                                                   United States Court of Appeals
                                                            Fifth Circuit
                                                         F I L E D
               UNITED STATES COURT OF APPEALS
                                                        February 13, 2007
                    FOR THE FIFTH CIRCUIT
                                                     Charles R. Fulbruge III
                                                             Clerk

                         No. 06-60406


                 UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

                            VERSUS


     STEVE MICHAEL FASONO, aka STEVE MICHAEL FASANO

                                         Defendant-Appellant.



        Appeal from the United States District Court
          for the Southern District of Mississippi
                         (3:04-CR-34)


Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.

PER CURIAM:*

    Defendant-Appellant Steve Michael Fasono challenges

his conviction for bank robbery. On appeal, Fasono makes

two arguments. First, he contends that the evidence is

insufficient to support his conviction. Second, because

    *
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
at trial the Government did not produce an eyewitness’s

previous written account of the robbery, Fasono argues

that the district court reversibly erred by not giving

the jury a spoliation instruction. We find both arguments

unpersuasive.

    Fasono did not move for judgment of acquittal based

on insufficient evidence after the close of all the

evidence. Therefore, our review is for plain error, and

we will reverse only if we find the record devoid of

evidence pointing to guilt. See United States v. Sam, 467

F.3d 857, 860 (5th Cir. 2006). The record is in no way

devoid of such evidence.

    The following record evidence points to Fasono’s

guilt: (1) bank video camera footage showed a man with

Fasono’s build robbing the bank; (2) four eyewitnesses

identified Fasono as the robber; (3) vehicle records

revealed that Fasono’s vehicle and another vehicle he had

access to matched eyewitness descriptions of the robber’s

vehicle; and (4) Fasono’s fingerprints were found on the

demand note used in the robbery. Additionally, although

motive is not an element required for conviction, see 18

                            2
U.S.C. § 2113(a), the Government established that Fasono

lost approximately $1,800 gambling a few hours prior to

the robbery. A thorough review of the record and our

strict standard of review require us to reject Fasono’s

sufficiency of the evidence argument.

     Fasono    next      argues   that    he   was    entitled      to   a

spoliation instruction based on the Government’s failure

to   produce   an       eyewitness’s     written     account   of    the

robbery, which she gave on scene immediately after the

incident occurred. That statement, Fasono contends, may

have been exculpatory. Fasono alleges that the FBI, which

conducted the investigation, at some point had possession

of the written statement. However, the Government did not

produce it before or at trial.

     We   review    a    district   court’s    refusal    to     give    a

spoliation instruction for an abuse of discretion. See

United States v. Wise, 221 F.3d 140, 156 (5th Cir. 2000).

We have previously held that a request for a spoliation

instruction is properly denied when there is no evidence

of bad faith conduct by the government. See id. The

district court declined to give the instruction for this

                                    3
very reason. Fasono, before the district court and on

appeal, has pointed to no evidence of bad faith conduct

by   the    Government.   Applying   our   well-established

spoliation jurisprudence, we find that the district court

did not abuse its discretion when it declined to give a

spoliation instruction.

     For the foregoing reasons, we AFFIRM.

AFFIRMED.




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