United States of America v. RAFAEL JIMENEZ-RODRIGUEZ, AKA Alejandro Figueroa, AKA Jorge Hernandez, AKA Jorge…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAFAEL JIMENEZ-RODRIGUEZ, AKA
Alejandro Figueroa, AKA Jorge
Hernandez, AKA Jorge Rafael Hernandez-
Jimenez, AKA Miguel Jimenez, AKA
Alberto Jimenez-Rodriguez, AKA Miguel
Jiminez, AKA Halbert Leon,
Defendant - Appellant.
No. 11-50475
D.C. No. 2:10-cr-00159-DMG-3
MEMORANDUM*
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JASON DE LA TORRE,
Defendant - Appellant.
No. 11-50477
D.C. No. 2:10-cr-00159-DMG-1
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
FILED
JUN 09 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

-- 1 of 4 --

Submitted June 2, 2014**
Pasadena, California
Before: GOULD and N.R. SMITH, Circuit Judges, and KORMAN, Senior District
Judge.***
I.
Defendants have not demonstrated how the government’s failure to preserve
the entire requested one-hour segment of surveillance footage was done in bad
faith. See United States v. Sivilla, 714 F.3d 1168, 1172 (9th Cir. 2013). Special
Investigative Services Technician for the prison, Tymothy Wallace, preserved the
footage he believed captured the entire altercation; the exculpatory value of the
additional footage from the full one-hour requested was not apparent to Wallace.
See id. In addition, Defendants have not shown how the loss prejudiced them.
Id. The preserved footage showed De La Torre’s and Johnson’s demeanor and
conduct prior to the incident. Wallace preserved De La Torre’s entire telephone
conversation and other inmates offered testimony of the events leading up to the
incident.
II.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
-2-

-- 2 of 4 --

The district court did not err, let alone plainly err, in failing to sua sponte
provide the jury with an adverse inference instruction regarding the unpreserved
footage. See United States v. Della Porta, 653 F.3d 1043, 1052 (9th Cir. 2011).
Defendants further have not shown they were prejudiced because of the
unpreserved surveillance footage, so there is nothing to balance against the quality
of the government’s conduct. See Sivilla, 714 F.3d at 1173.
III.
Defendants’ ineffective assistance of counsel claim is not appropriately
raised on direct appeal. United States v. McKenna, 327 F.3d 830, 845 (9th Cir.
2003). The record is not sufficiently developed, and the legal representation was
not so obviously ineffective as to deny Defendants their Sixth Amendment right to
counsel. See id.
IV.
Viewing the evidence in the light most favorable to the prosecution, the
district court did not err in denying Defendants’ motion for acquittal. United States
v. Grasso, 724 F.3d 1077, 1085-86 (9th Cir. 2013). Surveillance footage, witness
testimony, medical examinations, and injury assessment reports provided sufficient
evidence for the jury to conclude beyond a reasonable doubt that Defendants did
-3-

-- 3 of 4 --

not act in self-defense. See id. at 1086; United States v. Acosta-Sierra, 690 F.3d
1111, 1126 (9th Cir. 2012).
AFFIRMED.
-4-

-- 4 of 4 --