United States v. Stephen Seldon

MEMORANDUM

Stephen Seldon and Deborah Martinez Seldon appeal the district court’s denial of their motion for a new trial after their convictions of fourteen counts of mail fraud, 18 U.S.C. § 1341 , and one count of misbranding a drug, 21 U.S.C. §§ 331 (k) and 333(a)(2). Because the facts are familiar to the parties, we recite them here only as necessary to explain our decision. The Seldons argue that the prosecution violated Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), by not discovering and disclosing Livdahl’s affidavit filed in a separate federal case in Florida — an affidavit that flatly contradicted Livdahl’s testimony at the trial that the Seldons purchased over a hundred vials of TRItox on January 13th or 14th, 2005. We review de novo a district court’s denial of a new trial based on the alleged failure of the government to comply with its Brady obligations, United States v. Ross, 372 F.3d 1097, 1107 (9th Cir.2004), and we affirm.

We need not decide whether the affidavit was “suppressed” within the meaning of Brady and Kyles v. Whitley, 514 U.S. 419 , 115 S.Ct. 1555 , 131 L.Ed.2d 490 (1995), because the affidavit is not material; that is, there…