NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 23 2012
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES OF AMERICA, No. 11-30280
Plaintiff - Appellee, D.C. No. 4:10-cr-00024-BLW-1
v. MEMORANDUM *
DON ELLINGFORD,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted November 7, 2012
Portland, Oregon
Before: ALARCÓN, McKEOWN, and PAEZ, Circuit Judges.
Don Ellingford was convicted of two counts of possession with intent to
deliver methamphetamine under 21 U.S.C. § 841(a)(1). He appeals from the
district court’s denial of his motion for a new trial under Fed. R. Crim. P. 33 and
his motion for reconsideration. We have jurisdiction under 28 U.S.C. § 1291, and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
we affirm.
I
Ellingford argues that the district court erred in denying his motions because
his due process rights were violated under Brady v. Maryland, 373 U.S. 83 (1963),
and Napue v. Illinois, 360 U.S. 264 (1959). Because he did not raise these claims
in the district court, we review them for plain error. United States v. Houston, 648
F.3d 806, 813 (9th Cir. 2011), cert. denied, 132 S. Ct. 1727 (2012). To establish
plain error, Ellingford “‘must show (1) an error, (2) that is plain, (3) that affects
substantial rights, and (4) that seriously affects the fairness, integrity, or public
reputation of judicial proceedings.’” United States v. Zalapa, 509 F.3d 1060, 1064
(9th Cir. 2007) (quoting United States v. Smith, 424 F.3d 992, 1000 (9th Cir.
2005)).
II
Ellingford contends that the Government violated Brady by not disclosing
the evidence of the Idaho State Police Lab’s (“ISP Lab”) violation of lab policy.
He also argues that the Government’s failure to correct Rocklan McDowell’s
testimony violated Napue because the evidence showed that a box of
undocumented drugs contradicted McDowell’s testimony that he and others
working in the lab did not leave any evidence out unattended.
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Ellingford’s Brady and Napue claims fail because, even assuming there was
error, he cannot establish prejudice. “[W]e must analyze Brady and Napue
violations ‘collectively.’” Jackson v. Brown, 513 F.3d 1057, 1076 (9th Cir. 2008).
“The materiality analysis proceeds differently for Brady and Napue claims.” Id.
“[W]e first consider the Napue violations collectively and ask whether there is ‘any
reasonable likelihood that the false testimony could have affected the judgment of
the jury.’” Id. (quoting Hayes v. Brown, 399 F.3d 972, 985 (9th Cir. 2005)). “[I]f
the Napue errors are not material standing alone, we consider all of the Napue and
Brady violations collectively and ask whether ‘there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.’” Id. (quoting United States v. Bagley, 473 U.S. 667,
682 (1985)). “At both stages, we must ask whether the defendant ‘received a trial
resulting in a verdict worthy of confidence.’” Id. (alteration omitted) (quoting
Kyles v. Whitley, 514 U.S. 419, 434 (1995)).
Ellingford has failed to demonstrate that there is any reasonable likelihood
that McDowell’s false testimony about his and other analysts’ general handling of
evidence in the ISP Lab could have affected the judgment of the jury. The jury’s
guilty verdict is worthy of confidence in light of the independent evidence in the
record implicating Ellingford. The confidential informant testified at trial that she
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knew Ellingford for years prior to the two controlled buys, had bought
methamphetamine from him on numerous occasions, and had set up these buys
with him for the purpose of purchasing methamphetamine. The confidential
informant was under police surveillance on her way to and from these buys, and
both buys were recorded. In these recordings, Ellingford asked the confidential
informant for drug scales and expressed his fear of being caught and going to
prison. Detective Ronald Kim Marshall testified that he received the substances
purchased by the confidential informant and that they appeared to be
methamphetamine.
In light of this independent evidence, Ellingford has failed to establish a
reasonable probability, even considering all of the alleged Napue and Brady
violations collectively, that the result of the proceeding would have been different.
Because Ellingford has not shown prejudice, he has failed to establish Napue and
Brady violations, and the district court did not commit plain error. See United
States v. Wilkes, 662 F.3d 524, 535 (9th Cir. 2011) (to demonstrate a Brady claim
under the plain error standard of review, prejudice must be shown), cert. denied,
132 S. Ct. 2119 (2012).
AFFIRMED.
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