                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 29 2009

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 08-16990

             Plaintiff - Appellee,               D.C. Nos. 5:04-cv-03340-RMW
                                                             5:99-cr-20092-RMW
  v.

CLIFFINA E. JOHNSON,                             MEMORANDUM *

             Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 08-16991

             Plaintiff - Appellee,               D.C. Nos. 5:06-cv-06276-RMW
                                                             5:99-cr-20092-RMW
  v.

FREDERICK L. SHIRLEY,

             Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Northern District of California
                    Ronald M. Whyte, District Judge, Presiding

                     Argued and Submitted December 7, 2009
                            San Francisco, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: SCHROEDER, CALLAHAN, and LUCERO, ** Circuit Judges.

      This is a consolidated appeal from the district court’s denial of Cliffina

Johnson’s and Frederick Shirley’s 28 U.S.C. § 2255 motions to vacate their

convictions for conspiracy to bribe a public official and bribery of a public official.

Johnson and Shirley argue they are entitled to a new trial on the basis of their

discovery, more than three years after they had been convicted and sentenced, that

the government’s key witness, Clarence Walker, had been indicted on criminal

charges unrelated to Johnson’s and Shirley’s crimes. The district court denied

relief, concluding Walker’s own knowledge of his criminal activities could not be

attributed to the government at the time of trial. It ruled this information was not

material and would not have affected the result. We review the district court’s

denial of a § 2255 motion de novo. United States v. Gamba, 541 F.3d 895, 898

(9th Cir. 2008). The district court did not err, and we affirm.

      There was no due process violation at the time of trial under Brady v.

Maryland, 373 U.S. 83 (1963), or Napue v. Illinois, 360 U.S. 264 (1959), because

Walker’s own knowledge of his criminal conduct and the alleged falsity of his

testimony cannot be attributed to the government. Walker was not a law



       **
               The Honorable Carlos F. Lucero, U.S. Circuit Judge for the Tenth
Circuit, sitting by designation.

                                           2
enforcement officer or a member of the prosecution team; rather, he was a civilian

cooperating witness. See United States v. Endicott, 869 F.2d 452, 455-56 (9th Cir.

1989); United States v. Butler, 567 F.2d 885, 891 (9th Cir. 1978) (per curiam).

      There was also no post-trial violation of Brady, even assuming Brady

applies to the government’s nondisclosure of impeachment evidence discovered

after trial. Under Brady, “favorable evidence is material, and constitutional error

results from its suppression by the government, ‘if there is a reasonable probability

that, had the evidence been disclosed to the defense, the result of the proceeding

would have been different.’” Kyles v. Whitley, 514 U.S. 419, 433-34 (1995)

(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). There is no

“reasonable probability” that a trial of Johnson and Shirley with the new

information about Walker’s criminal activities would have produced a different

result. At the time the government learned of these activities, Walker had not been

convicted – much less charged – of any crime and did not know he was under

investigation. Therefore, if Johnson and Shirley had been able to ask him about his

criminal activities on cross-examination, Walker could have denied his guilt or

invoked his Fifth Amendment privilege against self-incrimination. Johnson and

Shirley would not have been allowed to use extrinsic evidence to prove them. See

Fed. R. Evid. 608(b).


                                          3
      Even if Johnson and Shirley could have succeeded in impeaching Walker

with other crimes, in an effort to show the defendants were induced to commit

these crimes, the district court correctly ruled it could have made little difference.

Phone calls between Walker and Johnson were recorded and they, along with

Johnson’s statements to federal agents after her arrest, demonstrate that Johnson set

up the bribery arrangement. Recorded conversations between Walker and Shirley

establish Shirley was predisposed to the bribery scheme. Neither was induced to

participate. See United States v. Johnson, 34 Fed. App’x 381 (9th Cir. Apr. 9,

2002) (unpublished mem. disp.). Therefore, there is no reasonable probability that

the impeachment of Walker, even if it could have been accomplished, would have

produced a different result. Under the Brady standard or the standard for granting

a new trial motion to determine the materiality of the government’s nondisclosure

of Walker’s criminal activities, Johnson and Shirley are not entitled to relief.

      AFFIRMED.




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