                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           OCT 17 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.    15-10128

              Plaintiff-Appellee,                D.C. No.
                                                 4:13-cr-00633-PJH-1
 v.

CRISTIAN FERNANDO QUINTERO                       MEMORANDUM*
FELIX,

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Northern District of California
                    Phyllis J. Hamilton, Chief Judge, Presiding

                    Argued and Submitted September 12, 2016
                            San Francisco, California

Before: GOULD and BERZON, Circuit Judges, and SESSIONS,** District Judge.

      Cristian Quintero Felix appeals his convictions for possession with intent to

distribute cocaine within 1,000 feet of a school and possession of a firearm in

furtherance of a drug trafficking offense. We affirm.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
      1. Felix, invoking Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v.

United States, 405 U.S. 150 (1972), contends the district court should have

required the prosecutor to turn over evidence relating to the government’s

confidential informant, whom the defense called to testify. The court allowed the

defense to treat the informant as an adverse witness from the outset of his

testimony.

      Pursuant to an earlier district court order, the prosecution produced a short

Giglio letter that noted the dates and benefits associated with informant’s working

relationship with the Department of Homeland Security (DHS). After receiving

this information on the day of the informant’s testimony, Felix continued to seek

additional evidence related to the informant’s full criminal history and “rap” sheet

and his cooperation with the Oakland Police Department (OPD), the local agency

that had arrested Felix on DHS’s request.

      Assuming, without deciding, that Giglio applies to this witness and to the

types of evidence Felix sought, there was no material violation of Brady or Giglio.

There is no reasonable probability that “the cumulative effect of all [withheld]

evidence favorable to the defense,” had it been disclosed, would have changed the

result of the Felix’s trial. See Kyles v. Whitley, 514 U.S. 419, 421–22 (1995).




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      “Impeachment evidence is especially likely to be material when it impugns

the testimony of a witness who is critical to the prosecution’s case.” Silva v.

Brown, 416 F.3d 980, 987 (9th Cir. 2005). Here, the prosecution did not rely upon

the informant’s testimony to establish any elements of the charged offenses. Felix

had two guns and various ammunition in his backpack at the time of his arrest. It

is not reasonably probable that further impeachment of the informant would have

affected the jury finding that Felix possessed at least one of the two guns in

furtherance of the drug trafficking offense.

      Additionally, “evidence is material if it is of a different character than

evidence already known to the defense . . . . [But it] is cumulative . . . if the

grounds for impeachment are no secret to the jury.” United States v. Wikes, 662

F.3d 524, 535–36 (9th Cir. 2011) (internal quotations omitted). Even without

additional Giglio disclosures from OPD, it was clear from the informant’s many

different statements that he was not a particularly reliable witness. Further, the

defense heavily impeached the informant’s testimony by repeatedly drawing

attention to his criminal history and past work with OPD, both while the informant

was on the stand and during closing arguments. Felix’s Giglio claim does not raise

a reasonable probability that additional impeachment evidence would have

changed the outcome of the trial.


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      2. The district court did not abuse its discretion in denying Felix’s motion

for new trial, made on the basis of an inadvertently disclosed transcript of an in

camera discussion. The district court correctly highlighted the five-part test for

motions for new trial based on newly discovered evidence, see United States v.

Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009), and then found that information

from the sidebar did not constitute new evidence, admissible material evidence, or

evidence that would probably have led to an acquittal if it had been admitted.

These conclusions were neither illogical nor implausible based on the facts in the

record. See id.

      The statements made by the informant’s counsel in the in camera discussion

support the fact that others knew the informant was a “go-to guy” for fencing

firearms, but that fact had already been admitted at trial. To the extent that

counsel’s statements also alluded to the informant’s subjective beliefs about

Felix’s purpose in showing him a gun, those beliefs would have been inadmissible

as speculation. Finally, even if Felix were able to prove his intent as to the one gun

he displayed to the informant on the basis of evidence from the sidebar, that

evidence would not have spoken to his intent as to the other gun and therefore

would not have likely changed the outcome of his trial.




                                           4
      3. Assuming that Felix preserved objections to testimony offered by

Detective Stofle not only on relevance grounds but also on the grounds that it was

inadmissible lay opinion or had a prejudicial impact that outweighed its probative

value, any error in the district court’s admission of the evidence over those

objections was harmless. Other testimony provided by Detective Stofle about

Felix’s prior arrest was much more useful to the government’s case than his

comment about Felix’s truthfulness. Specifically, Detective Stofle testified that, at

the time of his prior arrest, Felix possessed various drugs and a gun but did not

appear to be under the influence of drugs, and that Felix had, in his inbox at the

time of his arrest, the text message (“you got half a g?”) referenced in the

prosecutor’s question about Felix’s truthfulness. Outside of Detective Stofle’s

testimony, there was considerable “properly admitted evidence [that] was highly

persuasive and overwhelmingly pointed to” Felix’s intent to sell the drugs in his

possession in 2013. See United States v. Bailey, 696 F.3d 794, 804 (9th Cir. 2012).

It is more probable than not that any possible error in the admission of Detective

Stofle’s testimony regarding Felix’s truthfulness had no material effect on the

verdict.

      5. Finally, we review Felix’s prosecutorial misconduct claim for plain error,

because Felix did not object to the asserted misconduct at trial. See United States


                                           5
v. Moreland, 622 F.3d 1147, 1158 (9th Cir. 2010). “Under the plain error standard,

relief is not warranted unless there has been: (1) error, (2) that was plain, (3) that

affected substantial rights, and (4) that seriously affected the fairness, integrity, or

public reputation of the judicial proceedings.” Id. (internal quotations omitted).

Even if asking Detective Stofle to comment on the defendant’s truthfulness when

he was questioned in the past regarding a different crime was improper, the

prosecutor’s conduct did not “seriously affect[] the fairness, integrity, or public

reputation of the judicial proceedings . . . [and] failing to reverse a conviction

would [not] result in a miscarriage of justice.” See id.

                                          ***

      We conclude that any withheld Giglio evidence was not material, the district

court did not abuse its discretion in denying Felix’s motion for new trial on the

basis of newly discovered evidence, and neither Detective Stofle’s testimony nor

the prosecutor’s conduct in eliciting it was sufficiently prejudicial to warrant

reversal.

      AFFIRMED.




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