                                                                             FILED
                           NOT FOR PUBLICATION
                                                                             AUG 28 2018
                    UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   16-10408

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

NADUNT CHIBEAST,                                 MEMORANDUM*

              Defendant-Appellant.


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

                      Argued and Submitted August 15, 2018
                            San Francisco, California


Before: SCHROEDER, SILER,** and GRABER, Circuit Judges.

      Nadunt Chibeast appeals the district court’s order, on remand from this

court, United States v. Chibeast, 605 F. App’x 638, 639 (9th Cir. 2015)

(unpublished), denying his motion under Federal Rule of Criminal Procedure 33

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
for a new trial based on newly discovered evidence. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

      While in detention, awaiting trial and proceeding pro se, Chibeast failed to

receive three of the nine boxes of discovery materials sent to him by the

government. He received them after trial. After our remand he alleged that the

three boxes contained potentially exculpatory evidence. See United States v.

Mazzarella, 784 F.3d 532, 538 (9th Cir. 2015) (holding that, under Brady v.

Maryland, 373 U.S. 83, 86-87 (1963), the Fifth Amendment’s Due Process Clause

requires the government to disclose exculpatory evidence to the defense). The

district court then reviewed all of Chibeast’s allegations, as well as letters

submitted by the government listing the contents of the records it sent to Chibeast

before trial. The district court properly found that the evidence cited by Chibeast

as potentially exculpatory was not newly discovered, but rather was included in the

six boxes of discovery materials that he received before trial. See United States v.

Hinkson, 585 F.3d 1247, 1257 (9th Cir. 2009) (en banc) (setting forth requirements

for new trial motion). Given the clarity of the record, the district court did not

abuse its discretion in failing to conduct an evidentiary hearing. See Mazzarella,

784 F.3d at 537. The record supports its finding that he received the documents in

question before trial, and, thus, that there was no Brady violation.

      AFFIRMED.


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