Unpublished Disposition, 931 F.2d 899 (9th Cir. 1989)

MEMORANDUM^* 

Appellant Morris Paul Weinstein ("Weinstein") appeals three orders of the district court: (1) Order of September 30, 1988, denying Weinstein's motion for a new trial and granting him a limited evidentiary hearing (No. 88-1440); (2) Amended Order of January 23, 1989, denying Weinstein's motion for production of documents and his motion for reconsideration of that denial (No. 89-10062); and (3) Order of June 20, 1989, denying Weinstein's motion for a new trial (after an evidentiary hearing) (No. 89-10320). The appeals were consolidated on July 17, 1989. We affirm.

FACTS AND PROCEEDINGS

On February 20, 1986, Weinstein was charged by a federal Grand Jury with: Conspiracy to Commit Bankruptcy Fraud, a violation of 18 U.S.C. § 371; three counts of Bankruptcy Fraud, a violation of 18 U.S.C. § 152; Causing the Making of False Statements to a Government Agency, a violation of 18 U.S.C. §§ 1001, 2; Mail Fraud, a violation of 18 U.S.C. § 1341; three counts of Wire Fraud, a violation of 18 U.S.C. 1343; and four counts of Interstate Transportation of Stolen Property, a violation of 18 U.S.C. §§ 2314, 2. After a seven week jury trial, Weinstein was convicted on the conspiracy and bankruptcy fraud counts and two of the transportation of stolen property counts. We affirmed in United States v. Weinstein, 834 F.2d 1454 (9th Cir. 1987).

On May 16, 1988, Weinstein moved for a new trial based on newly discovered evidence and violations of Brady v. Maryland, 373 U.S. 83 (1983). The district court denied the motion for a new trial but granted the motion for an evidentiary hearing as to evidence concerning meetings between the government and an informant, Arthur Greifeld. The court also ordered the government to produce for in camera review all the documents in its possession which memorialize any government meetings that took place between Greifeld and the government. Weinstein moved to have these documents produced for his inspection. After reviewing the in camera documents the district court determined that they did not require a new trial. The district court also denied Weinstein's motion to produce the documents.

DISCUSSION

I. Denial of appellant's motion for a new trial based on newly discovered evidence.

The government must disclose information that is favorable to an accused when "the evidence is material either to guilt or punishment." United States v. Bagley, 473 U.S. 667, 683 (1985); Brady v. Maryland, 373 U.S. 83 (1963); United States v. Kennedy, 869 F.2d 1336, 1338 (9th Cir. 1989). "The evidence is material 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. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. at 682.

A. The 1983 Immunity Letter.

Arthur Greifeld began to provide information to the FBI regarding Weinstein in January, 1983. Greifeld was provided with a letter of immunity dated January 28, 1983. This letter provided immunity for "any false statements you may have made in connection with application for licenses or bonds required to be a licensed travel agent." The 1983 letter was apparently lost by the government early in its investigation. A second immunity letter, provided to Greifeld in November, 1984, did not include the quoted language. Weinstein argues that this language is "material" evidence under Bagley because it supports the inference that Greifeld submitted documents with the ATC claiming ownership of the agency and thus corroborates his defense that Greifeld, not Weinstein, owned the agency at the time the bankruptcy petition was filed.

It appears that when FBI agent Zent instructed the author of the letter to include the language, he did so believing that Greifeld had signed "something to do with an application to the Airline Traffic Association for a license, name change or some sort and he may have signed the bond, I don't know." The documents that Zent was referring to, however, were apparently an ATC Reduced Rate Travel Registration Form signed by Greifeld as Vice President/General Manager, and an ATC passenger Sales Agency Agreement signed by Greifeld as a witness. Zent's inclusion of the language, therefore, appears to be the result of a misunderstanding of the documents that Greifeld signed.

Even if this did not explain the language, there was overwhelming evidence at trial that the alleged ownership change never took place. First, an ATC official declared that no such applications existed. Second, Weinstein never produced any real evidence that a purchase had taken place, such as a purchase agreement or other contract. Weinstein, 834 F.2d at 1457. Third, the alleged ATC applications were never introduced at, or after, trial. Fourth, the ATC Reduced Rate Travel Registration Form was signed on December 14, 1981, by Greifeld, as Vice President/General Manager.¹  Finally, the "Memorandum of ATC passenger Sales Agency Agreement" was signed on July 17, 1981, by Weinstein as "President" and Greifeld as "Witness." Thus, although the language in the 1983 immunity letter is remotely exculpatory, we find that it does not create a reasonable probability that, had Weinstein been in possession of the letter prior to the trial, the outcome would have been different. The district court did not, therefore, abuse its discretion in denying the motion for a new trial.

B. The 1981 ATC order referring to a change in "management."

Weinstein claims that the district court should have granted him a new trial based on a November, 1983, ACT order fining the agency $1,000 for dishonoring two checks. This document includes the following language:

Professional states that all ATC drafts have been paid since the incidents of January, that management has been changed and the agency put on a sound business footing with ample capital.

Weinstein argues that this letter is material because it shows that the ATC was notified that there was a "change in management (i.e. change in ownership)." The ATC order sets forth the complaints of mismanagement against the agency and mentions the agency's justifications and defenses to these complaints. One such justification made by the agency was that there was a change in management. The ATC did not, as Weinstein argued, find that the agency's management had change. Even if it had, we find no basis for finding that a change in management is synonymous with a change in ownership. We conclude that the ATC order is not "material" under Bagley and does not require a new trial.

C. Documents that may have impeached the testimony of the Bankruptcy Trustee, Towers.

Approximately one month before the close of trial, the government produced a package of documents, which included a letter from Towers, the bankruptcy trustee. Weinstein, after the trial, discovered documents which may have impeached Towers's testimony. Weinstein argues that these documents are "newly discovered" because Weinstein's counsel did not have sufficient time to examine them during trial. Weinstein had, however, almost a month before the end of trial to examine the documents. Had he discovered evidence which could have impeached Towers' testimony, he could have recalled Towers to the stand. Also, if Weinstein lacked adequate time to examine the documents, he could have requested a continuance. The district court did not err in determining that Towers' letter was not newly discovered evidence.

D. Testimony of Agent Zent.

FBI agent Zent testified that Greifeld signed "something to do with an application to the Airline Traffic Association for a license, name change or some sort and he may have singed the bond, I don't know." The district court recognized that this passage is "somewhat persuasive" as to the existence of certain license applications and bonds. The district court correctly noted, however, that Zent's continuing testimony undermined any value this passage might have had. The testimony indicates that Zent was unclear as to what he actually saw and that Zent probably saw one of the documents the prosecutor produced at trial, such as a memorandum of ATC Passenger Sales Agency Agreement signed by Weinstein as president and Greifeld as a witness or a copy of an ATC Reduced Rate Travel Registration Form signed by Greifeld as Vice President/General Manager.

In addition, Zent's testimony is very similar to the testimony of two of Weinstein's witnesses, Thompson and Crowley. If their testimony did not convince the jury that Greifeld filed change of ownership applications with the ATC, there is no reasonable probability that Zent's testimony would have had an effect on the outcome.

E. Documents produced by the government for in camera review by the district court.

Weinstein argues that FBI 302s memorializing the government's meetings with Greifeld may be material requiring a new trial. These documents were reviewed in camera by the district court. The court concluded that the evidence "does not create a reasonable possibility that the verdict would have been materially affected if the evidence had been disclosed." The motion for new trial based on these documents and the motion to produce the documents was therefore denied.

The in camera documents consist primarily of notes and FBI 302s regarding meetings and interviews between the government and Greifeld, and records of a polygraph test on Greifeld. Nowhere in these documents is there any evidence to support an inference that Greifeld, and not Weinstein, owned Pro Tra Co. as Weinstein claims. These documents in no way undermine confidence in the outcome of the trial, Bagley, 473 U.S. at 682, and the district court, therefore, did not abuse its discretion in denying the motion for new trial.

II. Limited grant of an evidentiary hearing.

On September 30, 1988, the district court denied Weinstein's motion for a new trial based upon new evidence. The court granted Weinstein's alternative motion to hold an evidentiary hearing to determine if a new trial was warranted. The evidentiary hearing was limited to the issue of "whether government agents told witnesses not to cooperate with the defense." Weinstein argues that the district court improperly limited the scope of the evidentiary hearing.

The district court must hold a hearing if "viewing the petition against the record, its allegations do not state a claim for relief or are so palpably incredible or so patently frivolous or false as to warrant summary dismissal." Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982). The refusal to hold an evidentiary hearing on a motion for new trial will not be reversed "unless the showing is so substantial that the district court abused its discretion." United States v. Sears, Roebuck and Co., Inc., 647 F.2d 902, 905 n. 4 (9th Cir. 1981), United States v. Scott, 521 F.2d 1188 (9th Cir. 1975). Because, as discussed above, the new evidence was not material under the Bagley standard, it did not, based on the defendant's motion for new trial, "state a claim" for a new trial. The district court therefore acted within its discretion in limiting the evidentiary hearing.

III. District court's denial of request for documents viewed in camera.

The district court "must release what it finds relevant, material and probative.... It need not release evidence that is not material." United States v. Strifler, 851 F.2d 1197, 1202 (9th Cir. 1988), cert. denied 109 S. Ct. 1170 (1989) (citing Giglio v. United States, 405 U.S. 150, 154 (1972); United States v. Bagley, 473 U.S. 667, 685 (1985)). The district court's failure to release probative, relevant material information viewed in camera will be reversed if the district court committed clear error. Id. Because, as discussed supra, the in camera documents were not material the district court did not commit clear error in denying Weinstein's motion to produce the documents.

CONCLUSION

Weinstein has shown no newly discovered evidence that constitutes a reasonable probability that the outcome of the verdict would have been different had it been introduced at trial. The trial court's decision not to grant a new trial is affirmed.

The district court acted within its discretion in limiting the scope of the evidentiary hearing. Because the documents reviewed by the district court in camera are not material, the district court did not err in denying Weinstein's motion to produce them.

AFFIRMED.