Opinion
No. 05-50488.
Submitted February 9, 2007. Pasadena, California.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
February 21, 2007.
Appeal from the United States District Court for the Southern District of California M. James Lorenz, District Judge, Presiding. D.C. No. CR-02-00332-MJL.
Before: HALL, O'SCANNLAIN, and CALLAHAN, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
The district court denied McCray's motion for a new trial. McCray appeals. The facts and prior proceedings are repeated herein only as necessary.
Even if the government committed error by not informing the defense of the indictments against the principals of Midland Euro Inc. ("MEI"), McCray's own trial strategy confirms that such knowledge would not have put the case in so different a light as to undermine confidence in the outcome of the trial. See Kyles v. Whitley, 514 U.S. 419, 434 (1995). The government disclosed evidence of its investigation into MEI before the trial, and also elicited testimony at trial that an FBI investigation had led to bankruptcy at MEI. McCray did not rely upon this evidence at trial, and the newly discovered evidence does not undermine confidence in the trial's outcome.
Likewise, the district court did not abuse its discretion in denying the motion for a new trial on the basis of prosecutorial misconduct. See United States v. Murillo, 288 F.3d 1126, 1140 (9th Cir. 2002). Even assuming a constitutional violation, such violations are subject to a materiality test substantially the same as the materiality standard in Kyles. See Hayes v. Brown, 399 F. 3d 972, 984 (9th Cir. 2005). We are satisfied that any misconduct in the government's trial presentation of evidence concerning MEI would not undermine confidence in the trial's outcome.
Accordingly, the district court's denial of the motion for a new trial is AFFIRMED.