United States v. Avedis Djeredjian , 532 F. App'x 732 ( 2013 )

FILED
NOT FOR PUBLICATION JUL 03 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50221
Plaintiff - Appellee, D.C. No. 2:07-cr-00475-GHK-1
v.
MEMORANDUM*
AVEDIS DJEREDJIAN,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
George H. King, Chief District Judge, Presiding
Argued and Submitted February 4, 2013
Pasadena, California
Before: CALLAHAN, IKUTA, and HURWITZ, Circuit Judges.
Avedis Djeredjian (“Defendant”) appeals his convictions for conspiring to
violate the Contraband Cigarette Trafficking Act (“CCTA”), 18 U.S.C. § 2342, and
for structuring currency transactions to avoid reporting requirements in violation of
31 U.S.C. § 5324. Defendant complains that the district court improperly: (1)
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
denied his two motions for new trial, which claimed that the Government
knowingly used perjured testimony in violation of Napue v. Illinois, 360 U.S. 264(1959), and suppressed favorable evidence in violation of Brady v. Maryland, 373
U.S. 83 (1963); and (2) denied his motion to suppress evidence purportedly seized
outside the scope of a warrant. Defendant further contends that his CCTA
conviction violates the Tenth Amendment because the CCTA attempts to
criminalize the failure to pay state excise taxes, and the Government has no
constitutional authority to enforce state tax law. We have jurisdiction pursuant to
28 U.S.C. § 1291, and we affirm.1
1. “We review for abuse of discretion a district court’s denial of a
motion for new trial.” United States v. Moses, 496 F.3d 984, 987 (9th Cir. 2007);
see also United States v. Pelisamen, 641 F.3d 399, 407 (9th Cir. 2011). “Factual
determinations underlying the perjury ruling are reviewed for clear error; legal
determinations are reviewed de novo.” United States v. Inzunza, 638 F.3d 1006,
1020 (9th Cir. 2011). “A district court’s denial of a new trial motion based on
alleged Brady violations is reviewed de novo.” United States v. Antonakeas, 255
F.3d 714, 725 (9th Cir. 2001).
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Because the parties are familiar with the facts and procedural history, we
do not restate them here except as necessary to explain our decision.
2
The district court properly denied Defendant’s motions for a new trial. “The
district court should have granted a new trial if: (1) the prosecution actually
presented false testimony; (2) the prosecution knew or should have known that the
testimony was false; and (3) the false testimony was material to the outcome of the
trial.” Pelisamen, 641 F.3d at 407. Defendant failed to show that the testimony of
cooperating Government witness Kirk Burton was actually false, or that the
Government knew or should have known Burton perjured himself at trial. See id.Defendant also failed to show that the Government suppressed favorable
evidence that would have been material for impeachment purposes, rather than
merely cumulative of other impeachment evidence. See United States v. Kohring,
637 F.3d 895, 908 (9th Cir. 2011). “To prevail on a Brady claim, the defendant
must show that ‘(1) the evidence was exculpatory or impeaching; (2) it should have
been, but was not produced; and (3) the suppressed evidence was material to his
guilt or punishment.’” Antonakeas, 255 F.3d at 725 (quoting Paradis v. Arave, 130
F.3d 385, 392 (9th Cir. 1997)). Although the Government interpreted its Brady
obligations too narrowly in failing to disclose evidence of Burton’s cooperation
with a separate investigation in the Eastern District of California, this evidence was
immaterial given the ample impeachment evidence already introduced against
Burton, as well as the extremely strong evidence of Defendant’s guilt.
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2. The district court properly determined that the search of 823 1/2 East
Colorado Street fell within the scope of the search warrant. “Whether a search is
within the scope of a warrant is a question of law subject to de novo review. We
review the district court’s factual findings for clear error.” United States v. Hurd,
499 F.3d 963, 965 (9th Cir. 2007) (internal citations omitted).
“To determine whether the search of a specific location is within the scope of
a valid warrant, we look to the Hitchcock test: ‘Whether a search exceeds the scope
of a search warrant is an issue [the Court] determine[s] through an objective
assessment of the circumstances surrounding the issuance of the warrant, the
contents of the search warrant, and the circumstances of the search.’” Hurd, 499
F.3d at 966 (quoting United States v. Hitchcock, 286 F.3d 1064, 1071 (9th Cir.
2002)). A common sense reading of the warrant, the accompanying affidavit, and
the circumstances of the search support the conclusion that 823 1/2 was included
within the warrant’s scope.
3. Defendant failed to show that Congress exceeded its authority in
passing the CCTA. “A challenge to the constitutionality of a statute is reviewed de
novo.” United States v. Berry, 683 F.3d 1015, 1020 (9th Cir. 2012).
“[I]f Congress acts under one of its enumerated powers, there can be no
violation of the Tenth Amendment.” United States v. Jones, 231 F.3d 508, 515 (9th
4
Cir. 2000). The CCTA was enacted to combat the effects of interstate cigarette
trafficking, and Congress validly enacted the law pursuant to the powers delegated
to it under the Commerce Clause. See Gonzales v. Raich, 545 U.S. 1, 16-17 (2005)
(Congress “has the power to regulate activities that substantially affect interstate
commerce.”).
AFFIRMED.
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