United States v. Curbelo , 232 F. App'x 322 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5060
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FRANCISCO CURBELO, a/k/a Murando,
Defendant - Appellant.
No. 06-4116
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FRANCISCO CURBELO, a/k/a Murando,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Senior
District Judge. (3:99-cr-00109-1)
Submitted: May 30, 2007 Decided: July 9, 2007
Before MOTZ and KING, Circuit Judges, and WILKINS, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Ronald E. Justice, Jr., THE JUSTICE LAW FIRM, P.A., Hendersonville,
North Carolina, for Appellant. Karen S. Marston, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
A jury convicted Francisco Curbelo of conspiracy to
possess with intent to distribute more than five kilograms of
cocaine and more than fifty grams of crack cocaine, in violation of
21 U.S.C. § 846 (2000), and six counts of possession with intent to
distribute more than fifty grams of crack cocaine, in violation of
21 U.S.C. § 841(a)(1) (2000), and 18 U.S.C. § 2 (2000). The
district court sentenced him to a 180-month sentence. Curbelo’s
counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), raising one issue but stating that, in his view,
there are no meritorious issues for appeal. Curbelo has filed a
pro se supplemental brief.* Finding no reversible error, we
affirm.
Counsel suggests that the district court erred by denying
Curbelo’s motion to dismiss the indictment based upon the
destruction of drug evidence before his retrial. Counsel asserts
that the evidence was destroyed in bad faith in contravention of a
court order. Counsel also contends that Curbelo was prejudiced by
the destruction of the evidence because it prevented independent
*
We grant Curbelo’s motion to file a pro se supplemental
brief. We have carefully considered the claims raised therein and
find them to be without merit. We decline to address Curbelo’s
ineffective assistance of counsel claims in this direct appeal.
See United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir.)
(providing standard), cert. denied, 126 S. Ct. 1407 (2006).
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testing of the drugs and examination of the plastic bags for latent
fingerprints, resulting in a violation of due process.
The Supreme Court has held that, to establish a due
process violation for failure to preserve evidence, a defendant
must show that the evidence possessed exculpatory value that was
apparent prior to its destruction and that the defendant cannot
obtain comparable evidence by another means. California v.
Trombetta, 467 U.S. 479, 488-89 (1984). However, “the failure to
preserve this ‘potentially useful evidence’ does not violate due
process ‘unless a criminal defendant can show bad faith on the part
of the police.’” Illinois v. Fisher, 540 U.S. 544, 547-48 (2004)
(emphasis added) (quoting Arizona v. Youngblood, 488 U.S. 51, 58
(1988)); see United States v. Newsome, 322 F.3d 328, 334 (4th Cir.
2003) (discussing test).
Even if the drug evidence and the plastic bags were
potentially useful evidence, Curbelo failed to show that the
evidence was destroyed in bad faith. Rather, trial testimony
disclosed that the evidence was deteriorating to the point that it
could have contaminated other evidence. We therefore conclude that
the destruction of the drug evidence did not amount to a violation
of Curbelo’s due process rights.
In accordance with Anders, we have reviewed the record
for any meritorious issues and have found none. Therefore, we
affirm Curbelo’s convictions and sentence. This court requires
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that counsel inform his client, in writing, of his right to
petition the Supreme Court of the United States for further review.
If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on the
client. 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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