                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        SEP 27 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    15-10393

                Plaintiff-Appellee,             D.C. No.
                                                2:11-cr-02385-JAT-1
 v.

STEPHEN KERR and MICHAEL QUIEL,                 MEMORANDUM*

                Defendants-Appellants.

                   Appeal from the United States District Court
                            for the District of Arizona
                   James A. Teilborg, District Judge, Presiding

                           Submitted August 18, 2017**
                            San Francisco, California

Before: RAWLINSON and NGUYEN, Circuit Judges, and VANCE,*** District
Judge.

      Stephen Kerr and Michael Quiel were convicted of willful subscription to a

false tax return in violation of 26 U.S.C. § 7206(1). Kerr was also convicted of


      *
             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 Sarah S. Vance, United States District Judge for the
Eastern District of Louisiana, sitting by designation.
willful failure to file reports of foreign bank and financial accounts (FBARs) in

violation of 31 U.S.C. §§ 5314 and 5322(a). This Court affirmed defendants’

convictions on direct appeal. See United States v. Quiel, 595 F. App’x 692 (9th

Cir. 2014). Defendants now appeal the district court’s denial of their motion for a

new trial or, alternatively, for an evidentiary hearing. This motion was based on

allegations that (1) defendants’ lawyer, Christopher Rusch, had engaged in

criminal and fraudulent behavior before, during, and after the trial, in part by

blogging and podcasting under the pseudonym “Christian Reeves”; (2) the

Government had an undisclosed agreement with Rusch that allowed Rusch to

commit illegal acts without fear of prosecution in exchange for his testimony

against defendants; and (3) Exhibits 51 and 52, introduced at trial, were forged.

Defendants also appeal the district court’s denial of their motion to accept a limited

remand. We affirm.

      1. We generally review the denial of a new trial motion, made based on

newly discovered evidence, for abuse of discretion. United States v. Hinkson, 585

F.3d 1247, 1259 (9th Cir. 2009). In order to obtain a new trial under Rule 33, the

defendant must establish that:

      (1) the evidence [is] newly discovered; (2) the failure to discover the
      evidence sooner [was not] the result of a lack of diligence on the
      defendant’s part; (3) the evidence [is] material to the issues at trial; (4)
      the evidence [is] neither cumulative nor merely impeaching; and (5) the
      evidence . . . indicate[s] that a new trial would probably result in
      acquittal.

                                           2                                     15-10393
United States v. Harrington, 410 F.3d 598, 601 (9th Cir. 2005) (quoting United

States v. Kulczyk, 931 F.2d 542, 548 (9th Cir. 1991)). As an initial matter, the

district court did not err in refusing to consider certain audio recordings, which

were introduced to establish Reeves as Rusch’s alter ego, because the court

presumed the truth of this allegation. Additionally, contrary to defendants’

assertions, the court did in fact consider the emails allegedly sent by Rusch.

Further, the district court correctly held that evidence showing the falsity of

Exhibits 51 and 52 did not satisfy Rule 33 because defendants failed to meet their

burden of establishing when this evidence was discovered.

      Defendants also argue that the district court erred in finding that evidence

relating to Rusch’s fraudulent behavior and undisclosed agreement with the

Government would be cumulative and merely impeaching. Ordinarily, newly

discovered evidence that merely impeaches a witness will not warrant a new trial.

See, e.g., United States v. Davis, 960 F.2d 820, 825 (9th Cir. 1992). But

impeachment evidence may require a new trial when it “refute[s] an essential

element of the government’s case,” or it is “so powerful that, if it were to be

believed by the trier of fact, it could render the witness’ testimony totally

incredible.” Id. At trial, the jury heard testimony that Rusch committed a tax

felony, had substantial tax debt, violated his fiduciary duties to his clients, misused

his client trust fund account, falsely notarized a document, and violated the ethical


                                           3                                      15-10393
rules of the California Bar. We agree with the district court that any additional

evidence that Rusch engaged in other fraudulent behavior of the same nature

would be cumulative of this impeachment evidence. Relatedly, defendants assert

that additional evidence of Rusch’s fraudulent behavior negates their mens rea.

But this Court has already found that there was sufficient evidence for the jury to

find the requisite willfulness, even without Rusch’s testimony. See Quiel, 595 F.

App’x at 694. The district court did not abuse its discretion in denying defendants’

new trial motion under Rule 33.

      2. We review de novo the district court’s denial of a new trial motion based

on an alleged Napue violation. United States v. Rodriguez, 766 F.3d 970, 980 (9th

Cir. 2014). To prevail on a Napue claim, “the defendant must show that (1) the

testimony was actually false, (2) the prosecution knew or should have known that

the testimony was actually false, and (3) . . . the false testimony was material.” Id.

at 990 (citation omitted). Defendants argue that the Government’s failure to

disclose Rusch’s fraudulent behavior and pseudonym led to the introduction of

perjury, and that Exhibits 51 and 52 were false. But defendants fail to show that

either Rusch’s testimony or the exhibits were actually false, or that the

Government knew or should have known of their falsity. Defendants’ conclusory

and speculative assertions fail to make out a Napue claim. See United States v.

Aichele, 941 F.2d 761, 766 (9th Cir. 1991).


                                          4                                    15-10393
      3. We also review the district court’s denial of a new trial motion “de novo

when the asserted basis for a new trial is a Brady violation.” United States v.

Pelisamen, 641 F.3d 399, 408 (9th Cir. 2011). “A Brady violation has occurred if:

(1) the government willfully or inadvertently suppressed; (2) evidence favorable to

the accused; and (3) prejudiced ensued.” Id. (citing Strickler v. Greene, 527 U.S.

263, 281-82 (1999)). First, defendants have not produced any evidence suggesting

that Exhibits 51 and 52 were forged and have failed to bear their burden “of

producing some evidence to support an inference that the government possessed or

knew about the Brady material.” Id. at 408 (citation and internal quotation marks

omitted). Second, information about Rusch’s pseudonym and fraudulent behavior,

which the Government allegedly suppressed, is merely cumulative impeachment

evidence, and therefore cannot give rise to a Brady violation. See United States v.

Kohring, 637 F.3d 895, 902 (9th Cir. 2011). Finally, defendants assert that the

Government failed to disclose the existence of a leniency agreement with Rusch.

Although the prosecution’s failure to disclose an agreement with a coconspirator in

exchange for his testimony at trial constitutes suppression under Brady, see Giglio

v. United States, 405 U.S. 150, 154-55 (1972), defendants merely speculate about

the possibility of an undisclosed agreement, see Runningeagle v. Ryan, 686 F.3d

758, 769-70 (9th Cir. 2012). The district court did not err in denying the new trial

motion based on alleged Brady violations.


                                          5                                    15-10393
      4. This Court reviews a district court’s denial of a post-verdict evidentiary

hearing for abuse of discretion. United States v. Saya, 247 F.3d 929, 934 (9th Cir.

2001). First, the district court presumed that Rusch used a pseudonym, so there

was no need for an evidentiary hearing to establish that. See United States v. Scott,

521 F.2d 1188, 1196 (9th Cir. 1975). Second, considering the conclusory nature of

defendants’ allegations as to the falsity of Exhibits 51 and 52, the court did not

abuse its discretion in declining to hold an evidentiary hearing to establish their

falsity. See United States v. Zuno-Arce, 209 F.3d 1095, 1102-03 (9th Cir. 2000),

overruled on other grounds by Valerio v. Crawford, 306 F.3d 742 (9th Cir. 2002).

Finally, the district court was not obligated to hold an evidentiary hearing to

entertain pure speculation about an undisclosed agreement between the

Government and Rusch. See United States v. Mincoff, 574 F.3d 1186, 1199-1200

(9th Cir. 2009). Thus, the district court did not abuse its discretion in denying

defendants’ request for an evidentiary hearing.

      5. Because the denial of defendants’ motion to accept remand is essentially

the denial of a motion for an indicative ruling, the Court reviews it for abuse of

discretion. See Jackson v. Allstate Ins. Co., 785 F.3d 1193, 1206 (8th Cir. 2015).

Defendants moved the district court to accept remand to consider additional new

evidence. None of this new evidence warrants relief under Rule 33, Napue, or




                                           6                                      15-10393
Brady. Thus, the district court did not abuse its discretion in denying defendants’

motion to accept a limited remand.

      AFFIRMED.




                                         7                                    15-10393
                                           FILED
U.S. v. Kerr, Case No. 15-10393
                                           SEP 27 2017
Rawlinson, Circuit Judge, concurring:
                                        MOLLY C. DWYER, CLERK
                                         U.S. COURT OF APPEALS
     I concur in the result.
