FILED
NOT FOR PUBLICATION JUN 08 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-36173
Plaintiff - Appellee, D.C. Nos. 3:11-cv-00140-TMB
3:09-cr-00034-TMB-
v. JDR-1
District of Alaska,
SABIL M. MUJAHID, Anchorage
Defendant - Appellant.
ORDER
Before: CANBY, BYBEE, and WATFORD, Circuit Judges.
The memorandum disposition in this case that was filed on May 26, 2015, is
amended as follows:
On page 3, lines 1-3, the sentence is amended to state: “Even if the
Witness’s credibility had been further undermined and substantive evidence of his
criminal activity had been presented, we are confident that the jury would have
convicted Mujahid, in light of the very strong evidence that he knowingly
possessed a firearm.” The amended disposition is submitted for filing along with
this order.
With that amendment, the petition for panel rehearing is denied. No further
petitions shall be entertained.
FILED
NOT FOR PUBLICATION JUN 08 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-36173
Plaintiff - Appellee, D.C. Nos. 3:11-cv-00140-TMB
3:09-cr-00034-TMB-
v. JDR-1
SABIL M. MUJAHID,
AMENDED MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, District Judge, Presiding
Argued and Submitted May 12, 2015
Anchorage, Alaska
Before: CANBY, BYBEE, and WATFORD, Circuit Judges.
Sabil Mujahid appeals from the district court’s order denying his 28 U.S.C.
§ 2255 motion, following his 2009 jury trial conviction for being a felon in
possession of a firearm. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253.
We review the district court’s denial of a 28 U.S.C. § 2255 motion and all
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
questions of law de novo. See United States v. Olsen, 704 F.3d 1172, 1178 (9th
Cir. 2013). We review the district court’s factual findings for clear error. See
United States v. Zuno-Arce, 339 F.3d 886, 888 (9th Cir. 2003). We affirm the
order of the district court.
Mujahid contends that the prosecutor violated Brady v. Maryland, 373 U.S.
83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), by withholding
several pieces of evidence relating to a principal witness (“the Witness”), who was
called by the defense to testify after the government elected not to call him. His
testimony was largely but not entirely adverse to the defense. The evidence not
furnished by the prosecution related to ongoing investigations into the Witness’s
criminal and civil wrongdoing, his cooperation with the government’s
investigation of Mujahid, and his attempts to avoid prosecution in other matters in
exchange for his cooperation.
Even without making adjustments for the fact that it was Mujahid, not the
government, that put the Witness on the stand, we conclude that there was no
material violation of Brady or Giglio. There is no reasonable probability that the
outcome of the trial would have been different had the additional evidence been
disclosed. Using other evidence disclosed by the prosecutor, Mujahid was able
sufficiently to impeach the Witness, and the jury was instructed to view his
2 13-36173
testimony with caution. Even if the Witness’s credibility had been further
undermined and substantive evidence of his criminal activity had been presented,
we are confident that the jury would have convicted Mujahid, in light of the very
strong evidence that he knowingly possessed a firearm. Accordingly, despite the
government’s failure to disclose certain pieces of evidence, Mujahid received a
“trial resulting in a verdict worthy of confidence.” See Olsen, 704 F.3d at 1185
(internal quotation marks omitted).
Mujahid also contends that the prosecutor violated Napue v. Illinois, 360
U.S. 264 (1959), by failing to correct the Witness’s false testimony during trial
regarding whether the Witness used or purchased drugs, and whether he testified
with the expectation of leniency in matters beyond his pending ammunition case.
Under Ninth Circuit Rule 22-1(e), uncertified issues raised on appeal “will be
construed as a motion to expand the COA.” So construed, we grant the motion
because Mujahid has shown this issue to be debatable among reasonable jurists.
See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
Nevertheless, upon thorough review of the record, we agree with the district court
that Mujahid failed to prove that the testimony in issue was material.
3 13-36173
The Witness’s denial of purchase of drugs arose in questioning about his
personal use of prescription and other drugs. There is no showing that the Witness
was personally using other drugs or that the prosecution knew he was doing so.
The prosecution cross-examined the Witness on the facts that he had been
indicted on the charge of purchasing ammunition for Mujahid, that he had been
granted immunity for his testimony, and that he had been told that if he testified
falsely the immunity would not protect him. The prosecutor’s ensuing question
was whether the “whole idea” of sitting down to talk with the prosecution in that
discussion had been to influence the government’s recommendation on his
sentence in the ammunition case. But the Witness’s affirmative answer did not
create any reasonable likelihood of an effect on the verdict, or deprive Mujahid of
a fair trial. See United States v. Rodriguez, 766 F.3d 970, 990 (9th Cir. 2014).
AFFIRMED.
4 13-36173