United States of America, Plaintiff-appellee, v. Carlos Rene Cabrera, Defendant-appellant, 29 F.3d 635 (9th Cir. 1994)

MEMORANDUM^** 

Carlos Rene Cabrera appeals his convictions for conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a) (1), 846, and aiding and abetting the distribution of cocaine in violation of 18 U.S.C. § 2, 21 U.S.C. § 841(a) (1). Cabrena contends that the district court should have ordered a new trial because the government failed to disclose evidence that impeached the credibility of the confidential informant. We have jurisdiction under 28 U.S.C. § 1291 and reverse.

Cabrera and co-defendant Jose Martin Maya-Azua were jointly tried. On appeal, Maya-Azua raised the same arguments as Cabrera raises here regarding the materiality of the undisclosed evidence. We reversed Maya-Azua's convictions, holding that the "undisclosed evidence regarding the CI's credibility was material." United States v. Maya-Azua, No. 93-50008, unpublished memorandum disposition (9th Cir. July 1, 1994). Although the government's case against Cabrera included Agent Rios' testimony that Cabrera handed him the cocaine at the restaurant meeting, the undisclosed evidence would have impeached Agent Rios as well as the informant. When asked about the informant's prior arrests, Agent Rios mentioned only the two driving under the influence convictions and failed to mention the border incident even though the informant had been released into his custody. Therefore, our prior holding governs our decision here.

REVERSED AND REMANDED FOR A NEW TRIAL.