                                                                              FILED
                              NOT FOR PUBLICATION                             AUG 09 2010

                                                                          MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                               FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                          No. 09-10286

                 Plaintiff - Appellee,             D.C. No. 1:07-cr-00268-JMS-1

  v.
                                                   MEMORANDUM*
NELSON GAITAN-AYALA,

                 Defendant - Appellant.


                      Appeal from the United States District Court
                               for the District of Hawaii
                     J. Michael Seabright, District Judge, Presiding

                          Argued and Submitted June 18, 2010
                                  Honolulu, Hawaii

Before: B. FLETCHER, PREGERSON and CLIFTON, Circuit Judges.

       A jury convicted Appellant Nelson Gaitan-Ayala on five methamphetamine-

related counts. When Giglio1 evidence concerning government witness Corey

Kaowili surfaced after trial, Gaitan-Ayala moved for a new trial on all counts. In a

well reasoned order, the district court granted his motion except as to two counts:

           *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       1
           Giglio v. United States, 405 U.S. 150 (1972).
distributing 50 grams or more of methamphetamine (count 7), and conspiring to

distribute 500 grams or more of methamphetamine (count 1). Gaitan-Ayala now

appeals. He contends that the district court erred in sustaining those two counts,

and that several trial errors combined with the suppression of impeachment

evidence cumulatively rendered his trial unfair. We affirm.

I.    Suppression of Impeachment Evidence

      Gaitan-Ayala has waived any argument under Napue v. Illinois, 360 U.S.

264 (1959), by failing to raise it before the district court. The suppression of

impeachment evidence therefore can be analyzed only under Brady v. Maryland,

373 U.S. 83 (1963), the standard Gaitan-Ayala argued to the district court. Under

that standard we must order a new trial if the undisclosed evidence was “material”

— that is, if “there is a reasonable probability that . . . the result of the proceeding

would have been different” had the evidence been disclosed. Jackson v. Brown,

513 F.3d 1057, 1076 (9th Cir. 2008) (quotation marks, citation, and emphasis

omitted).

      All agree that the government proved the March 23, 2007 methamphetamine

sale to undercover police officer Keane Tabanera. The series of recordings the

government introduced created a strong chain of evidence that connected Gaitan-

Ayala link by link to the March 23 sale. The existence of the sale makes clear that


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when Gaitan-Ayala spoke about chicken fighting during the recordings, he was

using “chickens” as code for methamphetamine. The recordings also show that

Gaitan-Ayala was involved in arranging the March 23 sale. In sum, the sale itself

sufficiently explained what the recordings meant; there was no need for Corey

Kaowili’s testimony to interpret them.

      There was other evidence linking Gaitan-Ayala to the methamphetamine

distribution on March 23, 2007, and to methamphetamine trafficking more

generally. Although Zaneta Nixon was impeached to some extent, she testified

that on March 23, 2007, Hector Cruz had told her that Gaitan-Ayala had said to sell

a pound of methamphetamine to Kaowili. Other government witnesses also

testified to Gaitan-Ayala’s involvement in drug trafficking. These witnesses also

were impeached to a limited extent, but their testimony as a whole constitutes

strong evidence that Gaitan-Ayala was involved in the March 23, 2007 deal.

Because there is not a reasonable probability that the jury would have come to a

different verdict on count 7 if the additional impeachment evidence had been

disclosed, the evidence was not material to the conviction on count 7.

      Neither was it material to the conviction on count 1, the conspiracy count.

Count 7 was one of the overt acts charged in count 1, and thus the evidence that is

sufficient to uphold count 7 is sufficient to uphold one of the overt acts in count 1.


                                           3
Further, even if Kaowili’s testimony is disregarded, the rest of the collective

testimony from the government’s witnesses constituted powerful evidence that

Gaitan-Ayala had conspired with numerous persons to distribute more than 500

grams of methamphetamine.

      Gaitan-Ayala argues that because the district court ordered a new trial on

three substantive counts, all of which were charged as overt acts in count 1, the

conviction on count 1 must be overturned. We disagree. If a conviction for one or

more substantive crimes is overturned because of factual rather than legal

insufficiency, but at least one substantive crime that is charged in the conspiracy

has a sufficient factual basis, the conspiracy conviction must stand. Griffin v.

United States, 502 U.S. 46, 56, 59 (1991). Because one of the substantive crimes

charged in count 1 has a sufficient factual basis — and because the undisclosed

evidence did not materially affect the proof of the conspiracy itself — the

conviction on count 1 must be sustained.

      We note, however, that by failing to bring key impeachment evidence to the

attention of the prosecutor, the federal law enforcement officers working on this

case were guilty of a grave dereliction of duty and jeopardized the prosecution of

the case. The government should take appropriate remedial or disciplinary action

with its case agents to ensure effective internal communication, coordination, and


                                           4
responses to discovery obligations, and should also impress upon the assistant U.S.

attorneys that they must make sure that the case agents coordinate among

themselves and keep the attorneys advised.

II.   Cumulative Error

      Gaitan-Ayala raises several other claims of error, arguing that these errors,

combined with the suppression of impeachment evidence, cumulatively made his

trial unfair and compel reversal. We respond to each.

      1. No punitive intent “can be inferred from the nature of” Gaitan-Ayala’s

pretrial confinement. Valdez v. Rosenbaum, 302 F.3d 1039, 1045 (9th Cir. 2002).

Gaitan-Ayala spent only a limited amount of time in the Special Housing Unit

(“SHU”), and there was a reasonable relationship between his rotation through the

SHU and the government’s goal of preventing witness intimidation. See id. at

1046. Nor was the government required to be absolutely certain that witnesses

were being intimidated before rotating Gaitan-Ayala though the SHU.

      2. Admission of the gun photographs was not an abuse of the district court’s

“wide discretion” under Federal Rule of Evidence 403. United States v. Layton,

767 F.2d 549, 554 (9th Cir. 1985). Because police had found an indicium of drug-

dealing, $37,000 in cash, near the gun, there was some nexus between the gun and

drug-dealing. Cf. United States v. Savinovich, 845 F.2d 834, 837 (9th Cir. 1988).


                                         5
Moreover, the government stressed not Gaitan-Ayala’s mere possession of the gun

but the fact that the gun was unregistered and lacked a permit. The government did

not argue that the gun by itself showed that Gaitan-Ayala was involved in drugs.

We cannot say that the district court abused its discretion in finding that the

photographs’ probative value was not “substantially outweighed” by the danger of

prejudice or confusion. Fed. R. Evid. 403.

      3. Gaitan-Ayala objected to the prosecutor’s leading questions, and all of

his objections were sustained. The government rephrased its questions. No error

occurred in this respect.

      4. Any prejudice from the two actual errors — the exclusion of Nathan

Oandasan’s prior statement and the interruptions of counsel’s closing argument —

was minimal. Oandasan was allowed to refresh his recollection by reading his

previous inconsistent statement silently, and Gaitan-Ayala’s attorney elicited

impeaching testimony from him. Although the volume of the prosecutor’s

objections was inappropriate, the objections that the district court erroneously

sustained affected the defense’s closing argument very slightly if at all. Even when

combined with the suppressed impeachment evidence, the cumulative effect of

these trial errors was not “so prejudicial as to require reversal” of the convictions

on counts 1 and 7. United States v. Wallace, 848 F.2d 1464, 1475 (9th Cir. 1988).


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AFFIRMED.




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