                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         MAY 6 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-10506

                Plaintiff-Appellee,             D.C. No.
                                                1:14-cr-00236-DAD-BAM-1
 v.

ANTHONY LESTER,                                 MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                   for the Eastern District of California, Fresno
                     Dale A. Drozd, District Judge, Presiding

                       Argued and Submitted April 19, 2019
                            San Francisco, California

Before: BEA and N.R. SMITH, Circuit Judges, and MÁRQUEZ,** District Judge.

      Appellant Anthony Lester appeals his conviction pursuant to 18 U.S.C. §

1341 and 1956. We have jurisdiction under 28 U.S.C. § 1291.

      1. District courts have broad discretion to enforce or quash a pretrial

subpoena under Federal Rule of Criminal Procedure 17(c) and their decisions “will


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Rosemary Márquez, United States District Judge for
the District of Arizona, sitting by designation.
be disturbed on appeal only where the action was clearly arbitrary or without

support in the record.” United States v. MacKey, 647 F.2d 898, 901 (9th Cir.

1981); see also United States v. Nixon, 418 U.S. 683, 702 (1974); United States v.

Reed, 726 F.2d 570, 577 (9th Cir. 1984).

      Lester has failed to demonstrate that the district court’s decision to deny his

pre-trial Rule 17(c) subpoena was either: clearly arbitrary or without support in the

record. The district court denied Lester’s pre-trial Rule 17(c) subpoena because it

lacked specificity.1 Lester failed to articulate the basis for his belief that the

requested documents, including physical count adjustment reports, existed. “[A]

Rule 17(c) subpoena is not intended to serve as a discovery tool, or to allow a blind

fishing expedition seeking unknown evidence.” MacKey, 647 F.2d at 901 (internal

citation omitted).

      Notably, Lester was in possession of a purported physical count adjustment

report, and when Lester attached it to his post-trial Rule 17(c) subpoena

application, the district court granted it because the application properly

demonstrated that the sought-after documents existed. Lester’s strategic decision to

withhold documents, resulting in a denial of his pre-trial Rule 17(c) subpoena, does

not render the district court’s decision clearly arbitrary or without support in the


1
 We note that the district court denied Lester’s pre-trial Rule 17(c) subpoena
without prejudice and provided Lester with an opportunity to cure his deficiencies.
Lester declined that opportunity.

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record. The district court did not abuse its discretion by finding Lester failed to

provide evidence that the documents he sought in his pre-trial Rule 17(c) subpoena

existed.

      2. We review for clear error Lester’s claim that the district court erred by

calculating his sentence without producing physical count adjustment reports. See

United States v. Bright, 353 F.3d 1114, 1118 (9th Cir. 2004) (this Court reviews

“for clear error the district court's factual findings with respect to monetary loss to

victims”). Not only did the government present copious amounts of evidence that

Lester engaged in theft, including testimony by an experienced financial analyst

and bank records clearly establishing the flow of money out of the victim’s account

and into Lester’s account, Lester severely exaggerates the probative value of a

physical count adjustment report.

      After his trial, Lester disclosed multiple physical count adjustment reports

that had not been previously disclosed and attempted to move for a new trial based

on those “newly discovered” documents. Those documents list item numbers and

amounts, but there is no indication that the reports reflect inventory purchased by

Lester. Nor has Lester made such a showing, as those “newly discovered”

documents were never authenticated, introduced at trial, or presented to witnesses.

      The district court did not clearly err by relying upon the abundant evidence

presented at trial indicating Lester’s theft and, moreover, “[t]he court need not


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make its loss calculation with absolute precision; rather, it need only make a

reasonable estimate of the loss based on the available information.” United States

v. Zolp, 479 F.3d 715, 719 (9th Cir. 2007).

      3. The district court did not err when it denied Lester’s motion for a new

trial. “A district court’s denial of a new trial motion based on alleged Brady

violations is reviewed de novo.” United States v. Antonakeas, 255 F.3d 714, 725

(9th Cir. 2001); see Brady v. Maryland, 373 U.S. 83, 87 (1963). “To prevail on a

Brady claim, the defendant must show that (1) the evidence was exculpatory or

impeaching; (2) it should have been, but was not produced; and (3) the suppressed

evidence was material to his guilt or punishment.” Id. (footnote omitted) (quoting

Paradis v. Arave, 130 F.3d 385, 392 (9th Cir. 1997)). “[T]he prosecution has a

duty to learn of any exculpatory evidence known to others acting on the

government’s behalf.” Carriger v. Stewart, 132 F.3d 463, 479-80 (9th Cir. 1997)

(emphasis added).

      Lester provided no evidence, pre-trial, that physical count adjustment reports

existed or that the government was aware of the existence of such documents.

More importantly, the physical count adjustment reports Lester introduced post-

trial were neither exculpatory nor impeaching, and Lester therefore failed to

establish a Brady violation. The district court did not abuse its discretion in

denying Lester’s motion for an evidentiary hearing.


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      Additionally, the government’s statement in rebuttal closing that no other

physical count adjustment reports existed, to which Lester did not object

contemporaneously, was not plain error.

      AFFIRMED.




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