UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4024

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

LANCE L. BROWN,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Richmond. Henry E. Hudson, District

Judge. (CR-03-153)

Argued: October 29, 2004 Decided: January 11, 2005

Before NIEMEYER and LUTTIG, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

ARGUED: Amy Leigh Austin, Assistant Federal Public Defender, OFFICE

OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant.

Daniel James Bryant, UNITED STATES DEPARTMENT OF JUSTICE, Criminal

Division, Washington, D.C., for Appellee. ON BRIEF: Frank W.

Dunham, Jr., Federal Public Defender, Alexandria, Virginia, for

Appellant. Paul J. McNulty, United States Attorney, Michael J.

Elston, Assistant United States Attorney, OFFICE OF THE UNITED

STATES ATTORNEY, Alexandria, Virginia; Charles E. James, Jr.,

Assistant United States Attorney, OFFICE OF THE UNITED STATES

ATTORNEY, Richmond, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

On the evening of March 28, 2003, Richmond (Virginia)

Police Officer Jack Intagliato arrested the defendant Lance Brown

on an outstanding warrant as Brown was pulling away from a curb

driving an automobile. During the ensuing search of the passenger

compartment and center console of Brown's automobile, Officer

Intagliato recovered $516 in currency, packaging materials

consistent with that used in the distribution of drugs, and a

loaded rifle magazine. And from the automobile's trunk, he

recovered a semiautomatic rifle and a jacket with 28 grams of crack

cocaine in its pocket.

Brown was indicted and convicted for possession with

intent to distribute five or more grams of cocaine base, in

violation of 21 U.S.C. § 841; simple possession of five or more

grams of cocaine base, in violation of 21 U.S.C. § 844; and

possession of a firearm in furtherance of a drug trafficking

offense, in violation of 18 U.S.C. § 924(c). The district court

sentenced Brown to 110 months' imprisonment for the drug

trafficking count (of which the simple possession was a lesser

included offense) and 60 months' imprisonment on the firearm count,

to run consecutively.

On appeal, Brown contends (1) that Officer Intagliato

mishandled the jacket containing the crack cocaine -- denying him

an opportunity to prove that it was not his -- and that therefore
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the district court erred in denying Brown's motion to dismiss the

indictment; (2) that the evidence presented at trial was

insufficient for a jury to conclude beyond a reasonable doubt that

Brown knowingly and intentionally possessed crack cocaine; and (3)

that the district court improperly enhanced Brown's sentence based

on a prior conviction for underage possession of alcohol.

For the reasons that follow, we affirm.

I

First, Brown contends that Officer Intagliato violated

his due process rights under Arizona v. Youngblood, 488 U.S. 51

(1988), when Officer Intagliato failed to preserve potentially

exculpatory evidence. Brown claims that the jacket with the crack

cocaine in it, which Officer Intagliato found in the trunk of

Brown's automobile, was not his jacket and that Officer Intagliato

denied him the opportunity to prove that fact by having him twice

try on the jacket to see whether it fit. Brown argues that by

trying on the jacket, he probably contaminated the jacket by

leaving evidence of his DNA on the jacket, which otherwise would

not have been there. The circumstances relating to this claim are

not in dispute.

After Officer Intagliato found the rifle ammunition in

the center console of Brown's automobile, he asked Brown whether he

had a firearm. Brown stated that he had a firearm in the trunk of

the car. When Officer Intagliato opened the trunk, he found a
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jacket draped over a box that contained a semiautomatic rifle. In

the jacket pocket, Officer Intagliato found 28 grams of crack

cocaine. Officer Intagliato seized this evidence and transported

Brown to the police station. Once at the station, Brown

acknowledged that the rifle was his, but he claimed that the jacket

and crack cocaine were not. Officer Intagliato expressed disbelief

as to Brown's claim because he recalled having seen Brown in the

jacket, or in one similar to it, on a previous occasion. When

Officer Intagliato invited Brown to try on the jacket to see

whether it fit, Brown agreed to do so. After Officer Intagliato

concluded that the jacket fit Brown, he again asked Brown to put on

the jacket so that he could take a picture with Brown wearing the

jacket, and again Brown agreed to do so. Officer Intagliato then

processed the jacket as evidence in the case.

Brown contends that by twice trying on the jacket, he was

denied the opportunity to test the jacket for his DNA to prove that

the jacket was not his. He asserts that Officer Intagliato

improperly handled the jacket in violation of Richmond Police

Department General Order 202-2, which provides that evidence should

be properly packaged to prevent contamination or destruction by

improper handling, and that this violation denied him due process

under Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988). In

Youngblood, the Supreme Court held that the failure to preserve

potentially useful evidence may constitute a denial of due process
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of law if it can be shown that the police acted in "bad faith."

Id.

The record in this case does not support a claim that

Officer Intagliato acted in bad faith in having Brown try on the

jacket. During the discussions between Officer Intagliato and

Brown, Brown claimed that the jacket was not his and that it did

not even fit him. In response, Officer Intagliato asked, "Do you

want to try it on?" and Brown willingly did so. This exchange

simply evidences Officer Intagliato's effort to collect evidence

and build a case, which it was his job as a police officer to do.

Mere collection of evidence, even when perhaps not in accord with

local police evidentiary procedures, cannot ipso facto rise to the

level of a due process violation absent some showing of bad faith.

Moreover, there is no evidence to demonstrate that

Officer Intagliato was aware of the possibility that he might be

destroying evidence by having Brown try on the jacket. See

Youngblood, 488 U.S. at 56 n.* (noting that bad faith turns on the

"police's knowledge of the exculpatory value of the evidence at the

time it was lost or destroyed"); Holdren v. Legursky, 16 F.3d 57,

60 (4th Cir. 1994) (same). Indeed, at the motions hearing, Officer

Intagliato testified that he was not aware of any potential DNA

procedure that could be used to exonerate or implicate Brown.

Moreover, it would appear to be self-evident that the absence of an
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individual's DNA on a garment would not necessarily prove that the

individual never wore the garment.

In the absence of any evidence of bad faith, the district

court properly denied Brown's motion to dismiss the indictment.

II

Brown also contends that the evidence presented at trial

was insufficient for a jury to conclude beyond a reasonable doubt

that Brown knowingly and intentionally possessed crack cocaine.

Of course, such a challenge must overcome a heavy burden.

See, e.g., Burks v. United States, 437 U.S. 1, 17 (1978) (reversal

for insufficient evidence is reserved for the rarest of cases

"where the prosecution's failure is clear"). "When reviewing the

evidence that resulted in a conviction, we take the evidence in the

light most favorable to the government to determine whether the

jury's verdict was supported by substantial evidence." United

States v. Strickland, 245 F.3d 368, 385 (4th Cir. 2001).

In order to prove that a defendant possessed crack

cocaine, the government must prove that the defendant either had

custody of the crack cocaine or had both the power and intention to

exercise dominion and control over it. See United States v.

Jackson, 124 F.3d 607, 610 (4th Cir. 1997). In this case, we

conclude that the government carried that burden. The government

presented evidence (1) that Brown was arrested while driving an

automobile; (2) that in the passenger compartment of the automobile
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was $516 in cash and packaging materials consistent with drug

distribution; (3) that Brown admitted to ownership of a firearm

that was in a box in the automobile's trunk; (4) that draped over

the firearm was a jacket containing crack cocaine; (5) that Officer

Intagliato recalled having seen Brown at an earlier time wearing

that jacket or one similar to it; and (6) that the jacket

apparently fit Brown. Brown contended that the jacket was not his

but belonged to a friend, Javone Broaddus, and that Broaddus had

placed the jacket in the trunk. Even though Brown presented some

evidence to show that the jacket and the cocaine in it were not

his, this evidence alone does not compel us to conclude that the

jury's conclusion to the contrary was clear error. Deferring to

the jury, as we must when its verdict is supported by substantial

evidence, we affirm the verdict.

III

Finally, Brown claims that the district court erred in

assessing one criminal history point under U.S.S.G. § 4A1.2(c) for

his prior conviction for underage possession of alcohol. He

contends that this prior conviction is not to be counted in

determining criminal history because it falls within the list of

excluded offenses, which also includes offenses "similar to" the

enumerated excluded offenses. See U.S.S.G. § 4A1.2(c)(1). In

particular, Brown argues that his underage possession of alcohol
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conviction is "similar to" a conviction for public intoxication or

for driving without a license.

As a general proposition, U.S.S.G. § 4A1.1 provides for

the enhancement of a sentence when a defendant has a prior criminal

history. Section 4A.1.2(c), which describes the prior offenses

that apply, states that "sentences for all felony offenses are

counted." U.S.S.G. § 4A1.2(c). Likewise, it states that

"sentences for misdemeanor and petty offenses are counted," except

as expressly listed. Id. Included in the list of excepted

offenses are convictions for public intoxication, driving without

a license, and "offenses similar to them, by whatever name they are

known." U.S.S.G. § 4A1.2(c)(1) (emphasis added).

In United States v. Harris, 128 F.3d 850 (4th Cir. 1997),

we held that when determining whether offenses are "similar" for

purposes of § 4A1.2(c), recourse must be made to the elements of

the crimes. "After all, offenses do consist of the essential

elements of the crime. An emphasis on the elements comports with

the plain meaning of 'similar.' When two items are 'similar,' they

are '[n]early corresponding; resembling in many respects.'" Id. at

854 (citation omitted). Applying this standard to the question of

whether underage possession of alcohol is "similar to" public

intoxication or driving without a license, we conclude that it is

not.
The elements of underage possession of alcohol are the

possession or purchase of alcohol by a person under 21 years of

age, unless the person does so by reason of making a delivery of

alcoholic beverages in pursuance of his employment or by order of

his parent. Va. Code Ann. §§ 4.1-304, 4.1-305. We can find no

similarity between the elements of this offense and public

intoxication except that alcohol is involved in both. Their

similarity certainly cannot be established under the strictures of

Harris.

Brown argues more vigorously that the offense of underage

possession of alcohol is "similar to" driving without a license.

He argues, citing United States v. Webb, 218 F.3d 877, 881 (8th

Cir. 2000), that underage possession is a regulatory offense that

is "similar to" driving without a license. In doing so, however,

Brown urges us to adopt a standard of similarity that is at odds

with the standard established by Harris. When we compare the

elements of an underage possession of alcohol violation and driving

without a license violation, we again find that the essential

elements of each offense are not "[n]early corresponding;

resembling in many respects." See Harris, 128 F.3d at 854

(citation omitted).

We thus conclude that the trial court did not err in

assessing Brown one criminal history point for his past conviction

for underage possession of alcohol.

 AFFIRMED