NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. JEFFREY ROBERT IGOE,

Defendant

- Appellant. No. 21

- 30123
D.C. No. 6:20

- cr - 00008

- BMM

- 1

MEMORANDUM *

Appeal from the United States District Court for the District of Montana Brian M. Morris, District Judge, Presiding Submitted March 11, 2022 * * Seattle, Washington Before: NGUYEN, MILLER, and BUMATAY, Circuit Ju dges. Jeffrey Igoe appeals his conviction for the unlawful taking of a firearm from
a licensed firearm dealer , in violation of 18 U.S.C. § 922(u), and possession of a stolen firearm , in violation of 18 U.S.C. § 922(j) . We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

* 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). 

# FILED

MAR 15 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

1. The district court did not err by denying Igoe’s pretrial motion to
dismiss because of spoliation of evidence

. We review whether a criminal defendant’s due process rights were violated by th e government’s failure to collect or preserve potentially exculpatory evidence de novo , and we review the district
court’s factual findings for clear error. United States v. Sivilla , 714 F.3d 1168, 1172 (9th Cir. 2013) ; see Miller v. Vasquez , 868 F.2d 1116, 1119

– 21 (9th Cir. 1989)

. P olice do not have an “undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution.” Arizona v. Youngblood , 488 U.S. 51, 58 (1988 ). Instead,

o nly “a bad faith failure to collect potentially exculpatory evidence would violate the due process clause.” Miller , 868 F.2d at 11 20 . And t he presence or absence of good faith “turns on the government’s knowledge of the apparent exculpatory

va lue of the evidence at the time it was lost or destroyed.” Sivilla , 714 F.3d at 1172 (quoting United States v. Cooper , 983 F.2d 928, 931 (9th Cir. 1993)). The government introduced security footage of Igoe taking a pistol out of a pawn shop’s display case and leaving the shop with th e gun in his pocket. The events before and after, although caught on video, were not collected and preserved by police and were automatically deleted by the pawn shop two days
later. But there is no evidence that police acted i n bad faith. Igoe does not suggest that police knew of any exculpatory value of the remaining surveillance video or3

even that they were aware other video existed

. I n the absence of bad faith, Igoe cannot establish a d

ue process violation

. 2

. The d istrict court did not abuse its discretion by denying Igoe’s proposed adverse

- inference instruction on spoliation of evidence . We review “a district court’s refusal to give an adverse inference instruction, when properly raised by the appellant, for abuse of discretion.” Sivilla , 714 F.3d at 1172

. “ [A] n instruction concerning evidence lost or destroyed by the government is appropriate when the balance between ‘the quality of the Government’s conduct and the degree of prejudice to the accused’ weighs in favo r of the defendant.” United States v.
Robertson , 895 F.3d 1206, 1213 (9th Cir. 2018) (quoting United States v. Loud
Hawk , 628 F.2d 1139 , 1152 (9th Cir. 1979) (en banc) (Kennedy, J., concurring),
overruled on other grounds by United States v. W.R. Grace , 52 6 F.3d 499, 506 (9th Cir. 2008) (en banc) ). Here, the police failed to g ather additional footage from the pawn shop , but no evidence “was lost or destroyed while in the government’s custody

. ” Robertson , 895 F.3d at 1213

. And a s we have explained, t here is no evidence that the police acted in bad faith . There is also no indication that Igoe “ was prejudiced by [the video’s] destruction.” See United States v. Romo

- Chavez , 681 F.3d 955 , 961 (9th Cir. 2012). Igoe was able to argue at trial th at , as defense counsel put it, the pawn shop employee “call [ed] his buddy to capture this one little segment of the4

surveillance film ” before calling police , and he further testified about the events before and after th ose captured in the video

. No adverse

- inference instruction was
warranted here. See Robertson , 895 F.3d at 1214 (“[T]he probable effect on the jury from the absence of the video was not significantly prejudicial because [defendant’s] counsel was permitted, and did, argue before the jur y that [ the police] failed to preserve the video.”)

. 3

. Finally, the evidence was sufficient to support Igoe’s conviction

. Sufficient evidence exists if , “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fac t could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Nevils , 598 F.3d 1158, 1163

– 64 (9th Cir. 2010) (quoting Jackson v. Virginia , 443 U.S. 307, 319 (1979)). The government introduced (1) surveillance video of Igoe surreptitiously removing a gun from its display case and putting it in his pocket ; (2) store employee testimony corroborating that account ; and (3) police testimony identifying the pistol found on Igoe’s person later that day as the stolen pistol

. And

w hile Igoe’s testimony at trial contradicted the government witnesses ’ testimony , factual disputes and credibility determinations are within the purview of the jury.
See United States v. H.B. , 695 F.3d 931, 935 (9th Cir. 2012) . T he j ury could reasonably have concluded that Igoe was guilty of the charged offenses beyond a reasonable doubt

.5

AFFIRMED.