issue presented on appeal is a narrow one it is a question of whether the district court erred and abused its discretion of the lower level in failing to give the plaintiff the requested adverse inference instruction they were seeking with reference to the destruction of two video interrogations that were conducted of mr miranda with reference to allegations that he brokered a murder for hire of a california corrections officer some fourteen years before the evidence in this case was that mr miranda was arrested by the l a county sheriff's department turned over to the anaheim police department and it was at the anaheim police department where these interrogations of february third two thousand and twelve and february sixth twenty twelve occurred the courts of this circuit  have long had here due to the rationale and criteria of residential funding with respect to the giving of adverse inference instructions and given adverse inference instructions were show that the destruction of evidence is the result of us keep out that because i'm trying to figure out what exactly what presidential funding states and what it requires what it requires because if we assume that the district court properly applied this residential funding and that the presidential funding requirements are met here would that require the court to issue an adverse jury instruction are merely permit the district court to issue an adverse charge back instruction i believe it would require and tell me why or when and what your authority for that my belief is that it would require the granting of an adverse inference instruction in instances where there is evidence of a deliberate act or negligence that has resulted in the destruction of evidence that is material to the claims being asserted by one party or another my reading of the case in the court on march second twenty fifteen laid out the elements of residential funding what it wanted to see from the plaintiffs and the plaintiffs established each of those elements by and through the testimony of the defendant there and why it himself well i don't district court said it could have i'm sorry the district court said it could have given the instruction but it declined to do so because there was no bad faith or any deliberate this destruction knowing destruction of evidence as i read it and you you opened your argument by saying whether there was an abuse of discretion back so i'm just wondering how do you get to your position that the district court had to give this instrument me see if i can be a little clearer with reference to whether or not the destruction was deliberate or negligent and hence requiring an adverse instruction is a question of fact for the jury it is not a question to be determined by the district it is not a question to be determined by this court in other words not a question of whether or not the the instruction concerning the inferences that is given is a question for the court it is but it has to be based upon on the lying facts and the facts in this case made clear that the destruction of evidence could have resulted and may well have resulted from a deliberate act as opposed to negligent said the district  homicide detective it handled hundreds of cases and in his entire career of some twenty years had never failed at any time to make recordings of interrogations he conducted in murder cases you also  reports concerning putting i mean that we know about the whole structure here in terms of what was presented to the district court and he made credibility findings because you had the detective testify the guy who was in charge of the police officials in charge of trying to maintaining these videos but the detective testified he'd been working sixteen hour days they were trying to cut down their backlog on these cold cases and he just you know forgot to go back in and save it i understand you can make an argument to the district court it looks like you did that somehow supports intentional but the district court made a determination he saw the people testify regarding all of this and said you know what there's nothing maligned about it so i'm trying to figure out how we get to where you are specially when i think we have to give a lot of deference to the district court in fashioning a sanction and he did he did say you know bill there i do i'm going to let the jury hear about all this and i think a district court chris said you know what i'm not because that would just confuse the issue and i don't think that there there there but he said i'm going to let the jury hear what what happened and they can make their only they can make their own determination it wasn't the same action that you wanted but that was a sanction that he could fashion within the law but the district court had also concluded previously that the destruction of the tape clearly prejudiced miranda as evidence in his order of more second twenty fifteen and further concluded that the audiotapes which the defense proffering evidence my argument had to be limited in such a fashion so as not to provide an instruction that the court had already indicated it would not give were as defense counsel sort of ran with that and told the jury you got the audiotape if you can't hear anything beer and this is the most important evidence in this case when in fact the most important evidence was the videotapes which just about every member from the p d said it would have clearly depicted the kicking and the pressing of the head against the table they had the audio tapes which there was testimony that you could have heard you know cough or whatever i mean just it was very sensitive mike that was argument by the fence i know but that's what the district court heard at making its determination i just i think it's just a tough spot here because i think you did everything you could have below and you argued admirably on behalf of your client that you know there's the jury you know could be very suspicious of what happened but i don't cut sure that you know us now to sit there was our requirement for the district court to impose the adverse jury instruction as a sanction it was a possibility the and it's seems clear that the district court fashion you know a lot of different things to communicate to the jury and and it didn't just say hey no i'm not going to let anything up like this come out  it said the sanction of an adverse inference may be appropriate in some cases involving the negligent destruction of evidence detective wyatt candidly admitted on cross examination that it was his fault but it was only negligence he was working seven murders sixteen hour days for two weeks and he simply forgot  timing here though when that i mean we're we're we're that was the police department on notice was it was the suit filed before the destruction no but a claim had been filed a claim had been filed yes so why why what's the claim has been filed why didn't you all do whatever you could to preserve the evidence they thought it had been preserved it shouldn actually the department has its own internal requirements in homicide case the stuff is supposed to be preserved forever there was a mistake made i'm not going to say there wasn't the audio it was a mistake let me make sure i understand what happened the detective was supposed to make a recording of the   tape of the of the proceedings were destroyed after giving after requesting whether there's any reason we had need to keep this correct the detective wasn't didn't get that notice i take it because he was someplace else that was his testimony he had been transferred to patrol he'd been elevated to a sergeant became a patrol sergeant he was no longer in the homicide division it was his testimony he didn't get that e mail and it was also his testimony even if he got it he had forgotten that he didn't do it and he thought he had done it so he wouldn't have done anything they felt differently all i did i take it thought that it had been perpetuated department put anything in place yes since this happened to make sure that when someone files a claim yes which gives you notice which you had here yes which is disconcerting actually had a duty to preserve your honor i agree and so what have you done since then we put out litigation hold soon as a claim comes in in this instance it should even matter that a claim was filed for a homicide case they're supposed to preserve these types of interrogations forever but especially when there's a claim even more especially but for the criminal proceedings it should have been preserved for that honor we had a duty to preserve i don't dispute that in even the new federal rules don't really change that what the new federal rules changes was what the sanctions  and they reject residential funding saying mere negligence is sufficient but even going back to residential funding which was the case point that the district judge relight it's discretionary and this is an abuse of discretion i don't think the judge was out in left field when he said after hearing all the testimony and i made everybody listen to the four hours of audio where you could hear somebody including mr miranda drinking water out of a bottle of water just like you have you could hear the clink because he's actually handcuffed to the bar under the table those mikes were very sensitive would the video be better sure i'm not going to dispute that but i think the audios were a more than adequate substitute the judge let plaintiff's counsel cry detective why it was on the stand for like two days plains counsel did a great job cross examining him in arguing it to the jury the jury just didn't buy it and it's his discretion to make that call as to whether to give the instruction it's not a question of fact for the jury he have gone the other way but he chose not to because he he believed after listening all the evidence that there was nothing malicious about this it was mere negligence at best him again i don't dispute that we had a duty to preserve that and we just we made a mistake so you mentioned that new rule thirty seven eat eat it's revised rule i guess given that that was published after this case was decided and given that i think it's twenty seven for twenty u s c twenty seven for permits application of rules only to proceedings then  was rule thirty seven at the time of this case no this case was tried before however the chief judge in as order adopting the new rules said it basically should apply to any cases pending if it's before trial so even if plaintiff counsel got what he wanted we were go back and say well but the new standard is negligence insufficient so i want to give that instruction anyways last line of that instruction which doesn't tell the jury they have to make any adverse inference that it says something along the lines of whether this fact is important to you in reaching a verdict in this case is for you to decide but that's in effect what happened here we both got to argue it and i didn't even argue it very strongly i just said my client was super busy at the time he was working seven murder sixteen hours a day for two months straight candidly admitted he forgot to do it he was negligent but he didn't do it to hide evidence if he did why would he preserve all the audios as well and remember it wasn't just his testimony the homicide sergeant was monitoring these video interrogations in his office did he see one hundred percent of it no but his testimony was he saw ninety five percent of both of these interrogations and he saw nothing improper jury and was not one for the trial judge even under residential funding it's the district judge call whether to give this instruction or not it's not a pure question of fact it always has to go to the jury so he's wrong on that and that's what residential funding so i can find each number of believe it want to wait thank you though unless you have any other questions it's really all i have thank you thank you in this case was destroyed three months after the government of plame was asserted counsel keeps talking about mistakes but the reality is if the acts can occur in occurred on video tape that captured this this particular the tech there would be very motivated not to copy those tapes and not to prepare reports that might invite someone else to look at those tapes i believe that the evidence established a trial that there was a sufficiency that this was culpable conduct of an intentional nature and i think that's supported by the fact that when the government the claim was received in the name of wired they had three months to preserve that and they didn't and they didn't because although detective wyatt had moved to another division or detail within the department the testimony or trial was by sergeant f on february third and february sixth twenty twelve one sure way to do that would be to hold off or not respond to that e mail by the tech to free it because that then would ensure the destruction of the tapes are you now arguing that the district court was wrong when he said there was nothing no bad thank you yes in fact that's my point that it abused its discretion because i think that the plaintiffs met their burden of a  made it very clear that one could reasonably conclude that they would but that this was a deliberate action by this investigated to ensure this evidence was buried and i remind the court as i have a moment left that this is somebody who had been on the force for years and this is the only instance in his entire career where he didn't copy tapes it's the only instance city p d where a recording