UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4230
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BARRY MARCEL VAUGHN, a/k/a Dwan Manson, a/k/a DR,
Plaintiff - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Irene C. Berger,
District Judge. (5:08-cr-00266-1)
Submitted: October 28, 2011 Decided: November 14, 2011
Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Derrick W. Lefler, GIBSON, LEFLER & ASSOCIATES, Princeton, West
Virginia, for Appellant. R. Booth Goodwin II, United States
Attorney, Miller Bushong, Assistant United States Attorney,
Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Barry Vaughn appeals from his conviction for
distribution of oxycodone, in violation of 21 U.S.C. § 841(a)(1)
(2006). After he was found guilty pursuant to a jury verdict,
Vaughn filed a motion for a new trial, which the district court
denied. On appeal, Vaughn argues that the court erred in
denying the motion. Finding no error, we affirm.
Denial of a motion for a new trial is reviewed for an
abuse of discretion. United States v. Stokes, 261 F.2d 496, 502
(4th Cir. 2001). Under the Due Process Clause of the Fourteenth
Amendment, the Supreme Court has developed “‘what might loosely
be called the area of constitutionally guaranteed access to
evidence.’” California v. Trombetta, 467 U.S. 479, 485 (1984)
(quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867
(1982)). The Court has specified that, to the extent the
Constitution imposes a duty upon the government to preserve
evidence, “that duty must be limited to evidence that might be
expected to play a significant role in the suspect’s defense” -
i.e., evidence that is constitutionally material. Id. at 488-
89. To satisfy this standard, evidence must: (1) “possess an
exculpatory value that was apparent [to the police] before the
evidence was destroyed,” and (2) “be of such a nature that the
defendant would be unable to obtain comparable evidence by other
reasonably available means.” Id. at 489. The mere possibility
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that lost or destroyed evidence could have been exculpatory is
not sufficient to satisfy Trombetta’s requirement that the
exculpatory value be “apparent” to the police before its loss or
destruction, which is required to establish that the police
acted in bad faith. Arizona v. Youngblood, 488 U.S. 51, 56 n.*
(1988).
We conclude that Vaughn fails to establish that the
$400 in pre-recorded bills was exculpatory, or that the police
acted in bad faith. The record does not support a conclusion
that any exculpatory value of keeping the pre-recoded bills was
apparent to the police before they followed department
procedures and converted the cash into a cashier’s check. The
evidence was, in fact, inculpatory. To the extent Vaughn argues
that the department did not follow procedures to notify him of
the forfeiture, it is insufficient to show bad faith and does
not effect the motion for a new trial. Instead it may be
challenged in a motion attacking the forfeiture.
We therefore affirm the judgment. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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