NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 1 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 24-525 D.C. No. Plaintiff - Appellee, 3:23-cr-01960-CAB-1 v.

MEMORANDUM*

ELIAS ARZATE-MOLINA,

Defendant - Appellant.

UNITED STATES OF AMERICA, No. 24-546 D.C. No. Plaintiff - Appellee, 3:22-cr-01600-CAB-1 v.

ELIAS ARZATE-MOLINA,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Cathy Ann Bencivengo, District Judge, Presiding

Submitted November 18, 2025**

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Pasadena, California

Before: BYBEE, LEE, and DE ALBA, Circuit Judges.

Appellant Elias Arzate-Molina1 directly appeals from his jury conviction

under 8 U.S.C. § 1326 for attempted illegal reentry into the United States and from

the district court’s revocation of supervised release stemming from a prior illegal

reentry conviction. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

We review de novo “whether the government violated its discovery

obligations,” United States v. Obagi, 965 F.3d 993, 997 (9th Cir. 2020), and

whether the government properly construed the hearsay rule. United Stated States

v. Johnson, 875 F.3d 1265, 1278 (9th Cir. 2017). We review for abuse of

discretion a district court’s discovery rulings, United States v. Cano, 934 F.3d

1002, 1023 n.15 (9th Cir. 2019); refusal to admit evidence under an exception to

the hearsay rule, Johnson, 875 F.3d at 1278; and “refusal to give an adverse

inference instruction, when properly raised by the appellant.” United States v.

Sivilla, 714 F.3d 1168, 1172 (9th Cir. 2013).

1. The government’s introduction of a Manifest of Persons and Property

Transferred (“manifest”) complies with its obligations under Federal Rule of

Criminal Procedure 16(c) and the district court did not abuse its discretion in

admitting the manifest pursuant to Rule 16. “Rule 16 does not prevent the

1 Appellant refers to himself as “Mr. Arzate” and we do the same.

2 24-546 government from introducing any new evidence after a trial begins; indeed Rule 16

itself contemplates that evidence may be disclosed ‘during trial.’” See United

States v. Marshall, 132 F.3d 63, 70 (D.C. Cir. 1998) (quoting FED. R. CRIM. P.

16(c)).

Nor did the government violate Rule 16(a)(1)(E)(i). Mr. Arzate’s reliance

on United States v. Hernandez-Meza is misplaced. 720 F.3d 760 (9th Cir. 2013).

Unlike in Hernandez-Meza, here, the district court did not reopen the government’s

case-in-chief, the manifest was cumulative of other evidence that Mr. Arzate had

been removed and was therefore not material to Mr. Arzate preparing his defense,2

and it does not appear that the government deliberately withheld the manifest.3

2. Any abuse of discretion in admitting the manifest as hearsay was

harmless. The manifest includes a stamp allegedly made by Mexican authorities

that the government relied on as evidence of Mr. Arzate’s removal. The stamp,

however, is akin to a third-party statement and the stamp therefore does not meet

2 For example, the government’s evidence included a warrant of removal indicating that Mr. Arzate was removed, and testimony from a U.S. Customs and Border Protection (“Border Patrol”) agent, who signed the warrant of removal, that he had witnessed Mr. Arzate “physically walk back to Mexico.” Mr. Arzate argues that this testimony was “inconsistent” as the agent either remembered witnessing Mr. Arzate’s removal because of his independent recollection or because he had signed the warrant. Yet the agent appears to have simply offered two reasons why he remembered Mr. Arzate’s removal. 3 The government located the manifest on the first day of trial and produced the record to Mr. Arzate on the same day; the next day, the government informed the district court of the manifest.

3 24-546 the public-records exception to hearsay under Federal Rule of Evidence 803(8).

See United States v. Morales, 720 F.3d 1194, 1202 (9th Cir. 2013). In overruling

Mr. Arzate’s hearsay objection to the introduction of the stamp, the district court

failed to give any indication that it applied the correct legal standard and, in this

way, abused its discretion. See United States v. Hinkson, 585 F.3d 1247, 1261 (9th

Cir. 2009). Nonetheless, it is “more probable than not” that any abuse in discretion

in admitting the manifest was harmless because the government introduced other

evidence that Mr. Arzate was removed. See United States v. Lopez, 913 F.3d 807,

825 (9th Cir. 2019) (internal quotation marks and citation omitted).

3. The district court did not abuse its discretion by refusing to provide an

adverse-inference jury instruction regarding the destruction of video recordings

that were overwritten based on an automatic 30-day override process. The parties

offer competing standards for determining whether an adverse-inference jury

instruction on the destruction of evidence is warranted. Compare Sivilla, 714 F.3d

at 1173, with United States v. Romo-Chavez, 681 F.3d 955, 961 (9th Cir. 2012).

We need not resolve this dispute as Mr. Arzate’s challenge to the district court’s

refusal to provide such an instruction fails under either standard. See United States

v. Fries, 781 F.3d 1137, 1152 n.5 (9th Cir. 2015).

Applying Sivilla’s balancing test, Mr. Arzate’s challenge fails. The

government’s conduct, “while not entirely blameless,” appears to fall “within a

4 24-546 general range of reasonableness.” See United States v. Robertson, 895 F.3d 1206,

1213 (9th Cir. 2018). The video recordings were overwritten while in the

government’s custody; however, the prosecuting attorneys were not involved in the

overwriting (they had requested that the video be preserved). See id. at 1213–14.

Moreover, the video does not appear to be exculpatory and, for the same reason, it

cannot be said that the government acted in disregard of the defendant’s interests

because “the exculpatory value of the evidence was not apparent.”4 See id. While

the recordings were overwritten while in the custody of Border Patrol, an agency

involved in the case against Mr. Arzate, both Border Patrol agents and the

prosecution requested that the video recordings be preserved and it does not appear

that the recordings were overwritten deliberatively. See id.

Turning to prejudice, Mr. Arzate shows none. The video recordings were

not central and important to Mr. Arzate’s defense, and any inferences lost because

the recordings were overwritten do not tip toward a show of prejudice.5 See id. at

4 For example, a Border Patrol agent who saw the video images testified that they showed heat signatures moving at a running pace north of the border, one of which broke off from the group and went into a car lot where no other heat signatures were present, which is where another Border Patrol agent apprehended Mr. Arzate. Mr. Arzate, however, claimed to have been living in the car lot for two months since his release from a detention center and before his apprehension. 5 While Mr. Arzate argued that he had not been removed from the country (and therefore had not reentered), a Border Patrol agent’s testimony about what the video images showed indicates that the recordings would not have supported Mr. Arzate’s defense.

5 24-546 1214. The probable effect on the jury from the unavailability of the video was also

not “significantly prejudicial” because Mr. Arzate “was permitted, and did, argue

before the jury that [the government] failed to preserve the video.” See id.

Applying Romo-Chavez’s bad-faith standard, Mr. Arzate’s challenge also

fails. Mr. Arzate does not appear to argue that the evidence was overwritten in bad

faith. See Romo-Chavez, 681 F.3d at 961. Nor did Mr. Arzate show that he was

prejudiced by the destruction of the video. See supra.

AFFIRMED.

6 24-546