                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUL 26 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-10364

              Plaintiff - Appellee,              D.C. No. 4:15-cr-00267-RCC-
                                                 DTF-1
 v.

FEDERICO GONZALEZ-HERNANDEZ,                     MEMORANDUM*
AKA Federico Gonzalez,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                     Raner C. Collins, Chief Judge, Presiding

                              Submitted July 6, 2016**
                              San Francisco, California




        *
             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).
Before: BERZON, and N.R. SMITH, Circuit Judges, and ZOUHARY,*** District
Judge.

      Gonzalez-Hernandez appeals his conviction, alleging (1) that the

Government violated his due process rights by failing to preserve potentially

exculpatory evidence, i.e., two photographs of a bush splattered in blood from the

scene of the altercation, and (2) that there was insufficient evidence. We affirm.

      1. “[F]or destruction of evidence to rise to the level of a constitutional

violation, [the defendant] must make two showings.” United States v. Sivilla, 714

F.3d 1168, 1172 (9th Cir. 2013). First, the defendant must demonstrate “that the

government acted in bad faith, the presence or absence of which turns on the

government’s knowledge of the apparent exculpatory value of the evidence at the

time it was lost or destroyed.” Id. (quoting United States v. Cooper, 983 F.2d 928,

931 (9th Cir. 1993)). Second, the defendant must show “that the missing evidence

is of such a nature that the defendant would be unable to obtain comparable

evidence by other reasonably available means.” Id. (quoting California v.

Trombetta, 467 U.S. 479, 489 (1984)).

      The district court did not clearly err in concluding that the Government acted

without bad faith. There is no evidence that U.S. Border Patrol Agent Travis

        ***
            The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.

                                           2
Peterson’s destruction of his cellular phone, and the resultant loss of the

photographs on that phone, was anything but an accident. Although it would have

been preferable for Peterson to have promptly submitted all photographs related to

the crime rather than maintaining them only on his cellular phone, his failure to do

so was at most negligence, not bad faith. See Sivilla, 714 F.3d at 1172; Arizona v.

Youngblood, 488 U.S. 51, 58 (1988).

      Moreover, there is no indication that the Government was aware of any

exculpatory value of the photographs, and it is quite doubtful that they had any.

See United States v. Zaragoza-Moreira, 780 F.3d 971, 977 (9th Cir. 2015). Even if

the photographs could have conclusively shown that one particular bush did not

cause the laceration, Gonzalez-Hernandez could have been injured by another

bush. So the photographs could not have corroborated Gonzalez-Hernandez’s

assertion that he was injured while acting in self-defense. Moreover, the court

issued a limiting instruction to the jury at Gonzalez-Hernandez’s request, thereby

mitigating any possible prejudice.1


      1
        Gonzalez-Hernandez’s case is not analogous to Zaragoza. In Zaragoza, the
agent knew the recordings would be automatically recorded over, and knew of the
exculpatory value based on an interview with the defendant. 780 F.3d at 977, 979.
Here, there was no evidence that the Border Patrol agent knew of an exculpatory
reason to keep the photos. Further, there was no evidence that the photos were
intentionally destroyed.

                                           3
       Accordingly, we affirm the district court’s holding with regard to the

destruction of evidence.

      2. The district court properly denied Gonzalez-Hernandez’s Rule 29 motion

to dismiss, as the record contains sufficient evidence to sustain the conviction.

      To determine whether there was sufficient evidence to support a conviction,

we look to “whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979);

see Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). Here, the United States

presented sufficient evidence—viewing the evidence in the light most favorable to

it—to sustain Gonzalez-Hernandez’s conviction under 18 U.S.C. § 111(a)(1). That

provision makes it a crime to “forcibly assault[] . . . [a federal officer] while

engaged in or on account of the performance of official duties.” 18 U.S.C. §

111(a)(1). Only general intent is required, not the specific intent to injure. United

States v. Sanchez, 914 F.2d 1355, 1358 (9th Cir. 1990).

      A reasonable fact-finder could have concluded that the Government proved

all three elements of the offense. Pinkerton testified that upon being discovered

Gonzalez-Hernandez resisted detention, hitting the agent several times with closed

fists. Pinkerton went on to state that he then moved closer to Gonzalez-Hernandez


                                            4
in an attempt to reduce the force of the blows, and that Gonzalez-Hernandez

shoved off him to try to get away. Gonzalez-Hernandez testified in his defense that

when he saw Pinkerton, he knew it was his last chance to escape, somewhat

corroborating Pinkerton’s version of events. Given this testimony, a reasonable

fact-finder could have found that Gonzalez-Hernandez acted intentionally and that

he forcibly assaulted Pinkerton.

      A reasonable fact-finder could also have concluded both that Pinkerton was

“engaged in . . . the performance of [his] official duties” when the altercation

occurred, and that Gonzalez-Hernandez assaulted him “on account of the

performance of [his] official duties.” See 18 U.S.C. § 111(a)(1). There is no dispute

that Pinkerton was performing his duties as a border patrol agent when he

spotted, pursued, and arrested Gonzalez-Hernandez. Both Pinkerton and Gonzalez-

Hernandez’s testimony supports the conclusion that Gonzalez-Hernandez punched

and shoved Pinkerton to avoid being arrested, and so “on account of” Pinkerton’s

performance of his duties.

      Gonzalez-Hernandez asserts that he acted in self-defense and testified to that

effect at trial. Having heard from both Agent Pinkerton and Gonzalez-Hernandez,

the jury resolved the inconsistencies in the testimony in favor of the Government.

While Gonzalez-Hernandez was more severely injured than Pinkerton by the


                                           5
altercation, the asymmetry of the injuries does not demand the conclusion that

Gonzalez-Hernandez acted in self-defense. Ample evidence supports a finding that

Gonzalez-Hernandez was the aggressor and that Pinkerton only did what was

necessary to restrain him.

      Accordingly, the district court properly denied Gonzalez-Hernandez’s Rule

29 motion.

      AFFIRMED.




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