NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 16

- 10171

D.C. No. 2: 15

- cr

- 00 991

- SPL

- 1

MEMORANDUM *

Appeal from the United States District Court

for the District of Arizona

Steven P aul Logan

, District Judge, Presiding

Submitted J

uly 13

, 201 7 **

San Francisco, California

Before: BE A 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. UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v.

EDWIN PARKER

,

Defendant

- Appellant. 

# FILED

JUL 17 2017

MOLLY C. DWYER, CLER K

U.S. COURT OF APPEAL S2

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 reject ing Parker’s request for a n

adverse inference instruction. The district court identified and properly applied the

controlling legal test, balancing ‘ “ the quality of the Government’s conduct ’ a gainst

‘ the degree of prejudice to the accused ’ ” to determine w hether to give the instruction.

United States v. Sivilla

, 714 F.3d 1168, 1173 (9 th Cir. 2013) (quoting United States

v. Loud Hawk , 628 F.2d 1139, 1152 (9 th 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 prosec utorial 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 negligen ce

, or that the prosecuting attorneys

were involved

. Further, given the overwhelmi ng evidence of his guilt adduced by the

Government apart from the eyewitness testimony connected to the allegedly lost3

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 ma rked

bills and a tracker put into his duffle bag by a bank teller

.

AFFIRMED.