United States v. Shi Guang Guan , 490 F. App'x 910 ( 2012 )

FILED
NOT FOR PUBLICATION NOV 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10425
Plaintiff - Appellee, D.C. No. 3:08-cr-00238-MHP-1
v.
MEMORANDUM*
SHI GUANG GUAN,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, Senior District Judge, Presiding
Argued and Submitted November 7, 2012
San Francisco, California
Before: FARRIS, NOONAN, and BYBEE, Circuit Judges.
Appellant Shi Guang Guan appeals the district court’s denial of his motion
for a new trial, in which he alleged Brady/Giglio violations as well as prosecutorial
misconduct. The facts of the case are known to the parties. We have jurisdiction
under 28 U.S.C. § 1291and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Guan has not established a Brady/Giglio violation. In determining whether a
Brady/Giglio violation occurred we ask whether the evidence was “(1) favorable to
the accused because it [was] either exculpatory or impeachment material; (2)
suppressed by the government, either willfully or inadvertently; and (3) material or
prejudicial.” United States v. Blanco, 392 F.3d 382, 387 (9th Cir. 2004). Although,
here, the evidence at issue constituted impeachment material, see Benn v. Lambert,
283 F.3d 1040, 1057 (9th Cir. 2002); see also Giglio v. United States 405 U.S. 150,
154–55 (1972), the government did not suppress the evidence, and even if it had, it
would not have been prejudicial.
With regard to suppression, “[b]y submitting the issue to the judge, [a]
prosecutor satisfie[s] her duty to disclose [Brady] material.” United States v.
Dupuy, 760 F.2d 1492, 1501 (9th Cir. 1985); see also United States v. Agurs, 427
U.S. 97, 106 (1976) (noting that the prosecutor can either “furnish[] the
information or . . . submit[] the problem to the trial judge”). Here, the government
satisfied its obligation by disclosing the alleged Brady/Giglio material to the
district court judge ex parte. This was “particularly appropriate” because “the
Government ha[d] legitimate reasons for protecting the confidentiality of the
material requested.” Dupuy, 760 F.2d at 1051. The timing of the government’s
disclosure to the district court, including whether the defense had “time to take
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advantage of the exculpatory material” is not a Brady concern. Id. at 1502 n.7
(holding that disclosing Brady material a week after trial began was permissible
where the defendant “had ample opportunity to take advantage of the information
provided”). Moreover, the government was not obligated to disclose material that
Guan already had notice of and was in his possession. See id. at 1501 n.5; see also
Raley v. Ylst, 470 F.3d 792, 804 (9th Cir. 2006).
Even if the government had suppressed the evidence, it would not have been
prejudicial. The defense thoroughly cross-examined Mr. He on his criminal
history, plea agreement, cooperation in two investigations (including Guan’s case),
and benefits he received in connection with his cooperation. The defense’s inability
to cross-examine Mr. He on his cooperation in one additional investigation does
not “undermine[] confidence in the outcome of the trial,”United States v. Kohring,
637 F.3d 895, 902 (9th Cir. 2011) (quoting Kyles, 514 U.S. 419, 434 (1995)), since
Mr. He’s credibility had already been significantly undermined and there was
overwhelming evidence of Guan’s guilt.
Guan has also failed to establish prosecutorial misconduct. Agent
Piotrowski’s conduct in contacting defense witness Terry Fail did not rise to the
level of “substantial interference with [Fail’s] free and unhampered determination
to testify,” as Fail himself testified that the prosecution did not “intimidate[] or
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harass[] . . . [or] discourage [him] from testifying” in any way. Williams v.
Woodford, 384 F.3d 567, 601–02 (9th Cir. 2004). Moreover, any possible
interference with Fail’s testimony was harmless error, when viewed in the context
of the entire trial. United States v. Nobari, 574 F.3d 1065, 1073, 1079 (9th Cir.
2009); United States v. Sullivan, 522 F.3d 967, 982 (9th Cir. 2008).
AFFIRMED.
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