* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

September 14, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-60964

Summary Calendar

 

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

JOSHUA MOORE

Defendant - Appellant

--------------------

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:01-CR-57-2-LS

--------------------

Before KING, Chief Judge, and JOLLY and CLEMENT, Circuit Judges.

PER CURIAM:*

Joshua Moore appeals his conviction and sentence for

carjacking and for discharging a firearm during and in relation

to a crime of violence, in violation of 18 U.S.C. § 2119 and 18

U.S.C. § 924(c)(1)(a)(iii).

Moore argues that the Government failed to preserve the

contents of a security camera’s videotape and the Government’s

delay in producing the videotape deprived him of due process. He
No. 03-60964

-2-

also argues that the evidence is insufficient to support his 

conviction.

Due process requires the Government to preserve evidence

that meets the standard of “constitutional materiality,” or

evidence that possesses both “an exculpatory value that was

apparent before the evidence was destroyed, and be of such a

nature that the defendant would be unable to obtain comparable

evidence by other reasonably available means.” California v.

Trombetta, 467 U.S. 479, 489 (1984). Unless a criminal defendant

can show bad faith on the part of the police, failure to preserve

potentially useful evidence does not constitute a denial of due

process. Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988).

Moore’s argument assumes that the videotape once contained

footage of the carjacking, but no evidence supports this

assumption. Moore also argues that the police officer used an

improper device to view the videotape, and he speculates that

viewing the tape in an improper device destroyed its contents. 

No evidence supports Moore’s assumption that the police officer’s

actions destroyed the contents of the videotape. Additionally,

Moore does not argue that the Government acted in bad faith with

respect to the videotape. Moore thus has not established that

the videotape possessed an exculpatory value that was apparent

before the evidence was allegedly destroyed, nor has he
No. 03-60964

-3-

established that the Government acted in bad faith. His failureto-preserve-evidence claim therefore is unavailing. Trombetta,

467 U.S. 489; Arizona, 488 U.S. at 57-58.

Additionally, while Moore complains that the Government’s

delay in producing the evidence also violated due process, Moore

fails to argue that if the videotape had been disclosed earlier,

the result of the proceeding would have been different. Moore

thus has failed to establish the materiality of the evidence and

therefore he has not established that his right to a fair trial

was jeopardized by the delay in producing the evidence. See

United States v. O’Keefe, 128 F.3d 885, 898 (5th Cir. 1997);

United States v. Green, 46 F.3d 461, 464 (5th Cir. 1995).

Moore’s challenge to the sufficiency of the evidence is also

unavailing because the testimony of Michael Jackson, the

carjacking victim, and Officer John Strong, a Jackson,

Mississippi, police officer who stopped the stolen car and

apprehended Moore, supports the conclusion that Jackson’s vehicle

was stolen from him while he was at a car wash, that the three

men who stole the vehicle from Jackson had guns, that Moore used

a weapon during the carjacking, and that Moore fired his weapon

at Jackson as he and the others attempted to flee in Jackson’s

car. These facts establish that Moore committed the offenses of

carjacking and discharging a firearm during and in relation to a

crime of violence. See 18 U.S.C. § 924(c)(1)(a)(iii); 18 U.S.C.

§ 2119; see also United States v. Harris, 25 F.3d 1275, 1278 
No. 03-60964

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(5th Cir. 1994) (discussing offense elements); United States v.

Pankhurst, 118 F.3d 345, 352 (5th Cir. 1997). Although Moore

argues that Jackson erroneously identified one of the three

individuals who stole the car and that a co-defendant of Moore

presented a contrary version of the carjacking, Moore’s arguments

go to the weight of the evidence and to witness credibility, both

of which are not part of an evidence sufficiency review. United

States v. Garcia, 995 F.2d 556, 561 (5th Cir. 1993).

For the foregoing reasons, the district court’s judgment is

AFFIRMED.