                    FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                       No. 13-50506
                 Plaintiff-Appellee,
                                                   D.C. No.
                     v.                         3:12-CR-00618-
                                                    WQH-1
 ESTEFANI ZARAGOZA-MOREIRA,
              Defendant-Appellant.                 OPINION


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

                   Argued and Submitted
           February 5, 2015—Pasadena, California

                     Filed March 18, 2015

 Before: Stephen Reinhardt and Ronald M. Gould, Circuit
 Judges, and Robert W. Gettleman, Senior District Judge.*

                 Opinion by Judge Gettleman




  *
    The Honorable Robert W. Gettleman, Senior United States District
Judge for the Northern District of Illinois, sitting by designation.
2          UNITED STATES V. ZARAGOZA-MOREIRA

                           SUMMARY**


                           Criminal Law

    The panel reversed the district court’s denial of a motion
to dismiss an indictment charging importation of
methamphetamine, in a case in which the defendant asserted
that the government destroyed potentially useful evidence –
video footage of a Port of Entry pedestrian line – that might
have supported her claim of duress.

    The panel held that the defendant’s due process rights
were violated because a Homeland Security agent, whose
probable cause statement omitted any reference to the
defendant’s claims of coercion or to her alleged conduct
while waiting in the pedestrian line, knew of the potential
usefulness of the video and acted in bad faith by failing to
preserve it. The panel concluded that the defendant is unable
to find comparable evidence to support her duress defense,
and remanded with directions to dismiss the indictment.


                             COUNSEL

Harini P. Raghupathi (argued), Federal Defenders of San
Diego, Inc., San Diego, California, for Defendant-Appellant.

Laura E. Duffy, United States Attorney, Bruce R. Castetter
and Randy K. Jones (argued), Assistant United States
Attorneys, San Diego, California, for Plaintiff-Appellee.

  **
     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. ZARAGOZA-MOREIRA                  3

                         OPINION

GETTLEMAN, Senior District Judge:

    Defendant Estefani Zaragoza-Moreira (“Zaragoza”)
conditionally pled guilty to importing methamphetamine into
the United States in violation of 21 U.S.C. §§ 952 and 960.
She now appeals the district court’s denial of her motion to
dismiss the indictment on the basis that the government
destroyed potentially useful evidence that might have
supported her claim of duress. Zaragoza argues that the
district court erred by finding that the government did not act
in bad faith and, consequently, did not violate her due process
rights in failing to preserve the evidence. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and
remand.

                     BACKGROUND

    In the early morning hours of December 22, 2011,
Zaragoza entered the pedestrian line for admission into the
United States from Mexico at the San Ysidro, California, Port
of Entry. At the primary inspection booth, Zaragoza handed
Customs and Border Protection (“CBP”) Officer Grant
Patterson her United States passport. Officer Patterson
observed that Zaragoza was traveling with another woman,
and that the two women were standing “shoulder to
shoulder.” Based on a computer-generated referral, Officer
Patterson sent Zaragoza to a secondary inspection.

   CBP Officer Nancy Cervantes, who was conducting
secondary inspections, immediately put on gloves to pat
Zaragoza down. Prior to beginning the pat down, Officer
Cervantes asked Zaragoza whether she had any weapons or
4           UNITED STATES V. ZARAGOZA-MOREIRA

sharp objects on her body. In response, Zaragoza “blurted []
out” that she had packages on her. Officer Cervantes
subsequently removed a package from Zaragoza’s lower back
containing .34 kilograms of heroin and a package from her
abdomen containing .42 kilograms of methamphetamine.

    Following her arrest, Zaragoza was interviewed by
Homeland Security Investigations (“HSI”) Agent Ashley
Alvarado over the course of an hour. The interview was
video recorded and later transcribed. During initial
background questioning, Zaragoza informed Alvarado that
when she was 13 she had been shot multiple times, including
in the head, in a gang-related incident, resulting in memory
and cognitive problems.1 Zaragoza also told Alvarado that
she had taken drugs in the past 24 hours, and that while she
was unsure what kind of drugs she had used, “they made [her]
sniff it” and “it made [her] feel weird.”

    Following preliminary questioning, Alvarado explained
that the purpose of the interview was “to get [Zaragoza’s]
side of the story,” and that “the hard part is over” because she
had “already been caught.” Zaragoza responded: “Yeah, I
made it obvious. I was making — I wanted to be known. I
didn’t want to do it.” Zaragoza proceeded to explain that she
was not paid to cross the drugs into the United States, but
instead that she had “want[ed] to go home.” Zaragoza told


    1
    In May 1999, Zaragoza was shot in the left arm, back, and head by
rival gang members and run over by a vehicle. As a result of the shooting,
Zaragoza suffers from seizures, depression, and memory loss.
Psychological evaluations indicate that Zaragoza’s overall cognitive and
adaptive skills fall in the “mild range of mental retardation,” and that she
suffers from a loss of intellectual functioning capacity. Zaragoza’s
adaptive skills resemble those of an average 8 year old.
          UNITED STATES V. ZARAGOZA-MOREIRA                     5

Alvarado that she had been in Tijuana for three days, after
traveling there to party with her friend Karen.

    Zaragoza explained to Alvarado that after spending three
days in Mexico she had run out of money and wanted to
return home to the United States. At this time, two of the
men she was with, Hernan and Chino, who were allegedly
connected to the “Antrax of El Mayo” drug cartel, began
pressuring her to tape drugs to her body when she crossed the
border. The plan was that Hernan would accompany
Zaragoza to the border and then meet her at a restaurant to
retrieve the drugs after she had entered the United States.
Zaragoza claimed that she originally resisted carrying the
drugs, telling the men that she “didn’t want to do it,” but that
the two men and her friend Karen continued to pressure her.
Zaragoza eventually relented, allowing Karen to help strap
the packages of drugs to her body. According to Zaragoza,
Karen did not carry any drugs across the border.

    Zaragoza insisted that while in the pedestrian line she
“wanted [the authorities] to notice [her], so she tried to attract
attention by “making a lot of noises so I could be noticed,”
and by making herself “obvious.” Zaragoza demonstrated to
Alvarado the motions she allegedly made so that border
inspectors would notice her, stating that she “was making so
many things like so they could notice there was something
wrong with me.” Zaragoza also claimed that she had been in
the pedestrian line earlier that morning, around 4:00 a.m., but
that Chino and Karen had taken her out of the line because
she had purposely tried to loosen the packages of drugs that
were attached to her body. She stated that she had “wiggled
around,” “patted her stomach,” and “threw her passport on
the ground” to draw attention to herself while in line. Karen
allegedly told Zaragoza to “calm down” because she was
6         UNITED STATES V. ZARAGOZA-MOREIRA

“making it obvious.” Zaragoza explained to Alvarado that
she did not directly alert border inspectors because she “was
scared because Karen was with [her]” in the line.

    According to Zaragoza, Chino and Hernan did not offer
her any money to cross the drugs, but stated only that if she
did it, “nothing’s going to happen to [her] daughter or [her]
mother.” Zaragoza told Alvarado that she was in the
pedestrian line for about 40 minutes prior to reaching the
primary inspection booth. Zaragoza denied knowing what
type of drugs she was transporting, stating that she did not ask
Hernan or Chino because “[t]hey’re going to get paranoid and
they’re going to kill me.” Before the end of the interview
with Alvarado, Zaragoza again insisted that “I made myself
obvious. I made myself obvious a lot. I made myself
obvious.” In response to Alvarado’s questions regarding why
she was carrying Santa Muerte paraphernalia, a saint
commonly believed to protect and guide drug traffickers,
Zaragoza explained that the saint held a different meaning to
her, and that “if I want[ed] to not get caught, why was I
making myself obvious?”

    During the interview, Zaragoza also told Alvarado that
she had previously been in Mexico for four months, staying
with Karen and Karen’s cousins, Juan and Junior. Zaragoza
stated that during that time, she “couldn’t leave,” because
“they took [her] money,” and that every time she sought to
return to the United States, Karen’s cousins convinced her to
stay. She also stated that she did not return to the United
States because she had fallen in love with one of the cousins’
friends. She claimed that during this four month stay, Juan
and Junior tried to convince her to cross people and drugs
into the United States, but she had refused. When Alvarado
probed for more information about Karen and her cousins,
          UNITED STATES V. ZARAGOZA-MOREIRA                  7

Zaragoza was hesitant, explaining that she was scared
because “these people are really dangerous,” and had
connections “to the cartel.”

      A criminal complaint charging Zaragoza with importing
heroin and methamphetamine into the United States was
issued on December 23, 2011. The complaint was based in
part on Alvarado’s probable cause statement, which stated
that Zaragoza admitted to attempting to smuggle narcotics
into the United States, but omitted any reference to
Zaragoza’s claims of coercion or to her alleged conduct while
waiting in the pedestrian line. Five days later, on December
28, 2011, Zaragoza’s attorney sent a letter to the Assistant
United States Attorney (“AUSA”) assigned to the case
requesting the preservation of evidence. The letter stated that
“defendant specifically requests that any and all videotapes
. . . that may be destroyed, lost, or otherwise put out of the
possession, custody, or care of the government and which
relate to the arrest or the events leading to the arrest [of
Zaragoza] in this case be preserved.”

    Zaragoza was subsequently indicted by a grand jury of
one count of importing heroin and one count of importing
methamphetamine. On February 23, 2012, Zaragoza’s
counsel filed a motion to compel discovery and preserve
evidence, specifically referencing the video recordings at the
Port of Entry. Following a hearing on February 27, 2012, the
district court ordered the government to preserve the video
evidence. In line with the court’s order, on February 28, 2012,
the United States Attorney’s Office (“USAO”) requested the
Port of Entry video footage from the day of Zaragoza’s arrest.
However, U.S. Customs and Border Protection informed the
USAO that the video footage from December 22, 2011, had
been destroyed around January 21, 2012, after it had been
8        UNITED STATES V. ZARAGOZA-MOREIRA

automatically recorded over within 30 to 45 days of
Zaragoza’s arrest.

    Zaragoza moved to dismiss the indictment due to the
government’s destruction of the video footage. Zaragoza’s
motion was denied following a hearing in which Zaragoza,
CBP officers Patterson and Cervantes, and Agent Alvarado
testified. Zaragoza subsequently entered a conditional plea
of guilty, reserving the right to appeal the district court’s
denial. This appeal follows.

                STANDARD OF REVIEW

    The district court’s holding that Zaragoza’s due process
rights were not violated by the government’s failure to
preserve potentially exculpatory evidence is reviewed de
novo. United States v. Sivilla, 714 F.3d 1168, 1172 (9th Cir.
2013). Factual findings, such as the district court’s finding
that the government’s actions did not amount to bad faith, are
reviewed for clear error. Id. “‘[R]eview under the clearly
erroneous standard is significantly deferential, requiring a
definite and firm conviction that a mistake has been
committed.”’ McMilan v. United States, 112 F.3d 1040, 1044
(9th Cir. 1997) (quoting Concrete Pipe and Prods. of Cal.,
Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S.
602, 623 (1993)).

                       DISCUSSION

    Zaragoza argues that the government’s failure to preserve
the Port of Entry video footage from the morning of her arrest
violated her due process right to present a complete defense.
In California v. Trombetta, 467 U.S. 479, 489 (1984), the
Supreme Court held that “the government violates the
          UNITED STATES V. ZARAGOZA-MOREIRA                  9

defendant’s right to due process if the unavailable evidence
possessed ‘exculpatory value that was apparent before the
evidence was destroyed, and [is] of such a nature that the
defendant would be unable to obtain comparable evidence by
other reasonably available means.”’ United States v. Cooper,
983 F.2d 928, 931 (1993) (quoting Trombetta, 467 U.S. at
489). The Court subsequently added a third requirement for
establishing a due process violation in Arizona v.
Youngblood, 488 U.S. 51, 57–58 (1988), holding that the
defendant must demonstrate that the government acted in bad
faith in failing to preserve the potentially useful evidence.
See also Cooper, 983 F.2d at 931.

    As this court explained in Cooper, “Youngblood’s bad
faith requirement dovetails with the first part of the
Trombetta test: that the exculpatory value of the evidence be
apparent before its destruction.” Id. The 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, because without knowledge of the potential
usefulness of the evidence, the evidence could not have been
destroyed in bad faith. Youngblood, 488 U.S. at 56 n.*;
Sivilla, 714 F.3d at 1172; United States v. Leal-Del Carmen,
697 F.3d 964, 970 (9th Cir. 2012) (“When the government
doesn’t know what a witness will say, it doesn’t act in bad
faith in deporting him . . . . The question of bad faith thus
turns on what the government knew at the time it deported the
witness.”).

    Applying the requisite test above, the district court found
that while the video footage was potentially useful evidence,
its exculpatory value was not readily apparent to Agent
Alvarado. Without addressing the AUSA’s actions, or lack
thereof, in light of the December 28, 2011, letter from
10        UNITED STATES V. ZARAGOZA-MOREIRA

defense counsel requesting the preservation of video
evidence, the district court held that “[t]he facts and
circumstances of this case do not support a finding that Agent
Alvarado or counsel for the government destroyed potentially
exculpatory evidence in bad faith.”

    Zaragoza concedes on appeal that the destroyed video
footage was not materially exculpatory, but was, as found by
the district court, potentially useful evidence. While the
government does not admit that the evidence was potentially
useful, it does not present any argument to the contrary.
Potentially useful evidence, as defined in Youngblood, is
“evidentiary material of which no more can be said than that
it could have been subjected to tests, the results of which
might have exonerated the defendant.” Youngblood, 488 U.S.
at 57.

     Here, the issue is whether the video footage of the Port of
Entry pedestrian line on December 22, 2011, was potentially
useful to Zaragoza’s duress defense. Duress is “a common-
law defense that allows a jury to find that the defendant’s
conduct is excused, even though the government has carried
its burden of proof.” United States v. Kuok, 671 F.3d 931,
947 (9th Cir. 2012) (citing Dixon v. United States, 548 U.S.
1, 12–14 & n.9 (2006)). “To establish duress, the burden of
proof is on the defendant to show that: (1) he was under an
immediate threat of death or serious bodily injury, (2) he had
a well grounded fear that the threat would be carried out, and
(3) he had no reasonable opportunity to escape.” Id. (citing
United States v. Shapiro, 669 F.2d 593, 596 (9th Cir. 1982)).
To satisfy the third element, it is relevant whether the
defendant had an “opportunity to surrender to the authorities
on reaching a point of safety.” United States v. Ibarra-Pino,
657 F.3d 1000, 1005 (9th Cir. 2011). A defendant “must
          UNITED STATES V. ZARAGOZA-MOREIRA                 11

present some evidence indicating that he ‘took the
opportunity to escape the threatened harm by submitting to
authorities at the first reasonable opportunity.’” Id. (quoting
United States v. Contento-Pachon, 723 F.2d 691, 695 (9th
Cir. 1984)).

    As the district court found, the destroyed video was
potentially useful evidence to support defendant’s claim of
duress. The video footage may have shown Zaragoza
throwing her passport on the ground, trying to loosen the
packages of drugs from her body, Karen and Chino removing
her from the pedestrian line, and other behavior that Zaragoza
allegedly engaged in to make herself “obvious” to law
enforcement. Such evidence, especially Zaragoza trying to
attract the attention of the border inspectors, would be
particularly helpful to Zaragoza establishing the third element
of her duress claim. The video may have also shed light on
the extent to which Karen was overseeing and controlling
Zaragoza, and whether it would have been feasible for
Zaragoza to have alerted border inspectors to the contraband
at an earlier time. As such, the district court correctly found
that the video footage was “potentially useful evidence.”

    The district court, however, clearly erred in finding that
the exculpatory value of the video footage of the Port of
Entry pedestrian line was not readily apparent to Agent
Alvarado. As discussed above, when potentially useful
evidence has been destroyed by the government, the bad faith
inquiry initially “turns on the government’s knowledge of the
apparent exculpatory value of the evidence at the time it was
lost or destroyed.” Sivilla, 714 F.3d at 1172 (internal quotes
omitted); Leal-Del Carmen, 697 F.3d at 970; Cooper,
983 F.2d at 931. A review of the interview transcript
establishes Agent Alvarado’s knowledge of the potentially
12       UNITED STATES V. ZARAGOZA-MOREIRA

exculpatory value of the pedestrian line video before it was
destroyed.

    From the beginning to the end of Agent Alvarado’s hour-
long interview with Zaragoza, Zaragoza repeatedly alerted
Alvarado to her duress claim and the potential usefulness of
the pedestrian line video footage. See Cooper, 983 F.2d at
931 (finding bad faith where the destroyed evidence’s “value
as potentially exculpatory evidence was repeatedly suggested
to government agents”). Shortly after questioning began,
when asked to tell her side of the story, Zaragoza stated
“[y]eah, I made it obvious. I was making — I wanted to be
known. I didn’t want to do it.” Thereafter, Zaragoza
repeatedly stated throughout the interview that she had tried
to attract the attention of the authorities while in the
pedestrian line by “making a lot of noises so I could be
noticed,” and by making herself “obvious.”

     Zaragoza explained to Agent Alvarado that she had
initially been in the pedestrian line around 4:00 a.m. on
December 22, 2011, but had been removed from the line by
Chino and Karen after intentionally loosening the packages
of drugs taped to her body and engaging in other attention-
seeking behavior. Zaragoza demonstrated to Agent Alvarado
the motions she allegedly made to indicate to border agents
that “there was something wrong with me” and explained that
she had “wiggled around,” “patted her stomach,” and
“thrown” her passport on the ground” to draw attention to
herself while in line. As the interview wound down,
Zaragoza continued insisting that “I made myself obvious. I
made myself obvious a lot. I made myself obvious,” and
stated that “if I want[ed] to not get caught, why was I making
myself obvious?”
          UNITED STATES V. ZARAGOZA-MOREIRA                   13

    Despite Agent Alvarado’s testimony that she
“overlooked” retrieving the video footage because it was “just
something I didn’t think about doing,” Alvarado undoubtedly
appreciated the significance of Zaragoza’s claims during the
interview.     While discussing Zaragoza and Karen’s
interactions in the pedestrian line, Alvarado asked Zaragoza
how long she had waited in line, to which Zaragoza indicated
that she had been in the pedestrian line for about 40 minutes.
Agent Alvarado also asked Zaragoza why she did not alert
border inspectors to the drugs earlier, and Zaragoza explained
that she was “scared because Karen was with me.” Alvarado
then followed up, asking Zaragoza if Karen was “right next
to [her],” if the two had been in the “same lines,” and if
Karen was “right there.” Later on, Alvarado confirmed that
“Karen was right behind you in the same line?”

     Agent Alvarado obviously recognized the importance of
Zaragoza’s statement that Karen was with her in the
pedestrian line. Indeed, Alvarado asked the question in the
first place. She also repeated the question numerous times,
confirming Zaragoza’s answer, which she would not have
done if she thought the answer was inconsequential. See
Leal-Del Carmen, 697 F.3d at 970. Although the district
court recounted a number of other statements Zaragoza made
during the interview that may have weakened Zaragoza’s
duress claim, the strength of her defense and whether
Alvarado believed the claim do not diminish the potential
usefulness of the video. Cooper, 983 F.2d at 933
(“[Defendants] should not be made to suffer because
government agents discounted their version and, in bad faith,
allowed its proof, or its disproof, to be buried in a toxic waste
dump.”).
14        UNITED STATES V. ZARAGOZA-MOREIRA

     The government argues that even if the video footage was
potentially useful evidence and Agent Alvarado was aware of
its exculpatory value, the government did not act in bad faith
in failing to preserve the evidence because it did not
“purposefully destroy the evidence to gain an unfair
advantage at trial.” The government asserts that failure to
preserve the video evidence was a mere “oversight,” and that
negligence or recklessness is not sufficient to support a
finding of bad faith. In the context of the instant case, we
disagree.

    Contrary to the government’s contentions, Agent
Alvarado’s actions were not merely negligent or reckless, nor
was the video destroyed in the normal course of the
government’s usual procedures. Agent Alvarado testified that
she has a professional obligation to collect and preserve both
exculpatory and inculpatory evidence. She admitted that she
understood that a defendant who is threatened or forced to
commit a crime has a possible defense to that crime. Agent
Alvarado also testified that she knew the pedestrian line at the
Port of Entry was under constant video surveillance and that
she had the ability to review and preserve the video
recordings. However, despite this knowledge, including her
knowledge of the apparent exculpatory value of the evidence,
Alvarado made no attempt to view or preserve the Port of
Entry video before it was destroyed.

    Agent Alvarado authored four reports in connection with
this case. Of the four reports, only one, which was prepared
shortly before the district court’s hearing on Zaragoza’s
motion to dismiss, included Zaragoza’s statements about
being coerced into transporting the drugs and trying to attract
law enforcement attention while in the pedestrian line. Even
more disturbing, Alvarado’s probable cause statement
         UNITED STATES V. ZARAGOZA-MOREIRA                 15

supporting the criminal complaint that was presented to the
magistrate judge did not include any reference to Zaragoza’s
claims of duress. Although Alvarado testified that such
reports and affidavits should be complete and accurate, these
official documents contained glaring omissions in light of the
statements Zaragoza repeatedly made to Alvarado.

     The follow-up investigation conducted by Agent
Alvarado further indicates that she acted in bad faith in
failing to preserve the video footage from the Port of Entry.
After questioning Zaragoza, Alvarado confirmed that Karen
had indeed crossed the border through the pedestrian line at
the San Ysidro, California, Port of Entry with Zaragoza on
December 22, 2011. This information, at least in part,
corroborated Zaragoza’s statements to Alvarado, providing
Alvarado with yet another reason to at least view the video
evidence to determine if Zaragoza’s statements could be
corroborated or disproved. In light of the apparent value of
the video evidence, which was known to Agent Alvarado, her
actions following Zaragoza’s interview are sufficient to
establish that she made “a conscious effort to suppress
exculpatory evidence,” thereby acting in bad faith.
Trombetta, 467 U.S. at 488.

    As noted above, in concluding that the government did
not act in bad faith, the district court did not address the
AUSA’s actions, or lack thereof, in light of the December 28,
2011, letter from defense counsel requesting the preservation
of video evidence. The parties agree, as do we, that Agent
Alvarado should not have been the only relevant actor in the
court’s bad faith analysis. The government, however, argues
that the AUSA’s “failure to notify [Homeland Security
Investigations] of Zaragoza’s request to preserve the video
evidence was nothing more than an oversight based on the
16        UNITED STATES V. ZARAGOZA-MOREIRA

fact that the parties were in plea negotiations that led to the
negotiated settlement of the case.”

     We reject this argument that plea negotiations somehow
excused the AUSA’s lack of action following receipt of the
letter. When discovery is requested by the defendant, as was
the case here, plea negotiations should be based on full
disclosure of the requested evidence. In addition, had the
initial plea negotiations been successful, evidence of
Zaragoza’s duress claim, even if an imperfect defense, would
have been relevant as a mitigating factor at sentencing. See
18 U.S.C. § 3553(a)(1) (“The court, in determining the
particular sentence to be imposed shall consider — the nature
and circumstances of the offense . . . .”); see also U.S.S.G.
§ 5K2.12 (sentencing court may depart from Guideline range
“[i]f the defendant committed the offense because of serious
coercion, blackmail or duress, under circumstances not
amounting to a complete defense”).

    Moreover, when the government fails to comply with
preservation requests and allows evidence to be destroyed, it
likely runs afoul of its discovery disclosure requirements
under Fed. R. Crim. P. 16. See, e.g., United States v.
Hernandez-Meza, 720 F.3d 760, 768 (9th Cir. 2013) (Fed. R.
Crim P. 16(a)(1)(E)(i), requiring the government to “disclose
any documents or other objects within its possession, custody
or control that are ‘material to preparing the defense’ . . . . is
unconditional.”). While non-compliance with Rule 16 does
not amount to a due process violation absent bad faith, the
government’s failure to take action in response to defense
counsel’s letter in the instant case is particularly disturbing.
Nevertheless, because Agent Alvarado’s actions are sufficient
to establish bad faith we need not decide whether that failure
would also constitute bad faith or contribute to such a finding.
          UNITED STATES V. ZARAGOZA-MOREIRA                  17

    Because the district court did not find that the government
acted in bad faith in failing to preserve the video evidence, it
did not address whether “the missing evidence is ‘of such a
nature that the defendant would be unable to obtain
comparable evidence by other reasonably available means.’”
Sivilla, 714 F.3d at 1172 (quoting Trombetta, 467 U.S. at
489). The government argues that Zaragoza has not met her
burden to show a lack of reasonably available comparable
evidence. According to the government, comparable
evidence is available in the form of defendant’s own
testimony concerning her duress claim and cross-examination
of “the Customs and Border Patrol officers about her
demeanor, whether she attempted to withdraw from the
crime, and whether they were aware of her attempts to call
their attention to the people who allegedly threatened her.”
We again disagree.

    The government has not suggested any reasonably
available evidence that would be comparable to the destroyed
video footage of the Port of Entry pedestrian line. The
government’s argument that in lieu of the destroyed video
footage Zaragoza could testify at trial concerning her conduct
in the Port of Entry line, runs afoul of Zaragoza’s Fifth
Amendment right against self-incrimination, by essentially
forcing her to testify in her own defense. Notwithstanding
the obvious Fifth Amendment implications triggered by the
government’s argument, Zaragoza’s self-serving testimony,
especially in light of her substantial cognitive disabilities,
would not be comparable to video footage that recorded her
actions while in the pedestrian line. Cross examination of the
border inspectors regarding Zaragoza’s behavior in the
pedestrian line would also be incomparable, because neither
the primary nor secondary inspectors observed Zaragoza
while she waited in line. Consequently, we conclude that
18       UNITED STATES V. ZARAGOZA-MOREIRA

Zaragoza is unable to find comparable evidence to support
her duress defense.

                      CONCLUSION

    For the foregoing reasons, we conclude that the district
court committed clear error by finding that the apparent
exculpatory value of the Port of Entry pedestrian line video
was not known to Agent Alvarado and that the government,
therefore, did not act in bad faith in failing to preserve the
evidence. Because we have determined that Agent Alvarado
knew of the potential usefulness of the video footage and
acted in bad faith by failing to preserve it, Zaragoza’s due
process rights were violated. We therefore reverse and
remand to the district court with directions to dismiss the
indictment.

     REVERSED and REMANDED.
