                                                                           FILED
                           NOT FOR PUBLICATION                             APR 02 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10379

              Plaintiff - Appellee,              D.C. No. 2:11-cr-01243-SRB-6

  v.
                                                 MEMORANDUM*
NADUNT CHIBEAST, AKA Donald
Williams, AKA Ronald Williams,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     Susan R. Bolton, District Judge, Presiding

                    Argued and Submitted December 11, 2014
                            San Francisco, California

Before: O’SCANNLAIN, FISHER, and HURWITZ, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Nadunt Chibeast appeals his jury conviction of one count of Conspiracy to

Possess with Intent to Distribute Marijuana and Cocaine and one count of

Conspiracy to Launder Money Instruments.

                                           I

      Chibeast argues that the government violated his constitutional rights by

failing to disclose to him approximately one third of its discovery material until

after his conviction. He also claims that his due process rights were violated by

government policies that restricted his sleep and diet.

                                          A

       The government delivered six boxes of discovery to Chibeast on February

7, 2013, and sent additional discovery on February 15, 2013. Though the trial

began on March 19, 2013, Chibeast did not receive the February 15 discovery until

after his conviction on April 4, 2013.

      On June 19, 2013, Chibeast filed a “Notice of New Boxes of Discovery

Unknown to Me.” In the Notice, he stated that on June 12, 2013, he became aware

of an additional three boxes of discovery which he had not been given the chance

to review before trial. On June 26, 2013 and July 8, 2013, Chibeast made two

additional filings related to the newly discovered materials. The district court did

not rule on any of these filings.


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       Finally, on July 15, 2013, a week after he had been sentenced, Chibeast filed

yet another notice, this time requesting a stay of execution of judgment. On

August 27, 2013, the district court construed that notice as a motion and denied it

due to the pendency of this appeal.

       We agree that Chibeast’s final notice should be construed as a motion. In

the interest of justice, we remand the case to the district court to consider its merits

in the first instance, construing it as a Federal Rule of Criminal Procedure 33

motion for a new trial based on newly discovered evidence.

                                           B

       Chibeast has failed to establish that the government’s responses to his sleep

and diet complaints “necessarily prevent[ed] a fair trial.” Lisenba v. California,

314 U.S. 219, 236 (1941). Therefore, his due process claims premised on sleep

and diet restrictions fail.

       This panel retains jurisdiction over any further appeals.

       AFFIRMED IN PART AND REMANDED for further proceedings in

accordance with this disposition.




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                                                                            FILED
United States v. Chibeast, No. 13-10379                                      APR 02 2015

                                                                         MOLLY C. DWYER, CLERK
FISHER, Circuit Judge, concurring:                                        U.S. COURT OF APPEALS



      I agree that Chibeast’s notice to the district court is properly construed as a

motion for new trial. I also agree that remand is appropriate to afford the district

court an opportunity to decide whether the government’s alleged failure to timely

disclose evidence to Chibeast warrants a new trial. I join fully in the court’s

memorandum disposition but write separately to address what I believe to be the

standard the district court should apply in reviewing Chibeast’s due process claim.

      Were Chibeast asserting an ordinary new trial claim based on newly

discovered evidence, he would be required to show that the newly discovered

evidence demonstrates he “would probably be acquitted in a new trial.” United

States v. Berry, 624 F.3d 1031, 1042 (9th Cir. 2010).

      Chibeast, however, appears to argue that the government’s failure to provide

him with a significant portion of the discovery violated his due process right to

present a complete defense. See Blue Br. at 20-21. A defendant’s claim that the

government has prevented a defendant’s access to potentially material evidence is

governed by a more “relaxed standard.” United States v. Doe, 705 F.3d 1134,

1153 (9th Cir. 2013); see also United States v. Agurs, 427 U.S. 97, 111 (1976).

Although these two decisions involve claims invoking Brady v. Maryland, 373

                                           1
U.S. 83 (1963), the underlying due process concern here is analogous.

       “Under the Due Process Clause of the Fourteenth Amendment, criminal

prosecutions must comport with prevailing notions of fundamental fairness.”

California v. Trombetta, 467 U.S. 479, 485 (1984). The Supreme Court has “long

interpreted this standard of fairness to require that criminal defendants be afforded

a meaningful opportunity to present a complete defense.” Id. “To safeguard that

right, the Court has developed ‘what might loosely be called the area of

constitutionally guaranteed access to evidence.’” Id. (quoting United States v.

Valenzuela-Bernal, 458 U.S. 858, 867 (1982)).

      Because Chibeast plausibly invokes this due process right, the

question on remand is not whether the newly discovered evidence shows Chibeast

“would probably be acquitted in a new trial,” Berry, 624 F.3d at 1042, but rather

whether there is a “reasonable likelihood that the [missing evidence] could have

affected the judgment of the trier of fact,” Valenzuela-Bernal, 458 U.S. at 874; cf.

United States v. Bagley, 473 U.S. 667, 682 (1985) (explaining that under the

analogous Brady standard the question is whether “there is a reasonable probability

that, had the evidence been disclosed to the defense, the result of the proceeding

would have been different”).

      It is, however, “impossible for us to evaluate [Chibeast]’s claim because we

                                          2
do not know what the documents say.” Doe, 705 F.3d at 1152. Therefore, I agree

that, as in Doe, remand is appropriate so the district court can consider in the first

instance whether the government violated Chibeast’s right to due process by failing

to timely disclose nearly one-third of the discovery in his case. Under the due

process standard, a new trial would be warranted if the documents undermine the

district court’s confidence in the outcome of the verdict, meaning that there is a

“reasonable probability of a different result.” Id. at 1153 (internal quotation marks

omitted).




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