Ninth Circuit Court of Appeals decided that a Customs and Border Patrol Agent acted in bad faith

The Ninth Circuit Court of Appeals (the court just below the U.S. Supreme Court covering the western United States) decided yesterday that a Customs and Border Patrol Agent acted in bad faith by failing to preserve video footage of a woman’s actions when crossing the boarder in the pedestrian lane. The woman had both methamphetamine and heroin strapped to her body but told the agent she had been forced to carry the drugs for a drug cartel. The agent failed to tell the court what the woman told her when applying for a complaint to arrest the woman and charge her with violation of federal laws 21 U.S.C. §§ 952 and 960.

The woman said the video would have shown that she had “wiggled around,” “patted her stomach,” and “threw her passport on the ground” to draw attention to herself while in line as she claimed she was being accompanied by another cartel member to make sure she acted right.

In the past the U.S. Supreme Court has ruled that a defendant has to show “the government acted in bad faith in failing to preserve the potentially useful evidence.” Arizona v. Youngblood, 488 U.S. 51, 57–58 (1988). Additionally, the defendant must show it was “readily apparent” to the government agent that they knew the evidence would be valuable to the defendant’s case. The district court judge in this case, did find the video tape was potentially useful, but refused to make the finding that the agent knew that. United States V. Zaragoza-Moreira, (13-50506 March 18, 2015). It can be read at

The appellate court found the district court judge was wrong. This finding, by the appellate court, is particularly significant because in order to reverse the district court the standard required was that he “committed clear error.” This is a very high standard based on a long line of precedent, giving every benefit of the doubt to the district court’s finding because the judge was closest to the evidence, having seen and evaluated the witnesses including the boarder patrol agent. Here the higher court made that finding.

Not only did they reverse the finding of the judge, but the appellate court order the district court to dismiss the indictment.

Two interesting facts: First, the video was destroyed 30 days after the arrest even though the defense attorney has sent a letter to the assigned Assistant U.S. Attorney asking that the video be preserved. That didn’t happen and the court opinion doesn’t say why the prosecutor didn’t make sure it didn’t happen.
Second, the woman with the drugs had the “adaptive skills” of an 8-year-old because of the brain damage she sustained when she was 13-years-old having been shot multiple times, including in the head, in a gang related incident.

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