Jason Marr v. United States , 585 F. App'x 438 ( 2014 )

FILED
NOT FOR PUBLICATION OCT 15 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JASON MARR, No. 13-35189
Petitioner - Appellant, D.C. Nos. 1:12-cv-00185-BLW
1:10-cr-00182-BLW-5
v.
UNITED STATES OF AMERICA, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Submitted October 9, 2014**
Seattle, Washington
Before: PAEZ, BYBEE, and CALLAHAN, Circuit Judges.
Appellant Jason Marr appeals the district court’s denial of his 28 U.S.C.
§ 2255 motion to vacate his plea of guilty to one count of conspiracy to distribute
500 grams or more of methamphetamine. Marr contends that law enforcement
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
withheld impeachment evidence from him in violation of Brady v. Maryland, 373
U.S. 83, 87 (1963). We review de novo a district court’s denial of defendant’s 28
U.S.C. § 2255 motion and we review for clear error its factual findings. United
States v. Guess, 203 F.3d 1143, 1145 (9th Cir. 2000). We affirm.
To determine whether a Brady violation has occurred, the court considers
whether the evidence was: (1) “favorable to the accused,” (2) “suppressed by the
government,” and (3) “material to the guilt or innocence of the defendant.” United
States v. Jernigan, 492 F.3d 1050, 1053 (9th Cir. 2007) (en banc). Evidence is
material if its admission would have created a “reasonable probability” of a
different result. Id. (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)). In this
case, the Government concedes that law enforcement suppressed evidence and that
this evidence was favorable to Marr. Thus, the only issue in dispute is whether the
evidence was material.
The Government had substantial evidence showing Marr’s participation in
the distribution conspiracy. First, surveillance officers witnessed Marr conduct
drug transactions with two methamphetamine distributors on nine separate
occasions during a 19-day period. Officers monitoring the distributors’ cell phones
also identified multiple phone calls between Marr and the distributors. Second,
these two distributors confessed to, and were willing to testify about, their
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agreement to supply Marr with four ounces of methamphetamine per week. And
finally, Marr twice confessed to purchasing methamphetamine from these
distributors and then reselling it at a profit. All of this evidence would have been
admissible through witnesses other than the persons about whom law enforcement
withheld impeachment evidence. Given the strength of the evidence against Marr
and the admissibility of the evidence through other witnesses, the district court did
not err in concluding that the withheld impeachment evidence was not material to
Marr’s decision to plead guilty.
AFFIRMED.
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