FILED
NOT FOR PUBLICATION DEC 01 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, ) No. 07-50482
)
Plaintiff-Appellee, ) D.C. No. 2:05-CR-00668-MMM-24
)
v. ) MEMORANDUM*
)
EDWARD MUNOZ, )
)
Defendant-Appellant. )
______________________________)
)
UNITED STATES OF AMERICA, ) No. 09-50431
)
Plaintiff-Appellee, ) D.C. No. 2:05-CR-00668-MMM-24
)
v. )
)
EDWARD MUNOZ, )
)
Defendant-Appellant. )
______________________________ )
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Argued June 2, 2009
*
This disposition is not appropriate for publication and may not be cited to or
by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Submission vacated June 15, 2009
Resubmitted November 29, 2010
Pasadena, California
Before: RYMER, GRABER, and BEA, Circuit Judges.
Edward Munoz appealed his conviction following a jury trial for conspiring
to structure financial transactions in violation of 18 U.S.C. § 371 and 31 U.S.C.
§ 5324. After hearing argument, we granted a limited remand for the district court
to consider Munoz’s Federal Rule of Criminal Procedure 33 motion. The district
court denied that motion, from which Munoz has also appealed. We treat both
appeals together,1 and affirm in each.
I
A
Taking the appeal from conviction first, Munoz argues that the
government’s disclosure of information obtained during the post-trial safety-valve
sessions with Loya, which would have impeached Woodland, offended Brady v.
Maryland, 373 U.S. 83 (1963). This information was communicated before
sentencing, and was used by Munoz to challenge factual findings in the PSR.
1
The appeals were ordered consolidated on September 29, 2009.
2
Information from subsequent sessions was also disclosed to Munoz within the
time to file a motion for new trial. Therefore, it was still of “substantial value”
and not a Brady violation. United States v. Woodley, 9 F.3d 774, 777 (9th Cir.
1993).
B
Munoz contends that the government engaged in a pattern of misconduct
that included failing to disclose statements from Woodland’s third proffer session,
not investigating Woodland’s veracity, allowing him to commit perjury, vouching
during closing argument, and willfully suppressing Brady material. None of these
issues was raised at trial, so our review is for plain error. See, e.g., United States
v. Alli, 344 F.3d 1002, 1007 (9th Cir. 2003) (failure to correct false testimony);
United States v. Amlani, 111 F.3d 705, 714 (9th Cir. 1997) (prosecutorial
misconduct); United States v. Brown, 327 F.3d 867, 871 (9th Cir. 2003) (improper
statements in closing). We see none in any respect.
The government reported by telephone to Munoz’s counsel the substance of
Woodland’s statements at the January 2007 proffer session. Those statements
were inculpatory, so do not implicate Brady. In any event, Munoz knew about the
statements Woodland made at the second and third sessions; the relevant evidence
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was all admitted at trial, and Munoz was able effectively to demonstrate that
Woodland said different things at different times. He points to no authority that
the government was obliged to do more.
While the government should have corrected Woodland’s testimony, there
is no reasonable probability the verdict would have been different. There was
ample evidence of Munoz’s participation in a conspiracy to structure transactions
apart from Woodland’s testimony: Munoz discussed structured deposits in
recorded conversations, his own testimony was impeached, and a co-worker’s
testimony showed Munoz’s consciousness of guilt. In the face of this evidence,
disbelieving Woodland’s testimony that Loya gave Munoz cocaine – which goes
to motive, not to an element of the structuring crime – would not likely have led
the jury to believe that Munoz did not tell Loya how to structure deposits.
Accordingly, our confidence in the outcome is not undermined. Kyles v. Whitley,
514 U.S. 419, 434 (1995).
C
Munoz further faults the AUSA for having stated of Woodland,
if he was such a good liar, why didn’t he just say, hey, I spoke with
[Munoz]. I – he told me how to make the deposits. He told me how
to structure. He told me how to money launder. He didn’t say that
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because it didn’t happen, ladies and gentlemen. Mr. Woodland could
have come up with all sorts of stories that would have made our job a
lot easier, but he didn’t because he’s telling the truth.
We cannot say that this statement is so plainly prejudicial as to require reversal.
See, e.g., United States v. Necoechea, 986 F.2d 1273, 1279 (9th Cir. 1993)
(holding it was not vouching to argue, in effect, “the witness is telling the truth
because if she were lying, she would have done a better job of it”). It does not
connote extra-court information or insight into Woodland’s credibility, nor does it
imply independent verification of Woodland’s testimony. Cf. United States v.
Rudberg, 122 F.3d 1199, 1205-06 (9th Cir. 1997) (eliciting testimony that
witnesses’ veracity had been verified through the FBI’s investigation). Given the
strong evidence against Munoz apart from Woodland’s testimony, the statement,
even if it did constitute vouching, would not warrant relief on plain error review.
D
Munoz maintains that the district court should have granted his Rule 29
motion with respect to the charge of conspiracy to commit money laundering in
violation of 18 U.S.C. §§ 1956 and 1957, because the evidence was insufficient to
show that he knew the money being deposited by Woodland and Loya was the
proceeds of criminal activity. The count was dismissed without prejudice when
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the jury deadlocked. Although the government submits that the issue is moot, we
disagree because the grant of a Rule 29 motion would preclude retrying Munoz on
this charge. See United States v. Bishop, 959 F.2d 820, 828 (9th Cir. 1992).
Nevertheless, the evidence was sufficient: a rational juror could find beyond a
reasonable doubt from the recorded phone calls about structuring, and the deposit
records, as well as receipt of cocaine, that Munoz knew the deposits were derived
from criminal activity. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Munoz’s reliance on United States v. Cuevas, 847 F.2d 1417 (9th Cir. 1988), is
misplaced as it involved sufficiency of the evidence to convict a banker of being
part of the drug conspiracy itself. Id. at 1420-21.
E
Finally, Munoz raises an ineffective assistance of counsel claim, which we
decline to consider on direct appeal. United States v. Robinson, 967 F.2d 287, 290
(9th Cir. 1992).
II
Munoz’s motion for new trial, which the district court denied, focused on
the government’s Brady obligations and misconduct related to statements by
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Woodland (which occurred before or at trial) and Loya (which occurred after
trial). We review denial of a motion for new trial for abuse of discretion under the
standard articulated in United States v. Hinkson, 585 F.3d 1247, 1251 (9th Cir.
2009) (en banc). Thus, we first consider whether the district court identified the
correct legal standard, and then whether its findings of fact, and application of
those findings to the correct legal standard, were “illogical, implausible, or
without support in inferences that may be drawn from facts in the record.” Id.
Under the first part of this test, the correct legal rule for analyzing a motion for
new trial based on newly discovered evidence is found in United States v.
Harrington, 410 F.3d 598, 601 (9th Cir. 2005) (noting that the evidence must be
newly discovered; the failure to discover it earlier must not be the result of the
defendant’s lack of diligence; the evidence must be material to issues at trial; the
evidence may not be cumulative or merely impeaching; and the evidence must
indicate that a new trial would probably result in acquittal). The district court
adopted and applied the correct legal rules.
A
Although Munoz rests his Brady argument primarily on arguments made on
appeal from conviction, he faults the district court for having determined that Loya
7
was not credible. The court, having sat through these and related proceedings,
was well situated to assess who was telling a plausible story and who wasn’t.
Discrediting Loya’s declaration was well within its discretion and does not lack
support in the record.
B
Munoz’s core contentions of willful misconduct fail for reasons explained
in detail by the district court. We disagree that the court erred under Brown v.
Borg, 951 F.2d 1011 (9th Cir. 1991), by observing that evidence Loya gave
Munoz cocaine was not an element of the government’s case. It wasn’t, and the
government was not required to prove motive to establish Munoz’s guilt. In any
event, the observation was made while discussing the general proposition that
newly discovered impeachment evidence is not material under Rule 33 unless it,
among other things, provided the only evidence of an essential element of the
government’s case. See United States v. Holmes, 229 F.3d 782, 789 (9th Cir.
2000); United States v. Davis, 960 F.2d 820, 825 (9th Cir. 1992). The point was
not dispositive. Nor do we believe it matters whether the district court considered
the impact of vouching, for as we have concluded, it wasn’t plainly erroneous
regardless.
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C
Munoz also contends that the district court erred by analyzing Brady claims
under the Harrington test, but this presumes – as Munoz has done all along – that
the Loya evidence existed before trial, which it did not. Further, as the district
court explained, Munoz’s new trial motion fails because it cannot be premised on
post-conviction testimony of a co-defendant who could have testified at trial, but
did not. See United States v. Diggs, 649 F.2d 731, 740 (9th Cir. 1981).
AFFIRMED.
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