NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 9 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50365
Plaintiff-Appellee, D.C. No.
3:18-cr-04834-AJB-1
v.
DONALD STANLEY, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
Submitted June 7, 2021**
Pasadena, California
Before: MURGUIA, BADE, and LEE, Circuit Judges.
Defendant-Appellant Donald Stanley (“Stanley”) appeals his conviction and
sentence for possession of a controlled substance, methamphetamine, with intent to
distribute in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction pursuant to
28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1. The district court did not abuse its discretion under Federal Rules of
Evidence 404 and 403 by admitting electronic messages sent and received by
Stanley in which he conducted drug transactions, including selling
methamphetamine from his residence, in the months preceding his July 2018
arrest. United States v. Vo, 413 F.3d 1010, 1017 n.4 (9th Cir. 2005). The
government introduced evidence of Stanley’s prior methamphetamine sales
because it was probative of his knowledge of drug distribution and intent to
distribute the methamphetamine, both of which are permissible reasons for
admitting evidence of prior drug transactions under Federal Rule of Evidence
404(b). See id. at 1018 (“We have consistently held that evidence of a defendant’s
prior possession or sale of narcotics is relevant under Rule 404(b) to issues of
intent, knowledge, motive, opportunity, and absence of mistake or accident in
prosecutions for possession of, importation of, and intent to distribute narcotics.”
(quoting United States v. Mehrmanesh, 689 F.2d 822, 832 (9th Cir. 1982)). Not
only were the electronic messages relevant to a “material point” and element of the
charged offense—Stanley’s intent to distribute methamphetamine—but the drug
transactions described in the messages were “similar to the offense charged,” and
“not too remote in time.” Id. (citation omitted).
We also reject Stanley’s assertion that the district court inadequately applied
Federal Rule of Evidence 403 before admitting the electronic messages, “as it
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appears from the record as a whole that the trial judge adequately weighed the
probative value and prejudicial effect of proffered evidence before its admission.”
United States v. Verduzco, 373 F.3d 1022, 1029 n.2 (9th Cir. 2004) (quoting
United States v. Sangrey, 586 F.2d 1312, 1315 (1978)). When ruling on the
motion in limine regarding the 404(b) evidence, the district court stated that it
would give a limiting instruction tracking the language of Rule 404(b) to explain
the limited purposes for which the jury could consider the evidence, and then gave
such instructions to the jury both when the messages were introduced and before
closing arguments. We have consistently rejected arguments that Rule 403
precludes admission of bad acts evidence “where, as here, the evidence was
probative of intent and the district court properly instructed the jury as to the
limited purpose for which the evidence was being admitted.” United States v.
Hinton, 31 F.3d 817, 823 (9th Cir. 1994). And even if the district court erred in
admitting the evidence of Stanley’s other drug transactions, which we do not
conclude here, any error was harmless given the overwhelming evidence of
Stanley’s guilt, including his admissions during a phone call from jail just hours
after the arrest referring to “my backpack” and “the stuff” within it.
2. The district court did not abuse its discretion by declining to give the
adverse-inference instruction that Stanley requested based on the officers’ alleged
failure to preserve evidence from the backpack and bedroom. United States v.
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Sivilla, 714 F.3d 1168, 1172 (9th Cir. 2013). This case does not involve “evidence
[that] was lost or destroyed while in [the government’s] custody,” id. at 1173
(citation omitted), but, rather, evidence from the backpack and Stanley’s room that
he characterizes as “lost or destroyed” because police failed to seize it. But police
do not have an “undifferentiated and absolute duty to retain and to preserve all
material that might be of conceivable evidentiary significance in a particular
prosecution.” Arizona v. Youngblood, 488 U.S. 51, 58 (1988).
In any event, there is no indication “that the evidence was destroyed in bad
faith” or that Stanley “was prejudiced by its destruction.” United States v. Romo-
Chavez, 681 F.3d 955, 961 (9th Cir. 2012) (citations omitted). Police seized only
those items that they thought had evidentiary value, and collected video evidence
with their body cameras of everything they observed in the backpack and in the
room. Moreover, “the probable effect on the jury from the absence of the
[evidence] was not significantly prejudicial because [Stanley]’s counsel was
permitted, and did, argue before the jury that [the government] failed to preserve
the [evidence].” United States v. Robertson, 895 F.3d 1206, 1214 (9th Cir. 2018).
3. The district court did not commit reversible error in instructing the
jury that it need not find that Stanley knew the type or quantity of drug he
possessed. To obtain a particular sentence under 21 U.S.C. § 841(b)(1)(A) for a
violation of 21 U.S.C. § 841(a), “the government must prove beyond a reasonable
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doubt the specific type and the quantity of substance involved in the offense, but
not the defendant’s knowledge of (or intent) with respect to that type and quantity.”
United States v. Collazo, 984 F.3d 1308, 1329 (9th Cir. 2021) (en banc) (emphasis
added). Collazo forecloses Stanley’s argument that the jury instructions
improperly led to the imposition of an enhanced sentence under 21 U.S.C.
§ 841(b)(1)(A).
4. The district court adequately addressed Stanley’s objection that the
Presentence Report (“PSR”) failed to make adequate findings regarding whether
violence was used in connection with the offense for purposes of a sentencing
enhancement under U.S.S.G. § 2D1.1(b)(2) and his ineligibility for safety-valve
relief under U.S.S.G. § 5C1.2 pursuant to 18 U.S.C. § 3553(f). Regardless of
whether Stanley’s objection to the PSR constituted more than a “conclusory
denial[] of the [PSR’s] ultimate finding,” to which Federal Rule of Criminal
Procedure 32 does not apply, United States v. Carter, 219 F.3d 863, 867 (9th Cir.
2000); see United States v. Petri, 731 F.3d 833, 841 (9th Cir. 2013), the district
court met its obligation under Rule 32 to “rule on the dispute,” Fed. R. Crim. P.
32(i)(3)(B). At sentencing, the district court gave Stanley and the government the
opportunity to be heard concerning Stanley’s use of violence in connection with
the offense before concluding that “the government’s evidence overwhelms here;
that violence was, indeed, involved.” As a result, the district court applied the
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enhancement under U.S.S.G. § 2D1.1(b)(2) and found “that safety valve . . . would
not apply.”
5. For the reasons above, reversal is also not warranted for cumulative
error. Cf. United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996).
AFFIRMED.
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