United States v. Rene Cobar ( 2013 )


Menu:
  •                                                                              FILED
    NOT FOR PUBLICATION                              DEC 05 2013
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                         Nos. 11-10391
    12-10394
    Plaintiff - Appellee,
    D.C. No. 2:07-cr-00014-JCM
    v.
    RENE OSWALD COBAR,                                MEMORANDUM*
    Defendant - Appellant.
    Appeal from the United States District Court
    for the District of Nevada
    James C. Mahan, District Judge, Presiding
    Submitted November 19, 2013**
    Before:        CANBY, TROTT, and THOMAS, Circuit Judges.
    In these consolidated appeals, Rene Oswald Cobar appeals pro se from the
    district court’s denial of his motion for a new trial and for an evidentiary hearing.
    He also appeals from the district court’s denial of his motions for copies of court
    records and other documents and to dismiss the indictment. We have jurisdiction
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    under 
    28 U.S.C. § 1291
     in appeal number 11-10391, and we affirm. We dismiss
    appeal number 12-10394.
    In appeal number 11-10391, Cobar argues that the district court erred by
    denying his motion for an evidentiary hearing under Franks v. Delaware, 
    438 U.S. 154
     (1978). Assuming without deciding that Cobar’s motion for a Franks hearing
    was properly filed, our review is de novo. See United States v. Craighead, 
    539 F.3d 1073
    , 1080 (9th Cir. 2008). The district court properly denied the motion
    because Cobar has not shown that any government affiant made deliberately or
    recklessly false statements, and the warrant affidavits that he seeks to impeach
    contained “sufficient content . . . to support a finding of probable cause,” even
    without reference to any of the allegedly false statements. See Franks, 
    438 U.S. at 171-72
    .
    Cobar also argues that the district court erred by denying his motion for a
    new trial under Brady v. Maryland, 
    373 U.S. 83
     (1963), and Federal Rule of
    Criminal Procedure 33. We review de novo. See United States v. Pelisamen, 
    641 F.3d 399
    , 408 (9th Cir. 2011). Because the allegedly withheld evidence relating to
    the confidential informant was not material to Cobar’s trial, see United States v.
    Cobar, 
    468 Fed. Appx. 748
    , 749-50 (9th Cir. 2012), denial of the motion for a new
    trial was proper. See Brady, 
    373 U.S. at 87
    ; United States v. Harrington, 
    410 F.3d 2
                              11-10391 & 12-10394
    598, 601 (9th Cir. 2005).
    Cobar also alleges that the district court erred by denying his motion for a
    new trial or evidentiary hearing on the ground that the application and order for
    surveillance of his cell phone communications violated 
    18 U.S.C. § 2518
    . We
    need not decide whether the alleged violations would support relief under section
    2518(10) because Cobar had the opportunity to make a motion to suppress before
    trial and failed to do so. See 
    18 U.S.C. § 2518
    (10)(a); see also United States v.
    Torres, 
    908 F.2d 1417
    , 1424 (9th Cir. 1990) (motion to suppress under section
    2518(10)(a) is a pre-trial motion subject to forfeiture).
    In appeal number 12-10394, Cobar contends that the district court erred by
    denying his motions for copies of various documents and his motion to dismiss the
    indictment. The government argues that this appeal must be dismissed because the
    notice of appeal (“NOA”) was untimely. The district court entered its order
    denying Cobar’s motions on May 17, 2012, and Cobar did not deliver his NOA to
    prison authorities for mailing until July 29, 2012. Accordingly, his NOA was
    untimely, and dismissal of appeal number 12-10394 is mandatory. See Fed. R.
    App. P. 4(b)(1)(A); Fed. R. Crim. P. 49(c); United States v. Sadler, 
    480 F.3d 932
    ,
    941-42 (9th Cir. 2007).
    Cobar also argues that the district court constructively amended the
    3                         11-10391 & 12-10394
    indictment by referring to drugs that may have been in a warehouse in Panama and
    by citing statutory subsections not referenced in the indictment. We decline to
    entertain these claims, which were not raised before the district court. See Duckett
    v. Godinez, 
    67 F.3d 734
    , 745 n.5 (9th Cir. 1995).
    Cobar’s motions to file a supplemental brief, filed on July 8, 2013, and
    September 20, 2013, are denied.
    Appeal No. 11-10391 AFFIRMED; Appeal No. 12-10394 DISMISSED.
    4                          11-10391 & 12-10394