                                                                              FILED
                           NOT FOR PUBLICATION                                 FEB 23 2012

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



                            FOR THE NINTH CIRCUIT




UNITED STATES OF AMERICA,                        No. 11-10203

              Plaintiff - Appellant,             D.C. No. 3:10-cr-047-RCJ

  v.                                             MEMORANDUM*

REGINALDO CORTEZ
DELOSSANTOS,

              Defendant - Appellee.

                   Appeal from the United States District Court
                                District of Nevada
                  Robert C. Jones, Chief District Judge, Presiding

                    Argued and Submitted February 13, 2012
                            San Francisco, California

Before: HUG, B. FLETCHER, and PAEZ, Circuit Judges.

       Reginaldo C. Delossantos, an employee of the United States Postal Service,

was convicted of unlawful destruction of mail by a Postal Service employee in

violation of 18 U.S.C. § 1703(a).


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Following the advice of his counsel, Delossantos did not testify at trial on

the theory that there was nothing to corroborate his proposed testimony, i.e. that he

was at the dumpster to throw away trash but not mail, and therefore he would

appear to be lying because multiple witnesses testified that the dumpster was

empty except for the mail.

      After trial, pictures of the inside of the dumpster taken by one of the

government’s witnesses surfaced. They showed items of trash, including some

items Delossantos would have testified he threw away, in the dumpster.

Delossantos filed a motion for a new trial pursuant to Federal Rule of Criminal

Procedure 33 arguing that the newly discovered evidence would corroborate his

testimony and that he would now testify. The district judge granted the motion for

a new trial. That decision was not an abuse of discretion. See United States v.

Hinkson, 585 F.3d 1247, 1259 (9th Cir. 2009) (en banc).

      AFFIRMED.




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