                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 19 2010

                                                                        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. 09-10007

             Plaintiff - Appellee,               D.C. No. 4:07-CR-00428-JMR-
                                                 HCE
  v.

EDGAR TAPIA,                                     MEMORANDUM *

             Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Arizona
                   John M. Roll, Chief District Judge, Presiding

                          Submitted February 10, 2010 **
                            San Francisco, California

Before: HALL, THOMPSON, and McKEOWN, Circuit Judges.

       Edgar Tapia (“Tapia”) timely appeals his conviction of assault on a United

States Customs and Border Protection (“CBP”) officer, Matthew Escarciga, in

violation of 18 U.S.C. § 111(a)(1), as charged in Count Two of the indictment.


        *
             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).
Tapia was acquitted of a separate charge of assault on another CBP officer, John

Holman, which arose out of the same incident on February 7, 2007, and was

charged in Count One of the indictment.

      Tapia contends that the district court erred in denying his motion for a

mistrial after Officer Holman testified—to the surprise of both the prosecution and

the defense—that Tapia “apologized” for his actions during a custodial

interrogation by another federal officer, ICE Agent Robert Whitchurch. In a

variation on the theme of his mistrial motion, Tapia contends that the prosecution’s

failure to disclose that Officer Holman would testify about the “apology” violated

his due process rights under Brady v. Maryland, 373 U.S. 83 (1963), because he

was unable to address that evidence in his opening statement. For the first time on

appeal, Tapia further contends that he was prejudiced by the nondisclosure because

he was prevented from bringing a pretrial motion to suppress the apology—which

he characterizes as being “tantamount to a confession”—and because he was

foreclosed from pursuing certain alternative defense strategies. We have

jurisdiction of Tapia’s appeal pursuant to 28 U.S.C. § 1291, and we affirm.

                                          I.

      The evidence presented during Tapia’s three-day jury trial, the procedural

events of the case, and the applicable law are well known to the parties. Thus, we


                                          2
recite such information only as necessary to our disposition of the appeal.

                                          II.

      We review de novo a district court’s denial of a motion for mistrial based on

an alleged Brady violation. United States v. Howell, 231 F.3d 615, 624 (9th Cir.

2000). When a Brady issue is not raised below, however, this Court reviews the

claim “only to determine if [its] denial would constitute plain error affecting the

appellant’s substantial rights.” United States v. Guzman-Padilla, 573 F.3d 865,

890 (9th Cir. 2009) (citing Fed. R. Crim. P. 52(b)). Applying these standards of

review, we conclude that the district court did not commit any reversible error in

denying Tapia’s mistrial motion.

      Officer Holman did not mention any apology by Tapia in his incident report,

and there is no dispute that both the prosecutor and defense counsel were surprised

when Officer Holman testified about it. Nevertheless, the duty to disclose material

evidence favorable to the accused applies even without a request from the accused,

United States v. Bagley, 473 U.S. 667, 682 (1985), irrespective of the good faith of

the prosecutor, Brady, 373 U.S. at 87, and even where the evidence is known only

to investigators and not to the prosecutor, Kyles v. Whitley, 514 U.S. 419, 438

(1995). To rise to the level of a due process violation, however, the nondisclosure


                                           3
of “favorable” evidence, whether it is exculpatory or useful only for impeachment,

must have been prejudicial—i.e., “so serious that there is a reasonable probability

that the suppressed evidence would have produced a different verdict.” Strickler v.

Greene, 527 U.S. 263, 281-82 (1999). To determine prejudice, “the withheld

evidence must be analyzed in the context of the entire record,” and will be deemed

prejudicial or material “only if it undermines confidence in the outcome of the

trial.” Benn v. Lambert, 283 F.3d 1040, 1053 (9th Cir. 2002).

      Our review of the record reveals that defense counsel was able to use the

testimony about Tapia’s apology quite skillfully and effectively to impeach Officer

Holman and that, as a result, the jury acquitted Tapia of the assault against that

officer as charged in Count One. Indeed, it appears that defense counsel—as the

district court presciently observed in denying Tapia’s motion for mistrial—was

able to wring so much impeachment value out of Holman’s testimony during his

cross-examination of Officers Holman and Whitchurch, that he was able credibly

to claim during closing argument that Officer Holman had fabricated his testimony

about defendant’s “apology.” The record also shows that Officer Holman’s

surprise testimony about Tapia’s “apology” did not affect the verdict on the only

charge of which he was convicted—the assault on Officer Escarciga, as charged in


                                           4
Count Two—which was fully supported by evidence independent of and unrelated

to Officer Holman’s undisclosed assertion.

      Tapia fails to provide any reasoned argument or authority for his contention

that a motion to suppress his “confession,” or any of the suggested alternative

defense strategies, would have affected the verdict in this case. These contentions

may, thus, be deemed abandoned on appeal. United States v. Tisor, 96 F.3d 370,

376 (9th Cir. 1996). Even if not abandoned, however, it is difficult to imagine that

defense counsel could have challenged the “poor quality” or “bad faith” of the

investigation any more effectively than he did at trial by using Officer Holman’s

testimony about the undocumented “apology,” as well as certain significant

conflicts between his testimony and that of the other officers, to undermine the

government’s case. In any event, the district court’s failure to divine the theories

Tapia raises for the first time on appeal as grounds for a mistrial was not plain error

affecting his substantial rights, as none of his arguments gives us reason to believe

that earlier disclosure of the “apology” would have resulted in a different verdict.

                                          III.

      For all the foregoing reasons, the judgment of conviction, including the

sentence imposed, is AFFIRMED.


                                           5
