the fifth factor, even assuming the missing time stamps and unobstructed
parking lot footage may have helped Mr. McQueary’s defense, St. Francis’s routine
disposal procedure provides an innocent explanation for their destruction, which
“precludes a finding of bad faith absent other compelling evidence.” United States v.
Gomez, 191 F.3d 1214, 1219 (10th Cir. 1999); accord Beckstead, 500 F.3d at 1159.
Finally, even if the Government acted negligently by failing to ensure St. Francis
preserved the footage, “mere negligence on the government’s part in failing to preserve
. . . evidence is inadequate for a showing of bad faith.” Bohl, 25 F.3d at 912; see also
United States v. Gutierrez, 415 F. App’x. 870, 875 (10th Cir. 2011) (unpublished)
(“[F]ailure to use best practices in preserving evidence is not sufficient, by itself, to
establish bad faith.”).
The district court did not clearly err in finding there was no Youngblood violation.
Even assuming the footage was potentially exculpatory, there is no evidence that it was
destroyed in bad faith.
B. Restitution Order
The district court ordered restitution of $1,704.09 for damage Mr. McQueary
caused to St. Francis’s security vehicle. We review for plain error because Mr. McQueary
did not object to the restitution order. See Fed. R. Crim. P. 52(b); United States v.
Wainwright, 938 F.2d 1096, 1098 (10th Cir. 1991). The parties agree the district court
plainly erred. Aplt. Br. at 29; Aplee. Br. at 35. So do we.
“Courts have no inherent power to order restitution; they may only do so as
authorized by statute.” United States v. Gordon, 480 F.3d 1205, 1210 (10th Cir. 2007).
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The Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A(a)(1), authorizes
the district court to award restitution to the “victim of the offense,” for the “loss incurred
by [the victim that] was a direct and proximate result of the offense for which [the
defendant] was indicted and convicted.” United States v. Mendenhall, 945 F.3d 1264,
1267 (10th Cir. 2019). Mr. McQueary was not convicted for striking St. Francis’s
security vehicle. Because damage to the security vehicle was not “caused by the conduct
underlying the offense of conviction,” Mendenhall, 945 F.3d at 1267 (quoting Hughey v.
United States, 495 U.S. 411, 416 (1990) (quotations omitted)), the district court plainly
erred in awarding restitution. United States v. Smith, 156 F.3d 1046, 1057
(10th Cir. 1998) (holding that an unlawful restitution order constitutes plain error).
III. CONCLUSION
We affirm Mr. McQueary’s conviction. We vacate the district court’s restitution
order and remand for further proceedings consistent with this order and judgment.
Entered for the Court
Scott M. Matheson, Jr. Circuit Judge