UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4458
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SAVINO BRAXTON,
Defendant - Appellant.
No. 15-4686
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SAVINO BRAXTON,
Defendant - Appellant.
Appeals from the United States District Court for the District
of Maryland, at Baltimore. James K. Bredar, District Judge.
(1:15-cr-00408-JKB-1; 1:09-cr-00478-JKB-1)
Submitted: September 16, 2016 Decided: September 30, 2016
Before NIEMEYER, SHEDD, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Steven H. Levin, LEVIN & CURLETT, LLC, Baltimore, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, John F.
Purcell, Jr., Assistant United States Attorney, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Following remand of this case to the district court, * a jury
convicted Savino Braxton of possession with intent to distribute
heroin, 21 U.S.C. § 841(a)(1) (2012). During trial, the
district court also summarily convicted Braxton of contempt, 18
U.S.C. § 401(3) (2012). Braxton was sentenced to 240 months for
the drug offense and six months, consecutive, for contempt. He
appeals, raising three issues. The appeals have been
consolidated. We affirm.
I
Prior to trial, Braxton moved to dismiss the indictment
because the Government had destroyed heroin seized from his car
and apartment. The district court denied the motion on the
ground that there was no evidence that the Government had acted
in bad faith. Braxton contends that the destruction of the
heroin violated his due process rights. We review de novo a
constitutional due process claim. United States v. Legree, 205
F.3d 724, 729 (4th Cir. 2000).
“[U]nless a criminal defendant can show bad faith on the
part of the police, failure to preserve potentially useful
evidence does not constitute a denial of due process of law.”
Arizona v. Youngblood, 488 U.S. 51, 58 (1988). A finding of bad
* United States v. Braxton, 784 F.3d 240 (4th Cir. 2015).
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faith “requires that the officer . . . intentionally withheld
the evidence for the purpose of depriving the plaintiff of the
use of that evidence during his criminal trial.” Jean v.
Collins, 221 F.3d 656, 663 (4th Cir. 2000). If evidence is
destroyed by officials who believe the case to have been over,
there is no bad faith. United Sates v. Talib, 347 F. App’x 934,
938 (4th Cir. 2009) (No. 08-4288).
Officer Collins testified at a pretrial hearing that the
evidence was destroyed at a central DEA laboratory on May 15,
2014 — almost one year after Braxton’s first sentencing.
Collins further testified that evidence typically is destroyed
after sentencing. According to Collins, no one from the U.S.
Attorney’s Office directed the destruction of the evidence, and
he was not aware that any prosecutor knew of its destruction
until after it was destroyed. The supervisors who directed the
destruction of the evidence had no other involvement in the
case. Under these circumstances, we conclude that there was no
bad faith and no due process violation.
II
On November 19, 2012, the Government filed an Information
and Notice of Government’s Intention to Seek Enhanced Minimum
Mandatory Sentence, 21 U.S.C. § 851 (2012). The notice stated
that, because Braxton was convicted in 1991 of a felony drug
offense, the United States would seek the enhanced statutory
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minimum penalty of twenty years. See 21 U.S.C. § 841(b)(1)(A)
(2012). On remand, the Government filed a second § 851 notice,
again reciting that Braxton was convicted in 1991 of a felony
drug offense and that, if he were convicted of the instant
offense, it would seek the enhanced minimum mandatory sentence
of twenty years.
Braxton contends that the filing of the second § 851 notice
was vindictive and violated his due process rights. We
disagree. While a prosecutor acts unconstitutionally when he
“responds to a defendant’s successful exercise of his right to
appeal by bringing a more serious charge against him,” United
States v. Wilson, 262 F.3d 305, 314 (4th Cir. 2001), this simply
is not what happened here. Following his successful appeal,
Braxton was exposed to the same enhanced penalty for the same
offense with which he was originally charged.
III
The district court found Braxton to be in contempt because
he knowingly resisted and disobeyed the court’s admonitions not
to mention the matter of punishment before the jury. Braxton
challenges the contempt conviction on two grounds. First, he
argues that the conviction cannot stand because the court did
not specifically find his conduct to have been “willful.”
Braxton also claims that his behavior did not warrant a contempt
conviction. Because Braxton did not raise these issues before
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the district court, our review is for plain error. See United
States v. Olano, 507 U.S. 725, 731-32 (1993).
We reject both arguments. The relevant statute states that
a court may, in its discretion, punish contempt such as
“[d]isobedience or resistance to its lawful writ, process,
order, rule, decree, or command.” 18 U.S.C. § 401(3). Case law
identifies the elements of contempt under § 401(3) as “(1) a
reasonably specific order; (2) violation of the order; and (3)
the willful intent to violate the order.” United States v.
Allen, 587 F.3d 246, 255 (5th Cir. 2009) (per curiam). “One may
be found in contempt under § 401(3) only if [he] willfully
violated a decree that was clear and left no uncertainty in the
minds of those that heard it.” United States v. Westbrooks, 780
F.3d. 593, 595 (4th Cir. 2015) (internal quotation marks
omitted).
The district court found that Braxton “disobeyed and
resisted knowingly” its order not to raise the issue of
punishment before the jury. This, we conclude, is sufficient on
plain error review to satisfy the requirement that the defendant
acted willfully.
Further, the court clearly warned Braxton at least twice
not to mention punishment. Braxton persistently ignored the
warnings, which he assured the court he understood. Under these
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circumstances, the contempt conviction does not constitute plain
error.
IV
We therefore affirm. The motions to file a pro se brief
and an addendum to the pro se brief are denied. We dispense
with oral argument because the facts and legal arguments are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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