Unpublished Disposition, 869 F.2d 1498 (9th Cir. 1989)

MEMORANDUM

Dixon appeals his conviction, following a jury trial, on two counts of mail fraud in violation of 18 U.S.C. § 1341 and one count of securities fraud, in violation of 15 U.S.C. § 77e(a) (2). Dixon contends that the district court erred in failing to grant a mistrial because of prejudice caused by the government's delay in bringing an indictment. Dixon also contends he was denied effective assistance of counsel at trial, the state suppressed exculpatory evidence, certain admissions of defendant were wrongfully admitted, and the verdict was against the weight of evidence. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

Even if the district court applied an incorrect legal standard for evaluating pre-indictment delay, we may affirm if the result is correct on any other grounds supported by the record. Securities and Exchange Commission v. Chenery Corp., 318 U.S. 80, 88 (1943); James v. Reese, 546 F.2d 325, 327 (9th Cir. 1976) (per curiam). Because Dixon could not demonstrate that pre-indictment delay caused him actual prejudice, the district court did not abuse its discretion in denying his motion to dismiss. See United States v. Moran, 759 F.2d 777, 780-82 (9th Cir. 1985), cert. denied, 474 U.S. 1102 (1986).

Dixon's claim that he was denied effective assistance of counsel fails because he did not point to errors in the record which demonstrate the assistance was ineffective. See United States v. Rogers, 769 F.2d 1418, 1424 (9th Cir. 1985). Because Dixon did not demonstrate that, had the allegedly exculpatory evidence been released, there was a "reasonably probability" that it would have affected the judgment of the trier of fact, the alleged suppression of that evidence will not require his verdict to be reversed. See United States v. Bagley, 473 U.S. 667, 682 (1985). The district court did not abuse its discretion by concluding that events occurring after Dixon's departure were irrelevant. See Fed.R.Evid. 401; United States v. Kearney, 560 F.2d 1358, 1369 (9th Cir.), cert. denied, 434 U.S. 971 (1977). The district court did not abuse its discretion by admitting into evidence Dixon's prior testimony before a grand jury. See Fed.R.Evid. 801(d) (1) (a).

Finally, Dixon argues that the district judge erroneously denied his motion for a new trial. We review the denial of a motion for a new trial for abuse of discretion. United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 821 (9th Cir.), cert. denied, 471 U.S. 1139 (1985). There was no abuse of discretion here.

AFFIRMED.