883 F. 2d 1025 - United States v. Shore

MEMORANDUM**

William Ralph Shore appeals the district court's denial of his motion for a new trial. Shore contends that the discovery that a government witness who testified at his trial was later convicted of embezzlement and possession of cocaine with intent to distribute constitutes newly discovered evidence requiring a new trial. Shore further contends that the government violated the district court's discovery order by failing to reveal impeaching evidence to him. We affirm.

The so-called new evidence did not raise a reasonable probability of a different result at trial. It was therefore not material, see United States v. Lehman, 792 F.2d 899, 901-02 (9th Cir.), cert. denied, 794 U.S. 868 (1986); cf. United States v. Bagley, 473 U.S. 667, 682 (1985).

Two weeks after Shore's sentencing, the United States Attorney for the District of Oregon was informed that the witness Allen was the subject of a criminal investigation (ER 23). The government did not violate Brady v. Maryland, 373 U.S. 83 (1963) when it failed to disclose impeachment evidence it did not have. The district court did not abuse its discretion in ruling that the newly-discovered evidence did not merit a new trial under Fed.R.Crim.P. 33. See United States v. Krasny, 607 F.2d 840, 846 (9th Cir.1979), cert. denied, 445 U.S. 942 (1980).

AFFIRMED.