                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 09 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 11-50475

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00159-DMG-3
  v.

RAFAEL JIMENEZ-RODRIGUEZ, AKA                    MEMORANDUM*
Alejandro Figueroa, AKA Jorge
Hernandez, AKA Jorge Rafael Hernandez-
Jimenez, AKA Miguel Jimenez, AKA
Alberto Jimenez-Rodriguez, AKA Miguel
Jiminez, AKA Halbert Leon,

              Defendant - Appellant.

UNITED STATES OF AMERICA,                        No. 11-50477

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00159-DMG-1
  v.

JASON DE LA TORRE,

              Defendant - Appellant.

                    Appeal from the United States District Court
                       for the Central District of California
                      Dolly M. Gee, District Judge, Presiding




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                              Submitted June 2, 2014**
                                Pasadena, California

Before: GOULD and N.R. SMITH, Circuit Judges, and KORMAN, Senior District
Judge.***

                                          I.

      Defendants have not demonstrated how the government’s failure to preserve

the entire requested one-hour segment of surveillance footage was done in bad

faith. See United States v. Sivilla, 714 F.3d 1168, 1172 (9th Cir. 2013). Special

Investigative Services Technician for the prison, Tymothy Wallace, preserved the

footage he believed captured the entire altercation; the exculpatory value of the

additional footage from the full one-hour requested was not apparent to Wallace.

See id. In addition, Defendants have not shown how the loss prejudiced them.

Id. The preserved footage showed De La Torre’s and Johnson’s demeanor and

conduct prior to the incident. Wallace preserved De La Torre’s entire telephone

conversation and other inmates offered testimony of the events leading up to the

incident.

                                          II.


        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.

                                         -2-
      The district court did not err, let alone plainly err, in failing to sua sponte

provide the jury with an adverse inference instruction regarding the unpreserved

footage. See United States v. Della Porta, 653 F.3d 1043, 1052 (9th Cir. 2011).

Defendants further have not shown they were prejudiced because of the

unpreserved surveillance footage, so there is nothing to balance against the quality

of the government’s conduct. See Sivilla, 714 F.3d at 1173.

                                          III.

      Defendants’ ineffective assistance of counsel claim is not appropriately

raised on direct appeal. United States v. McKenna, 327 F.3d 830, 845 (9th Cir.

2003). The record is not sufficiently developed, and the legal representation was

not so obviously ineffective as to deny Defendants their Sixth Amendment right to

counsel. See id.

                                          IV.

      Viewing the evidence in the light most favorable to the prosecution, the

district court did not err in denying Defendants’ motion for acquittal. United States

v. Grasso, 724 F.3d 1077, 1085-86 (9th Cir. 2013). Surveillance footage, witness

testimony, medical examinations, and injury assessment reports provided sufficient

evidence for the jury to conclude beyond a reasonable doubt that Defendants did




                                          -3-
not act in self-defense. See id. at 1086; United States v. Acosta-Sierra, 690 F.3d

1111, 1126 (9th Cir. 2012).

      AFFIRMED.




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