                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           DEC 20 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-10585

              Plaintiff-Appellee,                D.C. No.
                                                 4:09-cr-01619-FRZ-BPV-1
 v.

WILLIAM FLOYD ZAMASTIL,                          MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                     Frank R. Zapata, District Judge, Presiding

                          Submitted December 16, 2016**
                             San Francisco, California

Before: BYBEE and N.R. SMITH, Circuit Judges, and KOBAYASHI,*** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
              The Honorable Leslie E. Kobayashi, United States District Judge for
the District of Hawaii, sitting by designation.
      On July 28, 2011, a jury found Zamastil guilty of first-degree murder for the

1973 kidnaping, rape, and murder of the daughter of an FBI agent. We previously

affirmed his conviction on direct appeal. United States v. Zamastil, 550 F. App’x

446, 450 (9th Cir. 2013). He appeals the district court’s denial of his motions for a

new trial and his motion for an evidentiary hearing. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

      1.     Zamastil argues that the district court abused its discretion in denying

his motion for a new trial on the basis on newly acquired evidence pursuant to

Federal Rule of Criminal Procedure 33. However, the district court’s ruling that

the additional evidence would not indicate that the defendant would

“probably be acquitted in a new trial” in light of the overwhelming evidence of his

guilt was not “illogical, implausible, or without support in inferences that may be

drawn from the record.” United States v. Hinkson, 585 F.3d 1247, 1263–64 (9th

Cir. 2009). For the same reason, the district court did not abuse its discretion in

refusing to hold a second evidentiary hearing on the matter.

      2.     Zamastil argues that he is entitled to a new trial under Brady v.

Maryland, 373 U.S. 83 (1963). However, even assuming that the government

withheld evidence that falls under Brady’s umbrella of being favorable to the

defendant, Zamastil has failed to meet his burden of showing a reasonable


                                           2
probability that the disclosure would have led to a different result or undermine

confidence in the outcome of the trial. See United States v. Rodriguez, 766 F.3d

970, 988 (9th Cir. 2014); United States v. Jernigan, 492 F.3d 1050, 1054 (9th Cir.

2007).

      3.     Zamastil argues that he is entitled to a new trial under Napue v.

Illinois, 360 U.S. 264 (1959). However, Zamastil failed to show that the

government witness’s statements were false. See Rodriguez, 766 F.3d at 990.

AFFIRMED.




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