                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 03 2013

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



                              FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 10-50221

                Plaintiff - Appellee,             D.C. No. 2:07-cr-00475-GHK-1

    v.
                                                  MEMORANDUM*
AVEDIS DJEREDJIAN,

                Defendant - Appellant.


                     Appeal from the United States District Court
                         for the Central District of California
                    George H. King, Chief District Judge, Presiding

                        Argued and Submitted February 4, 2013
                                 Pasadena, California

Before: CALLAHAN, IKUTA, and HURWITZ, Circuit Judges.

         Avedis Djeredjian (“Defendant”) appeals his convictions for conspiring to

violate the Contraband Cigarette Trafficking Act (“CCTA”), 18 U.S.C. § 2342, and

for structuring currency transactions to avoid reporting requirements in violation of

31 U.S.C. § 5324. Defendant complains that the district court improperly: (1)



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
denied his two motions for new trial, which claimed that the Government

knowingly used perjured testimony in violation of Napue v. Illinois, 360 U.S. 264

(1959), and suppressed favorable evidence in violation of Brady v. Maryland, 373

U.S. 83 (1963); and (2) denied his motion to suppress evidence purportedly seized

outside the scope of a warrant. Defendant further contends that his CCTA

conviction violates the Tenth Amendment because the CCTA attempts to

criminalize the failure to pay state excise taxes, and the Government has no

constitutional authority to enforce state tax law. We have jurisdiction pursuant to

28 U.S.C. § 1291, and we affirm.1

      1.     “We review for abuse of discretion a district court’s denial of a

motion for new trial.” United States v. Moses, 496 F.3d 984, 987 (9th Cir. 2007);

see also United States v. Pelisamen, 641 F.3d 399, 407 (9th Cir. 2011). “Factual

determinations underlying the perjury ruling are reviewed for clear error; legal

determinations are reviewed de novo.” United States v. Inzunza, 638 F.3d 1006,

1020 (9th Cir. 2011). “A district court’s denial of a new trial motion based on

alleged Brady violations is reviewed de novo.” United States v. Antonakeas, 255

F.3d 714, 725 (9th Cir. 2001).



      1
        Because the parties are familiar with the facts and procedural history, we
do not restate them here except as necessary to explain our decision.
                                          2
      The district court properly denied Defendant’s motions for a new trial. “The

district court should have granted a new trial if: (1) the prosecution actually

presented false testimony; (2) the prosecution knew or should have known that the

testimony was false; and (3) the false testimony was material to the outcome of the

trial.” Pelisamen, 641 F.3d at 407. Defendant failed to show that the testimony of

cooperating Government witness Kirk Burton was actually false, or that the

Government knew or should have known Burton perjured himself at trial. See id.

      Defendant also failed to show that the Government suppressed favorable

evidence that would have been material for impeachment purposes, rather than

merely cumulative of other impeachment evidence. See United States v. Kohring,

637 F.3d 895, 908 (9th Cir. 2011). “To prevail on a Brady claim, the defendant

must show that ‘(1) the evidence was exculpatory or impeaching; (2) it should have

been, but was not produced; and (3) the suppressed evidence was material to his

guilt or punishment.’” Antonakeas, 255 F.3d at 725 (quoting Paradis v. Arave, 130

F.3d 385, 392 (9th Cir. 1997)). Although the Government interpreted its Brady

obligations too narrowly in failing to disclose evidence of Burton’s cooperation

with a separate investigation in the Eastern District of California, this evidence was

immaterial given the ample impeachment evidence already introduced against

Burton, as well as the extremely strong evidence of Defendant’s guilt.


                                           3
      2.     The district court properly determined that the search of 823 1/2 East

Colorado Street fell within the scope of the search warrant. “Whether a search is

within the scope of a warrant is a question of law subject to de novo review. We

review the district court’s factual findings for clear error.” United States v. Hurd,

499 F.3d 963, 965 (9th Cir. 2007) (internal citations omitted).

      “To determine whether the search of a specific location is within the scope of

a valid warrant, we look to the Hitchcock test: ‘Whether a search exceeds the scope

of a search warrant is an issue [the Court] determine[s] through an objective

assessment of the circumstances surrounding the issuance of the warrant, the

contents of the search warrant, and the circumstances of the search.’” Hurd, 499

F.3d at 966 (quoting United States v. Hitchcock, 286 F.3d 1064, 1071 (9th Cir.

2002)). A common sense reading of the warrant, the accompanying affidavit, and

the circumstances of the search support the conclusion that 823 1/2 was included

within the warrant’s scope.

      3.     Defendant failed to show that Congress exceeded its authority in

passing the CCTA. “A challenge to the constitutionality of a statute is reviewed de

novo.” United States v. Berry, 683 F.3d 1015, 1020 (9th Cir. 2012).

        “[I]f Congress acts under one of its enumerated powers, there can be no

violation of the Tenth Amendment.” United States v. Jones, 231 F.3d 508, 515 (9th


                                           4
Cir. 2000). The CCTA was enacted to combat the effects of interstate cigarette

trafficking, and Congress validly enacted the law pursuant to the powers delegated

to it under the Commerce Clause. See Gonzales v. Raich, 545 U.S. 1, 16-17 (2005)

(Congress “has the power to regulate activities that substantially affect interstate

commerce.”).

      AFFIRMED.




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