NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT APR 10 2014

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 12-10667

Plaintiff - Appellee, D.C. No. 4:12-cr-00341-CKJ-

DTF-1

v.

MANUEL RODRIGUEZ-CORNEJO, MEMORANDUM*

a.k.a. MANUEL CORNEJO-

RODRIGUEZ,

Defendant - Appellant.

Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding

Submitted April 8, 2014** San Francisco, California

Before: BENAVIDES,*** TALLMAN, and CLIFTON, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Fortunato P. Benavides, Senior Circuit Judge for the United States Court of Appeals for the Fifth Circuit, sitting by designation. Manuel Rodriguez-Cornejo (“Rodriguez”) appeals his conviction after a jury

trial on one count of illegal reentry by an alien after deportation in violation of 8

U.S.C. § 1326(a). Rodriguez contends that the district court erred in failing to

grant a judgment of acquittal or a new trial because: (1) the government’s evidence

was insufficient to allow the jury to conclude that he was not a United States

citizen, and (2) newly discovered evidence established that he was born in the

United States. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

In reviewing the denial of a Rule 29 motion for judgment of acquittal, we

consider de novo whether sufficient evidence exists to support a guilty verdict.

United States v. Stewart, 420 F.3d 1007, 1014 (9th Cir. 2005). Sufficient evidence

supports a defendant’s conviction if, “viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,

443 U.S. 307, 319 (1979). The government presented evidence that Rodriguez

admitted to Border Patrol Agents Alvarez and Lynch on January 16, 2012, that he

was from Michoacán, Mexico, and that he did not have permission to enter the

United States. The government presented evidence that after his arrest, on January

16, 2012, Rodriguez waived his rights and made several admissions to Border

Patrol Agent Price. Rodriguez admitted that he was born in Mexico, he is a citizen

2 of Mexico, and he did not have legal permission to reenter the United States.

Rodriguez had previously been deported and given at least three prior sworn

statements in which he admitted that he was born in Mexico and that he did not

have legal permission to reenter the United States. While “an order of deportation

is insufficient as a matter of law to establish a defendant’s alien status,” United

States v. Sotelo, 109 F.3d 1446, 1449 (9th Cir. 1997), the government’s evidence

was not limited to the prior deportation order, and included numerous admissions

from the defendant himself. See id. Because the government presented ample

evidence from which the jury could have concluded that Rodriguez was not born in

the United States, the district court did not err in denying Rodriguez’s Rule 29

motion for judgment of acquittal.

Rodriguez also contends that the district court erred in denying his motion

for a new trial pursuant to Federal Rule of Criminal Procedure 33(a) because the

evidence was insufficient to establish that Rodriguez was not born in the United

States and because newly discovered evidence established that he was born in the

United States. We review the district court’s denial of a motion for a new trial for

an abuse of discretion. See United States v. Hursh, 217 F.3d 761, 769 (9th Cir.

2000). A new trial is not warranted under Rule 33 unless a defendant can establish

five elements: “(1) the evidence is newly discovered; (2) the defendant was diligent

3 in seeking the evidence; (3) the evidence is material to the issues at trial; (4) the

evidence is not (a) cumulative or (b) merely impeaching; and (5) the evidence

indicates the defendant would probably be acquitted in a new trial.” United States

v. Berry, 624 F.3d 1031, 1042 (9th Cir. 2010) (citation and internal quotation

marks omitted).

Applying this test, the district court did not abuse its discretion in denying

Rodriguez’s Rule 33 motion. First, because the evidence was sufficient to sustain

a guilty verdict, the district court did not err in refusing to grant a new trial on this

basis. Second, even assuming the evidence from Mr. Flores is considered “newly

discovered,” the evidence was cumulative to other testimony provided at trial, and

Rodriguez has not met his burden to show that a new trial would probably result in

acquittal. See United States v. Kulczyk, 931 F.2d 542, 548–49 (9th Cir. 1991). The

jury heard and rejected Rodriguez’s defense that he was born in the United States.

Therefore, the district court did not abuse its discretion in denying the motion for a

new trial under Rule 33.

AFFIRMED.

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