[00:00:00] Speaker 04:
is United States v. McQuarrie, number 235087.

[00:00:05] Speaker 02:
If it please the court, Stephanie Baker, appearing on behalf of the appellant.

[00:00:15] Speaker 02:
Mr. McQuarrie, I apologize.

[00:00:18] Speaker 02:
Thank you for indicating I need to speak up.

[00:00:23] Speaker 02:
The case here, Mr. McQuarrie was convicted of assault with a deadly weapon for driving his car in the direction of two security guards.

[00:00:34] Speaker 02:
In its closing argument, when arguing that the failure to give a requested adverse inference jury instruction, the government- Doesn't it ordinarily apply when the government has the documents?

[00:00:50] Speaker 03:
as opposed to a separate entity?

[00:00:53] Speaker 02:
It is.

[00:00:54] Speaker 02:
It is.

[00:00:54] Speaker 02:
However, I maintain that in this case, an agency relationship was established between the government through the police and the hospital that maintained and preserved the evidence.

[00:01:11] Speaker 01:
And Hal, I didn't see that in the facts at all.

[00:01:14] Speaker 01:
That would be up to you to prove, and I didn't see that that was the basis

[00:01:19] Speaker 01:
whatsoever for your arguments before the district court in favor of the instructions.

[00:01:24] Speaker 01:
In fact, when counsel went through the evidence that supported the instruction, everything that was said had to do with St.

[00:01:34] Speaker 01:
Francis and that it had the videos, that it maintained the videos, that it selected the videos, that it manipulated the videos.

[00:01:43] Speaker 01:
And I mean, there was just nothing

[00:01:47] Speaker 01:
that would support a factual determination of agency.

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I would point to the testimony of the officers Yang and Slater.

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Their testimony showed that they were assigned to, well,

[00:02:02] Speaker 02:
Officer Yang in particular, but Officer Yang was assigned to go and retrieve the video, the surveillance video on that day when they responded to the call at the hospital.

[00:02:14] Speaker 02:
It was his objective to retrieve that evidence.

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And he stated that he, or rather Slater indicated that the reason for getting that evidence was specifically to determine if a crime had been committed that day.

[00:02:29] Speaker 02:
During that interaction and through their testimony, it's apparent that they are interacting with the guards, learning their capacities to manipulate and preserve.

[00:02:42] Speaker 02:
And at the end of this, it's actually a rather protracted video, but I appreciate that that's not before the court.

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But their testimony makes clear that after learning all of their abilities and that

[00:02:58] Speaker 02:
actually witnessing the fact that the guards who fired on Mr. McQuarrie were the ones who were capturing the video, which turned out to actually be the case.

[00:03:08] Speaker 02:
They delegated their responsibility and their objective to retrieve that evidence.

[00:03:16] Speaker 01:
You're suggesting that the government delegated a duty they didn't have, basically, which was to investigate?

[00:03:28] Speaker 01:
Not investigate.

[00:03:30] Speaker 02:
Well, what was it?

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It was to preserve evidence.

[00:03:34] Speaker 02:
And the police were on notice that this was evidence.

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They knew that this was evidence of the events that day.

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And the government knew that was evidence of the events that day.

[00:03:44] Speaker 01:
Can you point to a single case where there's been a spoliation instruction based on what you're referring to as agency here and any kind of similar facts?

[00:03:58] Speaker 02:
Well, that is part of the problem, because there hasn't been similar facts where the relationship or the dealings between the government and its investigators and the third party was so protracted and so obvious.

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The Hernandez case that we cited in our brief,

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It talks about the role of agency when someone's constitutional, and we're raising due process violation here, when agency can be a basis for holding the government responsible for a third party's actions, when that third party's actions are within the scope of that relationship.

[00:04:42] Speaker 04:
But Fernandez didn't ultimately find a principal agent relationship.

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That's true.

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So you're relying on these interactions.

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At the same time, I'm wondering, what's the standard for the principal agency relationship that you're contending exists?

[00:05:05] Speaker 04:
Where do we go for guidance?

[00:05:09] Speaker 01:
Certainly.

[00:05:09] Speaker 04:
I mean, the interactions would be your factual predicate for it.

[00:05:15] Speaker 04:
But what's the applicable law?

[00:05:19] Speaker 04:
What do we look to?

[00:05:20] Speaker 04:
Is it Fernandez?

[00:05:21] Speaker 04:
Does Fernandez really give us any guidance on this?

[00:05:24] Speaker 02:
I think Fernandez gives us the best guidance that there is, as it talks about how the role of agency

[00:05:38] Speaker 02:
is implicated and can hold the government responsible.

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Specifically, it talks about in the Fourth Amendment context, where the government can be held responsible if it coerces another party to asking questions.

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But we don't have that here.

[00:05:59] Speaker 02:
We don't have that here.

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What we have here, though, is unlike in Hernandez, where you had a third party who was in possession of the video,

[00:06:09] Speaker 02:
that the defendant sought to have preserved.

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In that case, the government had absolutely no interactions whatsoever with the, it was a Greyhound bus station, about the preservation of that video.

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Here, all the interactions are clearly about preservation of the video.

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Everybody knew that that's what their objective was, and everyone made it,

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That was the goal of that agreement between the police and the hospital that day.

[00:06:47] Speaker 01:
I'm quite sure we specifically said in Nando's that interaction and communication alone between a third party and the police officers in that case and in this case is simply not enough.

[00:07:05] Speaker 01:
It doesn't create

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That's all we've got here, interaction.

[00:07:12] Speaker 02:
I disagree.

[00:07:13] Speaker 02:
I think you've got testimony regarding how the police officers actually did instruct them, yes, we need that video.

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And the guard said, oh, yeah, I'm going to get this one for you.

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I mean, there's a whole back and forth.

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The security guard supervisor, Mr. Hart, gives more background to that.

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So we have not just a, hey, can you get that to us?

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We have an ongoing discussion and the government, I mean, when the

[00:07:51] Speaker 04:
Well, counsel, it wasn't just, hey, can you give it to us?

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The response was no.

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Our senior counsel has to make that decision, right?

[00:08:01] Speaker 02:
No, it wasn't no.

[00:08:02] Speaker 02:
It was, yeah, we'll give that to you.

[00:08:03] Speaker 02:
Well, it wasn't yes.

[00:08:04] Speaker 04:
It wasn't yes.

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They didn't give it to them at the time.

[00:08:07] Speaker 02:
Not immediately, but they did give it to it.

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And when they did give it to them.

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And what does that have to do with an agent-principal relationship?

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They asked for it.

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They said the counsel has to review it.

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And then they turned it over.

[00:08:19] Speaker 02:
Well, at that point, I mean, the police knew that they would be going through those processes just like the police knew that they would be manipulating these videos.

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They showed the way they were manipulating these videos while they were in their security office.

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So I think that that actually speaks to the fact that the police was fully aware of who and what they were going to get when they delegated this.

[00:08:46] Speaker 04:
Were they aware of the hospital's protocols for retention and destruction?

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Did they know about the 29 or 30 days?

[00:08:53] Speaker 02:
I do not have evidence of that.

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That is correct.

[00:08:55] Speaker 03:
Well, even assuming that there was a connection there, what is the evidence of bad faith?

[00:09:04] Speaker 02:
The delegation of collecting this crucial evidence that the police knew was crucial to any resulting prosecution.

[00:09:15] Speaker 03:
Well, assuming they knew it.

[00:09:17] Speaker 03:
I mean, I don't think it was exculpatory either.

[00:09:20] Speaker 03:
But assuming it was, what is the bad faith of the government?

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There's no evidence whatsoever of any bad faith.

[00:09:30] Speaker 03:
They turned over what they had when they had it.

[00:09:33] Speaker 02:
Well, I would say that in this case, because this is in the northern district of Oklahoma, this case took place in the northern district of Oklahoma.

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And since McGirt, every time the Tulsa police responds to a call,

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there's a high likelihood that it will be a federal case.

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So I think that the police were operating as the government's agents when they conducted their.

[00:10:05] Speaker 03:
Where is the bad faith?

[00:10:07] Speaker 02:
The bad faith is in trusting, delegating their collection of critical evidence.

[00:10:14] Speaker 02:
Pardon me?

[00:10:15] Speaker 03:
That's a little obtuse.

[00:10:16] Speaker 03:
I mean, you've now said that bad faith is any time the police show up

[00:10:21] Speaker 03:
in a McGirt situation.

[00:10:23] Speaker 02:
No, sir.

[00:10:24] Speaker 02:
I'm sorry that I missed.

[00:10:30] Speaker 02:
Did you think that that was what I'm saying?

[00:10:33] Speaker 02:
Here where the police's actions can be imputed to the government is that that is what I'm trying to say because of the situation with McGirt and the dual

[00:10:46] Speaker 02:
role that police often play in federal prosecutions.

[00:10:51] Speaker 03:
Okay, so where's the bad faith still?

[00:10:53] Speaker 02:
The bad faith again is in trusting the collection of this evidence through this third party that wasn't just a third party.

[00:10:59] Speaker 03:
The third party owned the evidence.

[00:11:02] Speaker 02:
They did.

[00:11:02] Speaker 02:
They did.

[00:11:03] Speaker 03:
Okay, and they turned over what they were asked to turn over after they had done whatever they were going to do with it.

[00:11:10] Speaker 03:
So where is the bad faith?

[00:11:12] Speaker 03:
In trusting... On the government's part.

[00:11:15] Speaker 02:
in trusting the selection of this evidence to a third party who's not only a third party.

[00:11:22] Speaker 03:
Well, it was the third party's evidence.

[00:11:24] Speaker 03:
It was their cameras.

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It was their film.

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And they had it.

[00:11:27] Speaker 03:
Now, where is the faith of the government?

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The government failed to preserve the evidence of all the entire evidence of the events that day.

[00:11:42] Speaker 04:
Well, did they ask?

[00:11:44] Speaker 04:
They asked the hospital to preserve the evidence.

[00:11:48] Speaker 02:
They did ask after they received what they got from, well, actually, I take that back.

[00:11:52] Speaker 02:
I believe the federal agent's testimony is that he went to the hospital shortly after the events and asked for the video, and he received the video.

[00:12:05] Speaker 02:
So they didn't ask for any others after they reviewed it.

[00:12:08] Speaker 04:
And that's bad faith.

[00:12:10] Speaker 02:
I believe so, because the video itself

[00:12:14] Speaker 03:
Was obviously altered pull a gun out and say, no, I want you to give me that right now.

[00:12:19] Speaker 02:
No, but they can certainly issue a subpoena if they're truly investigating and trying to preserve this evidence.

[00:12:25] Speaker 02:
I think they can do a good faith investigation instead of just taking the word of two of guards who fired their weapons at Mr. McQuarrie.

[00:12:37] Speaker 04:
Well, maybe they could have done more.

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Maybe they could have asked about the retention policy.

[00:12:43] Speaker 04:
Maybe they could have issued a subpoena.

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But the fact that they could have done more, how does that equate to bad faith?

[00:12:54] Speaker 02:
I think it's because of who they entrusted this to.

[00:12:59] Speaker 02:
They did rely on this evidence.

[00:13:01] Speaker 02:
I believe they also cited to this evidence in the grand chart in the complaint.

[00:13:06] Speaker 02:
It was central to the case.

[00:13:08] Speaker 04:
Well, you're talking about missing.

[00:13:11] Speaker 04:
You're talking about evidence that was destroyed after the 29 or 30 days, correct?

[00:13:18] Speaker 04:
Correct.

[00:13:19] Speaker 04:
OK.

[00:13:19] Speaker 04:
Do we even know from the record whether any evidence was in fact destroyed?

[00:13:24] Speaker 02:
That was the testimony of the, I believe, the supervising security guard Hart.

[00:13:31] Speaker 04:
That they didn't receive.

[00:13:32] Speaker 04:
All right.

[00:13:33] Speaker 04:
Have you, don't you also have to show for a Trombetta violation that any missing evidence was apparently exculpatory?

[00:13:44] Speaker 02:
I would say under these circumstances, the surveillance video, the raw surveillance video, the unedited surveillance video was apparently exculpatory.

[00:13:54] Speaker 02:
You have the two competing self-defense claims, and the videos that were produced are the best evidence that there was apparently exculpatory evidence, because the first video provided is the video of the lobby.

[00:14:11] Speaker 02:
There's no time stamps on that, and there's no way to track how fast anything's going, and it's a wide view.

[00:14:17] Speaker 02:
you can see the frame.

[00:14:18] Speaker 02:
There's obviously no manipulation being done.

[00:14:22] Speaker 02:
The other two videos that are the only videos that were produced that show the most critical instance, events of this case, were obviously edited and manipulated.

[00:14:34] Speaker 02:
They lacked the frame.

[00:14:36] Speaker 02:
They had been, part of the view is obstructed.

[00:14:39] Speaker 02:
You cannot see the most critical part of this entire event, which is when the guards say, Mr. McQuarrie,

[00:14:47] Speaker 02:
aimed his vehicle at them.

[00:14:49] Speaker 02:
All you can see is them raising their firearms.

[00:14:51] Speaker 04:
How do you know there was a camera that showed more of the event?

[00:14:56] Speaker 02:
Because they had 900 cameras on that camera.

[00:15:00] Speaker 04:
But that was for the whole facility.

[00:15:05] Speaker 02:
I appreciate that there was no development of that issue.

[00:15:13] Speaker 04:
Thank you, counsel.

[00:15:28] Speaker 00:
May it please the court, Thomas Duncombe for the United States.

[00:15:33] Speaker 00:
There was no trombeta violation in this case because there was no evidence that was missing that had an apparent exculpatory value.

[00:15:41] Speaker 00:
And there was no young blood violation in this case because there was no evidence of bad faith.

[00:15:45] Speaker 00:
Both of those, apparent exculpatory value and bad faith, are issues that this court reviews for clear error.

[00:15:53] Speaker 00:
The district court made findings as to both based on the record, based on not just the pretrial filings, but also the entire trial evidence, and found as a matter of fact that there was no bad faith and that there was no apparent exculpatory value.

[00:16:06] Speaker 04:
Could this appeal be resolved without having to address this agency principle issue?

[00:16:14] Speaker 00:
Yes.

[00:16:15] Speaker 00:
Because this court, without even referring to agency, could, for example, say, even assuming

[00:16:22] Speaker 00:
that the hospital was an agency of the government, there's no evidence that the hospital acted in bad faith.

[00:16:29] Speaker 00:
And we contend, based on the case law, the hospital's bad faith or good faith is irrelevant because the officers and the special agents with the ATF were the government in this case, not the hospital.

[00:16:43] Speaker 00:
But this court could nevertheless find that there was no bad faith on the part of the hospital.

[00:16:48] Speaker 00:
And there certainly wasn't any reason for the officers

[00:16:51] Speaker 00:
to be worried about any bad faith of the hospital when they arrived at the hospital and examined the evidence.

[00:17:02] Speaker 00:
It's useful, I think, to go through the evidence that the officers encountered when they got to the scene.

[00:17:08] Speaker 00:
First of all, the post-incident behavior of the two parties in this case, the security officers on the one hand and Mr. McQuarrie on the other hand, could not have been more different.

[00:17:19] Speaker 00:
Mr. McQuarrie fled the scene.

[00:17:21] Speaker 00:
He concealed where he had just been from an officer who was just being in Good Samaritan and picked him up.

[00:17:26] Speaker 00:
He abandoned his car.

[00:17:29] Speaker 00:
Meanwhile, the security guards immediately called the police, said, please come to the scene.

[00:17:34] Speaker 00:
We have just fired our weapons.

[00:17:37] Speaker 00:
As the appellant indicated in its brief, there's no dispute here that the officers fired their weapons.

[00:17:45] Speaker 00:
They collected witness statements, the officers did, and that

[00:17:49] Speaker 00:
statements by the three security officers, including Officer Young, were entirely consistent with the statements that they got from the disinterested bystanders in the parking lot.

[00:18:01] Speaker 00:
Mr. O'Neill said it looked like the car tried to run the officer over.

[00:18:07] Speaker 00:
Ms.

[00:18:07] Speaker 00:
Case, Mr. O'Neill's girlfriend, said that she did hear a gunshot, but only after she saw the car accelerating

[00:18:16] Speaker 00:
toward the officers at a high rate of speed.

[00:18:19] Speaker 00:
The security at the hospital was cooperative with the police in letting them come to the security surveillance center and view videos.

[00:18:31] Speaker 00:
There was no reason, in short, for the officers to suspect that it would be a problem in this particular case to let the party that owned the evidence

[00:18:43] Speaker 00:
continue to control the evidence as the case progressed and get the portions of the evidence that the officers needed for them.

[00:18:51] Speaker 00:
Did they have any choice?

[00:18:54] Speaker 03:
Did the officers have a choice?

[00:18:55] Speaker 03:
Yeah.

[00:18:56] Speaker 03:
I mean, the hospital said, well, you're not going to look at it until our general counsel checks it over.

[00:19:02] Speaker 00:
So every

[00:19:07] Speaker 00:
Police department has options at his disposal, and the government certainly has options at its disposal, such as search warrants, such as subpoenas.

[00:19:17] Speaker 00:
But I would say making a medical analogy, if your case calls for a scalpel, you don't have to use a bone saw just because you have it.

[00:19:25] Speaker 00:
So the government certainly could have done a search warrant and disrupted the hospital's operations for a day or several days.

[00:19:33] Speaker 00:
while the government brought in its own agents to examine the surveillance footage itself, figured out for itself which of the 900 videos it wanted footage of.

[00:19:42] Speaker 03:
So by that time, though, the general counsel would already have looked at the tape, and they would have given it then over to the police, wouldn't they?

[00:19:51] Speaker 00:
Presumably, yes.

[00:19:52] Speaker 00:
And again, this is something that, although the officers Yang and Slater, who both from the record appear to have been very junior officers, I think Officer Yang said he had been on the force for

[00:20:02] Speaker 00:
a year and eight months at the time of the trial.

[00:20:05] Speaker 00:
They said, well, it's a little unusual for a witness or a victim to tell us, no, we're not going to give you evidence.

[00:20:12] Speaker 00:
But I would submit that, especially in a federal investigation, it's quite common when you have an institutional victim or an institutional witness or a witness or a victim who is a cooperating witness or a victim who is themselves charged, which was not the case here.

[00:20:30] Speaker 00:
But it's quite common to,

[00:20:32] Speaker 00:
deal with the counsel of a witness or a victim.

[00:20:36] Speaker 00:
And it's quite common further to go through the counsel when making requests for evidence.

[00:20:42] Speaker 00:
It's easier for the government.

[00:20:44] Speaker 00:
It makes the relationship, the arm's length transaction, go more smoothly.

[00:20:50] Speaker 00:
The hospital is comfortable that they're going through the procedures they need to go through.

[00:20:54] Speaker 00:
The employees are comfortable.

[00:20:56] Speaker 00:
And it doesn't disrupt operations in the way a demand for

[00:21:01] Speaker 00:
stop what you're doing and give us these 10 items might.

[00:21:08] Speaker 00:
So again, there was a question during my colleague's presentation about what is the standard for agency in this area of the law.

[00:21:17] Speaker 04:
Could I just ask you this question?

[00:21:22] Speaker 04:
The appellant has made arguments about missing

[00:21:26] Speaker 04:
video, but also manipulation.

[00:21:29] Speaker 04:
Can you address the manipulation argument?

[00:21:33] Speaker 00:
Sure.

[00:21:33] Speaker 00:
So the manipulation from how the district court understood the arguments that the defense was making was that there were some of the videos that didn't have time stamps in them.

[00:21:48] Speaker 00:
And there was testimony that was uncontradicted at the trial from Matt Hart.

[00:21:54] Speaker 00:
the security manager, who said, well, we have this software called Snagit, which when you're trying to get an excerpt of a video, sometimes that causes problems or creates a different format.

[00:22:07] Speaker 00:
It's also important to remember that one of the three video clips was very obviously manipulated and cropped by design, because it was designed to provide a close-up view of the moment just before potential impact with the car.

[00:22:23] Speaker 00:
So the fact that there wasn't a time stamp, the fact that there wasn't the word playback in the upper right-hand corner, there's nothing other than speculation or innuendo to indicate that there was something untoward with regard to what the hospital did with its videos.

[00:22:41] Speaker 00:
But again, whether the hospital acted in good or bad faith in this case is irrelevant because there was no agency relationship

[00:22:51] Speaker 00:
And this court in Fernandez specifically said, it has to be more for this context than simply a common law agency relationship.

[00:23:01] Speaker 00:
You have to show that not only was the hospital an agent of the government, the hospital was an agent for this particular purpose, for the purpose of how it would preserve and when it would allow videos to be destroyed.

[00:23:14] Speaker 00:
And there simply was no evidence of that in this case.

[00:23:18] Speaker 00:
There was no evidence that the officers

[00:23:20] Speaker 00:
or anyone from the government knew what the hospital's preservation policies were.

[00:23:25] Speaker 00:
And it didn't come up as an issue until January 30th, a few weeks before the trial, when the defense said, we viewed the videos as exculpatory.

[00:23:35] Speaker 00:
And within four hours of receiving that email, the government jumped into action and called the hospital and said, do you have any more videos?

[00:23:44] Speaker 00:
And found out that the hospital did not.

[00:23:47] Speaker 01:
Does the government even have a duty or an obligation to investigate or collect evidence?

[00:23:56] Speaker 00:
And I want to be careful the way I phrase this, because in the abstract or with regard to the public at large, there is a duty to do their jobs professionally.

[00:24:09] Speaker 00:
There's certainly a duty to their employer.

[00:24:11] Speaker 00:
there's a duty to the executive branch, if they're federal officers, to investigate in general.

[00:24:19] Speaker 00:
The real question where the rubber meets the road in these cases is, is there an undifferentiated duty to investigate vis-a-vis the defendant's due process rights?

[00:24:31] Speaker 00:
And the answer to that is no.

[00:24:33] Speaker 00:
There is no duty on the part of the officers to say,

[00:24:37] Speaker 00:
If we get more videos, we might find evidence that's favorable to the defense.

[00:24:43] Speaker 00:
The case law is very clear.

[00:24:45] Speaker 00:
If they see something or find something that is exculpatory, they must turn that over, and they must seek to preserve it.

[00:24:52] Speaker 00:
And so that's the point of Trombetta.

[00:24:55] Speaker 00:
But there was nothing apparently exculpatory here.

[00:24:59] Speaker 00:
And the last thing that I'll point out is, as this court observed in cases like Hood and Pearl,

[00:25:06] Speaker 00:
There was an ample opportunity in this case for the defense to offer up its theory of what happened with the videos to the jury.

[00:25:16] Speaker 00:
And it was even more ample than the opportunity that the defendants in Hood and Pearl had because in opening statement, in closing argument, in cross-examinations, in the witnesses that the defendant called who were almost all from the hospital, the defense was able to focus the jury's attention on

[00:25:34] Speaker 00:
what they believed that had happened in this case, which is the hospital is concealing evidence, the hospital is trying to screw this dude over, as the defense put it in its closing argument, and they were able to present that amply to the jury.

[00:25:53] Speaker 04:
So could I just ask you on this principal agent issue?

[00:25:58] Speaker 04:
I think I heard you say a few minutes ago that in Fernandez, there was discussion of common law principal agent, but when there's a due process claim, showing may even have to be more than that, but at least common law principal agent.

[00:26:21] Speaker 04:
If that's the starting point, where do we go to find the common law we would apply to this situation?

[00:26:31] Speaker 00:
I think it would be the same place that Fernandez went, which is to cases describing agency and what makes someone an agent, and then applying that to the court.

[00:26:45] Speaker 04:
I was wondering if maybe you took that

[00:26:46] Speaker 04:
to another level, and had even more guidance than Fernandez did.

[00:26:52] Speaker 00:
Unfortunately, no.

[00:26:54] Speaker 00:
But I will point out that just as in Fernandez here, there was no need really to delve that deeply into agency law, because there wasn't really even a fact or facts that brought this particularly close to the line of agency.

[00:27:10] Speaker 00:
And I'll point out a counter example for the use that it might have, which is Bexted.

[00:27:15] Speaker 00:
In Beckstead, even though, which I think was a 2007 case, even though this court found ultimately there was no evidence of bad faith, the company that was cleaning the crime scene was a company that was contracted by the police department in that case and was specifically acting only at the instruction of the police department.

[00:27:40] Speaker 00:
That was the finding in Beckstead, and it's in footnote three in that case.

[00:27:44] Speaker 00:
So that's the kind of relationship that we would expect to see if we're going to impute, for due process purposes, the hospital's actions to the government.

[00:27:57] Speaker 00:
For example, they tell the hospital, you are now going to retain these videos for a certain period of time, and we have an agreement from you to do that.

[00:28:12] Speaker 00:
Because Fernandez talks about it as agency for the purposes of the destruction of the evidence, it would have to be, hey, hospital, after 30 days, thou shall destroy these videos.

[00:28:27] Speaker 00:
So that certainly wasn't the case here.

[00:28:28] Speaker 00:
But even beyond that, there was nothing suggesting that TPD or ATF exercised any sort of discretionary authority over what the hospital did with its videos.

[00:28:40] Speaker 01:
In Anna's, there was actually a fairly detailed evidentiary hearing on the issue of agency.

[00:28:48] Speaker 01:
So when it came up on appeal, we had a pretty solid record, evidentiary record, as did the district court, obviously.

[00:28:56] Speaker 01:
Here, I didn't get the impression that anybody was even thinking about agency until maybe the motion for the spoliation instruction was

[00:29:10] Speaker 01:
argued, and then I think the government brought up that there's a threshold issue here of the government not having possession.

[00:29:17] Speaker 01:
So my sense was that that wasn't even part of anyone's thought process as the evidence was coming on.

[00:29:26] Speaker 01:
So it didn't really come on in a way that we can use it at this point.

[00:29:33] Speaker 00:
remarks based on that observation, I agree, there wasn't much development of the agency question, although, as your honors pointed out, the government attorney certainly was on the ball with that issue, and so was the court.

[00:29:46] Speaker 00:
The court said this was not the government destroying evidence.

[00:29:50] Speaker 00:
That's what Boll and Smith talk about when they talk about was there bad faith in destruction of the evidence.

[00:29:56] Speaker 00:
As a threshold matter, it's inherent that there has to be government destruction, and if the third party

[00:30:02] Speaker 00:
does it, you've got to be able to impute it to the government and say, well, that actually, piercing through some veil, that really was the government acting through a meeting, for all those reasons, unless there are any further questions.

[00:30:16] Speaker 03:
Well, counsel, you agree that the government agrees that restitution was improper here.

[00:30:22] Speaker 03:
Yes.

[00:30:22] Speaker 03:
We concede that issue.

[00:30:24] Speaker 03:
I just wanted to get that in my notes.

[00:30:26] Speaker 03:
Yes.

[00:30:27] Speaker 03:
Thank you.

[00:30:27] Speaker 04:
Thank you, counsel.

[00:30:30] Speaker 04:
I think we have exhausted.

[00:30:32] Speaker 04:
The case will be submitted and counsel are excused.

[00:30:37] Speaker 04:
Thank you.