United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1295
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the Southern
* District of Iowa.
Harold Lindsey Webster, *
*
Defendant - Appellant. *
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Submitted: September 24, 2010
Filed: November 5, 2010
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Before BYE, BEAM, and SMITH, Circuit Judges.
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BYE, Circuit Judge.
Harold Webster appeals his conviction for one count of conspiracy to distribute
at least fifty grams of cocaine base in violation of 21 U.S.C. §§ 841(b)(1)(a) and 846,
for which he was sentenced to 240 months’ imprisonment. Webster first contends the
district court1 erred in denying his motion to suppress because there was no probable
cause for his arrest and all evidence obtained from the arrest and subsequent search
was unlawfully seized as a result. Webster also argues the court erred in denying his
1
The Honorable Robert W. Pratt, Chief Judge, United States District Court for
the Southern District of Iowa.
motion to dismiss because his due process rights were violated when state officials
destroyed evidence in the case while it was still pending in federal court. We affirm.
I
On October 28, 2005, Harold Webster was arrested after a third controlled
purchase of crack cocaine was arranged involving a confidential informant. Prior to
the date of the arrest, Officer Steve Walters of the Mid-Iowa Narcotics Enforcement
Task Force utilized an informant in making two successful purchases of 3.5 grams of
crack cocaine from Webster. However, in each of the prior purchases, occurring on
October 6, 2005, and October 20, 2005, Walters was unable to positively identify
Webster as the seller of the narcotics. At the time, the informant believed the person
he purchased the drugs from was “Harold Smith.”
On the date of the arrest, Walters arranged a third meeting between Webster and
the informant in a parking area near a Family Dollar store in Des Moines, Iowa, at
10:30 a.m. Contrary to the first two transactions, Walters did not provide the
informant with purchase money; instead, he instructed the informant to first determine
if Webster had the drugs in his possession. If the informant observed crack cocaine,
he was instructed to tell Webster he had to retrieve money from someone inside the
store, and to start walking toward the store. Conversely, if the informant did not see
drugs, he was told not to walk toward the store.
Webster arrived shortly before the purchase and parked on the street facing the
wrong direction. He was driving in a red or maroon Ford pickup truck, with a female
present in the passenger seat. The informant was equipped with a concealed audio
device in order for Walters to remotely listen to the transaction, but the device was
inaudible when the informant approached Webster. After observing the informant
approach the truck, engage in conversation with Webster, and walk away from the
vehicle toward the store, the officers moved in and surrounded Webster with patrol
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cars. Webster put his truck in reverse and rammed into the police SUV behind him
in an unsuccessful bid to escape. Shortly thereafter, the officers apprehended Webster
and discovered a handful of crack cocaine in the process.
According to Webster, there is a dispute concerning the basis of his arrest. In
a preliminary hearing, Webster’s attorney filed an affidavit stating he spoke with an
arresting officer, and the officer indicated Webster was arrested for parking the wrong
way on the street. However, Walters testified that Webster was arrested based on
information provided by the informant, not because of Webster’s parking.
Following the arrest, the officers performed a warrantless search of Webster’s
truck. They discovered seventeen plastic bags with a total weight of 62.5 grams of
crack cocaine, as well as two other bags with 110 grams of marijuana and
miscellaneous paraphernalia. The informant, who knew Webster as “Harold Smith,”
confirmed it was the same person he bought crack cocaine from in the two previous
controlled buys. Webster was given his Miranda rights and admitted his involvement
in dealing controlled substances. The officers then obtained a search warrant for two
residences related to Webster, where they later discovered additional quantities of
controlled substances.
Webster was initially charged in Iowa for the drug offenses, and the drug
evidence was analyzed by the Iowa Division of Criminal Investigation Criminalistics
Laboratory. A report from the lab detailed the results of the analysis, including the
quantities and makeup of all controlled substances seized by the officers. In
December 2005, the state offenses against Webster were dismissed pursuant to the
federal indictment. Daniel Davis, the lead agent for the federal prosecution, informed
Walters, who continued on the case as the local case agent, that Webster had been
indicted in federal court. However, this fact was never communicated to the evidence
custodian of the Des Moines Police Department, and thus the department’s records
listed Webster’s case as “closed.” The Polk County Attorney’s Office confirmed that
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Webster’s case was closed, according to their records. As a result, after securing an
order from a state court judge, the Des Moines Police Department destroyed
Webster’s evidence along with evidence from hundreds of other cases in a semi-
annual purging process. The evidence custodian later testified that the department was
dependent on Walters, as the case agent, to notify the department that the case had
been transferred to the federal system.
In federal court, Webster was initially charged in a one-count indictment with
possession with intent to distribute fifty grams or more of crack cocaine in violation
of 21 U.S.C. §§ 841(a)(1) and (b)(1)(a), but he was later charged in a superseding
indictment with an additional count of conspiracy to distribute crack cocaine in
violation of 21 U.S.C. §§ 841(b)(1)(a) and 846. On June 13, 2008, Webster pleaded
guilty to the conspiracy count, and he was later sentenced by the district court to 240
months’ imprisonment. Webster now appeals.
II
A. Whether Probable Cause Existed for the Warrantless Arrest and Search
Webster first contends the district court erred in denying his motion to suppress
because there was no probable cause for his arrest or the subsequent search of his
vehicle, and all evidence obtained from the arrest and the search was unlawfully
seized as a result. We review legal determinations in the denial of a motion to
suppress de novo and the underlying factual determinations for clear error. United
States v. Nguyen, 608 F.3d 368, 374 (8th Cir. 2010).
1. The Warrantless Arrest of Webster
“Probable cause to make a warrantless arrest exists when, considering all the
circumstances, police have trustworthy information that would lead a prudent person
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to believe that the suspect has committed or is committing a crime.” United States v.
Parish, 606 F.3d 480, 486 (8th Cir. 2010). In making this determination, “[l]aw
enforcement officers have substantial latitude in interpreting and drawing inferences
from factual circumstances.” United States v. Henderson, 613 F.3d 1177, 1181 (8th
Cir. 2010) (internal quotation marks and citation omitted). “Because probable cause
requires only a probability or substantial chance of criminal activity, rather than an
actual showing of criminal activity, the police need not have amassed enough
evidence to justify a conviction prior to making a warrantless arrest.” United States
v. Mendoza, 421 F.3d 663, 667 (8th Cir. 2005) (citation omitted); see also United
States v. Jones, 535 F.3d 886, 890 (8th Cir. 2008).
The district court held, under the circumstances, the officers had “ample reason”
to believe Webster was involved in criminal activity when they effectuated his arrest.
The court noted the officers had observed the informant make two previous controlled
buys from Webster, known to the informant as “Harold Smith,” and they had tested
and confirmed drugs were sold in those transactions. In the transaction leading to the
arrest, the court recognized, Webster and the informant arranged to meet at the Family
Dollar store, and the informant used the agreed-upon signal of walking toward the
store to indicate the officers should make the arrest. The court held the informant was
sufficiently reliable for the officers to establish probable cause because of the two
previously observed and confirmed drug buys, as well as the details of the third
transaction being effectuated as the informant said it would.
On appeal, Webster concedes the officers had enough information to conduct
an investigatory stop pursuant to Terry v. Ohio, 392 U.S. 1 (1968), but he argues there
was not reliable information, i.e., probable cause, to arrest him. Webster first
emphasizes the informant believed he was buying drugs from “Harold Smith,” a
different person. He also notes differences between the controlled purchases that
occurred on October 6, October 20, and October 28, the date Webster was arrested.
For instance, the vehicles driven by Webster varied between the three transactions –
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a burgundy Cadillac was used during the October 6 transaction, a black Isuzu SUV
was driven during the October 20 transaction, and a red or maroon Ford truck was
driven during the October 28 transaction.
Webster also challenges the reliability of the informant’s information, arguing
Walters did not have confirmation or independent corroboration from any reliable
source as to Webster having drugs in the vehicle. Moreover, Webster contends
Walters did not observe any drugs being transacted, i.e., any criminal activity.
Instead, Webster argues, all the officers had to indicate drugs were in the truck was
the visual signal of the informant walking away from the vehicle.
Finally, Webster challenges the basis for the arrest, as his attorney stated in an
affidavit one of the arresting officers indicated Webster was arrested for being parked
the wrong way on the street. Under these circumstances, Webster claims the officers
did not have probable cause for his arrest, and he argues for the suppression of all
fruits of the illegal arrest, including his statements and all evidence found thereafter.
Upon careful review, we conclude the officers had probable cause to arrest
Webster. First, the fact the officers may not have “known” Webster has been rejected
by this court as a reason to invalidate probable cause. United States v. Williams, 616
F.3d 760, 765 (8th Cir. 2010) (“Probable cause does not require certainty regarding
[a defendant’s] identity.”) (citing United States v. Muhammad, 604 F.3d 1022, 1027-
28 (8th Cir. 2010)). Thus, Webster’s allegations regarding Walters’ inability to
positively identify Webster prior to the arrest are of no effect.
Second, the officers were justified in relying on the informant in their probable
cause determination. See United States v. Morrison, 594 F.3d 626, 632 (8th Cir.
2010) (holding an informant who has provided reliable information in the past may
suffice to support a probable cause determination). “Information from a confidential
informant is reliable if the informant has a history of supplying reliable information
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or if the information provided by the informant is independently corroborated.”
United States v. Neal, 528 F.3d 1069, 1073 (8th Cir. 2008). Here, the informant had
a history of supplying reliable information in the past because he had successfully
completed two prior controlled buys with Webster within the prior month. See id.
(“[T]he confidential informant . . . had successfully completed one controlled buy
from [the defendant].”); United States v. Brown, 49 F.3d 1346, 1349 (8th Cir. 1995)
(“An informant may establish the reliability of his information by establishing a track
record of providing accurate information.”) (citing Illinois v. Gates, 462 U.S. 213, 233
(1983)). Additionally, Webster arrived at the predetermined place and time for the
controlled buy, as agreed upon with the informant. See United States v. Rodriguez,
414 F.3d 837, 843 (8th Cir. 2005) (concluding probable cause was established, in part,
by the defendant’s arrival at the right time and place as scheduled by the informant).
The fact Webster’s conduct in arriving at the Family Dollar store involved “innocent”
behavior does not diminish the value of the informant’s information; rather, it
increases the probability the informant was also correct regarding Webster’s criminal
behavior. Brown, 49 F.3d at 1349 (holding the informant’s prediction that the
defendant would arrive at a KFC restaurant increased the probability that other aspects
of the information concerning criminal activity were also correct). Under these
circumstances, the information provided by the informant was sufficiently reliable to
support a finding of probable cause.
Finally, even though the officers may not have witnessed actual criminal
activity between the informant and Webster, there was a “probability or substantial
chance of criminal activity,” which we have held is sufficient to support a probable
cause determination. United States v. Jones, 535 F.3d 886, 890 (8th Cir. 2008). After
two prior controlled buys, Webster arrived at the scheduled place and time for a third
controlled purchase, he discussed the deal with the informant, and the informant
provided the visual signal of walking toward the Family Dollar store to indicate to the
officers that Webster possessed crack cocaine. These circumstances are sufficient for
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a finding of probable cause, and thus we reject Webster’s claim that the warrantless
arrest was invalid.
2. The Warrantless Search Following the Arrest
We next address Webster’s challenge to the warrantless search of his truck
based on Arizona v. Gant, 129 S. Ct. 1710 (2009), which was decided after the district
court ruled on Webster’s motion to suppress. The district court held that, because the
officers had probable cause to arrest Webster, they also had the right to search his
person incident to the arrest for officer safety. Contemporaneous with that arrest, and
in line with our prior case law, the district court also held the officers could search the
passenger compartment of Webster’s vehicle. See United States v. Poggemiller, 375
F.3d 686, 687 (8th Cir. 2004) (“Under [New York v. Belton, 453 U.S. 454 (1981)],
when a police officer makes a lawful custodial arrest of an automobile’s occupant, the
Fourth Amendment allows the officer to search the vehicle passenger compartment
as a contemporaneous incident of arrest.”).
In Gant, the Supreme Court held that officers “may search a vehicle incident to
a recent occupant’s arrest only if the arrestee is within reaching distance of the
passenger compartment at the time of the search or it is reasonable to believe the
vehicle contains evidence of the offense of arrest.” 129 S. Ct. at 1723. Pursuant to
Gant, Webster argues there was no need to protect the arresting officers or safeguard
any evidence Webster might conceal or destroy because he had already been arrested,
handcuffed, and moved away from the truck at the time of the search.
We have previously distinguished cases similar to the instant matter in which
defendants were arrested for drug offenses from Gant, where the defendant was
arrested for driving with a suspended license, because the former situation provides
a reasonable basis for officers to believe the vehicle contains evidence of the crime of
arrest, whereas in Gant, there was no evidence of the offense of driving with a
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suspended license which would have been found in the vehicle. See Williams, 616
F.3d at 766 (“In short, these officers had probable cause to believe that contraband or
other evidence of drug crimes would be found in the stopped vehicle.”). As a result,
while the first prong of Gant clearly makes a search incident to arrest inapplicable in
this case because Webster was handcuffed and not within reaching distance of the
passenger compartment, the second prong may still apply because the officers had
reason to believe the vehicle contained evidence of the offense of arrest. Indeed,
Webster was arrested after being removed from his vehicle at the time and place set
for a controlled drug purchase, as discussed above. See Parish, 606 F.3d at 487
(“Because the only purpose of the arranged meeting was for [the defendant] to
distribute drugs, the police had probable cause to believe that evidence relevant to the
drug crime would be found in the vehicle.”).
However, the record evinces a dispute regarding the nature of Webster’s arrest,
which impacts whether the officers had reason to believe the vehicle contained
“evidence of the offense of arrest.” Gant, 129 S. Ct. at 1723 (emphasis added).
Webster submitted an affidavit through his lawyer stating one of the arresting officers
indicated Webster was arrested for parking the wrong way on the street. The district
court concluded the affidavit did “nothing to alter the fact that a controlled drug buy
operation was the primary basis for the arrest and searches in this case,” although it
concluded the fact Webster was parked the wrong way on the street was, on its own,
a basis for effectuating a traffic stop.
We note the district court’s order was issued prior to Gant, and thus there was
little reason for the court to distinguish among the possible bases for arrest, as either
would have provided a sufficient justification for a search incident to arrest at the
time. While we now have the benefit of Gant, we find it unnecessary to resolve the
factual dispute regarding the basis for arrest in light of the alternative grounds
discussed by the court. In addition to the search incident to arrest exception, the court
invoked the automobile exception, reasoning that once the officers found drugs on
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Webster’s person, they had probable cause to search the entirety of the truck without
a warrant. We agree. Warrantless searches need only be justified by one exception
to the Fourth Amendment warrant requirement; one of these exceptions is the
automobile exception, which “authorizes a search of any area of the vehicle in which
the evidence might be found” if probable cause exists. United States v. Grooms, 602
F.3d 939, 942-43 (8th Cir. 2010). We conclude the officers maintained probable
cause to search Webster’s vehicle because he arrived in the vehicle at the time and
place set for a controlled drug buy and he spoke with an informant in the vehicle
before the informant gave a visual signal to officers indicating Webster had drugs in
his possession. These facts, combined with the drugs found on Webster’s person
incident to arrest and his act of ramming the patrol car, provided the officers with a
reasonable basis to believe to a fair probability as to contraband existing in the
automobile. As a result, the warrantless search was justified under the automobile
exception, irrespective of the applicability of the search incident to arrest exception.
See id. at 942 (“[B]ecause we conclude the search of [the defendant’s] vehicle was
supported by probable cause, it is no longer necessary to justify the warrantless nature
of the search as one incident to arrest; rather the warrantless search can be justified
under the automobile exception.”). In light of our determination the officers had
probable cause to arrest Webster and search his vehicle, we conclude the subsequent
search warrant issued for Webster’s residences was also valid and the evidence
discovered under those searches need not be suppressed as fruit of the poisonous tree.
Thus, we affirm the district court’s denial of Webster’s motion to suppress.
B. Whether the Charges Should Be Dismissed Based on Destroyed Evidence
Webster next contends the district court erred in denying his motion to dismiss
the indictment because his due process rights were violated when state officials
destroyed evidence while the case was still pending. The district court’s denial of a
motion to dismiss the indictment because of the destruction of evidence is reviewed
de novo. United States v. Williams, 577 F.3d 878, 882 (8th Cir. 2009).
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The Supreme Court has held that “unless a defendant can show bad faith on the
part of police, failure to preserve potentially useful evidence does not constitute denial
of due process of law.” United States v. Scoggins, 992 F.2d 164, 167 (8th Cir. 1993)
(citing Arizona v. Youngblood, 488 U.S. 51 (1988)). Moreover, the evidence must
have had apparent exculpatory value and comparable exculpatory evidence must not
have been reasonably available to the defendant. United States v. Malbrough, 922
F.2d 458, 463 (8th Cir. 1990) (citing California v. Trombetta, 467 U.S. 479, 488-89
(1984)). We have previously held state authorities did not act in bad faith when they
destroyed evidence pursuant to a court order. Scoggins, 992 F.2d at 167 (citing
Malbrough, 922 F.2d at 463).
The destruction of evidence in this case occurred pursuant to the Des Moines
Police Department’s procedure of destroying evidence on a bi-annual basis. Each
officer is given a printout of their “locker,” or evidence related to the cases in which
they are involved, in order to verify whether the evidence can be destroyed. After
receiving verification from the officers, the evidence custodian examines the records
of the Polk County Attorney’s Office to assess the current disposition of the cases.
In Webster’s case, Walters, as the local case agent, failed to place a notice of
transfer in the case file or inform the evidence custodian, Officer Kelley Evans, that
Webster had been indicted in federal court. The records in the Polk County
Attorney’s Office showed Webster’s state case was closed. Accordingly, Evans sent
the entire packet of evidence to the Attorney’s Office to be reviewed by attorneys in
the drug and gang unit, who rely on the same internal records as those reviewed by
Evans to assess whether a case is still open. Evans subsequently received an order
from a state district court judge directing the evidence be destroyed, and he destroyed
all the evidence referenced in the order, including the evidence in Webster’s case and
hundreds of other cases. Prior to its destruction, the evidence was sent to the Iowa
Division of Criminal Investigation Criminalistics Laboratory for official analysis. A
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report from the lab detailed the results from the analysis, including the quantity and
makeup of the drugs.
The district court determined the normal procedure in destroying evidence was
followed, despite Walters’s accidental oversight regarding the status of Webster’s
federal case. It held there was no evidence of bad faith on Walters’s part, and while
the procedure could possibly be improved to enhance communication between state
and federal agents, it concluded the lack of bad faith was dispositive to Webster’s
claim. Moreover, the court stated the destroyed drug evidence did not have
exculpatory value to Webster, and the government still bore the burden of proving the
existence and quantity of the drugs at trial.
On appeal, Webster concedes the state had a policy in place to track evidence,
but he asserts it was recklessly ignored. He argues a showing of recklessness, rather
than a showing of bad faith, is enough to meet his burden. Webster contends the
district court mischaracterized Walters’s oversight as accidental or negligent because
Walters knew the case was in federal court and he was tasked with putting a notice in
the file to preserve the evidence. To this end, Webster describes Walters’s eight years
of experience, as well as Walters’s personal involvement with this case as the
arresting officer and the person to whom Webster made inculpatory statements. Given
these circumstances, Webster asserts Walters’s reckless actions constituted a due
process violation.
Webster also places blame on the Polk County Attorney’s Office, particularly
Dan Voogt, the prosecutor in Webster’s state case, and Robert DiBlasi, an Assistant
County Attorney. Webster argues these individuals signed off on the destruction of
Webster’s evidence, despite knowing of the pending federal case. Moreover, Webster
asserts the evidence had exculpatory value because he was not able to independently
test the crack cocaine to determine its quantity and purity. He contends he should not
be required to blindly accept the government’s test results.
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As an initial matter, we reject Webster’s invitation to impose a lesser standard
of culpability on the part of the government in this case. The Supreme Court has
“stressed the importance for constitutional purposes of good or bad faith on the part
of the Government when the claim is based on loss of evidence attributable to the
Government.” Youngblood, 488 U.S. at 57. In light of Youngblood, we have
required a showing of bad faith to sustain a due process claim based on the failure to
preserve evidence. Scoggins, 992 F.2d at 167. Moreover, we have stressed that the
burden of demonstrating bad faith on the part of the government resides with the
defendant. Id.; Youngblood, 488 U.S. at 58.
Under Youngblood, we agree with the district court there is no evidence of bad
faith on the part of the individuals involved which would constitute a due process
violation. At most, the record shows Walters acted negligently in failing to notify
Evans of the federal indictment, which is not enough for Webster to demonstrate a due
process violation. See United States v. Iron Eyes, 367 F.3d 781, 786 (8th Cir. 2004)
(“[T]he record in this case shows that, at most, the police acted negligently in allowing
[the evidence to be destroyed]; there was no evidence of bad faith.”). Webster’s
argument the district court mischaracterized Walters’s conduct is unavailing because
Webster maintained the burden to show bad faith on the part of the state officials, and
he failed to present any evidence in the record tending to show anything more than
mere negligence. Instead, the record shows the evidence was destroyed along with
evidence from hundreds of other cases during a bi-annual standard procedure, and was
signed off on by a state court judge.
We are also unpersuaded by Webster’s argument the destroyed evidence would
have been exculpatory. First, we agree with the district court that the presentation of
the crack cocaine itself at trial would tend to be more inculpatory than exculpatory.
While there remains a small possibility that further testing of the drugs by Webster
would have revealed errors in the government’s lab analysis, the Supreme Court has
rejected similar arguments as a basis for demonstrating the exculpatory value of
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destroyed evidence. See Trombetta, 467 U.S. at 489 (“Although the preservation of
breath samples might conceivably have contributed to respondents’ defenses, a
dispassionate review of the Intoxilyzer and the California testing procedures can only
lead one to conclude that the chances are extremely low that preserved samples would
have been exculpatory.”).
Webster attempts to distinguish his case from Trombetta based on the
possibility of life imprisonment he potentially faced if his case proceeded to trial,
whereas the defendants in Trombetta confronted far less severe penalties pursuant to
their charges for driving while intoxicated. Such discrepancy is of no consequence
to our inquiry of whether the government exhibited bad faith in destroying evidence
and whether the evidence was exculpatory to the defendant. In other words, our focus
remains on whether the defendant’s constitutional due process rights have been
violated by the government’s conduct, irrespective of the ultimate sentence a
defendant receives. See id. at 488 (discussing whether California’s policy of not
preserving breath samples is with or without constitutional defect).
Finally, Webster asserts the destruction of evidence denied him his Sixth
Amendment right to have the jury determine the facts of his case. He suggests the
jury would have been deprived of the ability to assess the true type, purity, and
quantity of drugs involved in his offense. We disagree. The government at all times
retained its burden to prove the elements of the offense and the drug quantity
attributable to Webster, even if the destruction of the evidence presented further
challenges to the government in achieving such purpose. Webster was free at trial to
cross-examine the government’s witnesses to that effect, calling into play the
government’s conduct in destroying the evidence. See Williams, 577 F.3d at 882
(noting the defendant’s argument that the condition of a firearm destroyed before trial
was material to his guilt was rebutted by the fact the defendant could cross-examine
the government’s expert regarding the firearm’s condition). In addition, we have
rejected similar claims from defendants who have asserted an inability to test the
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destroyed evidence due, in part, to the ability of the defendant to cross-examine the
government’s witnesses. Id. at 883; see also Trombetta, 467 U.S. at 490 (“[T]he
defendant retains the right to cross-examine the law enforcement officer who
administered the Intoxilyzer test, and to attempt to raise doubts in the mind of the
factfinder whether the test was properly administered.”). Under these circumstances,
we affirm the district court’s denial of Webster’s motion to dismiss.
III
For the foregoing reasons, we affirm Webster’s conviction.
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