United States v. Justin Izatt

MEMORANDUM

Following his conviction of Possession with Intent to Distribute Methamphetamine, affirmed by this court in 2012, Justin Izatt (“Izatt”) appeals the denial of his Rule 33 motion for a new trial. We affirm.

“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 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. King, 735 F.3d 1098, 1108 (9th Cir.2013) (quoting United States v. Berry, 624 F.3d 1031, 1042 (9th Cir.2010)).

The district court did not abuse its discretion by denying Izatt’s motion. Izatt proffered new evidence that Chris Ayers was later convicted for distributing methamphetamine, but this was cumulative of trial testimony offered by defense witness Mariah Pace that Ayers was a drug dealer. Evidence of Ayers’ conviction is not the type of evidence that indicates a new trial would likely result in acquittal. Indeed, the government did not dispute this…