United States v. Scott Wortman

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 3, 2021
• Docket: 20-30082
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 3 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-30082

Plaintiff-Appellee, D.C. Nos. 1:18-cr-00047-SPW-1 v. 1:18-cr-00047-SPW

SCOTT ALLEN WORTMAN, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding

Submitted March 1, 2021** Portland, Oregon

Before: PAEZ and WATFORD, Circuit Judges, and TUNHEIM,*** District Judge.

Scott Wortman was convicted following a jury trial of possession of a

firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C.

* 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). *** The Honorable John R. Tunheim, Chief United States District Judge for the District of Minnesota, sitting by designation. Page 2 of 3

§ 924(c)(1)(A)(i). He argues that the government failed to disclose additional

impeachment evidence relating to a confidential informant who testified at trial,

and that the evidence was insufficient to sustain his conviction under § 924(c). We

affirm.

1. The government erred in failing to disclose that the informant had served

as a confidential informant in other cases. Giglio v. United States, 405 U.S. 150,

154 (1972); Brady v. Maryland, 373 U.S. 83, 87 (1963). However, this failure

does not warrant a new trial because a Brady/Giglio violation occurs only when the

suppression of evidence favorable to the accused resulted in prejudice to the

defendant. See United States v. Kohring, 637 F.3d 895, 901 (9th Cir. 2011).

Wortman was not prejudiced by the government’s suppression of favorable

evidence because the jury already knew that the informant had served as a

confidential informant in this case in exchange for the dismissal of drug charges

against her. The jury thus had reason to question her credibility, and additional

information about her cooperation with the prosecution would merely have

provided further reason to question her credibility on the same basis. Because “the

grounds for impeachment [were] no secret to the jury,” the suppressed evidence

was cumulative, and the suppression of cumulative evidence that is not “of a

different character than evidence already known to the defense” is not prejudicial.

United States v. Wilkes, 662 F.3d 524, 535–36 (9th Cir. 2011) (quotations omitted). Page 3 of 3

The government’s suppression therefore does not amount to a Brady/Giglio

violation, and a new trial is not warranted.

2. The evidence presented to the jury was sufficient to sustain Wortman’s

conviction for possession of a firearm in furtherance of a drug trafficking crime.

To establish possession of a firearm in furtherance of a drug crime, the government

must demonstrate a nexus between the gun and the underlying offense, such as the

firearm being readily accessible during commission of the drug crime. United

States v. Lopez, 477 F.3d 1110, 1115 (9th Cir. 2007). Detective Patrick Korb

testified that, following an investigation during which Wortman had admitted to

distributing narcotics, he arrested Wortman while Wortman was getting into his

car. In his pocket, Wortman was carrying a loaded pistol. The police found

approximately 270 grams of methamphetamine in the vehicle that Wortman was

entering, and Wortman pleaded guilty to possession of methamphetamine with

intent to distribute before trial. Detective Korb also testified that, based on his

training and experience, it was common for drug dealers to carry firearms to

protect themselves. Thus, viewed in the light most favorable to the prosecution,

the evidence was sufficient to allow a “rational trier of fact [to find] the essential

elements of the crime beyond a reasonable doubt.” United States v. Nevils, 598

F.3d 1158, 1164 (9th Cir. 2010) (en banc) (quotation omitted).

AFFIRMED.