                                                                             FILED
                           NOT FOR PUBLICATION
                                                                             MAR 27 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.    16-50298

              Plaintiff-Appellee,                D.C. No.
                                                 3:15-cr-02681-LAB-1
 v.

KENNETH RHUL STANFORD, Jr.,                      MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                       Argued and Submitted March 7, 2018
                              Pasadena, California

Before: REINHARDT, TASHIMA, and NGUYEN, Circuit Judges.

      Kenneth Rhul Stanford, Jr., appeals his convictions for one count of

importation into the United States of methamphetamine and one count of

importation of heroin, in violation of 21 U.S.C. §§ 952 and 960. For the reasons set

forth below, we affirm the judgment of the district court.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      1.     Stanford first argues that the government’s search of his cell phone in

September 2015 violated the Fourth Amendment and therefore required exclusion

of the cell-phone evidence at trial. However, in December 2015, the government

obtained a warrant to search the phone, and only information obtained pursuant to

searches under that warrant was adduced at trial. Stanford does not argue, and there

is no indication in the record, that the December phone search was prompted by

information obtained during the September search. We need not reach the question

whether the initial search was unlawful. Because all evidence at trial was acquired

“independently from activities untainted by [any] initial illegality,” the district

court did not err in admitting the cell phone evidence notwithstanding any asserted

Fourth Amendment violation. See Murray v. United States, 487 U.S. 533, 537

(1988).

      2.     Because Stanford did not raise below a claim that the government

failed to preserve potentially exculpatory evidence in violation of his due process

right, our review on appeal is for plain error. See United States v. Houston, 648

F.3d 806, 813 (9th Cir. 2011). The district court did not plainly err in neither

dismissing the indictment nor excluding the cell-phone evidence due to the

government’s shortcomings in its preservation of the phone. There is no evidence

that the government knew that data on the cell phone was potentially useful to


                                            2
Stanford or that it otherwise acted in bad faith by failing to ensure that the data

remained unchanged throughout the litigation. See United States v. Zaragoza-

Moreira, 780 F.3d 971, 982 (9th Cir. 2015). Moreover, there is no reason to

believe that any evidence was in fact lost or destroyed. Under the circumstances,

the district court did not plainly err in continuing to hear the case and in allowing

admission of the phone evidence.

      3.     The admission of the cell phone evidence also withstands Stanford’s

challenge on evidentiary authentication grounds. Because the district court ruled on

authentication solely as to the Facebook post, our review of the remaining cell-

phone evidence is for plain error. The district court did not plainly err in admitting

the phone evidence as an accurate representation of the phone as it existed in

December. The government met its burden for authentication regarding the

Facebook evidence, because it provided sufficient evidence to “establish a

connection between the proffered evidence and the defendant” and to permit “a

reasonable juror [to] find in favor of authenticity.” United States v. Tank, 200 F.3d

627, 630 (9th Cir. 2000) (internal quotation marks omitted).

      4.     Stanford’s argument that remand for an evidentiary hearing is

necessary fails because defense counsel below solely sought a Daubert hearing.

      AFFIRMED.


                                           3
