United States v. Livingston ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 5, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-51608
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LANCE E. LIVINGSTON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:06-CR-104-2
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Lance E. Livingston appeals his conviction and sentence for
conspiracy to distribute and possess with the intent to
distribute methamphetamine and aiding and abetting the
distribution of methamphetamine. Livingston argues that the
evidence is insufficient to support his conviction and that the
district court erred in declining to instruct the jury on the
spoliation of evidence.
Livingston’s argument challenging the sufficiency of the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 06-51608
-2-
evidence does not address the evidence presented on the elements
of conspiracy or aiding and abetting. He contends that the
evidence did not show that he actually possessed or distributed
methamphetamine. Livingston was charged and convicted of
conspiracy and aiding and abetting. Thus, the Government was not
required to prove that he actually possessed or distributed
methamphetamine. See Delagarza-Villarreal, 141 F.3d 133, 140
(5th Cir. 1997). A reasonable trier of fact could have found
Livingston guilty of conspiracy to distribute and possess with
the intent to distribute and aiding and abetting distribution
beyond a reasonable doubt. See United States v. Mendoza, 226
F.3d 340, 343 (5th Cir. 2000).
Livingston’s challenge to the failure of the district court
to instruct the jury on spoliation of evidence is also without
merit. The record shows that the Government did not act in bad
faith in the loss of the recorded interview of Livingston by
Detective Mobley. See United States v. Wise, 221 F.3d 140, 156
(5th Cir. 2000). Accordingly, the judgment of the district court
is AFFIRMED.