United States v. Santos Murillo

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 27, 2023
• Docket: 20-35929
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 27 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-35929

Plaintiff-Appellee, D.C. Nos. 2:20-cv-00484-JLR 2:16-cr-00113-JLR-1 v.

SANTOS PETER MURILLO, AKA Peter MEMORANDUM* Santos Murillo,

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Washington James L. Robart, District Judge, Presiding

Submitted January 18, 2023**

Before: GRABER, PAEZ, and NGUYEN, Circuit Judges.

Santos Peter Murrillo appeals pro se from the district court’s judgment

denying his motion for a new trial under Federal Rule of Criminal Procedure 33,

based on newly discovered evidence. We have jurisdiction under 28 U.S.C. § 1291.

We review for abuse of discretion, United States v. Hinkson, 585 F.3d 1247, 1259

* 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). (9th Cir. 2009), and we affirm.

After Murillo’s conviction, he moved for a new trial based on newly

discovered evidence regarding disciplinary actions and criminal charges against a

testifying officer involving the use of force. The district court did not abuse its

discretion in concluding that this evidence was not material to the issues raised at

trial, would have been merely impeaching, and would not have resulted in an

acquittal. See United States v. Harrington, 410 F.3d 598, 601 (9th Cir. 2005)

(setting forth five-part test that defendant must satisfy to prevail on a Rule 33

motion).

We do not address Murillo’s contentions that the government violated Brady

v. Maryland, 373 U.S. 83 (1963), or that the weapon found in his car was not “in

plain view,” because they are beyond the scope of this appeal.

AFFIRMED.

2 20-35929