                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 16 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-30136

                Plaintiff-Appellee,             D.C. No.
                                                4:16-cr-00010-BMM-1
 v.

TYRELL HENDERSON,                               MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                           for the District of Montana
                    Brian M. Morris, District Judge, Presiding

                             Submitted July 12, 2018**
                                Portland, Oregon

Before: WARDLAW and OWENS, Circuit Judges, and LEFKOW,*** District
Judge.

      Tyrell Henderson appeals from his conviction for two counts of involuntary

manslaughter in violation of 18 U.S.C. §§ 1112, 1153(a). As the parties are


      *
             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 Joan Lefkow, United States District Judge for the
Northern District of Illinois, sitting by designation.
familiar with the facts, we do not recount them here. We have jurisdiction under

28 U.S.C. § 1291, and we affirm.

      1.     Assuming without deciding that the district court erred in allowing the

government to introduce evidence of Henderson’s prior federal conviction at trial,

the alleged error did not affect Henderson’s substantial rights. See United States v.

Segal, 852 F.2d 1152, 1155–56 (9th Cir. 1988); see also United States v. Olano,

507 U.S. 725, 732 (1993). Henderson argues that he was prejudiced by the alleged

error because the jury was presented with “two plausible but conflicting” accounts

of the car accident and the jury’s verdict thus depended on its view of his

credibility. United States v. Jimenez, 214 F.3d 1095, 1099 (9th Cir. 2000). But

Henderson provides no reason to believe that his version of events, which

contravenes all the physical evidence, as well as lay and expert testimony,

presented at trial, is plausible. We therefore decline to grant Henderson a new trial

on this ground. See United States v. Glenn, 667 F.2d 1269, 1273 (9th Cir. 1982).

      2.     The district court did not err in denying Henderson’s motion for a new

trial based on his Brady/Giglio claim. The government concedes that the evidence

at issue—that one of the government’s witnesses was the subject of two unrelated

misconduct investigations—was favorable to Henderson and was inadvertently

suppressed. See United States v. Kohring, 637 F.3d 895, 901 (9th Cir. 2011). But

the government also rightly maintains that no prejudice ensued from the omission


                                          2
of this impeachment evidence. See id. At trial, the witness in question provided

testimony that was cumulative of other evidence presented to the jury. See Turner

v. United States, 137 S. Ct. 1885, 1893–95 (2017). And given the strength of the

government’s other evidence against Henderson—including photographs of the

scene, the surviving victim’s testimony, and expert and lay witnesses who testified

about the accident—Henderson has failed to establish materiality, as the third

prong of the Brady/Giglio test requires. See Kohring, 637 F.3d at 901–02.

      AFFIRMED.




                                         3
