                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 13 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                       No. 11-56812

              Plaintiff - Appellee,             D.C. Nos.    3:11-cv-00039-DMS
                                                             3:06-cr-01241-DMS-3
  v.

JAMES MINCOFF, AKA Jim,                         MEMORANDUM*

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Southern District of California
                     Dana M. Sabraw, District Judge, Presiding

                       Argued and Submitted January 6, 2014
                               Pasadena, California

Before: W. FLETCHER, M. SMITH, and WATFORD, Circuit Judges.

       1. The government met its disclosure obligations under Brady v. Maryland,

373 U.S. 83 (1963). The government disclosed recordings, line sheets, and a

wiretap affidavit evidencing Munoz and Durkin’s scheme to suborn perjury, and

the wiretap affidavit specifically asserted that Munoz told Durkin to “force



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                          Page 2 of 3
[Contreras] to take the blame for the drugs.” The wiretap affidavit specifically

identified the date and time of the call in which Munoz and Durkin discussed the

perjury scheme, and the phones from which the call was made. In light of these

disclosures, the Vitkosky report “contained merely cumulative impeachment

evidence,” United States v. Marashi, 913 F.2d 724, 732 (9th Cir. 1990), so the

government’s failure to turn it over was not a Brady violation.

      2. Because the government did not violate Brady, there is no basis for

Mincoff’s Confrontation Clause claim. See United States v. Collins, 551 F.3d 914,

925–26 (9th Cir. 2009).

      3. We construe Mincoff’s motion to reopen briefing to address ineffective

assistance of counsel as a motion to expand the Certificate of Appealability. We

grant the motion because his claim is “debatable among jurists of reason.” Doe v.

Woodford, 508 F.3d 563, 567 (9th Cir. 2007).

      His claim nonetheless fails on the merits. To prevail, he must show that his

counsel’s failure to impeach Munoz with evidence of the perjury scheme (1) was

unreasonable and (2) prejudiced him. See Strickland v. Washington, 466 U.S. 668,

687, 698–99 (1984). Even assuming that counsel’s performance was unreasonable,

Mincoff cannot show prejudice. The recorded conversations between Mincoff and

Munoz—rather than Munoz’s testimony—were the key evidence at Mincoff’s trial.
                                                                            Page 3 of 3
Further, Munoz was thoroughly impeached based on his involvement in other

crimes, including a conspiracy to commit murder. And the prosecutor stressed in

closing that the jury should view Munoz’s testimony “with great scrutiny.” On

these facts, there is no reasonable probability that the result of the proceeding

would have been different even if Munoz had been further impeached. See Sully v.

Ayers, 725 F.3d 1057, 1073–74 (9th Cir. 2013).

      AFFIRMED.
