                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                               No. 05-15160                SEPTEMBER 13, 2006
                           Non-Argument Calendar            THOMAS K. KAHN
                                                                CLERK
                         ________________________

                     D. C. Docket No. 05-80019-CR-WPD

UNITED STATES OF AMERICA,


                                                        Plaintiff-Appellee,

                                    versus

JERAL ROBERSON,

                                                        Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                            (September 13, 2006)

Before TJOFLAT, ANDERSON and HULL, Circuit Judges.

PER CURIAM:

     Jeral Roberson appeals his conviction for knowingly and intentionally
distributing at least 50 grams of cocaine base (“crack cocaine”), in violation of 21

U.S.C. § 841(a)(1), (b)(1)(A). On appeal, Roberson argues that the government

violated his right of fundamental fairness by failing to preserve the crack cocaine

evidence so he could independently reweigh it. Roberson contends that the

government knew that the weight of the crack cocaine was a key factor in the case

and that their storage method resulted in weight loss, yet it had not performed any

research to develop better ways to preserve evidence. Roberson argues that the

government’s action meant that the defense could not rebut the government’s

testimony regarding drug quantity because any loss in weight will be attributed to

evaporation. Roberson argues that the government’s failure to preserve the drugs

in light of its knowledge of the inadequacy of its storage system and the

importance of the drug quantity constituted bad faith. Roberson argues that the

government’s conduct here was intentionally, or, at best, recklessly indifferent to

the defense’s right to an accurate reweighing of the evidence.

      A district court's bench trial findings of fact are reviewed to determine

whether they are clearly erroneous. O'Ferrell v. United States, 253 F.3d 1257,

1265 (11th Cir. 2001).

      A defendant in a drug prosecution has a due process right to have an expert

of his choosing perform an independent analysis on the seized substance. United



                                          2
States v. Nabors, 707 F.2d 1294, 1296 (11th Cir. 1983). The government has a

responsibility to try in good faith to preserve material evidence. Id. In order to

show that the loss of evidence by the government constitutes a denial of due

process, Roberson must show that the evidence was likely to contribute to his

defense. California v. Trombetta, 467 U.S. 479, 488, 104 S.Ct. 2528, 2534, 81

L.Ed.2d 413 (1984). “To meet this standard of constitutional materiality, evidence

must both possess an exculpatory value that was apparent before the evidence was

destroyed, and be of such a nature that the defendant would be unable to obtain

comparable evidence by other reasonably available means.” Id. at 489, 104 S.Ct.

at 2534 (citation omitted). In addition, Roberson must show that the government

acted in bad faith in losing the potentially useful evidence in order to show a due

process violation. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337,

102 L.Ed.2d 281 (1988).

      Contrary to the government’s contention, any loss of the crack cocaine due

to evaporation was prejudicial to Roberson, at least at sentencing. As shown in the

case, the drug weight of 53.7 grams, obtained in April 2004, implicated the higher

10-year statutory minimum, and Roberson had a vested interest in independently

verifying this, not the lesser drug quantity remaining before trial. Although the

government argues that any error would not be prejudicial because Roberson



                                           3
stipulated that he agreed to sell over 50 grams of crack cocaine, the actual amount

sold is the relevant figure because the indictment did not charge him with entering

into an illegal agreement, or attempting to violated the law, but with committing

the illegal act of possession with intent to distribute. If the amount Roberson

stipulated controlled the issue, then it would have been unnecessary to hold a

bench trial on the drug quantity.

      Nevertheless, we hold that Roberson was not denied due process because

there was no showing of bad faith by the government. The record shows that the

Drug Enforcement Agency’s (“DEA”) storage practices for evidence are consistent

with procedures used in other storage laboratories. Specifically, the government

presented testimony that the DEA stores narcotics evidence in a climate-controlled

vault, which is standard practice for all DEA and state laboratories. The record

demonstrates that some loss of a crack cocaine sample due to evaporation through

the permeable plastic bags was inevitable over time. While both experts testified

that freezing controlled substance samples could decrease degradation, they also

both testified that they were not sure how effective this method would be, were not

aware of any research confirming this hypothesis, and did not know of any

laboratories employing this method with controlled substances. At most, the

record demonstrates that there was a possible alternative method of storing



                                          4
controlled substances that would better preserve evidence. While the government

has the duty to act in good faith to preserve evidence, this duty is not necessarily

violated if the government is not utilizing the best procedure available to preserve

evidence. Overall, the record demonstrates that the government complied with

accepted standard procedures in storing the evidence and, thus, did not act in bad

faith. Therefore, Roberson has failed to show a due process violation because he

failed to show that the government acted in bad faith in storing the crack cocaine

sample.

      AFFIRMED.




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