                                                           NOT PRECEDENTIAL


                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                                  __________

                                  No. 11-1981
                                  __________

                         UNITED STATES OF AMERICA

                                       v.

                           MARKEITH JOHN WEBB
                           a/k/a John Markeith Webb,
                                            Appellant

                                  __________

                On Appeal from the United States District Court
                    for the Eastern District of Pennsylvania
                    (D.C. Criminal No. 5-09-cr-00755-001)
                District Judge: The Honorable Joel H. Slomsky

                 Submitted Under Third Circuit L.A.R. 34.1(a)
                                June 5, 2012

     BEFORE: SCIRICA, GREENAWAY, Jr., and NYGAARD, Circuit Judges


                           (Filed September 27, 2012)

                                  __________

                           OPINION OF THE COURT
                                 __________

NYGAARD, Circuit Judge
       Following a jury trial, Appellant Markeith Webb was found guilty of armed

robbery and of using and carrying a firearm during that armed robbery. He was

sentenced to 199-months imprisonment, five years of supervised release and ordered to

pay restitution. Webb appeals, raising various issues. We will affirm his conviction and

sentence.

                                             I.

       During the robbery of the Lafayette Ambassador Bank, the Appellant was

recognized by bank tellers as the grandson of an elderly bank customer. Webb had

displayed a firearm during the robbery and had stolen nearly five thousand dollars. When

removing the cash, Webb had taken two dye packs from two separate money drawers.

As Webb fled the bank, a teller observed one of the dye packs explode and spray red

colored dye in the area.

       The day after the robbery, a local merchant contacted the authorities to report that

he had currency that was discolored with red dye. After determining that the cash was

used after the robbery, law enforcement got video surveillance footage showing Webb

entering an Exxon Square convenience store and speaking with a clerk. That clerk

identified Webb as someone she knew as “Pip,” and that he had entered the store asking

to exchange fifty dollars bills into smaller denominations. The clerk noticed red dye on

the currency Webb was trying to exchange. Video footage also showed the car Webb

was driving---a green Chevrolet Malibu registered to Webb‟s girlfriend. An address for

Webb‟s girlfriend, Shaina Marie Holmes was obtained and the car was found at her

residence. Police noticed red dye stains on the car‟s interior.

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       Webb was arrested while in possession of additional red-stained currency.

       At a later meeting with authorities, Webb admitted to the Lafayette Ambassador

bank robbery and to driving his girlfriend‟s green Chevrolet Malibu. He denied,

however, ever threatening anyone during the course of the robbery. Lastly, he admitted

to disposing of most of the damaged currency, reserving approximately $2500.00 for his

personal use. At trial, the Government did not introduce any of Webb‟s statements as

evidence against him.

                                             II.

       On appeal, Webb raises several issues challenging his conviction and his sentence.

A.     Franks Hearing Error

       Webb first argues that he was entitled to a hearing under Franks v. Delaware, 438

U.S. 154 (1978).1 The District Court denied Webb‟s motion for a Franks hearing.

Normally, we review the denial of a motion for suppression for clear error as to the

underlying facts and exercise plenary review as to its legality. Inasmuch as the most

demanding standard articulated by any court is de novo, and because the de novo standard

of review is satisfied here, we need not determine the applicable standard today. When

reviewing the District Court‟s refusal to hold a Franks hearing de novo, it is clear the

court did not err because Webb failed to establish the requisite preliminary showing.




1
 A Franks hearing is a hearing to determine whether a police officer‟s affidavit used to
obtain a search warrant was based on false statements by the police officer. Franks v.
Delaware, 438 U.S. 154 (1978).

                                             3
       Webb argues that the warrant for his arrest was based on a flawed affidavit. He

contends that the affidavit omitted certain facts, that these omissions were intentional or

made with reckless disregard for the truth, and, as a result, there could be no probable

cause to arrest him. We have conducted a de novo review of the record and conclude that

Webb did not meet his burden of establishing he was entitled to a Franks hearing. First,

we note that affidavits supporting warrants are presumptively valid. Webb offered no

evidence in support of his request for a Franks hearing, and the District Court

accordingly determined that he had failed to make a substantial showing that the

affidavits reflected false statements that were made knowingly and recklessly. We agree

with the District Court. Webb‟s argument focuses on an alleged falsity in two paragraphs

of Detective Alonzo‟s affidavit. This allegation, even if true, is not enough to support an

inference that Detective Alonzo acted recklessly or was deliberately untruthful. Even if

the events at the bank did not occur as allegedly reported in the affidavit, that sheds little

light on the affiant‟s veracity. Franks and its progeny make clear that a defendant must

make a substantial showing that the affiant knew of or recklessly disregarded the

informant‟s untruthfulness. The District Court committed no error in finding that Webb

was not entitled to a Franks hearing.

B.     Denial of Motion for New Trial

       Next, Webb argues that the District Court erred by denying his motion for a new

trial because it was based on the destruction of exculpatory evidence. He points to the

destruction of an envelope on which one teller had written notes, and bank forms that

were provided to tellers after the robbery. The destruction of these pieces of evidence,

                                               4
Webb maintains, entitled him to a new trial because the Government failed to turn them

over to him during discovery.

       Although framed in his brief as a violation of Brady v. Maryland, 373 U.S. 83

(1963), Webb‟s actual basis for a new trial is the destruction of exculpatory evidence.

We examine this claim under a different standard. As has been noted, “[t]he Supreme

Court‟s jurisprudence divides cases involving nondisclosure of evidence into two distinct

universes. Brady and its progeny address exculpatory evidence that is still in the

government‟s possession. Youngblood and Trombetta govern cases in which the

government no longer possesses the disputed evidence.” United States v. Femia, 9 F.3d

990, 993 (1st Cir. 1993). Although destruction of evidence may constitute a due process

violation, “[a] defendant who claims destroyed evidence might have proved exculpatory .

. . has to show the prosecution‟s bad faith in ordering or permitting its destruction.”

United States v. Deaner, 1 F.3d 192, 200 (3d Cir. 1993). Absent proof of bad faith,

“failure to preserve evidence that might be of use to a criminal defendant . . . is not a

denial of due process.” Id. To prove bad faith, there must be a “showing that the

Government intentionally [tried] to gain some tactical advantage over [the defendant].”

       Webb has not proven that the Government acted in bad faith. Detective Alonzo

testified that the descriptions of the robber on the envelope matched the description given

him by the same teller later in his investigation. There was no need to keep the repetitive

notes on the envelope and discarding it does not rise to the level of an intentional act

necessary to gain a tactical advantage over Webb. Therefore, the District Court did not

err by denying Webb‟s motion.

                                              5
C.     Improper Use of Proffer Agreement

       “[A]ny statement made in the course of plea discussions with an attorney for the

prosecuting authority which do not result in a plea of guilty” is not admissible against the

defendant who “was a participant in the plea discussions.” FED. R. EVID. 410; see also

FED. R. CRIM. P. 11(f) (providing that the admissibility of any plea, plea discussion, or

any related statement is governed by Rule 410). However, a defendant may waive his

rights under Rule 410 and Rule 11, and allow the government to introduce statements

made in the course of plea discussions, “as long as there is no „affirmative indication that

the agreement [to waive] was entered into unknowingly or involuntarily.‟” United States

v. Hardwick, 544 F.3d 565, 569-70 (3d Cir. 2008) (alteration in original) (quoting United

States v. Mezzanatto, 513 U.S. 196, 210 (1995)). Here, Webb‟s proffer agreement

provided that the government could use at trial statements that Webb made during the

proffer, in the event that Webb were to make representations at trial inconsistent with

those he had made at the proffer. Webb does not challenge the voluntariness of his

proffer agreement. Instead, he raises a more generalized argument that his proffer

agreement was invalid because of a lack of consideration.

       The proffer letter states that the Government “will consider” Webb‟s proffer “in

formulating an appropriate resolution to this matter.” Webb might prefer that the proffer

letter he signed include some clearer statement of the Government‟s contractual

obligation. Although the written statement of the bargain set forth by the Government is

minimal, it sufficiently sets forth the benefit the Government confers–an appropriate

resolution of the matter. Put another way, the proffer letter, as written, obligated the

                                              6
Government to hear and evaluate Webb‟s statements as an initial step toward a possible

compromise. We are, therefore, satisfied that the proffer agreement sets forth

consideration and is not invalid on that ground.

D.     Obstruction of Justice Enhancement

       Lastly, Webb argues that his sentence was procedurally invalid because the

District Court improperly applied a two-level sentencing enhancement based on

obstruction of justice. We conclude that Webb‟s challenge to the obstruction of justice

enhancement under section 3C1.1 is meritless. Application note 1in the commentary to

this Guideline section states that “[o]bstructive conduct that occurred prior to the start of

the investigation of the instant offense of conviction may be covered by this [G]uideline

if the conduct was purposefully calculated, and likely to thwart, the investigation or

prosecution of the offense of conviction.” U.S.S.G.§ 3C1.1 cmt. n.1. Briefly, the

Government proffered recorded telephone conversations between Webb and his brother.

During these conversations, Webb sought to have his brother confront the teller who had

identified Webb as the robber. The District Court reasonably concluded that Webb‟s

request that his brother confront a critical witness constituted an attempt to “threaten[ ],

intimidat[e], or otherwise unlawfully influenc[e] ... [a] witness.” U.S.S.G. § 3C1.1 app.

n.4(A). The District Court did not err by applying these enhancements.

                                             III.

       For all of these reasons, we will affirm the conviction and judgment of sentence of

the District Court.



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