United States v. Don Ellingford

Good Law
499 F. App'x 671
United States Court of Appeals for the Ninth CircuitNovember 23, 201211-30280California733 words

Opinion

Opinion

MEMORANDUM

Don Ellingford was convicted of two counts of possession with intent to deliver methamphetamine under 21 U.S.C. § 841 (a)(1). He appeals from the district court’s denial of his motion for a new trial under Fed.R.Crim.P. 33 and his motion for reconsideration. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

I

Ellingford argues that the district court erred in denying his motions because his due process rights were violated under Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), and Napue v. Illinois, 360 U.S. 264 , 79 S.Ct. 1173 , 3 L.Ed.2d 1217 (1959). Because he did not raise these claims in the district court, we review them for plain error. United States v. Houston, 648 F.3d 806, 813 (9th Cir.2011), cert. denied, — U.S.-, 132 S.Ct. 1727 , 182 L.Ed.2d 264 (2012). To establish plain error, Ellingford “ ‘must show (1) an error, (2) that is plain, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings.’ ” United States v. Zalapa, 509 F.3d 1060, 1064 (9th Cir.2007) (quoting United States v. Smith, 424 F.3d 992, 1000 (9th Cir.2005)).

II

Ellingford…

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