                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 12 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-50229

               Plaintiff - Appellee,             D.C. No. 2:09-cr-00292-GAF-3

  v.
                                                 MEMORANDUM *
DERRIS HURTH,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     Gary A. Feess, District Judge, Presiding

                       Argued and Submitted January 9, 2013
                               Pasadena, California

Before:        GOODWIN and W. FLETCHER, Circuit Judges, and KORMAN,
               Senior District Judge.**

       Derris Hurth appeals his convictions for conspiracy to possess with intent to

distribute cocaine, 21 U.S.C. §§ 841(b)(1)(A)(ii), 846; conspiracy to interfere with


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
commerce by robbery, 18 U.S.C. § 1951; and use or carrying a firearm during a

drug trafficking offense, 18 U.S.C. § 924(c). There was sufficient evidence to

support Hurth’s convictions. The record indicates that Hurth’s co-conspirator

knew the amount and type of drug involved in the reverse-sting operation, and that

the co-conspirator discussed “the deal” with Hurth. In any event, the government

is not required to prove a specific intent to possess and distribute a specific drug or

quantity of drug to sustain a conviction. United States v. Carranza, 289 F.3d 634,

644 (9th Cir. 2002); see also United States v. Nelson, Nos. 10-50411 & 10-50412,

2012 U.S. App. LEXIS 4748 (9th Cir. Mar. 7, 2012) (mem.) (finding that Hurth’s

co-conspirators had sufficient specific intent to support their convictions).

      The district court did not err in denying Hurth’s motion to dismiss for

outrageous government conduct. Even if the claim was not waived, the activities

here do not rise to such a level that they are “shocking to the universal sense of

justice[] mandated by the Due Process Clause of the Fifth Amendment.” United

States v. Russell, 411 U.S. 423, 432 (1973) (internal quotation marks and citation

omitted).

      Nor did the district court err in refusing to give Hurth an adverse-inference

jury instruction. The district court did not apply the balancing test required in this

circuit to determine whether sanctions are appropriate where the government failed


                                           2
to preserve potentially exculpatory evidence. United States v. Flyer, 633 F.3d 911,

916 (9th Cir. 2011). But Hurth cannot succeed under that balancing test in any

event. Even if the government was negligent or reckless in failing to preserve

video evidence, Hurth failed to meet his burden to show that this conduct

prejudiced him. Hurth does not dispute that he stated on audio tape that he already

knew “the deal” and was intending “to get down.” Even if the government’s video

evidence would have shown that Hurth did not get out of his car before the police

intervened, that evidence would not have significantly undercut Hurth’s statements

indicating his willingness to undertake the robbery.

      Finally, we are not convinced that the district court erred by allowing a

government agent to offer opinion testimony concluding that the participants knew

about the planned home invasion. If it was an error, it was harmless beyond a

reasonable doubt because there was other evidence on the record suggesting that

Hurth knew about the robbery. See United States v. Seschillie, 310 F.3d 1208,

1214 (9th Cir. 2002).

      AFFIRMED.




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