Joe Martinez; Alisandra Martinez Husband and Wife;martinez Enterprises, Inc., a Domesticcorporation, Plaintiffs-appellants v. Universal Underwriters Insurance Company, a Stock Insurancecompany Defendant-appellee, 15 F.3d 1087 (9th Cir. 1993)

MEMORANDUM^** 

The judgment of the district court is affirmed. The question whether evidence relating to the criminal proceeding was improperly destroyed was litigated in the criminal trial and decided adversely to appellant Martinez. We must give that determination binding effect. See Migra v. Warren City School Dist. Bd. of Educ., 959 F.2d 75, 80-81 (1984); Fahlen v. Mounsey, 728 P.2d 1097, 1100 (Wash.App.1986); Safeco Ins. Co. v. McGrath, 708 P.2d 657 (Wash.App.1985). Martinez has shown no other facts establishing a lack of full and fair opportunity to litigate the question of his guilt in the criminal proceedings. Accordingly, his conviction conclusively establishes for purposes of his civil case that he started the fire for which he now seeks to recover insurance. Id. The fact that his conviction is being appealed does not forestall its collateral estoppel effect. Riblet v. Ideal Cement Co., 358 P.2d 975, 977 (Wash.1961). Should it come to pass that Martinez is ultimately successful in negating his conviction, he may seek relief under Fed. R. Civ. P. 60(b) (5).

AFFIRMED.