                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS           July 5, 2007
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                            No. 06-51608
                          Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

LANCE E. LIVINGSTON,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                      USDC No. 7:06-CR-104-2
                       --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Lance E. Livingston appeals his conviction and sentence for

conspiracy to distribute and possess with the intent to

distribute methamphetamine and aiding and abetting the

distribution of methamphetamine.   Livingston argues that the

evidence is insufficient to support his conviction and that the

district court erred in declining to instruct the jury on the

spoliation of evidence.

     Livingston’s argument challenging the sufficiency of the


     *
      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this opinion should not be published and is not precedent except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.
                             No. 06-51608
                                  -2-

evidence does not address the evidence presented on the elements

of conspiracy or aiding and abetting.       He contends that the

evidence did not show that he actually possessed or distributed

methamphetamine.    Livingston was charged and convicted of

conspiracy and aiding and abetting.     Thus, the Government was not

required to prove that he actually possessed or distributed

methamphetamine.    See Delagarza-Villarreal, 141 F.3d 133, 140

(5th Cir. 1997).    A reasonable trier of fact could have found

Livingston guilty of conspiracy to distribute and possess with

the intent to distribute and aiding and abetting distribution

beyond a reasonable doubt.    See United States v. Mendoza, 226

F.3d 340, 343 (5th Cir. 2000).

     Livingston’s challenge to the failure of the district court

to instruct the jury on spoliation of evidence is also without

merit.   The record shows that the Government did not act in bad

faith in the loss of the recorded interview of Livingston by

Detective Mobley.    See United States v. Wise, 221 F.3d 140, 156

(5th Cir. 2000).    Accordingly, the judgment of the district court

is AFFIRMED.
