                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                          FILED
                            FOR THE NINTH CIRCUIT                            NOV 23 2012

                                                                        MOLLY C. DWYER, CLERK
                                                                          U .S. C O U R T OF APPE ALS

UNITED STATES OF AMERICA,                        No. 11-30280

              Plaintiff - Appellee,              D.C. No. 4:10-cr-00024-BLW-1

  v.                                             MEMORANDUM *

DON ELLINGFORD,

              Defendant - Appellant.

                    Appeal from the United States District Court
                              for the District of Idaho
                  B. Lynn Winmill, Chief District Judge, Presiding

                     Argued and Submitted November 7, 2012
                                Portland, Oregon

Before: ALARCÓN, McKEOWN, and PAEZ, Circuit Judges.

       Don Ellingford was convicted of two counts of possession with intent to

deliver methamphetamine under 21 U.S.C. § 841(a)(1). He appeals from the

district court’s denial of his motion for a new trial under Fed. R. Crim. P. 33 and

his motion for reconsideration. We have jurisdiction under 28 U.S.C. § 1291, and


        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
we affirm.

                                             I

       Ellingford argues that the district court erred in denying his motions because

his due process rights were violated under Brady v. Maryland, 373 U.S. 83 (1963),

and Napue v. Illinois, 360 U.S. 264 (1959). Because he did not raise these claims

in the district court, we review them for plain error. United States v. Houston, 648

F.3d 806, 813 (9th Cir. 2011), cert. denied, 132 S. Ct. 1727 (2012). To establish

plain error, Ellingford “‘must show (1) an error, (2) that is plain, (3) that affects

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

reputation of judicial proceedings.’” United States v. Zalapa, 509 F.3d 1060, 1064

(9th Cir. 2007) (quoting United States v. Smith, 424 F.3d 992, 1000 (9th Cir.

2005)).

                                            II

       Ellingford contends that the Government violated Brady by not disclosing

the evidence of the Idaho State Police Lab’s (“ISP Lab”) violation of lab policy.

He also argues that the Government’s failure to correct Rocklan McDowell’s

testimony violated Napue because the evidence showed that a box of

undocumented drugs contradicted McDowell’s testimony that he and others

working in the lab did not leave any evidence out unattended.


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      Ellingford’s Brady and Napue claims fail because, even assuming there was

error, he cannot establish prejudice. “[W]e must analyze Brady and Napue

violations ‘collectively.’” Jackson v. Brown, 513 F.3d 1057, 1076 (9th Cir. 2008).

“The materiality analysis proceeds differently for Brady and Napue claims.” Id.

“[W]e first consider the Napue violations collectively and ask whether there is ‘any

reasonable likelihood that the false testimony could have affected the judgment of

the jury.’” Id. (quoting Hayes v. Brown, 399 F.3d 972, 985 (9th Cir. 2005)). “[I]f

the Napue errors are not material standing alone, we consider all of the Napue and

Brady violations collectively and ask whether ‘there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.’” Id. (quoting United States v. Bagley, 473 U.S. 667,

682 (1985)). “At both stages, we must ask whether the defendant ‘received a trial

resulting in a verdict worthy of confidence.’” Id. (alteration omitted) (quoting

Kyles v. Whitley, 514 U.S. 419, 434 (1995)).

      Ellingford has failed to demonstrate that there is any reasonable likelihood

that McDowell’s false testimony about his and other analysts’ general handling of

evidence in the ISP Lab could have affected the judgment of the jury. The jury’s

guilty verdict is worthy of confidence in light of the independent evidence in the

record implicating Ellingford. The confidential informant testified at trial that she


                                           3
knew Ellingford for years prior to the two controlled buys, had bought

methamphetamine from him on numerous occasions, and had set up these buys

with him for the purpose of purchasing methamphetamine. The confidential

informant was under police surveillance on her way to and from these buys, and

both buys were recorded. In these recordings, Ellingford asked the confidential

informant for drug scales and expressed his fear of being caught and going to

prison. Detective Ronald Kim Marshall testified that he received the substances

purchased by the confidential informant and that they appeared to be

methamphetamine.

      In light of this independent evidence, Ellingford has failed to establish a

reasonable probability, even considering all of the alleged Napue and Brady

violations collectively, that the result of the proceeding would have been different.

Because Ellingford has not shown prejudice, he has failed to establish Napue and

Brady violations, and the district court did not commit plain error. See United

States v. Wilkes, 662 F.3d 524, 535 (9th Cir. 2011) (to demonstrate a Brady claim

under the plain error standard of review, prejudice must be shown), cert. denied,

132 S. Ct. 2119 (2012).

      AFFIRMED.




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