United States v. Velvet Legrande, Iii , 379 F. App'x 600 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 17 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 09-10361
Plaintiff - Appellee, D.C. No. 1:08-cr-00227-LJO-1
v.
MEMORANDUM*
VELVET RENARD LEGRANDE III,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted May 12, 2010**
San Francisco, California
Before: SILVERMAN, FISHER and M. SMITH, Circuit Judges.
Velvet Renard LeGrande III appeals the district court’s denial of his motion
to dismiss based on the government’s failure to preserve evidence. Our review is
de novo. See United States v. Cooper, 983 F.2d 928, 931 (9th Cir. 1993). We
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
presume the parties’ familiarity with the facts and do not repeat them here except
as necessary to explain our decision. We have jurisdiction pursuant to 28 U.S.C. §
1291, and we affirm.
Even assuming the destroyed evidence in this case was potentially
exculpatory, there was comparable evidence to support LeGrande’s contentions
that he and the victim were friends, that nothing unusual occurred outside the
housing unit prior to the assault and that LeGrande was not visibly carrying a
weapon at that time. See Cooper, 983 F.2d at 931 (evidence destruction does not
violate due process if the defendant can “obtain comparable evidence”) (quotation
marks omitted). In particular, the victim testified that LeGrande would have had
no reason to assault him and Investigator Zaragoza testified that “nothing unusual
. . . happened” in the video footage that was destroyed.
Further, the video was overwritten in accordance with prison policy and
LeGrande presented no evidence that the footage was deliberately destroyed in
order to further the government’s case. See United States v. Estrada, 453 F.3d
1208, 1212-13 (9th Cir. 2006) (no bad faith absent the government’s “malicious
intent”); United States v. Barton, 995 F.2d 931, 936 (9th Cir. 1993) (no bad faith
where nothing suggested officers deliberately destroyed evidence for tactical gain);
United States v. Heffington, 952 F.2d 275, 281 (9th Cir. 1991) (holding that
2
governmental compliance with “departmental procedure” supports finding that the
government did not act in bad faith) (internal quotation marks omitted).
AFFIRMED.
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