Unpublished Disposition, 923 F.2d 864 (9th Cir. 1991)

MEMORANDUM^** 

A jury convicted Raymond Willis of three counts of distributing cocaine in violation of 21 U.S.C. § 841(a). Willis appeals the denial of his motion for a new trial. The motion was based on newly discovered evidence and on allegedly favorable grand jury testimony in possession of the government. In addition, Willis appeals the increase in his offense level under the Sentencing Guidelines for obstructing justice. We affirm.

Willis's conviction was based on three sales of cocaine made in Yosemite National Park to Steve Gutman, a government informer. Gutman was wearing a microphone during the transactions. Gutman's testimony was corroborated by two Park Rangers, Daniel Horner and David Panebaker, who monitored the transactions. The government also relied on the recordings of the transactions and the fact that Willis's fingerprints were on two packages of cocaine bought by Gutman.

In an attempt to discredit Gutman's testimony at trial, Willis's attorney asked Gutman questions regarding whether and to what extent he had used or sold drugs. Gutman admitted that he cooperated with the government's investigation and prosecution in order to avoid his own prosecution. He also admitted to having bought, used and given away cocaine. Gutman stated that, at the time of his arrest, in October of 1988, he was not using methamphetamine.

Gutman's grand jury testimony indicated that he had used methamphetamine prior to his arrest. In addition, the grand jury testimony of Stanley Duncan indicated that Gutman "was involved in selling and dealing and heavy use." Willis argues that this shows that Gutman was lying when he testified he had never sold cocaine, but had merely given it away. Willis further argues that the government had knowledge of the alleged perjured testimony. After the trial, Willis also introduced "new evidence" consisting of affidavits of people who claimed that Gutman was heavily involved in both selling and using drugs.

* THE MOTION FOR A NEW TRIAL

A. The Alleged "New Evidence"

Willis moved for a new trial because of alleged new evidence, consisting of affidavits of people who claimed to know of Gutman's heavy involvement in selling and using drugs. The district court denied Willis's motion because the affidavit testimony would not materially affect the credibility of a witness who had admitted to buying, using and giving away cocaine and who admitted to testifying in exchange for favorable treatment by the government. In light of other, overwhelming evidence of guilt, the court concluded that the affidavits offered by Willis "could not conceivably produce a different result than his conviction."

B. The Alleged Perjured Testimony or Exculpatory Evidence

Willis moved for reconsideration of the motion because of alleged inconsistencies between the grand jury testimony of Gutman, the government's main witness, and the grand jury testimony of Stanley Duncan, witness in another case. The court rejected Willis's argument that this evidence proved that the government knowingly allowed the use of perjured testimony. Duncan's testimony does not corroborate Gutman's, but neither does it conclusively show that Gutman was lying. The court agreed with the government that awareness of general, uncorroborated impeachment testimony from an informant does not equate with knowingly permitting perjured testimony.

To the extent the grand jury testimony of Duncan can be said to be exculpatory under Brady v. Maryland, it is not material unless 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. Bagley, 473 U.S. 667, 682 (1985). As noted above, the district court determined that in light of other, overwhelming evidence of guilt, no other result was possible. The court did not abuse its discretion in denying the motion for a new trial.

II

INCREASE IN OFFENSE LEVEL FOR OBSTRUCTING JUSTICE

The Sentencing Guidelines provide for an increase in a defendant's offense level for obstructing justice. U.S.S.G. Sec. 3C1.1. Application Note 3(b) specifically includes perjury as an example of obstructing justice. The district court increased Willis's offense level because of his false testimony on the stand. Willis testified that he had never entered the bathroom where one of the cocaine sales had taken place and that his fingerprints on the cocaine package had gotten there when he was handed a picture, partially wrapped in paper, of Gutman's daughter.

Willis argues that increasing his offense level under Sec. 3C1.1 is an infringement of his right to testify on his own behalf. We rejected this argument in United States v. Barbosa, 906 F.2d 1366, 1369-70 (9th Cir.), cert. denied, 111 S. Ct. 394 (1990), because the right to testify does not include the right to commit perjury.

AFFIRMED.