United States of America v. Norma Laura Manjarrez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
NORMA LAURA MANJARREZ,
Defendant-Appellant.
No. 16-10453
D.C. No.
4:15-cr-01340-RM-LAB-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Rosemary Marquez, District Judge, Presiding
Argued and Submitted February 16, 2018
San Francisco, California
Before: SCHROEDER, TORRUELLA,** and RAWLINSON, Circuit Judges.
Norma Laura Manjarrez appeals her jury conviction of one count of
conspiracy and one count of transporting an illegal alien for profit, in violation of 8
U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(A)(v)(I), and (a)(1)(B)(i). She received a four-
FILED
MAR 13 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Juan R. Torruella, United States Circuit Judge for the
First Circuit, sitting by designation.

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month sentence of imprisonment and two years of supervised release on each
count, to run concurrently.
Her appeal centers around the cell phone that border patrol agents
confiscated at the time of her arrest and that was subsequently, mistakenly,
destroyed. She moved to dismiss her indictment, but failed to object to the
Magistrate Judge’s Report and Recommendation that her motion be denied, so
review for plain error is appropriate. See United States v. Olano, 507 U.S. 725,
731–32 (1993). Even if we were to review her claim of bad faith for clear error,
however, we would have to affirm the conviction. See United States v. Sivilla, 714
F.3d 1168, 1172 (9th Cir. 2013) (citation omitted) (reviewing finding of absence of
bad faith for clear error).
1. Manjarrez contends that the phone contained exculpatory evidence
showing that her calls were related to her bakery business rather than alien
smuggling. To constitute grounds for dismissal, there must be bad faith on the part
of the government agents. See Arizona v. Youngblood, 488 U.S. 51, 58 (1988). In
order to establish bad faith in connection with the destruction of evidence, there
must be knowledge on the part of the government of the “apparent exculpatory
value of the evidence at the time it was lost or destroyed.” United States v.
Cooper, 983 F.2d 928, 931 (9th Cir. 1993) (citing Youngblood, 488 U.S. at 56–57
2

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n.*). There is no suggestion in this record that the agents knew of any exculpatory
value at the time it was destroyed. Even assuming the government knew of some
exculpatory value, there is no evidence of bad faith in relation to the destruction.
See Youngblood, 488 U.S. at 58; California v. Trombetta, 467 U.S. 479, 488
(1984). The record reflects the government did not want the phone destroyed and
the government’s good faith can be inferred from the evidence that it was
attempting to secure a search warrant for the phone at the time it was accidentally
destroyed.
2. Because there was no bad faith, there was no violation of due process.
See Sivilla, 714 F.3d at 1172 (citations omitted). Moreover, Manjarrez had
“alternative means of demonstrating [her] innocence.” Youngblood, 488 U.S. at 56
(quoting Trombetta, 467 U.S. at 490). She could have called her customers or her
family and friends to corroborate her defense.
3. Finally, even if the government’s negligent conduct could give rise to
doubts about the contents of the information on the phone, any problem was cured
by the giving of an adverse inference instruction, as requested by Manjarrez. See
Sivilla, 714 F.3d at 1173–74.
AFFIRMED.
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