                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 21 2012

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-10425

              Plaintiff - Appellee,              D.C. No. 3:08-cr-00238-MHP-1

  v.
                                                 MEMORANDUM*
SHI GUANG GUAN,

              Defendant - Appellant.


                  Appeal from the United States District Court
                      for the Northern District of California
                 Marilyn H. Patel, Senior District Judge, Presiding

                     Argued and Submitted November 7, 2012
                            San Francisco, California

Before: FARRIS, NOONAN, and BYBEE, Circuit Judges.

       Appellant Shi Guang Guan appeals the district court’s denial of his motion

for a new trial, in which he alleged Brady/Giglio violations as well as prosecutorial

misconduct. The facts of the case are known to the parties. We have jurisdiction

under 28 U.S.C. § 1291and we affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Guan has not established a Brady/Giglio violation. In determining whether a

Brady/Giglio violation occurred we ask whether the evidence was “(1) favorable to

the accused because it [was] either exculpatory or impeachment material; (2)

suppressed by the government, either willfully or inadvertently; and (3) material or

prejudicial.” United States v. Blanco, 392 F.3d 382, 387 (9th Cir. 2004). Although,

here, the evidence at issue constituted impeachment material, see Benn v. Lambert,

283 F.3d 1040, 1057 (9th Cir. 2002); see also Giglio v. United States 405 U.S. 150,

154–55 (1972), the government did not suppress the evidence, and even if it had, it

would not have been prejudicial.

      With regard to suppression, “[b]y submitting the issue to the judge, [a]

prosecutor satisfie[s] her duty to disclose [Brady] material.” United States v.

Dupuy, 760 F.2d 1492, 1501 (9th Cir. 1985); see also United States v. Agurs, 427

U.S. 97, 106 (1976) (noting that the prosecutor can either “furnish[] the

information or . . . submit[] the problem to the trial judge”). Here, the government

satisfied its obligation by disclosing the alleged Brady/Giglio material to the

district court judge ex parte. This was “particularly appropriate” because “the

Government ha[d] legitimate reasons for protecting the confidentiality of the

material requested.” Dupuy, 760 F.2d at 1051. The timing of the government’s

disclosure to the district court, including whether the defense had “time to take


                                          2
advantage of the exculpatory material” is not a Brady concern. Id. at 1502 n.7

(holding that disclosing Brady material a week after trial began was permissible

where the defendant “had ample opportunity to take advantage of the information

provided”). Moreover, the government was not obligated to disclose material that

Guan already had notice of and was in his possession. See id. at 1501 n.5; see also

Raley v. Ylst, 470 F.3d 792, 804 (9th Cir. 2006).

      Even if the government had suppressed the evidence, it would not have been

prejudicial. The defense thoroughly cross-examined Mr. He on his criminal

history, plea agreement, cooperation in two investigations (including Guan’s case),

and benefits he received in connection with his cooperation. The defense’s inability

to cross-examine Mr. He on his cooperation in one additional investigation does

not “undermine[] confidence in the outcome of the trial,”United States v. Kohring,

637 F.3d 895, 902 (9th Cir. 2011) (quoting Kyles, 514 U.S. 419, 434 (1995)), since

Mr. He’s credibility had already been significantly undermined and there was

overwhelming evidence of Guan’s guilt.

      Guan has also failed to establish prosecutorial misconduct. Agent

Piotrowski’s conduct in contacting defense witness Terry Fail did not rise to the

level of “substantial interference with [Fail’s] free and unhampered determination

to testify,” as Fail himself testified that the prosecution did not “intimidate[] or


                                            3
harass[] . . . [or] discourage [him] from testifying” in any way. Williams v.

Woodford, 384 F.3d 567, 601–02 (9th Cir. 2004). Moreover, any possible

interference with Fail’s testimony was harmless error, when viewed in the context

of the entire trial. United States v. Nobari, 574 F.3d 1065, 1073, 1079 (9th Cir.

2009); United States v. Sullivan, 522 F.3d 967, 982 (9th Cir. 2008).

      AFFIRMED.




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