                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 10 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-50199

                Plaintiff-Appellee,             D.C. No.
                                                3:15-cr-02738-BEN-1
 v.

SERGIO CABALLERO,                               MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Southern District of California
                   Roger T. Benitez, District Judge, Presiding

                     Argued and Submitted December 4, 2018
                              Pasadena, California

Before: O'SCANNLAIN and IKUTA, Circuit Judges, and KENNELLY,** District
Judge.

      Sergio Caballero appeals the district court’s denial of his motion for a new

trial following his conviction for importation of methamphetamine and heroin into

the United States. Because the facts are known to the parties, we repeat them only



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
as necessary to explain our decision.

                                               I

          The district court did not abuse its discretion in denying Caballero’s motion

for a new trial.

                                               A

          First, the district court correctly held that Diaz-Flores’s letter did not

constitute newly discovered evidence. Even if the letter itself was written after the

trial, Caballero was already aware of the substantive information contained therein

from his counsel’s discussions with Diaz-Flores before trial. See United States v.

Showalter, 569 F.3d 1150, 1154–55 (9th Cir. 2009) (post-trial witness declarations

were not newly discovered evidence because the “witnesses were known to [the

defendant] . . . and could have been called to testify for him at trial”); United States

v. Joelson, 7 F.3d 174, 178–79 (9th Cir. 1993) (witness declaration was not newly

discovered evidence because defense attorney had interviewed the witness before

trial).

                                               B

          Second, even if the letter were considered to be newly discovered evidence,

the district court correctly determined that the letter would not probably have

resulted in an acquittal, United States v. King, 735 F.3d 1098, 1108 (9th Cir. 2013),

because it would have been inadmissible at a new trial. The letter is hearsay, and


                                               2
Caballero did not identify sufficient “corroborating circumstances that clearly

indicate its trustworthiness” to qualify for the hearsay exception under Federal

Rule of Evidence 804(b)(3). Fed. R. Evid. 804(b)(3)(B). A “reasonable view of

the evidence supports the trial court’s finding that [Diaz-Flores’s] statement is not

reliable.” United States v. Rhodes, 713 F.2d 463, 473 (9th Cir. 1983) (internal

quotation marks omitted).

                                            II

      Because Diaz-Flores’s statement would be inadmissible as unreliable

hearsay, it would not offend due process to exclude such evidence from trial. See

United States v. Gadson, 763 F.3d 1189, 1200 (9th Cir. 2014) (“The Supreme

Court has held that a defendant’s right to present relevant evidence is not

unlimited, but rather is subject to reasonable restrictions . . . .” (internal quotation

marks and alteration omitted)); Rhoades v. Henry, 638 F.3d 1027, 1034–36 (9th

Cir. 2011) (exclusion of third-party confession under Idaho’s Rule 804(b)(3)

analogue did not violate due process); United States v. Fowlie, 24 F.3d 1059,

1068–69 (9th Cir. 1994) (exclusion of evidence under Rule 804(b)(3) did not

violate due process).

      AFFIRMED.




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