US v. Savino Braxton

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion dispositions in opinion--denying Motion to file supplemental brief(s) [999818373-2], denying Motion to file supplemental brief(s) [999878750-2]; denying Motion to file addendum/attachment [999918996-2]. Originating case numbers: 1:15-cr-00408-JKB-1, 1:09-cr-00478-JKB-1. Copies to all parties and the district court. [999938649].. [15-4458, 15-4686]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4458

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SAVINO BRAXTON,
Defendant - Appellant.

No. 15-4686

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SAVINO BRAXTON,
Defendant - Appellant.

Appeals from the United States District Court for the District
of Maryland, at Baltimore.
James K. Bredar, District Judge.
(1:15-cr-00408-JKB-1; 1:09-cr-00478-JKB-1)

Submitted:

September 16, 2016

Decided:

September 30, 2016

Before NIEMEYER, SHEDD, and HARRIS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

Steven H. Levin, LEVIN & CURLETT, LLC, Baltimore, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, John F.
Purcell, Jr., Assistant United States Attorney, Baltimore,
Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Following remand of this case to the district court, * a jury
convicted Savino Braxton of possession with intent to distribute
heroin,

21

U.S.C.

§ 841(a)(1)

(2012).

During

trial,

the

district court also summarily convicted Braxton of contempt, 18
U.S.C. § 401(3) (2012).

Braxton was sentenced to 240 months for

the drug offense and six months, consecutive, for contempt.
appeals,

raising

consolidated.

three

issues.

The

appeals

have

He
been

We affirm.
I

Prior to trial, Braxton moved to dismiss the indictment
because the Government had destroyed heroin seized from his car
and apartment.

The district court denied the motion on the

ground that there was no evidence that the Government had acted
in bad faith.

Braxton contends that the destruction of the

heroin violated his due process rights.
constitutional due process claim.

We review de novo a

United States v. Legree, 205

F.3d 724, 729 (4th Cir. 2000).
“[U]nless a criminal defendant can show bad faith on the
part

of

the

police,

failure

to

preserve

potentially

useful

evidence does not constitute a denial of due process of law.”
Arizona v. Youngblood, 488 U.S. 51, 58 (1988).
*

A finding of bad

United States v. Braxton, 784 F.3d 240 (4th Cir. 2015).

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faith “requires that the officer . . . intentionally withheld
the evidence for the purpose of depriving the plaintiff of the
use

of

that

evidence

during

his

criminal

trial.”

Collins, 221 F.3d 656, 663 (4th Cir. 2000).

Jean

v.

If evidence is

destroyed by officials who believe the case to have been over,
there is no bad faith.

United Sates v. Talib, 347 F. App’x 934,

938 (4th Cir. 2009) (No. 08-4288).
Officer Collins testified at a pretrial hearing that the
evidence was destroyed at a central DEA laboratory on May 15,
2014

—

almost

one

year

after

Braxton’s

first

sentencing.

Collins further testified that evidence typically is destroyed
after sentencing.

According to Collins, no one from the U.S.

Attorney’s Office directed the destruction of the evidence, and
he was not aware that any prosecutor knew of its destruction
until after it was destroyed.
destruction
case.

of

the

evidence

The supervisors who directed the
had

no

other

involvement

in

the

Under these circumstances, we conclude that there was no

bad faith and no due process violation.
II
On November 19, 2012, the Government filed an Information
and Notice of Government’s Intention to Seek Enhanced Minimum
Mandatory Sentence, 21 U.S.C. § 851 (2012).

The notice stated

that, because Braxton was convicted in 1991 of a felony drug
offense, the United States would seek the enhanced statutory
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minimum penalty of twenty years.
(2012).

See 21 U.S.C. § 841(b)(1)(A)

On remand, the Government filed a second § 851 notice,

again reciting that Braxton was convicted in 1991 of a felony
drug

offense

and

that,

if

he

were

convicted

of

the

instant

offense, it would seek the enhanced minimum mandatory sentence
of twenty years.
Braxton contends that the filing of the second § 851 notice
was

vindictive

disagree.

and

violated

his

due

process

rights.

We

While a prosecutor acts unconstitutionally when he

“responds to a defendant’s successful exercise of his right to
appeal by bringing a more serious charge against him,” United
States v. Wilson, 262 F.3d 305, 314 (4th Cir. 2001), this simply
is not what happened here.

Following his successful appeal,

Braxton was exposed to the same enhanced penalty for the same
offense with which he was originally charged.
III
The district court found Braxton to be in contempt because
he knowingly resisted and disobeyed the court’s admonitions not
to mention the matter of punishment before the jury.
challenges the contempt conviction on two grounds.

Braxton
First, he

argues that the conviction cannot stand because the court did
not

specifically

find

his

conduct

to

have

been

“willful.”

Braxton also claims that his behavior did not warrant a contempt
conviction.

Because Braxton did not raise these issues before
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the district court, our review is for plain error.

See United

States v. Olano, 507 U.S. 725, 731-32 (1993).
We reject both arguments.
a

court

may,

in

“[d]isobedience

its

or

The relevant statute states that

discretion,

resistance

to

order, rule, decree, or command.”

punish
its

contempt

lawful

such

as

writ,

process,

18 U.S.C. § 401(3).

Case law

identifies the elements of contempt under § 401(3) as “(1) a
reasonably specific order; (2) violation of the order; and (3)
the willful intent to violate the order.”

United States v.

Allen, 587 F.3d 246, 255 (5th Cir. 2009) (per curiam).
be

found

in

contempt

under

§ 401(3)

only

if

[he]

“One may
willfully

violated a decree that was clear and left no uncertainty in the
minds of those that heard it.”
F.3d.

593,

595

(4th

Cir.

United States v. Westbrooks, 780
2015)

(internal

quotation

marks

omitted).
The
resisted

district
knowingly”

court

found

that

its

order

not

punishment before the jury.

Braxton
to

raise

“disobeyed
the

issue

and
of

This, we conclude, is sufficient on

plain error review to satisfy the requirement that the defendant
acted willfully.
Further, the court clearly warned Braxton at least twice
not to mention punishment.

Braxton persistently ignored the

warnings, which he assured the court he understood.

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Under these

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circumstances, the contempt conviction does not constitute plain
error.
IV
We therefore affirm.

The motions to file a pro se brief

and an addendum to the pro se brief are denied.

We dispense

with oral argument because the facts and legal arguments are
adequately

presented

in

the

materials

before

the

court

and

argument would not aid the decisional process.
AFFIRMED

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