United States of America v. NADUNT CHIBEAST, AKA Donald Williams, AKA Ronald Williams

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NADUNT CHIBEAST, AKA Donald
Williams, AKA Ronald Williams,
Defendant - Appellant.
No. 13-10379
D.C. No. 2:11-cr-01243-SRB-6
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted December 11, 2014
San Francisco, California
Before: O’SCANNLAIN, FISHER, and HURWITZ, Circuit Judges.
FILED
APR 02 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Nadunt Chibeast appeals his jury conviction of one count of Conspiracy to
Possess with Intent to Distribute Marijuana and Cocaine and one count of
Conspiracy to Launder Money Instruments.
I
Chibeast argues that the government violated his constitutional rights by
failing to disclose to him approximately one third of its discovery material until
after his conviction. He also claims that his due process rights were violated by
government policies that restricted his sleep and diet.
A
The government delivered six boxes of discovery to Chibeast on February
7, 2013, and sent additional discovery on February 15, 2013. Though the trial
began on March 19, 2013, Chibeast did not receive the February 15 discovery until
after his conviction on April 4, 2013.
On June 19, 2013, Chibeast filed a “Notice of New Boxes of Discovery
Unknown to Me.” In the Notice, he stated that on June 12, 2013, he became aware
of an additional three boxes of discovery which he had not been given the chance
to review before trial. On June 26, 2013 and July 8, 2013, Chibeast made two
additional filings related to the newly discovered materials. The district court did
not rule on any of these filings.
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Finally, on July 15, 2013, a week after he had been sentenced, Chibeast filed
yet another notice, this time requesting a stay of execution of judgment. On
August 27, 2013, the district court construed that notice as a motion and denied it
due to the pendency of this appeal.
We agree that Chibeast’s final notice should be construed as a motion. In
the interest of justice, we remand the case to the district court to consider its merits
in the first instance, construing it as a Federal Rule of Criminal Procedure 33
motion for a new trial based on newly discovered evidence.
B
Chibeast has failed to establish that the government’s responses to his sleep
and diet complaints “necessarily prevent[ed] a fair trial.” Lisenba v. California,
314 U.S. 219, 236 (1941). Therefore, his due process claims premised on sleep
and diet restrictions fail.
This panel retains jurisdiction over any further appeals.
AFFIRMED IN PART AND REMANDED for further proceedings in
accordance with this disposition.
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United States v. Chibeast, No. 13-10379
FISHER, Circuit Judge, concurring:
I agree that Chibeast’s notice to the district court is properly construed as a
motion for new trial. I also agree that remand is appropriate to afford the district
court an opportunity to decide whether the government’s alleged failure to timely
disclose evidence to Chibeast warrants a new trial. I join fully in the court’s
memorandum disposition but write separately to address what I believe to be the
standard the district court should apply in reviewing Chibeast’s due process claim.
Were Chibeast asserting an ordinary new trial claim based on newly
discovered evidence, he would be required to show that the newly discovered
evidence demonstrates he “would probably be acquitted in a new trial.” United
States v. Berry, 624 F.3d 1031, 1042 (9th Cir. 2010).
Chibeast, however, appears to argue that the government’s failure to provide
him with a significant portion of the discovery violated his due process right to
present a complete defense. See Blue Br. at 20-21. A defendant’s claim that the
government has prevented a defendant’s access to potentially material evidence is
governed by a more “relaxed standard.” United States v. Doe, 705 F.3d 1134,
1153 (9th Cir. 2013); see also United States v. Agurs, 427 U.S. 97, 111 (1976).
Although these two decisions involve claims invoking Brady v. Maryland, 373
FILED
APR 02 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
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U.S. 83 (1963), the underlying due process concern here is analogous.
“Under the Due Process Clause of the Fourteenth Amendment, criminal
prosecutions must comport with prevailing notions of fundamental fairness.”
California v. Trombetta, 467 U.S. 479, 485 (1984). The Supreme Court has “long
interpreted this standard of fairness to require that criminal defendants be afforded
a meaningful opportunity to present a complete defense.” Id. “To safeguard that
right, the Court has developed ‘what might loosely be called the area of
constitutionally guaranteed access to evidence.’” Id. (quoting United States v.
Valenzuela-Bernal, 458 U.S. 858, 867 (1982)).
Because Chibeast plausibly invokes this due process right, the
question on remand is not whether the newly discovered evidence shows Chibeast
“would probably be acquitted in a new trial,” Berry, 624 F.3d at 1042, but rather
whether there is a “reasonable likelihood that the [missing evidence] could have
affected the judgment of the trier of fact,” Valenzuela-Bernal, 458 U.S. at 874; cf.
United States v. Bagley, 473 U.S. 667, 682 (1985) (explaining that under the
analogous Brady standard the question is whether “there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding
would have been different”).
It is, however, “impossible for us to evaluate [Chibeast]’s claim because we
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do not know what the documents say.” Doe, 705 F.3d at 1152. Therefore, I agree
that, as in Doe, remand is appropriate so the district court can consider in the first
instance whether the government violated Chibeast’s right to due process by failing
to timely disclose nearly one-third of the discovery in his case. Under the due
process standard, a new trial would be warranted if the documents undermine the
district court’s confidence in the outcome of the verdict, meaning that there is a
“reasonable probability of a different result.” Id. at 1153 (internal quotation marks
omitted).
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