                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4230


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

BARRY MARCEL VAUGHN, a/k/a Dwan Manson, a/k/a DR,

                Plaintiff - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.      Irene C. Berger,
District Judge. (5:08-cr-00266-1)


Submitted:   October 28, 2011             Decided:   November 14, 2011


Before NIEMEYER and     GREGORY,   Circuit   Judges,   and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Derrick W. Lefler, GIBSON, LEFLER & ASSOCIATES, Princeton, West
Virginia, for Appellant.    R. Booth Goodwin II, United States
Attorney, Miller Bushong, Assistant United States Attorney,
Beckley, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Barry    Vaughn        appeals     from     his    conviction         for

distribution of oxycodone, in violation of 21 U.S.C. § 841(a)(1)

(2006).    After he was found guilty pursuant to a jury verdict,

Vaughn filed a motion for a new trial, which the district court

denied.        On   appeal,     Vaughn     argues   that    the   court      erred    in

denying the motion.           Finding no error, we affirm.

               Denial of a motion for a new trial is reviewed for an

abuse of discretion.           United States v. Stokes, 261 F.2d 496, 502

(4th Cir. 2001).         Under the Due Process Clause of the Fourteenth

Amendment, the Supreme Court has developed “‘what might loosely

be    called    the    area    of   constitutionally       guaranteed     access      to

evidence.’”         California v. Trombetta, 467 U.S. 479, 485 (1984)

(quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867

(1982)).        The    Court    has    specified    that,    to   the   extent       the

Constitution        imposes    a    duty   upon   the    government     to   preserve

evidence, “that duty must be limited to evidence that might be

expected to play a significant role in the suspect’s defense” -

i.e., evidence that is constitutionally material.                       Id. at 488-

89.    To satisfy this standard, evidence must:                   (1) “possess an

exculpatory value that was apparent [to the police] before the

evidence was destroyed,” and (2) “be of such a nature that the

defendant would be unable to obtain comparable evidence by other

reasonably available means.”               Id. at 489.      The mere possibility

                                            2
that lost or destroyed evidence could have been exculpatory is

not    sufficient      to   satisfy          Trombetta’s          requirement     that       the

exculpatory value be “apparent” to the police before its loss or

destruction,      which     is    required          to    establish       that   the   police

acted in bad faith.          Arizona v. Youngblood, 488 U.S. 51, 56 n.*

(1988).

             We conclude that Vaughn fails to establish that the

$400 in pre-recorded bills was exculpatory, or that the police

acted in bad faith.              The record does not support a conclusion

that any exculpatory value of keeping the pre-recoded bills was

apparent     to     the     police          before        they     followed      department

procedures and converted the cash into a cashier’s check.                                    The

evidence was, in fact, inculpatory.                      To the extent Vaughn argues

that the department did not follow procedures to notify him of

the forfeiture, it is insufficient to show bad faith and does

not    effect   the    motion     for       a   new      trial.      Instead     it    may    be

challenged in a motion attacking the forfeiture.

             We therefore affirm the judgment.                           We dispense with

oral    argument      because         the    facts       and     legal    contentions        are

adequately      presented        in    the      materials        before    the   court       and

argument would not aid the decisional process.



                                                                                      AFFIRMED



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