United States v. Aurelio Zuniga-Garcia

FILED

NOT FOR PUBLICATION MAR 19 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 11-50016

Plaintiff - Appellee, D.C. No. 3:09-cr-04602-DMS-1

v.

MEMORANDUM *

AURELIO ZUNIGA-GARCIA,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Dana M. Sabraw, District Judge, Presiding

Argued and Submitted February 7, 2012 Pasadena, California

Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.

Aurelio Zuniga-Garcia appeals his conviction for the importation of

marijuana, 21 U.S.C. yy 952, 960, and possession with intent to distribute, 21

U.S.C. y 841(a)(1). Zuniga-Garcia contends that the district court abused its

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. discretion when it denied his request for a lost or destroyed evidence jury

instruction. We agree and we vacate his conviction.

1. Zuniga-Garcia was apprehended at the United States - Mexico border…

dissenting:

I dissent. In order to establish a due process violation from the government’s failure to preserve potentially exculpatory evidence, a defendant must show that the evidence: (1) possessed exculpatory value that was apparent before the evidence was destroyed; (2) was of such a nature that the defendant was unable to reasonably obtain comparable evidence; and (3) was destroyed in bad faith. See California v. Trombetta, 467 U.S. 479, 489 , 104 S.Ct. 2528 , 81 L.Ed.2d 413 (1984) (establishing factors (1) and (2)); Arizona v. Youngblood, 488 U.S. 51, 58 , 109 S.Ct. 333 , 102 L.Ed.2d 281 (1988) (adding the bad faith requirement). Under United States v. Flyer, 633 F.3d 911 (9th Cir.2011), “[i]f the government destroys evidence under cir *500 cumstances that do not violate a defendant’s constitutional rights, the court may-still impose sanctions:...” Id. at 916 . Where the loss does not rise to the level of a constitutional violation, however, the court balances “the quality of the Government’s conduct” against “the degree of prejudice” to the defendant. Id.

Zuniga-Garcia was stopped in his truck by Custom and Border Protection Agents while entering the United States at the…

MEMORANDUM *

Aurelio Zuniga-Garcia appeals his conviction for the importation of marijuana, 21 U.S.C. §§ 952 , 960, and possession with intent to distribute, 21 U.S.C. § 841 (a)(1). Zuniga-Garcia contends that the district court abused its discretion when it denied his request for a lost or destroyed evidence jury instruction. We agree and we vacate his conviction.

1. Zuniga-Garcia was apprehended at the United States-Mexico border when *499 government agents searched his vehicle and found that the fuel tank of his truck contained marijuana. At trial, Zuniga-Gareia contended that he was unaware of the drugs in his gas tank. In its prosecution, the government relied heavily on the presence of a large black bolt in the defendant’s pocket when he was stopped at the border. At the time that he was searched and the bolt was found, Zuniga-Gareia informed the searching officer that it was for one of the many construction-related tools in his truck. At some point prior to trial all of Zuniga-Garcia’s tools were lost or destroyed while in the possession of the government. The defense requested a lost or missing evidence instruction based on the unexplained disappearance of this…