United States v. Edwin Parker , 693 F. App'x 690 ( 2017 )

NOT FOR PUBLICATION FILED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
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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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