                            NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                            JUL 27 2017
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No.   16-10112

                Plaintiff-Appellee,              D.C. No.
                                                 4:14-cr-01558-CKJ-CRP-1
 v.

MARTHA EDILIA SOLANO,                            MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Arizona
                   Cindy K. Jorgenson, District Judge, Presiding

                        Argued and Submitted July 10, 2017
                            San Francisco, California

Before: GRABER and FRIEDLAND, Circuit Judges, and GUILFORD,** District
Judge.

      Martha Solano appeals her convictions for conspiracy with intent to

distribute, possession with intent to distribute, conspiracy to import, and

importation of methamphetamine. We affirm.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Andrew J. Guilford, United States District Judge for
the Central District of California, sitting by designation.
      The district court did not err by denying Solano’s motion for disclosure of

the confidential source’s identity. The court reviewed the Government’s

information about the source in camera and reasonably applied the balancing test

from Roviaro v. United States, 353 U.S. 53 (1957). See United States v. Jaramillo-

Suarez, 950 F.2d 1378, 1387 (9th Cir. 1991) (holding that there was no abuse of

discretion in denial of disclosure motion where there was no evidence that

confidential informant was only witness to alleged crime and the Government did

not rely on source’s information at trial).

      To the extent that Solano asked the court to order the Government to

affirmatively investigate certain individuals, the court did not err by denying this

request. See United States v. Sukumolachan, 610 F.2d 685, 687 (9th Cir. 1980)

(per curiam) (observing that Brady v. Maryland, 373 U.S. 83 (1963), “does not

require the government to create exculpatory material that does not exist”); see

also United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 824 (9th Cir. 1985).

      The court did not err by giving a deliberate ignorance instruction to the jury.

Solano argues that if the jury rejected the Government’s evidence of actual

knowledge—ownership of multiple Trailblazers with identical interiors, frequent

border crossings, limited reported income, allowing the Trailblazer to leave her

possession while in Mexico, and the firmness of the seats—it could not then find

deliberate ignorance. But this argument misinterprets United States v. Heredia,


                                              2
483 F.3d 913 (9th Cir. 2007) (en banc).

      Here, as in Heredia, the Government’s evidence of direct knowledge was

circumstantial. See id. at 923. And here, as in Heredia, the jury could have either

inferred that Solano knew of the drugs in her car based on that circumstantial

evidence or rejected the inference and believed that Solano did not have actual

knowledge. See id. And finally here, as in Heredia, the jury could have rejected

finding actual knowledge but nonetheless believed that the same evidence

supported a finding of deliberate ignorance. See id. Solano’s attempt to

distinguish Heredia based on Heredia’s testimony that she suspected that there

were drugs in her vehicle is unavailing. Our analysis in that case turned on the

range of conclusions that the jury could have drawn from the evidence, not on any

particular piece or type of evidence, or on which witness presented that evidence.

See id. The district court’s conclusion here that the jury could find willful

blindness even if it rejected actual knowledge, and its decision to give the

deliberate ignorance instruction were thus consistent with our en banc decision in

Heredia. The district court did not abuse its discretion in giving the instruction.

      The district court also did not abuse its discretion in denying the motion for

a new trial. Like the district court, we have reviewed the Government’s

information about the source in camera. Even if we assume that information that a

district court had already reviewed in camera could count as newly discovered


                                          3
evidence for the purposes of a new trial motion, the source’s identity and potential

testimony do not “indicate[] the defendant would probably be acquitted in a new

trial.” See 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)). And even if the

source would have corroborated Bojorquez-Rodriguez’s testimony, that testimony

is still consistent with deliberate ignorance.

      AFFIRMED.




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