Unpublished Disposition, 841 F.2d 1130 (9th Cir. 1988)

MEMORANDUM^** 

Donald Caudle appeals pro se the district court's dismissal of his 28 U.S.C. § 2255 (1982) motion to vacate his narcotics conviction. Caudle contends that the prosecution improperly withheld impeachment evidence concerning a co-conspirator's agreement to testify and the co-conspirator's acquittal on conspiracy charges. He also argues that his conspiracy conviction is invalid because of the co-conspirator's acquittal. We reject these arguments and affirm.

BACKGROUND

Caudle was indicted for conspiracy to import heroin, distribution of heroin abroad with intent to import heroin into the United States, and actual importation. His wife and another individual, Chong Qu Sop, were indicted as co-conspirators. At trial James Powers, an unindicted co-conspirator, testified to Caudle's involvement in the importation scheme. The jury found Caudle guilty on all counts. On appeal, we affirmed the conviction.

Caudle filed a motion with the district court to vacate his conviction under 28 U.S.C. § 2255 or to modify his sentence under Fed. R. Civ. P. 35. The magistrate recommended denying the motion without an evidentiary hearing. The district court denied the motion. Caudle timely appeals, challenging only the denial of his section 2255 motion.

STANDARD OF REVIEW

We review de novo the district court's denial of a motion to vacate a conviction under 28 U.S.C. § 2255. Walker v. United States, 816 F.2d 1313, 1316 (9th Cir. 1987).

DISCUSSION

Caudle argues that he was denied due process by the prosecution's failure to disclose evidence that would have impeached Powers' credibility. See United States v. Bagley, 473 U.S. 667, 678 (1985). Caudle alleges that the prosecution agreed to recommend a five-year reduction of Powers' fifteen year sentence in exchange for Powers' testimony. As evidence of the agreement Caudle introduced a series of letters between the prosecutor and Powers' attorney, which indicate that the prosecutor would inform the judge of Powers' cooperation if Powers testified. The letters do not suggest, however, that the prosecutor would recommend reducing Powers' sentence. Moreover, the prosecutor never requested that the court reduce the sentence in its sentencing memorandum. While the prosecutor noted that Powers' cooperation led to Caudle's conviction, the prosecutor also stated that Powers' fifteen-year sentence was not unreasonable. Thus there is insufficient evidence in the record establishing an agreement to reduce Powers' sentence.

Caudle further contends that the prosecution failed to disclose Powers' prior acquittal of the same conspiracy to import heroin. The government argues that because Powers' acquittal was a matter of public record, which the defendant could have easily obtained, it had no duty to disclose the information. See Jarrell v. Balkcom, 735 F.2d 1242, 1258 (11th Cir. 1984), cert. denied, 471 U.S. 1103 (1985); United States v. LeRoy, 687 F.2d 610, 618 (2d Cir. 1982), cert. denied, 459 U.S. 1174 (1983). We need not reach this issue. Because the withheld evidence would not have altered the verdict in petitioner's case, Caudle's due process rights were not violated. See Bagley, 473 U.S. at 678; United States v. Vaccaro, 816 F.2d 443, 452 (9th Cir.), cert. denied, 108 S. Ct. 295 (1987).

Caudle contends that his conspiracy conviction should be set aside because one of his alleged co-conspirators was acquitted on the same charge.¹  The acquittal of all participants in a conspiracy tried jointly except for one co-conspirator requires the acquittal of that co-conspirator as well. United States v. Wright, 742 F.2d 1215, 1224 (9th Cir. 1984). This rule of consistency does not apply when a jury does not find the other conspirators innocent. Id. at 1224 (single co-conspirator's conviction valid because jury convicted codefendant of lesser-included conspiracy offense); United States v. Sangmeister, 685 F.2d 1124, 1126-27 (9th Cir. 1982) (hung jury in co-conspirator's trial did not constitute acquittal and thus did not preclude defendant's conspiracy conviction). In this case only one of the four participants in the conspiracy was acquitted. Caudle's wife pleaded guilty to smuggling heroin, and Chong Qu Sop remains a fugitive. Thus two of the participants have not been found innocent of the conspiracy charges. The district court correctly concluded that Powers' conviction for conspiracy was valid.

AFFIRMED.