                                                                            FILED
                            NOT FOR PUBLICATION                              JUL 23 2010

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-50133

              Plaintiff - Appellee,              D.C. No. 3:08-cr-01723-JLS-1

  v.
                                                 MEMORANDUM *
BARRIE DEMPSEY,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                   Janis L. Sammartino, District Judge, Presiding

                             Submitted July 14, 2010 **
                               Pasadena, California

Before: FARRIS, HALL, and SILVERMAN, Circuit Judges.

       Barrie Dempsey appeals his conviction, after a two-day jury trial, of one

count of bringing an illegal alien into the country without presentation in violation




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
of 8 U.S.C. § 1324(a)(2)(B)(iii). We have jurisdiction under 28 U.S.C. § 1291 and

we affirm.

       Dempsey contends that the district court erred in denying his motion for a

new trial, which was based on a claim that the government failed to disclose

material impeachment evidence and knowingly solicited false testimony from a

witness. See Giglio v. United States, 405 U.S. 150 (1972); Napue v. Illinois, 360

U.S. 264, 269-71 (1959). Dempsey produced evidence that a material witness, the

smuggled alien, believed that the government had threatened to prosecute her if she

refused to testify at Dempsey’s trial. The government introduced no admissible

evidence in response, but argued that before trial it had disabused the witness of

her misimpression that she would be prosecuted unless she testified. The witness

ultimately testified at trial that the government had not promised whether or not to

prosecute her in relation to her testimony.

      We may not accept the government’s unsubstantiated version of the events.

Nevertheless, even taking the evidence in the light most favorable to Dempsey, the

allegedly suppressed evidence is not material because there is not a reasonable

probability that the result of the trial would have been different had Dempsey been

able to impeach the government’s witness with evidence of bias. See Jackson v.

Brown, 513 F.3d 1057, 1071 (9th Cir. 2008) (“‘[A] reasonable probability of a


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different result [exists] when the government’s evidentiary suppression undermines

confidence in the outcome of the trial.’” (quoting Kyles v. Whitley, 514 U.S. 419,

434 (1995) (second alteration in original))).

      Dempsey struggles to identify any conflict between his own testimony and

that of the material witness. In fact, at trial, Dempsey embraced the witness’s

testimony, arguing that it was “crucial” to showing his innocence. He now argues

that the government used the witness to discredit his testimony that he did not

know that there was an alien in the car’s hidden compartment. However, there was

overwhelming evidence that Dempsey did know that there was an alien in the

compartment. After being arrested, Dempsey admitted that he knew what the

compartment was for, that he was offered a reduced fee to drive the car with a girl

in the compartment, that he had seen the smugglers attempt to fit several girls into

the compartment, and that he did, in fact, believe that there was an alien in the

compartment at the time he drove away toward the border. A videotape of those

admissions was played at trial.

      Any conflict between Dempsey’s testimony and that of the material witness

pales in comparison to Dempsey’s admissions, so there is not a reasonable

probability that Dempsey’s ability to impeach the witness would have changed the

outcome of the trial. See Strickler v. Greene, 527 U.S. 263, 294 (1999) (holding


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that undisclosed impeachment evidence was not material where the “record

provide[d] strong support for the conclusion that petitioner would have been

convicted of capital murder and sentenced to death, even if [a witness] had been

severely impeached.”). Dempsey’s claim that the government knowingly solicited

false testimony fails for the same reason. See Hall v. Director of Corrections, 343

F.3d 976, 983-84 (9th Cir. 2003) (per curiam).

      Dempsey further argues that the district court committed plain error by

allowing the prosecutor to use an “I submit” statement during her closing

argument. That argument fails both because we have approved the type of

statement used by the prosecutor, see United States v. Necoechea, 986 F.2d 1273,

1279 (9th Cir. 1993), and because Dempsey has not established a reasonable

probability that the jury would have acquitted him if the prosecutor had not been

allowed to argue as she did, see United States v. Sine, 493 F.3d 1021, 1041 (9th

Cir. 2007).

      AFFIRMED.




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