United States v. Velazquez

FILED NOT FOR PUBLICATION JAN 21 2025 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Nos. 22-50239, 24-5359 Plaintiff-Appellee, D.C. No. 3:17-cr-03707-BAS-1 v. ALFRED VELAZQUEZ, MEMORANDUM* Defendant-Appellant, Appeal from the United States District Court for the Southern District of California Cynthia A. Bashant, District Judge, Presiding No. 22-50239 Argued and Submitted March 26, 2024 No. 24-5359 Submitted October 28, 2024** Pasadena, California Before: GRABER and FORREST, Circuit Judges, and SELNA, District Judge.*** Alfred Velazquez was convicted of various drug crimes. After an earlier appeal, we remanded to allow him to move for a new trial based on newly discovered impeachment evidence regarding one of the Government’s expert * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Velazquez’s claim that the district court abused its discretion when it admitted expert testimony related to the retail value of the seized fentanyl is addressed in a separate published decision. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable James V. Selna, United States District Judge for the Central District of California, sitting by designation. witnesses. The district court denied the motion for a new trial. Velazquez appealed the denial of a new trial, and we consolidated his appeals. We have jurisdiction under 28 U.S.C. § 1291 and affirm.1 1. Motion to Compel. Velazquez contends that the district court abused its discretion when it did not compel the Government to produce all reports in which CBP Officer Sean Hanlon identified a pulsating carotid artery as a reason for conducting a secondary inspection. We review for an abuse of discretion and find none. United States v. Schaefer, 13 F.4th 875, 892 (9th Cir 2021). Even if Velazquez had received the information that he sought to compel, it would not have made a difference because Hanlon gave several additional reasons for conducting a secondary inspection. 2. Alleged Brady Violation. Velazquez argues that Hanlon’s undisclosed reports implicate Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. Challenges to convictions based on an alleged Brady violation are reviewed de novo. United States v. Stever, 603 F.3d 747, 752 (9th Cir. 2010). Even in the absence of all Hanlon’s undisclosed reports, Velazquez received a fair trial, and the verdict is “worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434 (1995). The district court admitted the Pimentel video specifically to allow Velazquez to question Hanlon’s credibility. Further, Velazquez’s trial 1 In a concurrently filed opinion, we address the admissibility of drug-valuation evidence in a case that deals solely with importation of drugs. 2 attorney thoroughly impeached Hanlon. See United States v. Croft, 124 F.3d 1109, 1124 (9th Cir. 1997) (concluding, in part, that the defendants did not show grounds for relief under Brady when both were able to impeach Government witnesses). The mere possibility that the reports could have helped Velazquez’s defense does not “undermine confidence in the outcome” of his trial. United States v. Bagley, 473 U.S. 667, 682 (1985). Accordingly, there was no Brady violation. 3. Rule 106 Request. Velazquez asserts that the district court erred when it denied his trial counsel’s request to introduce an additional sentence from Velazquez’s post-arrest statement under Federal Rule of Evidence 106. We review a district court’s decision on Rule 106 for an abuse of discretion. United States v. Vallejos, 742 F.3d 902, 905 (9th Cir. 2014). The excluded statement was neither “‘explanatory’” nor “‘substantially exculpatory.’” United States v. Lopez, 4 F.4th 706, 715 (9th Cir. 2021) (quoting United States v. Dorrell, 758 F.2d 427, 435 (9th Cir.1985)). Therefore, the district court did not abuse its discretion. 4. Review of the Presentence Report. Both parties agree that the district court violated Federal Rule of Criminal Procedure 32(i)(1)(A) because it did not verify that Velazquez and his attorney read and discussed the presentence report at the sentencing hearing. Fed. R. Crim. P. 32(i)(1)(A). For prejudice to occur, a defendant must identify at least some fact in the presentence report that the defendant “would have disputed had the sentencing judge afforded him the 3 opportunity.” United States v. Soltero, 510 F.3d 858, 863 (9th Cir. 2007) (per curiam). If a defendant fails to do so, then the district court’s “error is harmless, and resentencing is unnecessary.” Id. Velazquez concedes that he did not identify any fact to the district court, or to this court, that he would have disputed and that the district court’s “error was harmless.” Therefore, Velazquez suffered no prejudice. See id. at 864. 5. Motion for a New Trial Based on Newly Discovered Evidence. Velazquez based his Federal Rule of Criminal Procedure 33(b)(1) motion for a new trial on the Government’s alleged withholding of evidence regarding Agent Kiesel, its expert witness in Velazquez’s third trial, in violation of Brady, 373 U.S. 83, and Giglio v. United States, 405 U.S. 150 (1972). When the asserted basis for a new trial is a Brady violation, we review de novo the denial of a motion for a new trial. United States v. Price, 566 F.3d 900, 907 (9th Cir. 2009). There was no Brady issue based on the newly discovered impeachment evidence because the investigation into Kiesel, which generated the newly discovered evidence here, did not start until after Velazquez’s third trial. But even if the Government had constructive, though not actual, knowledge of the witness’s misconduct at the time of trial, arguably implicating Brady, the evidence was not material for Brady/Giglio purposes. See Bagley, 473 U.S. at 682. Kiesel testified to the limited issue of drug value, and the exact value of the drugs was not 4 material. Moreover, because of the amount of additional evidence against Velazquez, any evidence of misconduct would not have changed the outcome of the trial. See id. Alternatively, Velazquez claims that the district court abused its discretion by not granting an evidentiary hearing on the issue of whether the Government had knowledge of misconduct. See United States v. Mazzarella, 784 F.3d 532, 537 (9th Cir. 2015) (“A denial of an evidentiary hearing is also reviewed for an abuse of discretion.”). But it is unlikely an evidentiary hearing would have provided Velazquez with any additional information. The Government previously provided Velazquez with 245 pages of discovery from the investigation into Kiesel. Additionally, proof of whether the Government had knowledge of the misconduct would not affect the result because, as explained above, any evidence of misconduct was not material under Brady/Giglio. Accordingly, the district court did not abuse its discretion in refusing to grant an evidentiary hearing. 6. Cumulative Error. Velazquez invokes the cumulative-error doctrine. As noted, the district court erred only with regard to the presentence report. For that reason, there are no other errors to accumulate, and the doctrine does not apply. AFFIRMED. 5