                                                                              FILED
                           NOT FOR PUBLICATION                                DEC 11 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-30155

              Plaintiff - Appellee,              D.C. No. 1:10-cr-00112-EJL-1

  v.
                                                 MEMORANDUM*
JUSTIN LYLE IZATT,

              Defendant - Appellant.


                   Appeal from the United States District Court
                             for the District of Idaho
                    Edward J. Lodge, District Judge, Presiding

                          Submitted December 9, 2014**
                              Seattle, Washington

Before: HAWKINS, McKEOWN, and TALLMAN, Circuit Judges.

       Following his conviction of Possession with Intent to Distribute

Methamphetamine, affirmed by this court in 2012, Justin Izatt (“Izatt”) appeals the

denial of his Rule 33 motion for a new trial. We affirm.


        *
             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).
      “A new trial is not warranted under Rule 33 unless a defendant can establish

five elements: ‘(1) the evidence is newly discovered; (2) the defendant was diligent

in seeking the evidence; (3) the evidence is material to the issues at trial; (4) the

evidence is not (a) cumulative or (b) merely impeaching; and (5) the evidence

indicates the defendant would probably be acquitted in a new trial.’” United States v.

King, 735 F.3d 1098, 1108 (9th Cir. 2013) (quoting United States v. Berry, 624 F.3d

1031, 1042 (9th Cir. 2010)).

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

proffered new evidence that Chris Ayers was later convicted for distributing

methamphetamine, but this was cumulative of trial testimony offered by defense

witness Mariah Pace that Ayers was a drug dealer. Evidence of Ayers’ conviction is

not the type of evidence that indicates a new trial would likely result in acquittal.

Indeed, the government did not dispute this point at trial. Rather, the government

focused on the implausibility of Pace’s story that the drugs stored in the ceiling of the

garage at Izatt’s house actually belonged to Ayers, who had allegedly left Pace in

charge of a storage shed full of drugs while he was imprisoned.

      Evidence regarding irregularities at the Idaho State Police Laboratory, where

Izatt’s blood was tested for methamphetamine, was merely impeaching and not the

sort of evidence that made a different result likely, particularly where there was other


                                           2
evidence of Izatt’s drug use. In addition, the methamphetamine found in his garage

was tested at a different laboratory.

         Nor did the “clarifications” by trial witness Brandon Harvey warrant a new trial.

The failure to discover these clarifications sooner was the result of a lack of diligence

on the defendant’s part, who both called Harvey as a direct witness and had the

opportunity to cross-examine him as a government witness. The district court

correctly noted that “failing to ask relevant questions of its own witnesses does not

justify a new trial.” Harvey did not recant his trial testimony or otherwise claim that

any part of his earlier testimony was untrue. Moreover, even if considered, the

clarifications are not the sort of evidence that would likely impact the outcome of the

trial.

         AFFIRMED.




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