Nguyen
United States v. Nguyen
Opinion
Lead Opinion
*609 MEMORANDUM *
Appellant Ngoc-Hahn Thi Dang Nguyen (“Nguyen”) appeals her conviction for attempted arson in violation of 18 U.S.C. § 844 (i) and assault in violation of 18 U.S.C. § 111 (a)(1). Nguyen contends that the government’s failure to turn over a list of 28 potential witnesses until late in the trial constitutes a violation of Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), in addition to a violation of Federal Rule of Criminal Procedure 16 (“Rule 16”). Alternatively, Nguyen contends that her trial counsel’s failure to file a discovery request pursuant to Rule 16 constitutes ineffective assistance of counsel. We reject Nguyen’s contentions and affirm the judgment of conviction.
The list of potential witnesses did not qualify as Brady material because it was not exculpatory or impeaching. The government had not interviewed the individuals on the list and had no reason to believe such individuals could provide evidence favorable to Nguyen. Brady does not require the government to interview witnesses or otherwise create exculpatory evidence not then in existence. See United States v. Monroe, 943 F.2d 1007 , 1011 n. 2 (9th Cir.1991).