                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 23 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-10001

              Plaintiff - Appellee,              D.C. No. 1:06-CR-00212-LJO-2

  v.
                                                 MEMORANDUM *
PRASEUT CHANTHASEN,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Eastern District of California
                         Lawrence J. O’Neill, , Presiding

                            Submitted February 8, 2010 **
                              San Francisco, California

Before: HALL and McKEOWN, Circuit Judges, and CAMPBELL, *** District
Judge.




        *
             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).
        ***
              The Honorable David G. Campbell, United States District Judge for
the District of Arizona, sitting by designation.
      Prasuet Chanthasen (“Chanthasen”) timely appeals from a judgment of

conviction of one count of conspiracy to manufacture marijuana in violation of

21U.S.C. §§ 841(a)(1) and (b)(1)(A)(vii), and 846. Chanthasen was sentenced to

120 months in prison, to be followed by 60 months of supervised release, and a

$100 special assessment. In this appeal, Chanthasen contends that: (1) there was

insufficient evidence that he became a member of the conspiracy to manufacture

marijuana, knew of at least one of its objects, and intended to help achieve it; and

(2) a digital photograph taken by a sheriff’s deputy during a traffic stop that was

arranged as part of a surveillance operation on April 19, 2006, was potentially

exculpatory and highly probative evidence of identity, and the government’s

failure to preserve that photograph violated his due process rights in light of the

fact that he gave early and consistent notice that identity would be a key defense

issue. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

                                           I.

      The large body of testimonial and documentary evidence presented during a

four-day jury trial and extensive post-trial proceedings, the procedural events of

the case, and the applicable law are well known to the parties. Thus, we will recite

such information only as necessary to our disposition of the claims of error raised

in this appeal.


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                                          II.

      We review de novo Chanthasen’s challenge to the sufficiency of the

evidence. United States v. Antonakeas, 255 F.3d 714, 723 (9th Cir. 2001). There

is sufficient evidence to support a conviction if, viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319 (1979). Applying these standards, we reject Chanthasen’s claim

that the evidence presented at trial was insufficient to prove he was a knowing,

active member of the conspiracy to manufacture marijuana charged in this case.

      The government introduced detailed testimony from a team of Fresno

County Sheriff’s Department (“FCSD”) detectives who participated in surveillance

of the targeted marijuana growing site in Stevinson, California, in Merced County,

on two occasions on April 19 and May 4, 2006. On the former date, the officers

followed a green minivan from the Stevinson site, where five people were seen

working in a field in which an estimated 10,000 marijuana plants were under active

cultivation, all the way back to Chanthasen’s apartment on North 8th Street, in

Fresno, California. During the April 19 surveillance operation, two of the FCSD

investigators, Detective John Wages and Sergeant Brad Christian, were in a

position to and did identify the driver of the green minivan as defendant


                                           3
Chanthasen, and the minivan’s passenger as alleged co-conspirator Vanh Tho

Lawphachan (“Lawphachan”).

      In addition, FCSD Deputy David Barile testified that he was dispatched to

assist the detectives on the afternoon of April 19, 2006, upon their return to Fresno

County, and that he stopped the green minivan for a traffic infraction shortly after

it was seen dropping off Lawphachan at his home on Carolina Avenue in Clovis at

approximately 3:30 p.m. Deputy Barile identified Chanthasen at trial as the person

who was driving the van at that time, and identified the valid California driver’s

license Chanthasen had presented to him upon request during the traffic stop.

      Cooperating co-conspirator Onesy Chanthavong (“Chanthavong”) also

testified that Chanthasen was a member of the group cultivating marijuana with

him and Lawphachan, and that he had personally seen Chanthasen working at the

Stevinson site and had spent the night with the defendant in a trailer on the

property on several occasions. Chanthavong identified Lawphachan as the

“leader” of the conspiracy.

      Finally, Chanthasen himself admitted at trial that he was driving the green

minivan when Deputy Barile stopped him sometime after 3:00 p.m. on April 19,

2006. Chanthasen also testified about his experience cultivating legitimate Asian

vegetable crops—including the “long bean” plants that surrounded and shielded


                                          4
from public view the 11,539 marijuana plants that were growing in the Stevinson

field—and could fairly be charged with knowledge of the illegal nature and

objectives of the cultivation project at the Stevinson site. Chanthasen’s claims that

he was not in Stevinson that day, and that he had merely “borrowed” the van for

about an hour from his friend Bounma Vommarath, the registered owner of the

vehicle, to move some seedlings from his home in Clovis to his own five-acre farm

in the Fresno area, were necessarily rejected by the jury. Taken together, the

evidence presented at trial amply supports Chanthasen’s conviction.

                                           III.

      We also review de novo Chanthasen’s claim that the government’s failure to

preserve a digital photograph taken by Deputy Barile during the April 19, 2006

traffic stop violated his due process rights, but the district court’s factual findings

on this issue are reviewed only for clear error. United States v. Hernandez, 109

F.3d 1450, 1454 (9th Cir. 1997). When evidence is lost or destroyed while in the

government’s possession, the government bears the burden of justifying its conduct

and the defendant bears the burden of demonstrating prejudice. United States v.

Tercero, 640 F.2d 190, 192 (9th Cir. 1980). Upon de novo review, we reject

Chanthasen’s due process claim because there was no evidence of bad faith on the

part of the government, and Chanthasen has not shown he was prejudiced by the


                                            5
loss of the photograph.

      The district court conducted an extensive post-trial inquiry into the

destruction of the photograph, and specifically found that it was not intentional and

that there was no evidence of bad faith on the part of Detective Jacob Jensen, the

FCSD officer who received the digital photograph by e-mail from Deputy Barile

and subsequently deleted it from his computer. These findings are not clearly

erroneous. See Hernandez, 109 F.3d at 1454-55; United States v. Heffington, 952

F.2d 275, 280-81 (9th Cir. 1991)

      The exculpatory nature and probative value of the photograph are also

debatable, at best. As we have noted, Chanthasen admitted at trial that he was

stopped while driving the green minivan, precisely as Deputy Barile reported, on

April, 19, 2006. Deputy Barile also identified the valid California driver’s license

Chanthasen produced to him during the traffic stop on April 19, 2006, and

identified Chanthasen as the person he stopped that day at the direction of the

FCSD surveillance team. Deputy Barile further testified, however, that there was

no gardening material in the van, and that Chanthasen looked “normal” during the

stop, thus providing an alternative source of evidentiary support for Chanthasen’s

claim that the photograph would have shown he did not look like someone who

had been “scruffing around in a field” that day. Moreover, even if the digital


                                          6
photograph had a “time and date stamp,” as Chanthasen claims without record

support, it would have added nothing that was not already confirmed by Deputy

Barile’s testimony and Chanthasen’s own admissions. There is, in short, no reason

to believe that the preservation and use of the digital photograph at trial would

have yielded a different verdict.

                                         IV.

      For all the foregoing reasons, the judgment of conviction, including the

sentence imposed, is AFFIRMED.




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