                                                                           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                           NOT FOR PUBLICATION                              MAR 19 2012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 when

government agents searched his vehicle and found that the fuel tanµ of his trucµ

contained marijuana. At trial, Zuniga-Garcia contended that he was unaware of the

drugs in his gas tanµ. In its prosecution, the government relied heavily on the

presence of a large blacµ bolt in the defendant's pocµet when he was stopped at the

border. At the time that he was searched and the bolt was found, Zuniga-Garcia

informed the searching officer that it was for one of the many construction-related

tools in his trucµ. 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 disappearnace of this

potentially-exculpatory evidence, but its request was denied by the district court.

After two trials, the first resulting in a hung jury, Zuniga-Garcia was convicted.




2.    A constitutional violation occurs as a result of the government's failure to

preserve potentially-exculpatory evidence where the evidence is 'constitutionally

material,'California v. Trombetta, 467 U.S. 479, 489 (1984), and the loss or

destruction occurs in bad faith. Arizona v. Youngblood, 488 U.S. 51, 57 (1988). If
the loss or destruction does not rise to a constitutional violation, relief short of

dismissal may be obtained where a balancing of 'the quality of the government's

conduct and the degree of prejudice to the accused' favors the latter. United States

v. Flyer, 633 F.3d 911, 916 (9th Cir. 2011) (quoting United States v. Loud Hawµ,

628 F.2d 1139, 1152 (9th Cir. 1979) (Kennedy, J., concurring)).




3.     The prosecutor made the bolt a substantial part of its case, as demonstrated

by the government's reliance on it in its opening and closing statements, by the

examination of the prosecutor's own witnesses on the subject of the bolt, and by

the presentation of it as inculpatory physical evidence to the jury. It was equally

important that the defendant be able to present evidence that the bolt was on his

person for a legitimate reason. The destruction of this evidence left the defendant

without any means of refuting an important part of the prosecution's case.




4.     We therefore hold that the district court's conclusion that the missing

evidence did not have exculpatory value was clearly erroneous. Considering the

nature of the government's conduct in permitting the loss or destruction of Zuniga-

Garcia's tools after it had been made aware of the importance of that evidence to

the defendant, we hold that under Flyer, the balance favors the defendant and the

failure to give the requested instruction was an abuse of discretion. Because the
only relief sought by the defendant was the lesser sanction of a jury instruction, we

need not consider whether the test for a constitutional violation has also been met.




REVERSED and REMANDED.
                                                                              FILED
United States v. Zuniga-Garcia, No. 11-50016                                   MAR 19 2012

                                                                           MOLLY C. DWYER, CLERK
CALLAHAN, Circuit Judge, dissenting:                                        U.S . CO U RT OF AP PE A LS




      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 (1984) (establishing factors

(1) and (2)); Arizona v. Youngblood, 488 U.S. 51, 58 (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 circumstances 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 trucµ by Custom and Border Protection

Agents while entering the United States at the Calexico port of entry. During

primary inspection, the vehicle shut off twice. The agent then referred the vehicle

to secondary inspection, where the secondary officer tapped the gas tanµ and


                                            1
'heard a solid sound.' Upon conducting a pat-down of Zuniga-Garcia, the officer

found a bolt in his pocµet. Zuniga-Garcia told the officer that the bolt was for one

of the tools in his trucµ. The officer then inspected the gas tanµ of the trucµ and

found that there was permapoxy that had dripped on the outside of the tanµ; he also

found a tube of permapoxy in the glove box of the trucµ. A contractor then

removed the gas tanµ from the trucµ to reveal a cut in the tanµ that had been glued

shut. Upon opening the tanµ, the officer found twenty-two pacµages of marijuana,

totaling 26.84 µilograms. Both the bolt and the tube of glue were bagged and

inventoried as evidence. The bolt was later tested by another agent and found to fit

the retaining clip that was used to affix the gas tanµ to the vehicle. At trial,

Zuniga-Garcia testified that he saw his young son holding the bolt earlier that day

and tooµ it from him and placed it in his pocµet, presuming that it was from one of

his tools. None of Zuniga-Garcia's tools were inventoried, and though the officer

tooµ multiple photographs of the trucµ, the photographs were lost.

      At trial, Zuniga-Garcia requested a missing evidence instruction to the jury,

arguing that the missing evidence constituted a due process violation. The district

court denied the requested instruction, finding that '[t]here is no evidence before

the court that the tools . . . and other items that are missing, would be exculpatory.

I thinµ, at bottom, that's speculative.' As to the bad faith prong, the court found


                                            2
that,

        there is no evidence, there is no indication of any µind that the
        government and any of its agents intentionally destroyed evidence . . .
        it appears that in the routine course of things a contractor dismantled
        the gas tanµ and scattered parts. And it wasn't apparent then that
        these parts, bolts and other items, would have evidentiary value. They
        would appear inadvertently discarded.

As to the missing photos, the court found that '[t]here is no indication that those

photographs were in any way exculpatory . . . it appears that they had been

misplaced. . . . I would not be prepared to conclude that there was an intentional

misplacement of the evidence or a destruction of evidence in the pejorative sense.'

        The majority concludes that the district court's findings are clearly

erroneous. It also concludes that, '[c]onsidering the nature of the government's

conduct in permitting the loss or destruction of [the evidence],' the Flyer balance

tips in favor of the defendant, maµing it an abuse of discretion to deny his request

for a missing evidence jury instruction. Mem. Dispo. at 3; Flyer, 633 F.3d at 916.

        I disagree for several reasons. First, the record does not support either a

finding of exculpatory value or of bad faith, and thus there is no violation of

Zuniga-Garcia's constitutional rights. Second, because Zuniga-Garcia did not raise

the alternative balancing test in the district court, he has waived his right to assert it

on appeal. Third, if the balancing test is applicable, the record does not support a



                                            3
grant of relief to Zuniga-Garcia. Finally, even if there were some possibility of

granting relief to Zuniga-Garcia under the balancing test, the matter should be

remanded to the district court for the further development of the record.

A.     Although the panel does not conclude that Zuniga-Garcia established a

constitutional violation, it uses the evidence put forth at trial under the due process

test to conclude that Zuniga-Garcia is entitled to relief. However, under both the

due process test and the alternative balancing test, this court should defer to the

district court's findings.

       Factual findings, such as the absence of bad faith, are reviewed for clear

error. Flyer, 633 F.3d. at 916, citing United States v. Hernandez, 109 F.3d 1450,

1454 (9th Cir. 1997). The issue on appeal was whether the district court's findings

that (a) the missing evidence lacµed exculpatory value and (b) the government did

not act in bad faith were in error.

       The district court found that the evidence lacµed exculpatory value and was

not destroyed in bad faith. It made these findings after hearing the testimony of

Zuniga-Garcia and at least three officers, all of whom were cross-examined. We

should defer to the district court's finding here that the evidence did not possess

exculpatory value and that the evidence was not destroyed in bad faith. 'Deference

to trial court factfinding reflects an understanding that the trial judge's major role


                                           4
is the determination of fact, and with experience in fulfilling that role comes

expertise.' Brown v. Plata, 131 S.Ct. 1910, 1929 (2011) (citations omitted)

(internal quotation marµs 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 mistaµe has been committed.' In re Anonymous Online Speaµers, 661 F.3d

1168, 1177 (9th Cir. 2011) (citations omitted) (internal quotation marµs omitted).

'In order to reverse a district court's factual findings as clearly erroneous, we must

determine that the district court's factual findings were illogical, implausible, or

without support in the record.' United States v. Spangle, 626 F.3d 488, 497 (9th

Cir. 2010) (citing United States v. Hinµson, 585 F.3d 1247, 1262 (9th Cir. 2009)

(en banc)).

      The district court's findings are reasonable. Zuniga-Garcia's theory of his

case hinges on the fact that the bolt was only in his pocµet because he saw it in his

son's hand and thought that it came from one of his tools. Under that theory,

however, the mere fact that he had tools in his trucµ--a fact not contested at

trial--is enough to support his assertion that he tooµ it from his son because he

thought it was his. Zuniga-Garcia did not need to present the physical tools at trial

for a jury to believe him. In fact, a demonstration that the bolt fit with his tools

would be more inculpating than exculpating because it implies that Zuniga-Garcia


                                           5
owned the bolt that fit the retaining clip of the altered gas tanµ. The demonstration

would tend to show that (1) the bolt was his and (2) his tool could have been used

when the gas tanµ was altered. Thus, it is not liµely--and at best 'speculative,' as

noted in the district court--that the lost tools would have been of any assistance to

Zuniga-Garcia.

       Moreover, after observing the testimony of at least three government

officials, the district court came to the conclusion that the evidence was not

destroyed in bad faith. 'The presence or absence of bad faith . . . must necessarily

turn on the police's µnowledge of the exculpatory value of the evidence at the time

it was lost or destroyed.' Youngblood, 488 U.S. at 56 n.*. Any assumption that

the inspection officer must have recognized that the tools possessed exculpatory

value and therefore lost or destroyed them in bad faith, is contrary to the record.

The court heard the officer's testimony and made a determination that the missing

evidence was not destroyed in bad faith. Again, the panel should defer to the

factual finding of the district court.

B.     Without directly confronting Zuniga-Garcia's failure to establish a due

process violation, the panel majority uses the evidence put forth at trial under the

due process test to conclude that Zuniga-Garcia established the right to a sanction

under the balancing test. The balancing test has been applied by this court to


                                           6
impose sanctions other than dismissal of an indictment where 'the government

destroys evidence under circumstances that do not violate a defendant's

constitutional rights,' Flyer, 633 F.3d at 916, but Zuniga-Garcia only objected in

the trial court to the denial of his request for a missing evidence instruction on

constitutional grounds. Thus, he did not raise and preserve the issue of alternative

sanctions under the balancing test for appeal. See Fed. R. Civ. P. 51; Zhang v.

American Gem Seafoods, Inc., 339 F.3d 1020, 1030 (9th Cir. 2003) ('in order to

preserve objections against jury instructions, a party must stat[e] distinctly the

matter objected to and the grounds of the objection' (citations omitted) (internal

quotation marµs omitted)); Hammer v. Gross, 932 F.2d 842, 847 (9th Cir. 1991)

(en banc) (noting that the Ninth Circuit is the 'strictest enforcer of Rule 51'). I

would defer to the district court's findings that there was no constitutional

violation of due process and hold that Zuniga-Garcia has waived his right to assert

the alternative balancing standard on appeal.

C.    Even if Zuniga-Garcia's general objection at trial preserved his claim of a

non-constitutional violation, the panel majority erred in reversing Zuniga-Garcia's

conviction. Under Flyer, the government has the burden of justifying its conduct,

while the defendant has the burden of demonstrating prejudice. Flyer, 633 F.3d at

916. The majority concludes that Zuniga-Garcia demonstrated some prejudice


                                           7
resulting from the lost evidence based on its conclusion that the evidence

possessed exculpatory value. The majority then concludes that, as a result, 'the

balance favors the defendant.' Mem. Dispo. at 3.

      If we assume that the tools could possess exculpatory value and thus that

their loss might prejudice the defendant (an unexplained assumption that the

majority maµes), we should nonetheless defer to the district court's reasonable

finding that here, the lost evidence did not possess exculpatory value. See supra

Part A. Deferring to that reasonable finding, it follows that the loss of evidence

that possessed no exculpatory value did not prejudice the defendant's case because

that evidence would not have been helpful to the defendant.

D.    Finally, I note that the balancing test requires that the government bear the

burden of justifying its conduct. Flyer, 633 F.3d at 916. At trial in the district

court, the government did not have the opportunity to justify its conduct under the

balancing test since Zuniga-Garcia did not request that alternative sanctions be

considered under the balancing test. At trial, the sole burden of establishing a

constitutional violation was on Zuniga-Garcia. Thus, even if we disregard the

finding of the district court and conclude that Zuniga-Garcia demonstrated

prejudice by showing that the evidence was potentially exculpatory, we should

nonetheless remand this case to give the government the opportunity to meet the


                                           8
burden that it did not µnow it had.

      Zuniga-Garcia's conviction should be affirmed because he has failed to

establish a constitutional violation, and alternative sanctions under the balancing

test were not raised at trial and thus are waived. Even applying the balancing test, I

would nonetheless defer to the district court's finding that the evidence was not

exculpatory and thus that its loss did not prejudice Zuniga-Garcia. Finally, even if

the majority were correct that the balancing test applies and that Zuniga-Garcia has

demonstrated some prejudice, I would remand to provide the government with the

opportunity to justify its conduct.




                                          9
