                                                                              FILED
                           NOT FOR PUBLICATION
                                                                              AUG 24 2018
                    UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        Nos. 17-10120
                                                      17-10384
              Plaintiff-Appellee,
                                                 D.C. No.
 v.                                              2:13-cr-00132-LDG-VCF-2

JEFFREY NOWAK,
                                                 MEMORANDUM*
              Defendant-Appellant.


                   Appeal from the United States District Court
                            for the District of Nevada
                    Lloyd D. George, District Judge, Presiding

                           Submitted August 17, 2018**
                             San Francisco, California

Before: BEA and CHRISTEN, Circuit Judges, and McLAUGHLIN,*** District
Judge.




      *
             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 Mary A. McLaughlin, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
      Defendant-Appellant Jeffrey Nowak (“Nowak”) appeals the district court’s

orders denying his motion for a Franks hearing and denying his motion for a new

trial based on newly discovered evidence. See Fed. R. Crim P. 33(b)(1). Nowak

also appeals his prison sentence of 41 months. We have jurisdiction pursuant to 28

U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm.

      1. Nowak is not entitled to an evidentiary hearing because of alleged

deficiencies in a search warrant affidavit prepared by IRS Special Agent Joshua

Bottjer (“Agent Bottjer”). See Franks v. Delaware, 438 U.S. 154, 155–56 (1978).

Nowak failed to make a preliminary showing that Agent Bottjer deliberately or

recklessly omitted in his warrant affidavit knowledge that cash deposits in

Nowak’s bank account were attributable to gambling winnings from 2006 through

2009. See United States v. Stanert, 762 F.2d 775, 780 (9th Cir. 1985).

Additionally, Nowak’s gambling winnings were not material to the magistrate

judge’s finding of probable cause. See United States v. Martinez-Garcia, 397 F.3d

1205, 1215 (9th Cir. 2005). Even assuming Nowak received all of his gambling

winnings in cash, a substantial portion of his cash deposits remained unaccounted

for. Nowak also suffered net gambling losses of nearly $65,000 during the

relevant time period.




                                         2
      2. The district court did not abuse its discretion by denying Nowak’s motion

for a new trial. To compute restitution for Nowak’s co-conspirator, Ramzi

Suliman (“Suliman”), the government omitted his unpaid, federal taxes from 2006

in the amount of $41,876. Although this information may constitute newly

discovered evidence, it does not warrant a new trial. See United States v. Hinkson,

585 F.3d 1247, 1264 (9th Cir. 2009) (en banc). Additional evidence regarding the

government’s method of calculating the amount of Suliman’s restitution is

immaterial and cumulative. See id.; United States v. Kohring, 637 F.3d 895, 910

(9th Cir. 2011). During Nowak’s trial, the defense successfully impeached

Suliman by establishing that his plea deal included a restitution figure that was less

than his overall tax liability. Further, a new trial would not result in acquittal in

light of overwhelming evidence supporting the jury’s guilty verdict. See United

States v. Harrington, 410 F.3d 598, 601 (9th Cir. 2005).

      3. Nowak’s 41-month sentence does not constitute an abuse of discretion

under 18 U.S.C. § 3553(a)(6). Although Suliman received a sentence of 12

months and one day, Nowak and Suliman do not have similar records and were not

found guilty of similar conduct. See 18 U.S.C. § 3553(a)(6). Suliman was

convicted of one count of conspiracy to defraud the United States, see 18 U.S.C. §

371, while Nowak was found guilty of one count of conspiracy, three counts of


                                            3
assisting in filing false corporate tax returns, and four counts of attempting to

evade and defeat individual income taxes, see 26 U.S.C. §§ 7201, 7206(2); United

States v. Monroe, 943 F.2d 1007, 1017 (9th Cir. 1991). Whereas Suliman

cooperated with the government by pleading guilty, Nowak contested his charges

by proceeding to trial. See United States v. Carter, 560 F.3d 1107, 1121 (9th Cir.

2009); United States v. Sanchez Solis, 882 F.2d 693, 699 (2d Cir. 1989). Nowak’s

sentence was therefore reasonable.

      AFFIRMED.




                                           4
