                               NOT FOR PUBLICATION                        FILED
                       UNITED STATES COURT OF APPEALS                      JUL 17 2017
                                                                       MOLLY C. DWYER, CLERK
                               FOR THE NINTH CIRCUIT                    U.S. COURT OF APPEALS




 UNITED STATES OF AMERICA,                        No. 16-10171

               Plaintiff - Appellee,              D.C. No. 2:15-cr-00991-SPL-1

   v.
                                                  MEMORANDUM*
 EDWIN PARKER,

               Defendant - Appellant.



                      Appeal from the United States District Court
                               for the District of Arizona
                      Steven Paul Logan, District Judge, Presiding

                                Submitted July 13, 2017**
                                San Francisco, California

Before: BEA and N.R. SMITH, Circuit Judges, and ROBRENO,*** District Judge.



        *
        This disposition is not appropriate for publication and is not precedent except
 as provided by Ninth Circuit Rule 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 Eduardo C. Robreno, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
      Defendant-Appellant Edwin Parker appeals his conviction for armed bank

robbery in violation of 18 U.S.C. § 2113(a) and (d). We affirm.

      The district court did not abuse its discretion in rejecting Parker’s request for an

 adverse inference instruction. The district court identified and properly applied the

 controlling legal test, balancing ‘“the quality of the Government’s conduct’ against

 ‘the degree of prejudice to the accused’” to determine whether to give the instruction.

 United States v. Sivilla, 714 F.3d 1168, 1173 (9th Cir. 2013) (quoting United States

 v. Loud Hawk, 628 F.2d 1139, 1152 (9th Cir. 1979)).

      In evaluating the quality of the government’s conduct: “the court should
      inquire whether the evidence was lost or destroyed while in its custody,
      whether the Government acted in disregard for the interests of the
      accused, whether it was negligent in failing to adhere to established and
      reasonable standards of care for police and prosecutorial functions, and,
      if the acts were deliberate, whether they were taken in good faith or with
      reasonable justification. . . . It is relevant also to inquire whether the
      government attorneys prosecuting the case have participated in the events
      leading to loss or destruction of the evidence, for prosecutorial action may
      bear upon existence of a motive to harm the accused.”

 Id. (quoting Loud Hawk, 628 F.2d at 1152). Here, there was no evidence presented

 that law enforcement officials, either local or federal, took custody of the lost

 “Identicards,” that they acted in disregard of Parker’s interests, that the loss of the

 Identicards was deliberate or due to their negligence, or that the prosecuting attorneys

 were involved. Further, given the overwhelming evidence of his guilt adduced by the

 Government apart from the eyewitness testimony connected to the allegedly lost


                                           2
Identicards, Parker cannot show prejudice from the denial of the instruction. Video

evidence of the robbery showed the robber’s clothing, a duffle bag he carried, and his

replica weapon, all of which were found in a warrant search of the getaway vehicle

after he was stopped shortly after the robbery. The search also produced the marked

bills and a tracker put into his duffle bag by a bank teller.

      AFFIRMED.




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