18 U.S.C. § 1519 Reaches Intentional Bodycam/Dashcam Deactivation That Creates a Misleadingly Incomplete Official Record

I. Introduction

In United States v. Smith (10th Cir. July 20, 2026), the Tenth Circuit affirmed the convictions and sentence of Jeffrey Scott Smith, Jr., a Savanna, Oklahoma police officer who, during a traffic stop, manually deactivated both his body-worn camera and dashboard camera and then sexually assaulted a nineteen-year-old passenger, K.H., inside his patrol vehicle.

A jury convicted Smith of (1) deprivation of rights under color of law (sexual assault) under 18 U.S.C. §§ 242 and 250(b)(3), and (2) two counts of falsifying records under 18 U.S.C. § 1519 for deactivating the bodycam (Count 2) and dashcam (Count 3). On appeal, Smith primarily argued: (i) the district court should have granted a continuance after he retained new counsel shortly before trial; (ii) § 1519 does not criminalize “passive” failure to record, so deactivating cameras cannot be “falsifying” a record; and (iii) the 480-month sentence was substantively unreasonable.

The court rejected all preserved arguments, deemed additional issues waived for perfunctory briefing, and affirmed. A separate opinion by Judge Phillips concurred in part and dissented in part, disputing the majority’s interpretation of § 1519 and urging reversal of Counts 2 and 3.

II. Summary of the Opinion

  • Continuance: No abuse of discretion in denying a last-minute continuance request by newly retained counsel; Smith failed to show diligence and, critically, failed to show material prejudice.
  • § 1519 (falsifying records): The court held that intentionally deactivating recording devices mid-encounter to ensure the resulting official recordings omit material information can constitute “alter[ing]” and/or “falsif[ying]” a record under § 1519, even if the “missing” portion never existed as recorded footage.
  • Sentence: The within-Guidelines 480-month term for the § 242 offense was not substantively unreasonable; appellate review does not permit reweighing § 3553(a) factors.
  • Waiver/forfeiture on appeal: The court declined to reach additional “miscellaneous” and Eighth Amendment arguments due to inadequate briefing.

III. Analysis

A. Precedents Cited

1. Appellate waiver for perfunctory briefing

The court enforced Rule 28(a)(8) through its waiver doctrine, relying on:

  • United States v. Walker (arguments waived when raised “only in a perfunctory manner”).
  • United States v. McBride (waiver for briefing deficiencies including failure to state the standard of review).
  • Valdez v. Macdonald (conclusory/underdeveloped arguments are waived).

These cases framed the threshold: the panel would decide only three adequately developed issues.

2. Continuance standard and late retention of counsel

The court applied the established four-factor abuse-of-discretion test from:

  • United States v. McClaflin (diligence; usefulness; inconvenience; need/harm, with prejudice as “most important”).

To apply that test, the panel relied heavily on two Tenth Circuit comparators involving late changes in counsel:

  • United States v. Rivera (en banc): denial upheld where continuance sought near trial; inconvenience assumed; and, crucially, no specific showing of material prejudice despite asserted voluminous records.
  • United States v. Cervantes: denial upheld where defendant sought new counsel shortly before trial; court calendar constraints magnified inconvenience; no showing of deficient performance or prejudice.

Those cases supplied the template: usefulness of more time is rarely dispositive without diligence and a concrete, outcome-linked prejudice showing.

3. Scope of § 1519: omissions, misleading incompleteness, and “falsifies”

To support treating intentional omissions as “falsification” of an official record, the majority drew from multiple circuits:

  • United States v. Underwood (4th Cir.): omission from an arrest report could support § 1519 conviction as deliberate concealment of improper conduct.
  • United States v. Moyer (3d Cir.): omission of suspects’ names from police reports supported § 1519; court rejected attempts to normalize such omissions by a police chief.
  • United States v. Lanham (6th Cir.): “material omissions” can constitute “cover up”/“conceal” and support § 1519.
  • United States v. Schmeltz (6th Cir.): “falsifies” clause covers falsifying a narrative report by omissions painting a misleading picture; also distinguished “false entry” vs “falsifies.”

The majority then bolstered its approach with:

  • United States v. Rowland (2d Cir.): “falsify” can include creating a document that misrepresents the truth, not just tampering with an existing document.

And—importantly for this case’s doctrinal move—by analogy to a different “false entry” statute:

  • United States v. Weidner (10th Cir.): under 18 U.S.C. § 1005, a “false entry” can be an omission “where an honest entry would otherwise be made,” relying on United States v. Copple, United States v. Cordell, and quoting United States v. Luke for the principle that a record is not “less false” because the truth might be discoverable with effort.

The majority used Weidner to overcome the defense contention that § 1519 requires deletion or tampering with already-created content: misleading incompleteness at the creation stage can suffice.

4. Jurisdictional mens rea and § 1519

On whether the defendant must know the federal nature of the contemplated investigation, the panel aligned with:

  • United States v. Smith (10th Cir. 2005) (knowledge of jurisdictional facts not generally an element).
  • United States v. Moyer (3d Cir.), quoting United States v. Cooper (4th Cir.): mens rea typically does not extend to jurisdictional elements.

5. Substantive reasonableness review

For sentencing, the court relied on:

  • United States v. Budder (deferential abuse-of-discretion; no substitution of judgment).
  • Concepcion v. United States (appellate courts should not substitute for the sentencing court on appropriateness).
  • United States v. Blair (review asks whether sentence falls within range of rationally available choices).
  • United States v. Sells (deference to district court’s balancing of § 3553(a)).
  • United States v. Lawless (reject invitation to reweigh § 3553(a) factors).

On the “disparity” argument (comparing to different crimes’ maxima), the court cited:

  • United States v. Clark (unpublished) (no obligation to compare across different crimes).
  • United States v. Davis (need to show disparity among similarly situated offenders).

And, in emphasizing the gravity of § 242 violations committed under color of law, it cited:

  • Koon v. United States (public officials do more than commit serious crimes; they do so under color of law).
  • United States v. McQueen (11th Cir.) (abuse of official power is “particularly serious”).
  • United States v. LaVallee (10th Cir.) (crime under color of law often yields higher sentence).

B. Legal Reasoning

1. Continuance: usefulness is not enough without diligence and concrete prejudice

Applying McClaflin through Rivera and Cervantes, the court held:

  • Diligence: weighed against Smith because he waited months to formalize the change, raised the issue less than three weeks before trial, and sought a continuance only after counsel entered.
  • Usefulness: weighed in his favor because more time would aid review/preparation.
  • Inconvenience: weighed strongly against him, with the district court citing “unprecedented caseloads” after McGirt v. Oklahoma; last-minute rescheduling was a “drastic measure.”
  • Prejudice (most important): Smith identified no specific evidence, strategy, or defense that would have changed with more time—mirroring the fatal deficiency in Rivera.

2. § 1519: “falsifies” includes intentionally engineering misleading incompleteness in an official recording

The core holding is interpretive: when a defendant is already generating an official record (here, dashcam/bodycam footage of an ongoing stop) and then knowingly and intentionally disables the recording to ensure that material, incriminating conduct is omitted, a jury may find that the defendant “alter[ed]” and/or “falsif[ied]” the record within the meaning of § 1519.

The majority’s path:

  • Functional view of a “record”: the recordings “purported to convey an accurate picture” of the encounter; SPD policy required recording of interactions, supporting the expectation of completeness.
  • Omissions can be falsification: consistent with police-report cases (e.g., United States v. Underwood, United States v. Moyer, United States v. Lanham, United States v. Schmeltz) and United States v. Rowland, the statute reaches creating a misleadingly incomplete official record, not only deleting or mutilating pre-existing content.
  • Analogy to Weidner: even when the “truth” could theoretically be pieced together, omission that distorts the true picture can still be “false.” The majority extended this logic from § 1005’s “false entry” to § 1519’s “falsifies”/“alters.”
  • Not “passive” non-recording: the court distinguished a mere failure to record from affirmative conduct—physically accessing and switching off devices that were actively creating official records—to shape what those records would (and would not) contain.

3. The dissent’s statutory-meaning critique (and what the majority implicitly rejected)

Judge Phillips’s partial dissent framed a narrower conception: a “record” is only what was actually recorded, and one cannot “falsify” something that never existed as recorded content. He found the police-report cases materially different because the reports purported to cover past events and omitted facts known at the time of reporting, whereas the camera recordings here ended and thereby did not contain later events.

The majority responded in substance by (i) treating intentional truncation as manipulation of an official record’s completeness, (ii) emphasizing that detectability does not negate falsity (drawing on United States v. Weidner and United States v. Luke), and (iii) rejecting a rigid “must have existed first” view, reasoning that § 1519 can be satisfied where the defendant intentionally prevents material information from being documented in the official record being created.

4. Substantive reasonableness: deference, within-Guidelines, and color-of-law gravity

The court applied the highly deferential framework of United States v. Budder and United States v. Blair. It rejected Smith’s request for a 10-year sentence as an improper invitation to reweigh § 3553(a) factors. It also rejected comparisons to different offense maxima, noting disparity analysis focuses on similarly situated offenders, and emphasizing the special seriousness of a § 242 offense committed under color of law (Koon v. United States; United States v. LaVallee).

C. Impact

1. Expanded practical reach of § 1519 to camera deactivations

The opinion establishes (at least in the Tenth Circuit) a clear prosecution theory for bodycam/dashcam “turn-off” events: where an officer is creating an official recording and intentionally deactivates it mid-incident to prevent documentation of material misconduct, § 1519 can apply even absent deletion, file corruption, or post hoc editing.

2. Charging and proof implications

  • Record-creation stage liability: Prosecutors can frame the “falsification” as occurring at the moment the officer engineers an incomplete record, not only when evidence is later destroyed.
  • Materiality (unresolved): The panel assumed without deciding that omissions must be “material,” noting a split-ish approach in cited cases (United States v. Underwood and United States v. Lanham treating materiality as relevant; United States v. Moyer rejecting it as an element). Future cases may litigate whether “materiality” is required in this circuit for § 1519 omissions/truncations.
  • Mens rea and federal nexus: The panel reaffirmed that knowledge of federal jurisdiction is not required; defendants cannot avoid § 1519 by claiming ignorance that an investigation might become federal.

3. Institutional effects for law enforcement agencies

Although the court did not premise liability on SPD policy, the opinion’s reasoning leverages departmental expectations of recording completeness. Agencies’ bodycam policies, training records, and audit systems will likely become more central at trial to prove that a record was intended to provide a “true picture” and that truncation was deceptive rather than accidental.

IV. Complex Concepts Simplified

  • “Under color of law” (18 U.S.C. § 242): Misusing official authority (badge, uniform, police powers) to violate someone’s federal rights.
  • § 1519 “falsifies” / “alters” a record: Not limited (in the majority’s view) to deleting or editing an existing file; it can include intentionally creating an official record that is misleading because important parts were intentionally left out.
  • Jurisdictional element vs. intent: A statute can require that the matter be within federal jurisdiction, without requiring that the defendant knew it was federal. The “federal-ness” is a gatekeeping fact, not always part of the defendant’s mental state.
  • Substantive reasonableness: Appellate courts do not decide what sentence they would impose; they ask whether the district court’s sentence is within a rational range given the facts and the law.
  • Waiver for inadequate briefing: If an appellant gestures at an issue without developing it (standard of review, authority, record citations), the court may treat it as waived and decline to decide it.

V. Conclusion

United States v. Smith is most significant for its construction of 18 U.S.C. § 1519: in the Tenth Circuit, a police officer’s knowing, intentional deactivation of bodycam/dashcam equipment during an encounter—when done to ensure that the resulting official record omits material information—may constitute “alter[ing]” and “falsif[ying]” a record, even absent post hoc deletion or physical destruction of recorded content. The decision strengthens federal tools for addressing camera-related evidence manipulation and places the doctrinal emphasis on deceptive incompleteness of official records, while leaving open future disputes over the precise role of “materiality” in § 1519 prosecutions.