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NOT FOR PUBLICATION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.
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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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