The opinion of the court was delivered by: Alicemarie H. Stotler United States District Judge
ORDER DENYING DEFENDANT'S MOTION FOR NEW TRIAL AND REQUEST FOR EVIDENTIARY HEARING
On August 19, 2005, defendant Rene Sanchez ("Sanchez") filed a Motion for New Trial and Discovery Pursuant to Fed. R. Crim. P. 33 and Brady v. Maryland. This Court applied the five-part test outlined in United States v. Kulczyk, 931 F.2d 542 (9th Cir. 1991), and denied the motion. Defendant appealed. On February 5, 2008, the Court of Appeals for the Ninth Circuit vacated the order denying the new trial motion and remanded it for the Court to "reconsider the motion for a new trial, applying the correct standard, which governs a motion for new trial based on the alleged use of perjury by the government in its prosecution." On August 18, 2008, Sanchez moved for a new trial pursuant to the remand. On September 18, 2008, the government filed opposition. On September 29, 2008, Sanchez filed a reply. On November 3, 2008, the Court heard Sanchez's Motion for New Trial, and thereafter the Court took the matter under advisement. After considering the parties' filings, the trial proceedings in this case, the Ninth Circuit's instructions, and the arguments of counsel at the hearing, the Court hereby denies Sanchez's Motion for New Trial.
II. PARTIES CONTENTIONS AND FACTS
The parties and the Court are familiar with the facts and contentions as set forth in the briefs.
The Court should grant the motion for new trial and set aside the conviction "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Endicott, 869 F.2d 452, 455 (9th Cir. 1989) (citing United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed. 2d 481 (1985)). A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Id. If the evidence is sufficient to undermine confidence in the outcome, then the evidence is considered material. Id. at 454-55.
If the new evidence concerns the credibility of a witness, "when the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility warrants a new trial irrespective of the good faith or bad faith of the prosecution." Endicott, 869 F.2d at 456; see also Carriger v. Stewart, 132 F.3d 463, 481-82 (9th Cir. 1997) (holding that evidence is material if it rebuts formerly unrebutted testimony of a critical government witness whose credibility is essential to the case). In determining materiality, "it is important to analyze the significance of the [witness's] testimony to the prosecution's case." Benn v. Lambert, 283 F.3d 1040, 1059 (9th Cir. 2002). "[N]ewly discovered evidence to impeach a government witness does not warrant a new trial when the evidence would not have affected the jury's assessment of the witness's credibility and when the witness was subjected to vigorous cross-examination." Endicott, 869 F.2d at 456 (finding new trial not warranted where there was substantial other evidence, including a corroborating tape recording).
For the purposes of this ruling, the witness statements from Eric A. Silva and Patrick Avolas and the declaration from Ramon Juan Cano, as proffered, are accepted as true.
Sanchez argues that the newly-proffered evidence is material to corroborate his version of events and that Informant Fierro entrapped him into selling four pounds of methamphetamine. A valid entrapment defense requires: (1) government inducement of the crime; and (2) a lack of predisposition on the part of the defendant to engage in the criminal conduct. Matthews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed. 2d 54 (1988). Moreover, "if the defendant is found to be predisposed to commit a crime, an entrapment defense is unavailable regardless of the inducement." United States v. McClelland, 72 F.3d 717, 722 (9th Cir. 1995).
As discussed below, the impeachment value of the newly-discovered evidence and Fierro's importance as a witness only addresses the inducement prong of Sanchez's entrapment defense. The evidence ...