United States v. Lane

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 24, 2024
• Docket: 23-1919
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 24 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-1919 D.C. No. Plaintiff - Appellee, 3:18-cr-08295-GMS-1 v. MEMORANDUM*

BO LANE,

Defendant - Appellant.

Appeal from the United States District Court for the District of Arizona G. Murray Snow, District Judge, Presiding

Submitted October 22, 2024** Phoenix, Arizona

Before: M. SMITH, BADE, and FORREST, Circuit Judges.

Bo Lane appeals the district court’s order denying his motion for a new trial.

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

Lane was convicted of seven counts of aggravated sexual abuse of a child in

* 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). violation of 18 U.S.C. § 2241(c). A few weeks before trial, the government

disclosed evidence of two hairs found on the genital area of one of the victims

(E.B.) during a forensic examination. Lane did not seek a continuance based on

the disclosure. After the jury found Lane guilty of all charges, his counsel asked

the government to analyze the hairs. A microscopic examination revealed that one

was a pubic hair belonging to an adult who is not Lane and the other was an animal

hair. Lane moved for a new trial based on these results, arguing the government

violated its Brady obligation1 by failing to timely disclose the hairs and that he was

entitled to a new trial based on newly discovered evidence. See Fed. R. Crim. P.

33. The district court denied Lane’s motion on both grounds and rejected his

argument that the government had an independent duty to test the hairs.

1. We review the denial of a motion for a new trial based on an alleged

Brady violation de novo. United States v. Price, 566 F.3d 900, 907 (9th Cir.

2009). To establish a Brady violation, “a defendant must show that: (1) the

evidence at issue would have been favorable to the accused, either because it was

exculpatory or impeaching; (2) it was suppressed by the prosecution, either

willfully or inadvertently; and (3) it was material.” United States v.

1 In Brady v. Maryland, the Supreme Court held that “suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. 83, 87 (1963); see also Giglio v. United States, 405 U.S. 150, 154–55 (1972).

2 23-1919 Alahmedalabdaloklah, 94 F.4th 782, 827 (9th Cir. 2024).2 If, as here, the evidence

is disclosed before trial, materiality is determined by whether the lateness of the

disclosure “so prejudiced [the defendant’s] preparation or presentation of his

defense that he was prevented from receiving his constitutionally guaranteed fair

trial.” Id. at 828 (citation omitted); see also United States v. Gordon, 844 F.2d

1397, 1403 (9th Cir. 1988) (internal quotation marks and citation omitted) (“To

escape the Brady sanction, disclosure must be made at a time when disclosure

would be of value to the accused.”). “If the defendant is presented with a

substantial opportunity to use the belatedly disclosed evidence, there is no

prejudice.” Alahmedalabdaloklah, 94 F.4th at 828 (emphasis added).

Lane was not prejudiced by the belated disclosure of the untested hairs

because he had a substantial opportunity to use them. After the government

disclosed the hairs, Lane did not request a continuance or otherwise seek testing of

the hairs; instead, he used the untested hairs to challenge the adequacy of the

government’s investigation (while avoiding the risk of inculpatory test results).

Therefore, Lane is not entitled to a new trial. See, e.g., Reiger v. Christensen, 789

2 To the extent that Lane argues that the district court failed to apply this three-part test, we are unpersuaded. But even if that were true, on de novo review we can affirm on any basis presented in the record. Paradis v. Arave, 240 F.3d 1169, 1175–76 (9th Cir. 2001). And for the reasons explained, we conclude that the district court did not err in denying a new trial based on the claimed Brady violation.

3 23-1919 F.2d 1425, 1432–33 (9th Cir. 1986) (holding that the delayed disclosure of

fingerprint tests did not require a Brady sanction because defense counsel “could

have asked the trial court for a continuance for the purpose of obtaining and

analyzing the test results” but instead made no “effort to pursue the test further”).

The district court did not err by denying Lane’s motion for a new trial on this basis.

2. Lane also argues the district court erred by finding that the

government did not have an obligation to test the hairs. The government’s failure

to collect, preserve, or test evidence violates due process only if the defendant

demonstrates that the government acted in bad faith. See Villafuerte v. Stewart,

111 F.3d 616, 625 (9th Cir. 1997); see also Arizona v. Youngblood, 488 U.S. 1,

57–58 (1988). Here, the government represented that it did not test the hairs for

identification purposes before trial because E.B.’s medical examination occurred

weeks after the last instance of alleged sexual abuse and years after the last

instance of alleged abuse involving contact with E.B.’s genital area. Lane has not

presented any evidence that the government acted in bad faith by failing to test the

hairs. Thus, the lack of testing did not violate his due process rights.

3. We review the district court’s denial of a motion for a new trial based

on newly discovered evidence for abuse of discretion. United States v. Hinkson,

585 F.3d 1247, 1259 (9th Cir. 2009). To prevail on a motion for a new trial based

on newly discovered evidence, the defendant must show, among other things, that

4 23-1919 the failure to discover the evidence sooner is not the result of a lack of diligence on

the defendant’s part. United States v. Harrington, 410 F.3d 598, 601 (9th Cir.

2005). Here, Lane knew about the hairs before trial and chose to use the untested

hairs to challenge the thoroughness of the government’s investigation. Thus, the

district court did not abuse its discretion by finding that the unavailability of the

microscopic examination results at trial was due to Lane’s lack of diligence.3 See

United States v. Velte, 331 F.3d 673, 676, 680 (9th Cir. 2003) (holding that the

defendant could not seek a new trial based on newly acquired test results because

the delay in testing until after trial was a strategic decision by the defendant); see

also United States v. Sitton, 968 F.2d 947, 960 (9th Cir. 1992), abrogated on other

grounds by Koon v. United States, 518 U.S. 81 (1996).

AFFIRMED.

3 In a footnote in his reply brief, Lane asks the court to strike a portion of the government’s excerpts of record. A footnote in a reply brief is not the proper vehicle for such a request. But in any event, because we do not rely on the excerpts to which Lane objects, we deny his request as moot.

5 23-1919