Destruction of evidence and private actors

The defendants in United States v. Folad rigged ATMs to spit out $20 bills whenever a $1 bill was requested.  They obtained for $600,000 pursuant to this scheme.  They were caught and prosecuted in the Middle District of Tennessee. 

The issue on appeal related to the destruction of evidence - after the scheme was found out, the bank replaced most of the ATMs with other machines.  This, the defendants claimed, violated Due Process, as the machines contained evidence which would have exonerated them. 

The Sixth Circuit found that, because the bank was a private actor, and was not goaded by the Government into destroying the evidence, there was no Due Process claim.  "No precedent from the United States Supreme Court or this Court supports the idea that the government violates a criminal defendant’s due process rights when a private party, with no support from the government and no inducement by the government, fails to preserve relevant evidence."

The defense, citing to a Ninth Circuit case (Miller v. Vasquez, 868 F.2d 1116, 1120 (9th Cir. 1989)), argued that "bad faith" of a private actor in destroying exculpatory evidence could amount to a Due Process violation.  Interestingly, the Court did not dismiss this theory, but held that the defendants had not proven that bad faith occurred in this case.