                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA ,                No. 11-50484
                Plaintiff-Appellee,
                                             D.C. No.
                 v.                       3:10-cr-02966-
                                             WQH-1
VICTOR HUGO SIVILLA ,
             Defendant-Appellant.           OPINION


      Appeal from the United States District Court
        for the Southern District of California
      William Q. Hayes, District Judge, Presiding

              Argued and Submitted
       December 4, 2012—Pasadena, California

                      Filed May 7, 2013

       Before: Harry Pregerson, John T. Noonan,
         and Richard A. Paez, Circuit Judges.

               Opinion by Judge Noonan
2                  UNITED STATES V . SIVILLA

                           SUMMARY*


                           Criminal Law

    Affirming in part and reversing in part a criminal
judgment and remanding for a new trial, the panel clarified
that when the government destroys evidence before trial, a
showing of bad faith is required for dismissal but is not
required for a remedial adverse-inference jury instruction.


                            COUNSEL

Todd Burns, Burns & Cohan, San Diego, California, for
Appellant.

Bruce R. Castetter, and Joseph S. Smith Jr., United States
Department of Justice, San Diego, California, for Appellee.


                             OPINION

NOONAN, Circuit Judge:

    This case allows us to clarify what a criminal defendant
must show in order to receive relief when the government
destroys evidence before trial. We hold that while Supreme
Court precedent demands that a showing of bad faith is
required for dismissal, it is not required for a remedial jury


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 UNITED STATES V . SIVILLA                   3

instruction. We therefore affirm the district court’s denial of
dismissal and reverse the denial of a remedial jury
instruction. We remand for a new trial with a remedial jury
instruction.

                           FACTS

    Victor Hugo Sivilla owned a business selling perfume in
the street markets of Tijuana, Mexico. A few days a week,
Sivilla would cross into California to buy perfumes. On the
evening of June 2, 2010, Sivilla loaned his gold Jeep
Cherokee to his sister-in-law’s long-term boyfriend, Josue.
Josue kept the car for several hours. On June 4, 2010, Sivilla
was in the Jeep, crossing from Tijuana into San Diego
County. When he reached the border, Sivilla was directed to
a secondary inspection. During the secondary inspection, the
inspector noticed that the engine manifold appeared to be
hand cut. The case agent and a contract mechanic removed
approximately $160,000 worth of cocaine and heroin hidden
inside the manifold. The process took about two hours. The
case agent took photographs of the engine area of the car and
the packages. The photographs are of poor quality.
Government agents preserved the packages of drugs.

    Sivilla was arrested. Josue was shot dead by unknown
persons one month later.

                     PROCEEDINGS

    Five days after Sivilla’s arrest, his counsel submitted to
the government a letter requesting the preservation of
evidence seized from the Jeep. On August 16, 2010, Sivilla
moved to preserve and inspect evidence; he re-filed the
motion on August 20, 2010, when the case received a new
4                UNITED STATES V . SIVILLA

number. In the government’s reply, it indicated its general
willingness to preserve the evidence and stated that it would
take necessary steps to do so until Sivilla could arrange an
inspection. On August 30, the district court issued an oral
order to the government to preserve the vehicle, indicating
that a written order would follow in due course. Then, on
September 21, 2010, the district court signed an order
granting Sivilla’s motion, specifically listing the Jeep among
the evidence to be preserved.

    Meanwhile, the Jeep was in the custody of the
Department of Homeland Security’s Fines, Penalties and
Forfeitures Section (FP&F). FP&F was preparing the Jeep
for forfeiture. It was forfeited on September 22, 2010, the
day after the order was signed. The Jeep was transferred to
an auction wholesaler.

    The case agent, Special Agent Esgate, testified that he
was in training outside of the San Diego area on September
23, 2010, when he received a fax from the prosecutor with a
copy of the preservation order. He returned to his office on
Saturday, September 25, 2010. Esgate sent an email to FP&F
that said, in part, “I just received an order to preserve all
evidence related to the case. Please do not destroy any
evidence until the case has concluded.” Esgate and the
Assistant United States Attorney on the case both assumed
that FP&F would hold onto all evidence and would contact
them prior to destroying any of the evidence. They were
wrong. The auction wholesaler sold the Jeep on November
23, 2010. It was stripped for parts.

    In June 2011, Sivilla requested an opportunity to inspect
the vehicle. Then, in July 2011, as the newly-appointed
counsel for Sivilla became aware that the Jeep had been sold,
                 UNITED STATES V . SIVILLA                     5

he filed a motion in limine for sanctions in the event that the
evidence was destroyed. He renewed the motion in August
2011 and requested dismissal of the indictment, or in the
alternative, an instruction to the jury “that Defense counsel
had no opportunity to inspect the vehicle because the
government failed to preserve the vehicle in violation of a
Court order.” He argued at the motion in limine hearing that
a skilled mechanic could have inspected the area where the
drugs were found, estimated how long the drugs had been
there, and informed him of the degree of difficulty of placing
drugs in and later removing drugs from the vehicle. In
particular, the defense wanted to assess whether lifts would
have been necessary, whether the drugs would have been
accessible if the car were parked on a public street, and
whether it would take more than one person to remove the
drugs. Sivilla’s counsel reiterated that he wanted the case
dismissed, and in the alternative and “without waiving my
first request . . . that the court instruct the jury that we were
not allowed or given an opportunity to inspect the vehicle
even though the court had ordered that the government
preserve [it].” The judge gave a verbal order denying the
motion to dismiss and refusing to grant the jury instruction.
The order included the following language: “The court will
not inform the jury that defense counsel did not have an
opportunity to inspect the vehicle because the government
failed to preserve it as ordered. There is no bad faith, and the
government has provided photographs of the vehicle and the
drugs for use by the defense. However defense counsel is
free to explore the facts regarding the failure to preserve the
vehicle during trial.”

    At trial the government based its case on specific
information about the engine manifold and how hard it was
to remove the drugs from the Jeep. The case agent’s
6                UNITED STATES V . SIVILLA

photographs of the engine manifold were admitted as
evidence. Many of them are indecipherable.

    The defense’s theory was that Sivilla did not know that
there were drugs in the car – that Sivilla was a so-called
“blind mule.” Showing that the manifold could be accessed
quickly in a public area while Sivilla was away from the car
would have strengthened the blind mule theory. If drug
traffickers could have accessed the drugs quickly, then the
jury might have harbored a reasonable doubt about Sivilla’s
knowledge that his Jeep contained drugs. The Federal
Defender’s Office of San Diego, which represented Sivilla,
has an investigator on staff who specializes in assessing
secret compartments in vehicles. Neither he nor any other
expert witness was able to assess the compartment, because
the government sold the Jeep. Josue borrowing the car
shortly before Sivilla’s last crossing, and being killed after
Sivilla’s arrest, helped to bolster the blind mule theory, but
without the ability to rebut the government’s evidence about
the engine manifold itself, Sivilla could not convince the jury
that he was unaware that there were drugs in the Jeep.

    The jury returned a verdict of guilty on all four counts.
Sivilla received a 120 month sentence. He appealed to this
court, arguing that his due process rights were violated by the
government’s destruction of evidence and that the trial judge
erred in denying his motion to dismiss. In the alternative,
Sivilla argues that the trial judge erred in requiring a showing
of bad faith in order to give a remedial jury instruction.

                         ANALYSIS

   “Whether a defendant’s due process rights were violated
by the government’s failure to preserve potentially
                 UNITED STATES V . SIVILLA                    7

exculpatory evidence is reviewed de novo. We review factual
findings, such as the absence of bad faith, for clear error.”
United States v. Del Toro-Barboza, 673 F.3d 1136, 1149 (9th
Cir. 2012) (quotation marks and internal citation omitted).
“The clear error standard is highly deferential and is only met
when the reviewing court is left with a definite and firm
conviction that a mistake has been committed.” In re
Anonymous Online Speakers, 661 F.3d 1168, 1177 (9th Cir.
2011) (citation and internal quotation marks omitted).

    In order for destruction of evidence to rise to the level of
a constitutional violation, a party must make two showings.
First, that the government acted in bad faith, the presence or
absence of which “turns on the government’s knowledge of
the apparent exculpatory value of the evidence at the time it
was lost or destroyed.” United States v. Cooper, 983 F.2d
928, 931 (9th Cir. 1993) (citing Arizona v. Youngblood,
488 U.S. 51, 56-57 (1988)). Second, that the missing
evidence is “of such a nature that the defendant would be
unable to obtain comparable evidence by other reasonably
available means.” California v. Trombetta, 467 U.S. 479,
489 (1984); Cooper, 983 F.2d at 931. Another configuration
of this test requires the showing of bad faith where the
evidence is only potentially useful and not materially
exculpatory. Del Toro-Barboza, 673 F.3d at 1149. For
evidence to be materially exculpatory, its exculpatory nature
must be apparent. Id.

    Under either configuration of the test, the inquiry turns on
whether any exculpatory value of evidence in the Jeep was
apparent to the government agents. The border agent testified
that when he arrested Sivilla, he did not think there was any
additional evidentiary value to the vehicle. He was asked
whether he thought there was “significant evidentiary value
8                 UNITED STATES V . SIVILLA

to keeping the [Jeep] Grand Cherokee itself,” and he replied
“I did not. Pictures were taken of the compartment. You
know, pictures were made of the vehicle.” Any exculpatory
value of the Jeep itself was not apparent.

    The district court did not clearly err in finding that the
government did not act in bad faith. As we explained in
Cooper, “presence or absence of bad faith turns on the
government’s knowledge of the apparent exculpatory value
of the evidence at the time it was lost or destroyed.” 983 F.2d
at 931. The exculpatory value of the Jeep was not obvious.
Thus, while the government was negligent in not preserving
the evidence, Sivilla is unable to establish that the
government’s actions rise to the level of bad faith required by
Youngblood. We affirm the district court’s holding that there
was no constitutional violation and its refusal to dismiss on
that ground.

    Sivilla argues in the alternative that the district court erred
in requiring a showing of bad faith in order to grant the
remedial jury instruction. We review a district court’s refusal
to give an adverse inference instruction, when properly raised
by the appellant, for abuse of discretion. United States v.
Belden, 957 F.2d 671, 674 (9th Cir. 1992). The government
argues that Sivilla did not raise this argument in the district
court. In light of the court’s ruling on Sivilla’s pre-trial
motions, we are satisfied that he preserved the issue for
appellate review.

    Abuse of discretion is a two-part test in this circuit. First,
the panel must “determine de novo whether the trial court
identified the correct legal rule to apply to the relief
requested. If the trial court failed to do so, [the panel] must
conclude [the trial court] abused its discretion.” United
                 UNITED STATES V . SIVILLA                     9

States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009). If the
trial court identified the correct legal rule, then the panel
“determine[s] whether the trial court’s application of the
correct legal standard was (1) illogical, (2) implausible, or (3)
without support in inferences that may be drawn from the
facts in the record.” Id. (internal quotation marks and citation
removed).

    The district court based its denial of Sivilla’s claim on a
lack of bad faith. Bad faith is the wrong legal standard for a
remedial jury instruction. Sivilla correctly identifies the
appropriate legal standard in U.S. v. Loud Hawk, 628 F.2d
1139 (9th Cir. 1979). Loud Hawk is an en banc decision with
several opinions.       The rule governing sanctions for
destruction of evidence is found in Judge Anthony Kennedy’s
6–5 concurrence. Judge Trask’s opinion in Loud Hawk,
which announced the judgment of the court, suggests a bad
faith requirement for sanctions when the government destroys
or loses evidence. 628 F.2d at 1146. However, that section of
Judge Trask’s opinion was not joined by any other members
of the en banc panel. We clarify today that Judge Kennedy’s
concurring opinion, joined by a majority of the en banc panel,
clearly controls this issue.

    According to Judge Kennedy’s controlling concurrence,
“[o]ur principal concern is to provide the accused an
opportunity to produce and examine all relevant evidence, to
insure a fair trial.” Id. at 1151 (Kennedy, J., concurring).
Courts must balance “the quality of the Government’s
conduct” against “the degree of prejudice to the accused,”
where the government bears the burden of justifying its
conduct and the accused of demonstrating prejudice. Id. at
1152.
10               UNITED STATES V . SIVILLA

     In evaluating the quality of the government’s conduct:

        the court should inquire whether the evidence
        was lost or destroyed while in its custody,
        whether the Government acted in disregard
        for the interests of the accused, whether it was
        negligent in failing to adhere to established
        and reasonable standards of care for police
        and prosecutorial functions, and, if the acts
        were deliberate, whether they were taken in
        good faith or with reasonable justification
        . . . . It is relevant also to inquire whether the
        government attorneys prosecuting the case
        have participated in the events leading to loss
        or destruction of the evidence, for
        prosecutorial action may bear upon existence
        of a motive to harm the accused.

Id. Here, evidence was destroyed while in the government’s
custody. The government was negligent in failing to adhere
to reasonable standards of care in its prosecutorial functions.
The prosecutor promised to protect the evidence but failed to
take any affirmative action to that end. The government
attorney prosecuting the case participated in the events
leading to the failure to preserve. In total, the quality of the
government’s conduct was poor.

     We now turn to the prejudice to the defendant.

        In analyzing prejudice, the court must
        consider a wide number of factors including,
        without limitation, the centrality of the
        evidence to the case and its importance in
        establishing the elements of the crime or the
                 UNITED STATES V . SIVILLA                 11

       motive or intent of the defendant; the
       probative value and reliability of the
       secondary or substitute evidence; the nature
       and probable weight of factual inferences or
       other demonstrations and kinds of proof
       allegedly lost to the accused; the probable
       effect on the jury from absence of the
       evidence, including dangers of unfounded
       speculation and bias that might result to the
       defendant if adequate presentation of the case
       requires explanation about the missing
       evidence.

Id. Loud Hawk turned on the quality of the available
secondary or substitute evidence, which in that case was quite
high. Id. at 1155–56. Here, the opposite is true. Sivilla
sought to use his inspection of the Jeep to rebut the
prosecution’s argument that he must have known that the
drugs were in the Jeep because of how long and involved a
process it was to remove them from the car. The government
introduced the testimony of Officer Cardenas to prove this
point. The photographs were the only substitute evidence
available to Sivilla to rebut this argument. But the
photographs are inadequate because they are pixelated and
difficult to decipher. Any expert witness presented only with
the photographs would have concluded that next to nothing
could be determined from them. In order for Sivilla to mount
his only defense, that he did not know the drugs were in the
car, the defense’s in-house expert witness for hidden
compartments in vehicles would have needed access to the
vehicle itself, not grainy and indecipherable photographs.
The prejudice to the defendant was significant. Applying
Loud Hawk’s balancing test, a remedial jury instruction was
warranted.
12               UNITED STATES V . SIVILLA

                       CONCLUSION

    We affirm in part, reverse in part, and remand the case to
the district court for a new trial with instructions to grant the
defendant a remedial jury instruction.
