                           NOT FOR PUBLICATION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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