[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-15160 SEPTEMBER 13, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 05-80019-CR-WPD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERAL ROBERSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 13, 2006)
Before TJOFLAT, ANDERSON and HULL, Circuit Judges.
PER CURIAM:
Jeral Roberson appeals his conviction for knowingly and intentionally
distributing at least 50 grams of cocaine base (“crack cocaine”), in violation of 21
U.S.C. § 841(a)(1), (b)(1)(A). On appeal, Roberson argues that the government
violated his right of fundamental fairness by failing to preserve the crack cocaine
evidence so he could independently reweigh it. Roberson contends that the
government knew that the weight of the crack cocaine was a key factor in the case
and that their storage method resulted in weight loss, yet it had not performed any
research to develop better ways to preserve evidence. Roberson argues that the
government’s action meant that the defense could not rebut the government’s
testimony regarding drug quantity because any loss in weight will be attributed to
evaporation. Roberson argues that the government’s failure to preserve the drugs
in light of its knowledge of the inadequacy of its storage system and the
importance of the drug quantity constituted bad faith. Roberson argues that the
government’s conduct here was intentionally, or, at best, recklessly indifferent to
the defense’s right to an accurate reweighing of the evidence.
A district court's bench trial findings of fact are reviewed to determine
whether they are clearly erroneous. O'Ferrell v. United States, 253 F.3d 1257,
1265 (11th Cir. 2001).
A defendant in a drug prosecution has a due process right to have an expert
of his choosing perform an independent analysis on the seized substance. United
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States v. Nabors, 707 F.2d 1294, 1296 (11th Cir. 1983). The government has a
responsibility to try in good faith to preserve material evidence. Id. In order to
show that the loss of evidence by the government constitutes a denial of due
process, Roberson must show that the evidence was likely to contribute to his
defense. California v. Trombetta, 467 U.S. 479, 488, 104 S.Ct. 2528, 2534, 81
L.Ed.2d 413 (1984). “To meet this standard of constitutional materiality, evidence
must both possess an exculpatory value that was apparent before the evidence was
destroyed, and be of such a nature that the defendant would be unable to obtain
comparable evidence by other reasonably available means.” Id. at 489, 104 S.Ct.
at 2534 (citation omitted). In addition, Roberson must show that the government
acted in bad faith in losing the potentially useful evidence in order to show a due
process violation. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337,
102 L.Ed.2d 281 (1988).
Contrary to the government’s contention, any loss of the crack cocaine due
to evaporation was prejudicial to Roberson, at least at sentencing. As shown in the
case, the drug weight of 53.7 grams, obtained in April 2004, implicated the higher
10-year statutory minimum, and Roberson had a vested interest in independently
verifying this, not the lesser drug quantity remaining before trial. Although the
government argues that any error would not be prejudicial because Roberson
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stipulated that he agreed to sell over 50 grams of crack cocaine, the actual amount
sold is the relevant figure because the indictment did not charge him with entering
into an illegal agreement, or attempting to violated the law, but with committing
the illegal act of possession with intent to distribute. If the amount Roberson
stipulated controlled the issue, then it would have been unnecessary to hold a
bench trial on the drug quantity.
Nevertheless, we hold that Roberson was not denied due process because
there was no showing of bad faith by the government. The record shows that the
Drug Enforcement Agency’s (“DEA”) storage practices for evidence are consistent
with procedures used in other storage laboratories. Specifically, the government
presented testimony that the DEA stores narcotics evidence in a climate-controlled
vault, which is standard practice for all DEA and state laboratories. The record
demonstrates that some loss of a crack cocaine sample due to evaporation through
the permeable plastic bags was inevitable over time. While both experts testified
that freezing controlled substance samples could decrease degradation, they also
both testified that they were not sure how effective this method would be, were not
aware of any research confirming this hypothesis, and did not know of any
laboratories employing this method with controlled substances. At most, the
record demonstrates that there was a possible alternative method of storing
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controlled substances that would better preserve evidence. While the government
has the duty to act in good faith to preserve evidence, this duty is not necessarily
violated if the government is not utilizing the best procedure available to preserve
evidence. Overall, the record demonstrates that the government complied with
accepted standard procedures in storing the evidence and, thus, did not act in bad
faith. Therefore, Roberson has failed to show a due process violation because he
failed to show that the government acted in bad faith in storing the crack cocaine
sample.
AFFIRMED.
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