                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-2957
                         ___________________________

                             United States of America

                                Plaintiff - Appellee

                                         v.

                           Alexander Castellano-Benitez

                               Defendant - Appellant
                                  ____________

                     Appeal from United States District Court
                      for the District of Nebraska - Lincoln
                                  ____________

                             Submitted: June 15, 2018
                              Filed: August 2, 2018
                                  (Unpublished)
                                  ____________

Before LOKEN, GRUENDER, and ERICKSON, Circuit Judges.
                          ____________

PER CURIAM.

       Alexander Castellano-Benitez was convicted by a jury of possession with intent
to distribute 500 grams or more of a mixture or substance containing
methamphetamine. He was sentenced to a term of 170 months’ imprisonment and
five years of supervised release. He now appeals the denial of his motion for a new
trial on the grounds of: 1) an alleged Brady violation, and 2) purported “newly
discovered” evidence. We affirm.

      I.     Background

      The evidence at trial suggested that Castellano-Benitez stole a large quantity
of drugs from a dealer in Texas and traveled to Florida in the company of an
accomplice, Yunior Florez-Veliz. He then drove with another accomplice, Yulio
Cervino-Hernandez, to Nebraska to sell some of the stolen drugs.

       On September 22, 2015, Castellano-Benitez and Cervino-Hernandez were in
a hotel room in Nebraska when police, acting on a tip, raided the room. When
Castellano-Benitez was asked to produce his identification, he lifted a mattress on one
of the beds, revealing two small bags and another bag consistent with packaged
methamphetamine. Observing this, an officer asked Castellano-Benitez if there was
anything under the bed. Castellano-Benitez replied back, “a little bit.” During the
search, the police discovered a large truck battery and an electronic scale by the bed.
Castellano-Benitez’s fingerprint was found on the scale. Castellano-Benitez was
arrested.

      From jail, Castellano-Benitez placed multiple calls to Florez-Veliz (who had
remained in Florida) to come to Nebraska to sell drugs. With the assistance of
cooperating witnesses and confidential informants, the police located and arrested
Florez-Veliz in Nebraska with four pounds of methamphetamine.

       While out on bond, Castellano-Benitez placed multiple phone calls to a
confidential informant, vaguely referencing something of value that could be found
in the truck. Armed with this information, the police reexamined the confiscated
truck battery, which had been placed in the lost and found property section in the



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Sheriff’s Office. The search revealed that the battery contained nearly five kilograms
of methamphetamine.

       During pretrial preparations, Castellano-Benitez maintained his innocence and
his belief that the cooperating witnesses conspired to frame him. During discovery,
Castellano-Benitez’s attorney asked the government whether Florez-Veliz and
Cervino-Hernandez were ever detained together. The government’s representations
on this issue were, taken as a whole, misleading. The government first produced a
report covering the Saline County Jail’s records. It stated that the two “were never
housed together at any time in the Saline County Jail.” In a later email requesting
stipulations for trial, an AUSA asked if, “since he had gone through so much work
to get the records,” defense counsel would stipulate to the fact that Florez-Veliz and
Cervino-Hernandez “never crossed paths in their custody.”

       Contrary to the government’s representations, Florez-Veliz and
Cervino-Hernandez had been housed together. A close examination of the Saline
County Jail report showed that Florez-Veliz and Cervino-Hernandez spent a period
of twenty-one days in a Dawson County, Nebraska, jail. The report did not provide
any further information about the period of confinement in Dawson County. The
email by the AUSA went so far as to represent that the two had never crossed paths
while in custody. In fact, they had been kept in the same large cell at the Dawson
facility for more than twenty days.

      At trial, Castellano-Benitez pursued the theory that the coconspirators were
framing him. As part of that strategy, he elicited testimony that separated prisoners
may be able to communicate. That testimony discussed challenging or difficult ways
of communicating, such as by passing notes. Oral testimony from the cooperating
witnesses during trial downplayed their relationship and conspicuously omitted that
they had spent a significant length of time in jail together. Castellano-Benitez was
convicted and sentenced to 170 months in prison.

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       Castellano-Benitez later discovered that Florez-Veliz and Cervino-Hernandez
had spent time in jail together. Upon this discovery, he filed a motion for a new trial
under Fed. R. Crim. P. 33, alleging a Brady violation. The district court1 denied the
motion. The court ruled: 1) the evidence was not suppressed because “reasonable
diligence” would have led defense counsel to request the Dawson facility’s records,
and 2) even if the evidence had been suppressed, the evidence was not material in
light of the other evidence in the record.

        Castellano-Benitez also contended that he should receive a new trial on the
basis of “new evidence”—two letters obtained by the defense after trial. A letter from
Angel Merida Herrera indicated that Herrera had been housed with Florez-Veliz and
Cervino-Hernandez at the Dawson County facility. Herrera reported that he
overheard the pair discussing how to make sure an unassuming Castellano-Benitez
was convicted. A second letter, purportedly from Cervino-Hernandez, taunted
Castellano-Benitez and said he was only in jail because he had made the mistake of
lifting up the hotel mattress. The district court ruled that the Herrera letter would not
have altered the outcome of the trial, while the Cervino-Hernandez letter was
“completely devoid” of relevant information.

      II.    Discussion

       We review the denial of a motion for new trial based on a Brady violation for
an abuse of discretion. United States v. Reaves, 649 F.3d 862, 867 (8th Cir. 2011)
(citing United States v. Deavault, 190 F.3d 926, 929 (8th Cir. 1999)). We likewise
review a denial of a motion for a new trial based on new evidence for an abuse of
discretion. United States v. Haskell, 468 F.3d 1064, 1076 (8th Cir. 2006) (citing
United States v. Parker, 267 F.3d 839, 846 (8th Cir. 2001)). A district court may


      1
      The Honorable John M. Gerrard, United States District Judge for the District
of Nebraska.

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grant a motion for new trial if the “interest of justice so requires.” Fed. R. Crim. P.
33(a). The decision is within the discretion of the trial court, but “[u]nless the district
court ultimately determines that a miscarriage of justice will occur, the jury’s verdict
must be allowed to stand.” United States v. Campos, 306 F.3d 577, 579 (8th Cir.
2002).

       Brady requires prosecutors to disclose to the defense “all material evidence
favorable to the accused, including impeachment and exculpatory evidence.” United
States v. Robinson, 809 F.3d 991, 996 (8th Cir. 2016). That duty extends to material
evidence which prosecutors are themselves unaware of but which is known to others
acting on the government’s behalf in the case. Id. (citing Kyles v. Whitley, 514 U.S.
419, 432-34 (1995)). To establish a Brady violation, the defendant must show that
1) the prosecution suppressed evidence, 2) the evidence was favorable to the accused,
and 3) the evidence was material to the issue of guilt or punishment. United States
v. Sturdivant, 513 F.3d 795, 803 (8th Cir. 2008). When determining whether
evidence is material, “[t]he question is not whether the defendant would more likely
than not have received a different verdict with the evidence, but whether in its
absence he received a fair trial, understood as a trial resulting in a verdict worthy of
confidence.” Robinson, 809 F.3d at 996 (citing Strickler v. Greene, 527 U.S. 263,
289-90 (1999)). The evidence must be viewed in the context of all other evidence put
before the jury in the case. See United States v. Wright, 866 F.3d 899, 908-11 (8th
Cir. 2017) (discussing other relevant evidence in the impeachment context).

       We find that there was no Brady violation because the evidence was not
material.2 We recognize that the evidence may have affected the credibility of two
of the cooperating witnesses, but other evidence conclusively and overwhelmingly
established Castellano-Benitez’s guilt. See United States v. Pendleton, 832 F.3d 934,


      2
       Because we decide that the evidence was not material, we need not reach the
question whether the evidence was actually suppressed.

                                           -5-
941 (8th Cir. 2016) (finding no Brady violation where “the testimony of these two
witnesses was not essential to proving [a defendant’s] guilt because the other
evidence of his guilt was overwhelming”). For example, the physical evidence
obtained in the motel room and the contents of Castellano-Benitez’s monitored phone
calls related to the truck battery are independent pieces of evidence sufficient to
establish guilt, such that we can be sure the trial resulted “in a verdict worthy of
confidence.” The district court did not abuse its discretion by concluding that
Brady did not compel a new trial.3

        Similarly, the new evidence did not warrant a new trial. To obtain a new trial
on the basis of newly discovered evidence, a defendant must show: 1) the evidence
was unknown or unavailable to the defendant at the time of trial, 2) the defendant was
duly diligent in attempting to uncover the evidence, 3) the newly discovered evidence
is material, and 4) the newly discovered evidence is such that it will probably result
in an acquittal upon retrial. Haskell, 468 F.3d at 1076 (quoting Parker, 267 F.3d at
846). For essentially the same reasons as noted above, a retrial would be unlikely to
result in an acquittal even if the two letters were considered. Both letters relate to the
mindset of one or both coconspirators in offering testimony. The other evidence of
Castellano-Benitez’s guilt is conclusive even absent that testimony. Any implication
contained in the letters that Castellano-Benitez was unaware of the methamphetamine
is contradicted by his own actions and statements during and following the raid. The
district court properly exercised its discretion in denying a new trial.




      3
       We do not mean to minimize the AUSA’s conduct in this matter. The
representations made were in error, asserted with such confidence so as to be
misleading, and created the potential for a serious problem. Nonetheless, the
overwhelming evidence of Castellano-Benitez’s guilt leaves us free from doubt that
the verdict is worthy of confidence.

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III.   Conclusion

We affirm.
               ______________________________




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