                                                                             FILED
                            NOT FOR PUBLICATION
                                                                              MAR 13 2018
                     UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No.    16-10453

              Plaintiff-Appellee,                 D.C. No.
                                                  4:15-cr-01340-RM-LAB-1
 v.

NORMA LAURA MANJARREZ,                            MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                    Rosemary Marquez, District Judge, Presiding

                      Argued and Submitted February 16, 2018
                             San Francisco, California

Before: SCHROEDER, TORRUELLA,** and RAWLINSON, Circuit Judges.

      Norma Laura Manjarrez appeals her jury conviction of one count of

conspiracy and one count of transporting an illegal alien for profit, in violation of 8

U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(A)(v)(I), and (a)(1)(B)(i). She received a four-


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Juan R. Torruella, United States Circuit Judge for the
First Circuit, sitting by designation.
month sentence of imprisonment and two years of supervised release on each

count, to run concurrently.

       Her appeal centers around the cell phone that border patrol agents

confiscated at the time of her arrest and that was subsequently, mistakenly,

destroyed. She moved to dismiss her indictment, but failed to object to the

Magistrate Judge’s Report and Recommendation that her motion be denied, so

review for plain error is appropriate. See United States v. Olano, 507 U.S. 725,

731–32 (1993). Even if we were to review her claim of bad faith for clear error,

however, we would have to affirm the conviction. See United States v. Sivilla, 714

F.3d 1168, 1172 (9th Cir. 2013) (citation omitted) (reviewing finding of absence of

bad faith for clear error).

       1. Manjarrez contends that the phone contained exculpatory evidence

showing that her calls were related to her bakery business rather than alien

smuggling. To constitute grounds for dismissal, there must be bad faith on the part

of the government agents. See Arizona v. Youngblood, 488 U.S. 51, 58 (1988). In

order to establish bad faith in connection with the destruction of evidence, there

must be knowledge on the part of the government 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 Youngblood, 488 U.S. at 56–57


                                          2
n.*). There is no suggestion in this record that the agents knew of any exculpatory

value at the time it was destroyed. Even assuming the government knew of some

exculpatory value, there is no evidence of bad faith in relation to the destruction.

See Youngblood, 488 U.S. at 58; California v. Trombetta, 467 U.S. 479, 488

(1984). The record reflects the government did not want the phone destroyed and

the government’s good faith can be inferred from the evidence that it was

attempting to secure a search warrant for the phone at the time it was accidentally

destroyed.

      2. Because there was no bad faith, there was no violation of due process.

See Sivilla, 714 F.3d at 1172 (citations omitted). Moreover, Manjarrez had

“alternative means of demonstrating [her] innocence.” Youngblood, 488 U.S. at 56

(quoting Trombetta, 467 U.S. at 490). She could have called her customers or her

family and friends to corroborate her defense.

      3. Finally, even if the government’s negligent conduct could give rise to

doubts about the contents of the information on the phone, any problem was cured

by the giving of an adverse inference instruction, as requested by Manjarrez. See

Sivilla, 714 F.3d at 1173–74.

      AFFIRMED.




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