United States v. Stephen Kerr , 709 F. App'x 431 ( 2017 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                        SEP 27 2017
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                       No.    15-10393
    Plaintiff-Appellee,             D.C. No.
    2:11-cr-02385-JAT-1
    v.
    STEPHEN KERR and MICHAEL QUIEL,                 MEMORANDUM*
    Defendants-Appellants.
    Appeal from the United States District Court
    for the District of Arizona
    James A. Teilborg, District Judge, Presiding
    Submitted August 18, 2017**
    San Francisco, California
    Before: RAWLINSON and NGUYEN, Circuit Judges, and VANCE,*** District
    Judge.
    Stephen Kerr and Michael Quiel were convicted of willful subscription to a
    false tax return in violation of 
    26 U.S.C. § 7206
    (1). Kerr was also convicted of
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    ***
    The Honorable Sarah S. Vance, United States District Judge for the
    Eastern District of Louisiana, sitting by designation.
    willful failure to file reports of foreign bank and financial accounts (FBARs) in
    violation of 
    31 U.S.C. §§ 5314
     and 5322(a). This Court affirmed defendants’
    convictions on direct appeal. See United States v. Quiel, 595 F. App’x 692 (9th
    Cir. 2014). Defendants now appeal the district court’s denial of their motion for a
    new trial or, alternatively, for an evidentiary hearing. This motion was based on
    allegations that (1) defendants’ lawyer, Christopher Rusch, had engaged in
    criminal and fraudulent behavior before, during, and after the trial, in part by
    blogging and podcasting under the pseudonym “Christian Reeves”; (2) the
    Government had an undisclosed agreement with Rusch that allowed Rusch to
    commit illegal acts without fear of prosecution in exchange for his testimony
    against defendants; and (3) Exhibits 51 and 52, introduced at trial, were forged.
    Defendants also appeal the district court’s denial of their motion to accept a limited
    remand. We affirm.
    1. We generally review the denial of a new trial motion, made based on
    newly discovered evidence, for abuse of discretion. United States v. Hinkson, 
    585 F.3d 1247
    , 1259 (9th Cir. 2009). In order to obtain a new trial under Rule 33, the
    defendant must establish that:
    (1) the evidence [is] newly discovered; (2) the failure to discover the
    evidence sooner [was not] the result of a lack of diligence on the
    defendant’s part; (3) the evidence [is] material to the issues at trial; (4)
    the evidence [is] neither cumulative nor merely impeaching; and (5) the
    evidence . . . indicate[s] that a new trial would probably result in
    acquittal.
    2                                     15-10393
    United States v. Harrington, 
    410 F.3d 598
    , 601 (9th Cir. 2005) (quoting United
    States v. Kulczyk, 
    931 F.2d 542
    , 548 (9th Cir. 1991)). As an initial matter, the
    district court did not err in refusing to consider certain audio recordings, which
    were introduced to establish Reeves as Rusch’s alter ego, because the court
    presumed the truth of this allegation. Additionally, contrary to defendants’
    assertions, the court did in fact consider the emails allegedly sent by Rusch.
    Further, the district court correctly held that evidence showing the falsity of
    Exhibits 51 and 52 did not satisfy Rule 33 because defendants failed to meet their
    burden of establishing when this evidence was discovered.
    Defendants also argue that the district court erred in finding that evidence
    relating to Rusch’s fraudulent behavior and undisclosed agreement with the
    Government would be cumulative and merely impeaching. Ordinarily, newly
    discovered evidence that merely impeaches a witness will not warrant a new trial.
    See, e.g., United States v. Davis, 
    960 F.2d 820
    , 825 (9th Cir. 1992). But
    impeachment evidence may require a new trial when it “refute[s] an essential
    element of the government’s case,” or it is “so powerful that, if it were to be
    believed by the trier of fact, it could render the witness’ testimony totally
    incredible.” 
    Id.
     At trial, the jury heard testimony that Rusch committed a tax
    felony, had substantial tax debt, violated his fiduciary duties to his clients, misused
    his client trust fund account, falsely notarized a document, and violated the ethical
    3                                      15-10393
    rules of the California Bar. We agree with the district court that any additional
    evidence that Rusch engaged in other fraudulent behavior of the same nature
    would be cumulative of this impeachment evidence. Relatedly, defendants assert
    that additional evidence of Rusch’s fraudulent behavior negates their mens rea.
    But this Court has already found that there was sufficient evidence for the jury to
    find the requisite willfulness, even without Rusch’s testimony. See Quiel, 595 F.
    App’x at 694. The district court did not abuse its discretion in denying defendants’
    new trial motion under Rule 33.
    2. We review de novo the district court’s denial of a new trial motion based
    on an alleged Napue violation. United States v. Rodriguez, 
    766 F.3d 970
    , 980 (9th
    Cir. 2014). To prevail on a Napue claim, “the defendant must show that (1) the
    testimony was actually false, (2) the prosecution knew or should have known that
    the testimony was actually false, and (3) . . . the false testimony was material.” 
    Id. at 990
     (citation omitted). Defendants argue that the Government’s failure to
    disclose Rusch’s fraudulent behavior and pseudonym led to the introduction of
    perjury, and that Exhibits 51 and 52 were false. But defendants fail to show that
    either Rusch’s testimony or the exhibits were actually false, or that the
    Government knew or should have known of their falsity. Defendants’ conclusory
    and speculative assertions fail to make out a Napue claim. See United States v.
    Aichele, 
    941 F.2d 761
    , 766 (9th Cir. 1991).
    4                                    15-10393
    3. We also review the district court’s denial of a new trial motion “de novo
    when the asserted basis for a new trial is a Brady violation.” United States v.
    Pelisamen, 
    641 F.3d 399
    , 408 (9th Cir. 2011). “A Brady violation has occurred if:
    (1) the government willfully or inadvertently suppressed; (2) evidence favorable to
    the accused; and (3) prejudiced ensued.” 
    Id.
     (citing Strickler v. Greene, 
    527 U.S. 263
    , 281-82 (1999)). First, defendants have not produced any evidence suggesting
    that Exhibits 51 and 52 were forged and have failed to bear their burden “of
    producing some evidence to support an inference that the government possessed or
    knew about the Brady material.” 
    Id. at 408
     (citation and internal quotation marks
    omitted). Second, information about Rusch’s pseudonym and fraudulent behavior,
    which the Government allegedly suppressed, is merely cumulative impeachment
    evidence, and therefore cannot give rise to a Brady violation. See United States v.
    Kohring, 
    637 F.3d 895
    , 902 (9th Cir. 2011). Finally, defendants assert that the
    Government failed to disclose the existence of a leniency agreement with Rusch.
    Although the prosecution’s failure to disclose an agreement with a coconspirator in
    exchange for his testimony at trial constitutes suppression under Brady, see Giglio
    v. United States, 
    405 U.S. 150
    , 154-55 (1972), defendants merely speculate about
    the possibility of an undisclosed agreement, see Runningeagle v. Ryan, 
    686 F.3d 758
    , 769-70 (9th Cir. 2012). The district court did not err in denying the new trial
    motion based on alleged Brady violations.
    5                                    15-10393
    4. This Court reviews a district court’s denial of a post-verdict evidentiary
    hearing for abuse of discretion. United States v. Saya, 
    247 F.3d 929
    , 934 (9th Cir.
    2001). First, the district court presumed that Rusch used a pseudonym, so there
    was no need for an evidentiary hearing to establish that. See United States v. Scott,
    
    521 F.2d 1188
    , 1196 (9th Cir. 1975). Second, considering the conclusory nature of
    defendants’ allegations as to the falsity of Exhibits 51 and 52, the court did not
    abuse its discretion in declining to hold an evidentiary hearing to establish their
    falsity. See United States v. Zuno-Arce, 
    209 F.3d 1095
    , 1102-03 (9th Cir. 2000),
    overruled on other grounds by Valerio v. Crawford, 
    306 F.3d 742
     (9th Cir. 2002).
    Finally, the district court was not obligated to hold an evidentiary hearing to
    entertain pure speculation about an undisclosed agreement between the
    Government and Rusch. See United States v. Mincoff, 
    574 F.3d 1186
    , 1199-1200
    (9th Cir. 2009). Thus, the district court did not abuse its discretion in denying
    defendants’ request for an evidentiary hearing.
    5. Because the denial of defendants’ motion to accept remand is essentially
    the denial of a motion for an indicative ruling, the Court reviews it for abuse of
    discretion. See Jackson v. Allstate Ins. Co., 
    785 F.3d 1193
    , 1206 (8th Cir. 2015).
    Defendants moved the district court to accept remand to consider additional new
    evidence. None of this new evidence warrants relief under Rule 33, Napue, or
    6                                      15-10393
    Brady. Thus, the district court did not abuse its discretion in denying defendants’
    motion to accept a limited remand.
    AFFIRMED.
    7                                    15-10393
    FILED
    U.S. v. Kerr, Case No. 15-10393
    SEP 27 2017
    Rawlinson, Circuit Judge, concurring:
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    I concur in the result.