                                                                              FILED
                           NOT FOR PUBLICATION                                OCT 29 2012

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-10470

              Plaintiff - Appellee,              D.C. No. 4:10-cr-00024-CKJ-
                                                 DTF-1
  v.

EBER AGUILAR-ACEVEDO,                            MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                   Cindy K. Jorgenson, District Judge, Presiding

                           Submitted October 15, 2012**
                             San Francisco, California

Before: SCHROEDER and BEA, Circuit Judges, and RESTANI, Judge.***

       Appellant Eber Aguilar-Acevedo appeals his jury conviction for illegal re-

entry after deportation in violation of 8 U.S.C. § 1326 and for assault on a Federal

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Jane A. Restani, Judge for the U.S. Court of
International Trade, sitting by designation.
Officer in violation of 18 U.S.C. §§ 111(a)(1) and 111(b)(2). We have jurisdiction

under 28 U.S.C. § 1291, and we affirm the conviction and sentence.

      The district court did not err in denying Appellant’s request for an adverse

inference jury instruction because there was no evidence of bad faith on the part of

the police in failing to preserve the rocks used in the assault. See Arizona v.

Youngblood, 488 U.S. 51, 58 (1988); United States v. Artero, 121 F.3d 1256,

1259–60 (9th Cir. 1997). The district court did not err in permitting lay witnesses

to establish bodily injuries because the testimony was based on the witnesses’

personal observations and recollection of concrete facts, and it did not require

specialized or technical knowledge to establish that a person was injured by rocks

hitting his head. See Fed. R. Evid. 701.

AFFIRMED.




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