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NOT FOR PUBLICATION FEB 12 2013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
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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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