                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 09 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10351

              Plaintiff - Appellee,              D.C. No. 2:10-cr-01047-ROS-6

  v.
                                                 MEMORANDUM*
IDAN C. GREENBERG,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                 Roslyn O. Silver, Senior District Judge, Presiding

                      Argued and Submitted October 9, 2014
                               Phoenix, Arizona

Before: WALLACE, SILVERMAN, and M. SMITH, Circuit Judges.

       Idan Greenberg challenges his conviction for conspiracy to defraud the

government under 18 U.S.C. § 371 based on an alleged Brady violation and the

sufficiency of evidence. He also challenges his non-conspiracy charges for

sufficiency of evidence and failure to give a jury instruction regarding the elements



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
of an offense. Because the parties are familiar with the facts and procedural

history of this case, we repeat only those facts necessary to resolve the issues

raised on appeal. We affirm in part, vacate in part, and remand for resentencing.

I.    Brady Violation

      In order to establish a violation under Brady, “a defendant must show that:

(1) the evidence at issue is favorable to the accused, either because it is exculpatory

or because it is impeaching; (2) the evidence was suppressed by the government,

regardless of whether the suppression was willful or inadvertent; and (3) the

evidence is material to the guilt or innocence of the defendant.” United States v.

Sedaghaty, 728 F.3d 885, 899 (9th Cir. 2013) (citing Brady v. Maryland, 373 U.S.

83, 87 (1963)). In order for the evidence to be material, there must be “a

reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different.” United States v. Bagley, 473

U.S. 667, 682 (1985).

      Greenberg argues that the government suppressed information relating to the

Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) having inaccuracies

in its database. However, whether the fraudulent forms were submitted to an

accurate database is not material to Greenberg’s guilt or innocence. Accordingly,




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there is not a reasonable probability that this information would have affected the

result of the proceeding, and Greenberg’s Brady argument fails.

II.    Conspiracy

       The elements of a conspiracy under 18 U.S.C. § 371 are “(1) [defendant]

entered into an agreement (2) to obstruct a lawful function of the government (3)

by deceitful or dishonest means and (4) at least one overt act in furtherance of the

conspiracy.” United States v. Caldwell, 989 F.2d 1056, 1059 (9th Cir. 1993).

       There is ample evidence that Greenberg and his co-conspirators agreed to

submit, and did submit, fraudulent machine gun registration and transfer forms to

the ATF, thereby obstructing the ATF’s lawful government function of regulating

the transfer of firearms. Therefore, Greenberg was correctly found guilty of a

conspiracy to defraud the government.

III.   Non-Conspiracy Charges

       Greenberg also challenges counts 74, 81, and 89, which are non-conspiracy

counts that he did (1) knowingly possess and transfer a machine gun made after

May 16, 1986; (2) knowingly receive and possess a machine gun that was not

transferred in accordance with the law; and (3) knowingly receive and possess a

machine gun made in violation of the law.




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      Greenberg does not challenge the fact that he possessed the machine gun at

issue or that he aided and abetted in its transfer; he only challenges whether he

“knowingly” did these things in violation of the law. However even assuming the

government was required to prove knowledge of the law, there was sufficient

evidence to conclude beyond a reasonable doubt that Greenberg knew that the

machine gun he possessed was made after May 16, 1986, that Greenberg knew the

machine gun was not transferred in accordance with the law, and that Greenberg

knew the machine gun was made in violation of the law. Thus, a reasonable trier

of fact could have found the essential elements of the non-conspiracy charges

beyond a reasonable doubt.

IV.   Jury Instructions

      Finally, Greenberg argues that the district court omitted an essential part of

the jury instructions for count 74, a violation of 18 U.S.C. § 922(o), unlawful

transfer or possession of a machine gun. Greenberg contends that the instructions

should have indicated that the statute does not apply if the possession was lawful.

We have already held that this instruction for lawful possession is an affirmative

defense. United States v. Gravenmeir, 121 F.3d 526, 528-29 (9th Cir. 1997)

(lawful possession establishes an affirmative defense to the defined offense).

Because the affirmative defense was not raised at trial, it was waived by

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Greenberg, and we need not consider whether the instruction should have been

included in the jury instructions. See United States v. Lo, 231 F.3d 471, 480-81

(9th Cir. 2000).

V.    Sentencing Guideline Enhancement

      The government concedes that Greenberg’s sentencing range was increased

by four levels for trafficking in firearms under U.S.S.G. § 2K2.1(b)(5) without the

proper supporting facts required for such an enhancement. Therefore, we vacate

and remand to the district court for resentencing.

AFFIRMED in part, VACATED in part, and REMANDED for resentencing.




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