                                                                           FILED
                           NOT FOR PUBLICATION                              AUG 17 2010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. 07-30127

              Plaintiff - Appellee,              D.C. No. CR-05-00042-RRB

  v.
                                                 MEMORANDUM *
JASON SCOTT COLETTE,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 07-30371

              Plaintiff - Appellee,              D.C. No. CR-05-00042-f-RRB

  v.

JASON SCOTT COLETTE,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 08-30392

              Plaintiff - Appellee,              D.C. No. 4:05-cr-00042-RRB

  v.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
JASON SCOTT COLETTE,

              Defendant - Appellant.



                   Appeal from the United States District Court
                             for the District of Alaska
                 Ralph R. Beistline, Chief District Judge, Presiding

                        Argued and Submitted July 28, 2010
                                Anchorage, Alaska

Before: SCHROEDER, O’SCANNLAIN and CLIFTON, Circuit Judges.

      Defendant-Appellant Jason Colette appeals his jury convictions for

possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(B), and distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(C). He also appeals from the administrative forfeiture of a jet ski and trailer,

and the criminal forfeiture of $38,848 in cash, following a jury trial. He raises

numerous issues on appeal, none of which have merit. We have jurisdiction under

28 U.S.C. § 1291, and we affirm.

      The most serious issue is whether we must reverse because the government

violated the Jencks Act, 18 U.S.C. § 3500, by failing to timely produce (1) an

audio tape of a police interview with a confidential informant; (2) the grand jury

testimony of a federal agent; and (3) the handwritten notes the agent took during a

different interview with the informant. The government did not violate the Jencks

                                           2
Act when it failed to produce the audio tape of the informant’s police interview

during the criminal trial, because the tape was in the exclusive possession of state

authorities. See 18 U.S.C. § 3500(b) (requiring the government to produce any

statement of a witness “in the possession of the United States”); Beavers v. United

States, 351 F.2d 507, 509 (9th Cir. 1965) (Jencks Act did not apply to a recording

that was in the possession of state authorities).

      The district court found no violation with respect to the grand jury

testimony, but the government now concedes its failure to supply Colette with the

agent’s grand jury testimony violated the Jencks Act. See 18 U.S.C. § 3500(b),

(e)(3). The government’s failure to turn over the agent’s notes of his interview

with the informant violated the Act as well. See United States v. Andersson, 813

F.2d 1450, 1459 (9th Cir. 1987) (“[U]nder the Jencks Act, an agent’s original

interview notes with the suspect or potential witness must be preserved or

produced.”).

      The district court should have stricken the agent’s testimony from the record

of the criminal trial as a sanction for the government’s Jencks Act violations. See

18 U.S.C. § 3500(d); United States v. Cardenas-Mendoza, 579 F.3d 1024, 1031

(9th Cir. 2009). The court’s failure to do so, however, could not have made a

difference in the case and was therefore harmless. The agent’s testimony played


                                           3
only a limited role in Colette’s criminal trial and was primarily geared toward

proving the elements of the two firearm possession offenses of which Colette was

acquitted. To the extent his testimony related to drug trafficking crimes, there was

substantial evidence of Colette’s guilt independent of the agent’s testimony. See

Cardenas-Mendoza, 579 F.3d at 1032-33.

      The government did not violate its obligations under Brady v. Maryland,

373 U.S. 83 (1963), when it failed to timely disclose to the defense the audio

recording of the first interview of the informant and the agent’s notes from the later

interview with the informant. These materials had little impeachment value, and

there is no reasonable probability they would have affected the result had the

government timely produced them. See United States v. Bagley, 473 U.S. 667, 682

(1985).

      The district court properly denied Colette’s motions for a Franks hearing.

Colette did not make any showing that the purported misrepresentations or

omissions by the state trooper during the warrant hearing before the state

magistrate were made deliberately or with reckless disregard for the truth. See

Franks v. Delaware, 438 U.S. 154, 155-56 (1978); United States v. Stanert, 762

F.2d 775, 780-81 (9th Cir. 1985). Had the state trooper corrected the alleged

misrepresentations and supplied the omitted facts, the magistrate still would have


                                          4
found probable cause for the issuance of the search warrant. See Franks, 438 U.S.

at 156; United States v. DeLeon, 979 F.2d 761, 764 (9th Cir. 1992).

      The district court did not abuse its discretion in limiting cross examination.

The names of other drug dealers the informant used were not relevant, the

information’s probative value was outweighed by the informant’s substantial

interest in his own safety and the avoidance of self-incrimination, and the

limitation did not deprive the jury of sufficient information to assess the

informant’s credibility in light of the numerous other ways he was impeached. See

United States v. Larson, 495 F.3d 1094, 1103 (9th Cir. 2007) (en banc). The

confidential informant refused to answer questions related to his other sources of

drugs, and even if the refusal could be viewed as an invocation of his Fifth

Amendment rights, exclusion of his testimony was not warranted because the

answer to those questions affected only collateral matters. See Denham v. Deeds,

954 F.2d 1501, 1503 (9th Cir. 1992).

      Before the administrative forfeiture of the jet ski and trailer, the DEA sent

notices of the seizure of this property by certified mail to Colette’s home address,

his jail address, and his attorney. These notices were “reasonably calculated under

all the circumstances” to apprise Colette of the pendency of the property’s

forfeiture. See Dusenbery v. United States, 534 U.S. 161, 168-73 (2002). The


                                           5
record further demonstrates that Colette and his attorney received these notices.

There is no basis for setting aside the administrative forfeiture of these items of

property under 18 U.S.C. § 983(e)(1), and there was no due process violation.

       The district court also properly forfeited the $38,848 in cash. The evidence

was sufficient to establish that Colette used, or intended to use, the cash “in any

manner or part” to commit or facilitate his possession of cocaine with intent to

distribute. See 21 U.S.C. § 853(a)(2). The court did not abuse its discretion in

refusing to give Colette’s proffered instruction on criminal forfeiture; it related to a

“proceeds” theory of forfeiture on which the government did not rely during the

forfeiture trial.

       AFFIRMED.




                                           6
