United States v. Fasono

*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this opinion should not be published and is not precedent except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
F I L E D
February 13, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-60406
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
STEVE MICHAEL FASONO, aka STEVE MICHAEL FASANO
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
(3:04-CR-34)
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Steve Michael Fasono challenges
his conviction for bank robbery. On appeal, Fasono makes
two arguments. First, he contends that the evidence is
insufficient to support his conviction. Second, because

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at trial the Government did not produce an eyewitness’s
previous written account of the robbery, Fasono argues
that the district court reversibly erred by not giving
the jury a spoliation instruction. We find both arguments
unpersuasive.
Fasono did not move for judgment of acquittal based
on insufficient evidence after the close of all the
evidence. Therefore, our review is for plain error, and
we will reverse only if we find the record devoid of
evidence pointing to guilt. See United States v. Sam, 467
F.3d 857, 860 (5th Cir. 2006). The record is in no way
devoid of such evidence.
The following record evidence points to Fasono’s
guilt: (1) bank video camera footage showed a man with
Fasono’s build robbing the bank; (2) four eyewitnesses
identified Fasono as the robber; (3) vehicle records
revealed that Fasono’s vehicle and another vehicle he had
access to matched eyewitness descriptions of the robber’s
vehicle; and (4) Fasono’s fingerprints were found on the
demand note used in the robbery. Additionally, although
motive is not an element required for conviction, see 18

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U.S.C. § 2113(a), the Government established that Fasono
lost approximately $1,800 gambling a few hours prior to
the robbery. A thorough review of the record and our
strict standard of review require us to reject Fasono’s
sufficiency of the evidence argument.
Fasono next argues that he was entitled to a
spoliation instruction based on the Government’s failure
to produce an eyewitness’s written account of the
robbery, which she gave on scene immediately after the
incident occurred. That statement, Fasono contends, may
have been exculpatory. Fasono alleges that the FBI, which
conducted the investigation, at some point had possession
of the written statement. However, the Government did not
produce it before or at trial.
We review a district court’s refusal to give a
spoliation instruction for an abuse of discretion. See
United States v. Wise, 221 F.3d 140, 156 (5th Cir. 2000).
We have previously held that a request for a spoliation
instruction is properly denied when there is no evidence
of bad faith conduct by the government. See id. The
district court declined to give the instruction for this

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very reason. Fasono, before the district court and on
appeal, has pointed to no evidence of bad faith conduct
by the Government. Applying our well-established
spoliation jurisprudence, we find that the district court
did not abuse its discretion when it declined to give a
spoliation instruction.
For the foregoing reasons, we AFFIRM.
AFFIRMED.

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