                              UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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.



                                               2
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

      2In 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”).



                                               3
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

                                             4
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

                                                6
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).

                                                   7
      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



                                        8
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

                                        9
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




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