F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v

.

O S C A R R O D R

I G U E Z , AKA L onely

, Defendant-Appellant

. N o. 08-50479

D.C. No. 5:05-cr-00069- VAP-3

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v

.

J O S E M U R

I L L O , AKA Yog i, Defendant-Appellant

. N o. 08-50483

D.C. No. 5:05-cr-00069- VAP-2

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v

.

A L E J A N D R O M U J I C A , AKA Slow, Defendant-Appellant

. N o. 08-50485

D.C. No. 5:05-cr-00069- VAP-4U N I T E D S T A T E S V

. R O D R I G U E Z 2

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v.

O S C A R R O D R

I G U E Z , AKA L onely

, Defendant-Appellant

. N o. 12-50121

D.C. No. 5:05-cr-00069- VAP-3

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v

.

J O S E M U R

I L L O , AKA Yog i, Defendant-Appellant

. N o. 12-50132

D.C. No. 5:05-cr-00069- VAP-2

ORDER AND AMENDED OPI NI ON

A ppeal from the United States District Court for the Central District of California Virg inia A. Phillips, District J udg e, Presiding

Arg ued and Submitted Aug ust 28, 2013—Pasadena, California

F iled J une 19, 2014 Amended September 8, 2014U N I T E D S T A T E S V

. R O D R I G U E Z 3

B efore: Ronald M. Gould and J ohnnie B . Rawlinson, Circuit J udg es, and I van L .R. L emelle, District J udg e. *

Opinion by

J udg e Rawlinson

SUMMARY * *

Crim inal Law

T he panel affirmed three defendants’ convictions for conspiracy to c ommit murder and first deg ree murder stemming from the stabb ing of a prison inmate, Peter Scopaz z i.

T h e panel held that the district c ourt’s e x clusion o f evidence concerning medical neg lig ence and Scopaz zi’s removal of h is breathing tube does not warrant reversal of the convictions, where the defendants failed to demonstrate that
any medical n eg lig ence related to Scopaz z i’s multipl e s tab wounds a nd his r emoval of his breathing tube were t h e s o l e

causes o f his d e a th or w ere so ex traordinary a nd unforeseeable as to absolve the defendants o f l i ability for their vicious assault.

The panel held that th e d istrict court did not a buse its di s c r e tion in admitting evidence of the defendants’

* T h e Ho n o rab le Iv an L .R. L em elle, U.S. District J u d g e f o r t h e Eastern District o f

L o u isian a, sittin g b y

d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. R O D R I G U E Z 4

connections to the Mex ican Mafia to demonstrate the ir motive for murdering Scopaz z i. The panel al s o h e l d that

ex p ert testimony c o n c erning the connections between the Su r e ñ os and the Mex ican Mafia within the prison g ang hierarchy and photog raphs of the defendants with Mex i can Mafia members did n ot r e n d e r their trial unfair because the dis trict c ourt properly minimiz ed any prejudice stemming from the evidenc e and the trial w as replete with admissible evidence reg arding the defendants’ g ang affiliations.

The panel held t hat the defendants failed to demonstrate under Brady

, Mooney
, or Napue th a t a n ew trial was warranted b a s ed on the g overnment’s failure to d isclose immaterial i n formation reg arding a g overnment witness’
sentenc e r e duction a

nd h is cooperation in a DEA investig ation.

COUNSEL

Verna W efald (arg

ued), Pasadena, California, f or D efendantAppellant Oscar Rodrig

uez

.

Michael J

. Treman, Santa B arbara, California, for D efendantAppellant J ose Murillo.

Ethan A. B alog h (arg

u ed) an d J a y A. Nelson, Coleman & B alog h L L P, San F rancisco, Californi a , for D efendantAppellant Alejandro Mujica.

André B irotte, J r., Unit e d States Attorney
, Robert E. Dug dale, Chief Assistant United States A tt o r n e y , Antoine F

. Raphael (arg ued), Assistant United States Attorney
, Riverside, California, for Plaintiff-Appellee United States.U N I T E D S T A T E S V

. R O D R I G U E Z 5

ORDER

The Opinion filed J une 19, 2014, is amended sua sponte to remove the lang u ag e ap p e a ring o n pag e 22, first full
parag raph of the Slip Opinion, beg inning with < see also > a nd continuing throug h the end of the parag r aph.

A copy of the amended op i n i o n is a ttached to the Order and filed concurrently

with the Order.

W ith this amendment, the pa n e l has voted unanimously
to d e ny the Petition F or Rehearing E n Banc filed b y Alejandro Mujica o n J uly 3 1, 2014. The full court has been advised of the petition for rehearing en banc, and no jud g e has requested a vote on whether to rehear t h e m at t e r. See F ed. R. App. P. 35.

The petition for rehearing en b anc i s D E N I E D

. No further petitions for panel rehearing or for rehearing en banc will be entertained.

OP INION

RAW L I NSON, Circuit J udg e:

Appellants Oscar Rodr i guez (Rodrig uez ), J ose Murillo (Murillo), a

nd Alejandro Mujica (Mujica) challeng e their convictions for conspiracy to commit murder a nd f irst deg r ee murder stemming from the stabbing of a prison inmate, Peter Scopaz z i (Scopaz zi) at the U nited Sta t e s Penitentiary at Victorville, C a l ifornia. Appellants contend that the district
court a bused its discretion in ex cluding evidence that medicalU N I T E D S T A T E S V

. R O D R I G U E Z 6

neg lig e n ce and Scopaz z i’s removal of his breathing tube during his h ospitaliz ation may have been the p rox imate cause of Scopaz z i’s death. Appellants also arg ue t h a t t h e district
court a bused its d iscre t i o n in a dmitting ex pert testimony

c o ncerning the relationship between two prison g a ng s— t h e Sureños and the Mex ican Mafia—because Appel l a nts were not members of the Mex ican Mafia.

Additionally

, A ppellants mainta i n that a new trial was

w arranted because the g overnment failed to disclose, a s required by B rady v. Maryland

, 373 U. S

. 83 (1963) a nd Giglio v. U

nited States
, 405 U.S. 150 (1972)

, a tacit
ag ree ment with a key g overnment witness that the
g overnment would seek a sentence reduction in ex chang e for the witness’s favorable testimony

, a nd that the w itness was an informant for the Drug Enforcement Administration (DEA). Appellants further assert that th e g overnment v iolated Mooney v

. H

o lohan

, 294 U .S. 103 (1935) and Napue v

. Illinois

, 360 U.S. 264 (1959), b y a llo w i n g t he witness to falsely testify that there was no promise of a s e n t e n c e reduction based on the witness’s cooperation. W e affirm Appellants’ convictions and the d istrict court’s denial of their motion for a new trial.

I. BACK G ROUND

I n a second superseding indictment, Appellants, along with D anny M a rtinez (Martinez ) a nd W alter Meneses (Meneses), were charg e d with “knowing l y and willfully conspir[ ing ] and ag ree[ ing ] with each other to murder inmate David F ischer

. . . aka Peter Scopaz z i” in viol ation o f 18 U.S.C. § 1111. The indictment alleg ed that Appe l l a n ts armed themselves with p ri son-made knives (shanks) a nd murdered Scopaz z i in his c ell. Appellants were charg ed withU N I T E D S T A T E S V

. R O D R I G U E Z 7

“willfully

, deliberately

, and with pr e m e d itation a nd malice aforethoug ht, unlawfully k ill[ ing ] [ Scopaz z i] .” Appellants

were also charg ed with assaulti n g t w o o ther prison inmates, Ti m o t h y Ultsch (Ultsch) and W a y ne Rondeau (Rondeau), with the intent to commit m u rder, and assault with a deadly weapon “with the intent to do bodily harm.”

Prior to trial, the g overnment filed a motion in l imine to

ex c lude evidence that medical n e g lig ence may have contributed to Scopaz z i’s death. The g overnment maintained that Ap pellants “proffered no witness, ex pert or otherwise,

nor any other evidence to the g overnment that would indicate that [ Scopaz z i’s] tre at m e nt by medical staff was somehow
neg lig ent.

. . .” T he g overnment also asserted that such evidence was irrelevant because A ppellants w e re liable for murder irrespective of any medical neg lig e n c e and that the evidence mig ht lead to juror confusion.

The g overnment also f

iled a related motion in limine to preclude or limit the testimony of the def e n s e ’ s medical

e x p e r t , D r

. M a r s h al l M o r ga n , c o n c e rning m e d i c al
neg lig ence. 1 The g overnment asserted that the defense’s

n otice did “not indicate that Dr. Morg an will state t h at

1 In a letter to th e p ro secu tio n , Mu rillo ’ s atto rn ey stated th at th e d ef en s e in ten d ed to call D r. Mo rg an to “ t estif y ab o u t th e n atu re o f th e stab w o u n d s

s uffe red b y [Sco p azzi]

. . . an d th e m ed ical care g iv en to [Sco p azzi] b y p riso n an d h o sp ital p erso n n el to treat th o se in j u ries.” “ He w ill s tate th at in h is op in io n [Sco p az zi’ s] stab w o u n d s co u ld h av e b een su ccessf u lly treated su

rg ically

. Fu

rth erm o re, if [Sco p azzi’ s] c o n d i tio n h ad b een p ro p erly ev a l u a t e d

, th e n eed f o r im m ed iate su

rg ery sh o u ld h av e b een

o b v io u s.” “ B u

t b ecau se th e n atu re of [ S c o p azzi’ s] in j u ries w as n o t p ro m p t ly o r co m peten tly assessed an d ap p ro p riately treated

, t h e m ed i cal
atten tio n h e d id receiv e f

ell w ell b elo w w ell- reco g n ized s tan d ard s o f care

resu ltin g in [Sco p azzi’ s ] d eath .”U N I T E D S T A T E S V

. R O D R I G U E Z 8

[ Scopaz z i ’ s ] d eath was caused solely by the independent intervening acts of the medical staff’s trea t m e nt. That [ Scopaz z i’s] life may have been saved by mo r e s k i llful

me dical treatment, even if true, is leg ally irrelevant

. . . because even if this were true it w ould not relieve defendants of responsibility

for [ Scopaz z i’s] murder. . . .”

I n h is oppositions to the g o vernment’s mot i o n s , Murillo responded that he d id “not intend to introduce ev i d e n c e o f
neg lig ence as an affirmative defense to murder.

. . .” Murillo maintained that the evidence o f medical neg lig e n c e and Dr. Morg an’s testimony “ w ould further ex plain that the injuries

c a used by the stab w ounds would have been routi n el y repaired with proper medical care. The nature of [ Scopaz z i’s] wounds and deg ree o f f o r c e used to cause them may be circumstantial evidence of whether or not there was intent to kill. . . .”

I n g ranting the g overnment’s motions, t h e d istrict court held that medical neg lig ence was not a def e nse to murder charg es. The district court ex c luded Dr. Morg an’s testimony because Murillo failed “to proffer e x pert testim o n y that [ Scopaz z i ’ s ] d eath was caused solely by the independent intervening acts o f t he medical staff’s treatment.

. . .” The district court held that “ Dr. Morg an shall be allowed to testify
reg arding the nature of [ Scopaz z i ’ s ] wounds and the deg r ee of forc e u s e d t o cause them as such testimony is relevant to the intent of the D efendants.

. . .” H owever, D r. Morg a n was precluded fr o m testify ing “about medical neg lig ence in this

case as the probative v alue of such evidence outweig hs the dang er of confusing

the jury

. ” 2

2 T h e j u d g e ap p a r e n t l y m ean t to say th at th e p ro b ativ e v alu e o f th e

ev id en ce w as o u tw eig h ed b y th e d an g er o f

co n f u sin g th e j u ry

.U N I T E D S T A T E S V

. R O D R I G U E Z 9

I n its trial memorandum, the g overnment s o u gh t to introduce evidence that the motive for Appellants’ murder o f Scopaz z i was Scopaz z i’s disrespect of Sureños g an g members. The district court held that e vidence of Appellants’ Sureños membership and t h e Sureños’ relationship with the Mex ica n Mafia was admissible as relevant to the
g overnment’s theory that Appellants assaulted Scopaz z i d ue to their Mex ican Mafia connections. The d i s t r ict court h eld that the g ang affiliation evidence was more proba t i v e t h an prejudicial and t h at the g overnment was permitted to introduce “a limited number of photog raphs of [ A p p e llants] posing w ith certain members of the Mex ican Mafia, as such evidence may g o to issues of planning and preparation of the alleg ed offenses, and the level of r etribution called for under the tenets o f the Sureños.

. . .” Appellan t s d e cl ined the district court’s offer to prov i d e a limiting instruction concerning evidence related to the Mex ican Mafia.

At trial, Ry an Davis (Davis), a former Victorville inmate imprisoned for being a felon in possession of a firearm and an armed career criminal, testified that he had prior convictions for burg lary

, p roviding false inform a t i o n to a police officer, attempting to [ elude] a police o fficer a nd reckless driving

, unlawful delivery of a controlled substance

, a n d criminal mischief. W hile in prison, Davis “used marijuana, meth a nd heroin and d

rank,” and was involved in an attack on another inmate.

According to Davis, he was not a g ang member, but was affiliated with the Ary an B rotherhood a nd Naz i L o w R i d e rs and had several tattoos inc l u d i ng swastikas and the phrase “white power ” on h is chest. Despite his lack of g ang membership, Davis was “handed the key s for unit 4A,” a prison housing unit. Davis was g iven this leadership positionU N I T E D S T A T E S V

. R O D R I G U E Z 10

by a member o f the Ary an B r otherhood. Davis related that he became the unit’s key holder because there were no g ang members in the unit capable of the position.

According to Davis, Rodrig u ez belo n g ed to the Sureños and answered to the Mex ican Mafia. Davis related th a t the Sureños and the white inmates g enerally g ot along w e l l a nd “calle d e a ch other c omrades.” Davis g ot along well with Rodrig uez and the other Sureños. Davis testified that inmates would have to receive permission to as s a u l t members o f another race “from the top person for their race on the y a rd.” Otherwise, “their race would stab them in return.”

On April 11, 2005
, Davis noticed that Scopaz zi, Ultsch, and Rondeau had b een d r i n k i n g

. Davis observed that Scopaz z i was still d

rinking during dinner. Davis had injected methamphetamine on that day

.

L ater, Davis noticed Murillo, Rodrig u ez , and Mujica with another inmate, Dan Petty (Petty), in t h e p r ison y a rd. 3 According to Davis, Petty was escorting Murillo, Rodrig uez , and Mujica throug h the y ard s o t h at they would n o t be stopped by the g uards. Davis r elated that it was c o m m o n practice for an inmate to es c o r t other inmates who h ad
weapons, alcohol, or drug s so as to create a d i v e r s i on if stopped by

the g uards.

Davis subsequently met Scopaz z i on the y ard. Scopaz zi “was drunk, kind of hy

p eractive. He was shadow box ing

. . . with [ Rondeau] .” Murillo, Rodrig uez , and Mujica “ walked

3 Du rin g h is testim o n

y , Dav is ref

ers t o Mu rillo

, Ro d rig u ez, an d Mu j i ca b y th eir n ick

n am es Y o g i f

o r Mu rillo

, L o n ely f

o r Ro d rig u ez, an d S lo w f

or Mu j i ca. T h is o p in io n

ref ers to A p pellan ts b y

th eir last n am es.U N I T E D S T A T E S V

. R O D R I G U E Z 11

up while [Scopaz z i] was horse play ing ” and looked irritated. Davis d ecided that he needed to “ g et [ Scopaz z i, Rondeau a nd Ultsch] t o go t o bed, to g o to sleep so that

. . . hopefully nothing would happen over in their side of the unit.”

After Davis took Scopaz z i a nd U ltsch to their cell, Robert Salaz a r (Salaz ar ) v isited the cell a n d inquired if there were any problems between Scopaz z i and Murillo. Scopaz zi joked that he and Murillo could “g o in the TV r oom,” meaning that Scopaz z i and Murillo could fig ht. Davis told Sa l a z a r that Scopaz z i was “acting up, but every thing ’s all r ig ht

. . . ” Salaz a r responded, “all r ig ht g uy s” and “left the cell.” D avis believed that Salaz ar “obviously was siz ing stuff up.” After Salaz a r left, Scopaz z i told Davis t h at another inmate h ad Scopaz z i’s shank in the television r oom and Davis instructed Rondeau to retrieve the shank.

Murillo, Rodrig uez , and Mujica entered Scopaz z i’s c ell and closed the door behind them. Murillo went to the corner of the c ell with his hands under his shirt. According to Davis, Murillo “had his teeth locked and his j a w c l e nched and his
ey es w ere focused on [ Scopaz z i]

, and he just had a real a ng ry look

. . .” Davis told Murillo that Scopaz z i had been drinking and pleaded with Murillo, “Don’t d o t his.” Murillo warned Davis to back up o r h e w o uld “ g et stabbed, too.” D avis noticed a piece of wh i t e s h e et in Murillo’s h and, which was “common with shanks. Davis a lso observed a b andana
wrappe d a round Mujica’s hand as Mujica moved towards Scopaz z i. As D a v i s g rabbed Mujica and pulled him to the floor, Murillo stabbed Scopaz z i. Rodrig uez also had a shank and stabbed Rondeau in the face. Davis noticed that Rodrig uez had g loves on his h ands. W hen Ultsch returned to the cell, he was stabbed by Rodrig uez

. According to Davis, Scopaz z i did not make any threatening moves or statem e n tsU N I T E D S T A T E S V

. R O D R I G U E Z 12

prior to the altercation. Davis testified that he never learned why Murillo, Rodrig uez , and Mujica attacked Scopaz zi.

After the altercation, Davis a ssisted Scopaz z i, who h ad “puncture wounds in his che s t

. ” Althoug h Scopaz zi told Davis that h e was a ll r ig ht, Davis was concerned about Scopaz z i’s breathing

. B ec ause Davis thoug ht Scopaz z i h ad

a punctured lung

, h e assist e d Scopaz z i in seeking medical
treatment. W hen S copaz z i continued to refuse medical treatment, p rison g uards p l a ced him on the g round a nd shackled him.

Davis subsequently saw Salaz ar in the Special Housing Unit’s recre a tion area, and Salaz ar told Davis to inform the F B I that Scopaz z i had a knife. D avis eventually provi d e d a statement to the F B I and w as placed in pro t e c t i v e custody

. Davis acknowledg ed that terminat i o n of his sentence was possible based on h is cooperation. D avis also conceded that he may have received a sentence reduct i o n and been placed in a safer e n v i r o nment due to his c ooperation. D avis

a c k nowledg ed that he sig ned a letter ag reement with t h e g overnment requiring Davis to testify truthfully

. A ccording
to Davis, the letter ag reement did not contain a ny promises concerning a sentence reduction, and a ny le n iency was not conting ent upon the trial’s outcome.

Reg arding Davis’ testimony

, the district court instructed the jury that Davis “may have r e c e i v ed, or may r eceive, benefits from the g overnment in connection w ith this c ase. F or this reason, in e valuating the tes t i m o n y

. . . [ the jury ] should consider the ex tent to which o r whether that witness’s testimony may have been influe n ced by this factor. I n addition, [ the jury ] should ex amine [ Davis’] testimony with
g reater caution than that of other witnesses.”U N I T E D S T A T E S V

. R O D R I G U E Z 13

D r

. Glenn Holt, a medical ex aminer for San B ernardi n o County
, p erformed the autopsy on S copaz zi. Dr. Holt observed that there w ere five puncture wounds on Scopaz zi’s body

. The first puncture wound was approx imately three i n c h es d eep and “went throug h the skin, soft tissue, a n d muscle and hit the third r ib and caused some hemorrhag e above and below the third rib and also in the muscle b etween the third and fourth ribs.

. . .” The sec o n d p uncture wound

was “a l i t t le over three inches” deep and penetrated Scopaz z i’s r ig h t lung

, causing the lung to collapse. The third puncture wound was approx imately fi v e i n c hes deep a nd entered the peritoneal cavity creating a hole in the liver. The fourth puncture wound was approx imately “ two and a third inches” d eep and penetrated the muscle wall into the periton e al cavity

. The fifth puncture wound was “a third o f an inch” deep in Scopaz z i’s rig ht upper arm.

Dr. Holt opined that the cause of Scopaz z i’s death was a “sequelae of puncture wounds of torso” a nd “the sequelae [ were] e vents following an initial event, so

. . . the injuries

o ccur and during events subsequently th er e we r e complications that led to h is d e a t h

. ” Dr. Holt related that “there were some complications that f lowed from the fact that [ Scopaz z i] was stabbed” and that those complications led to his death. 4

Officer Robert Riley

, a B ureau of Prisons correct ional officer, testified that he w as w orking at the Special Housing Unit in A p r i l

, 2 0 05. O n April 1 4, 2 005, Officer Riley searched Murillo’s cell and found a small note referred to as

4 Du rin g cro ss- ex am i n atio n , t h e d istrict co u rt su stain ed o b j ectio n s t o th e d ef en se’ s q u estio n s c o n cern i n g th e sp ecif i c co m p licatio n s th at led to Sco p azzi’ s d eath an d w

h eth er b rain sw ellin g w as th e m aj o r co m plicatio n

.U N I T E D S T A T E S V

. R O D R I G U E Z 14

a “kite” in “a baby powder bottle.” According to a stipulated translation of the ki t e , Murillo stated that Scopaz z i h ad “disrespected the ‘Sur,’” that Scopaz z i and the other inmates “g ot what they had coming, c a u se [ sic] I ’m 100% Rider homeboy . . . .”

Special Ag ent Daniel Evanilla of the California Department o f Corrections and Rehabilitation testified as an

ex p ert on prison ga n gs. According to Ag ent Evanilla, “Sureños are Hispanic g ang members that, when they g o to a prison or a c ounty jail, band tog ether as a g roup.

. . .” Ag ent Evanilla related that “the Sureños a re the recruitment p ool for the Mex ican Mafia,” and “[ t] hey are considered the foot soldiers for t h e Mex ican Mafia.” “The Sureños conduct criminal activities for the Mex ican Mafia prison g ang

. They respond to

. . . the edicts and the orders of the Mex ican Mafia prison g ang in terms of their cri minal a ctivities, their r u les, their reg u lations and h ow they c onduct themselves in prison.” Ag ent Evanilla testified that respect from other prisoners was

an important e lement o f the Sureños’ cr e d o and disrespect

was “not tolerated.” Disrespect from a m e m b e r of another
race, particularly w hen witnessed by o ther Sureños, was “a major factor” in the Sureños’ cultu r e

. According to Ag ent Evanilla, the reprisal for such disrespect would be “[ s] o me violent assault.” Ag ent Evanilla reviewed the kite that was discovered by prison officials in Mu r i l lo’s cell a nd interpreted the kite a s meaning t h a t the white inmates h ad disrespected the Sureños.

Captain Robert Hodak of the Eng lewood F ederal Correctional I nstitution a lso t e s t ified that the Sureños were “the foot soldiers for the Mex ican Mafia.” According to Captain Hodak, Salaz ar was an influential member of the Sureños and was considered a “[ comrade] o f t h e M e x icanU N I T E D S T A T E S V

. R O D R I G U E Z 15

Mafia.” Captain Hodak investig a ted the assault on Scopaz z i. After reviewing the video of the inmates prior to the assault, Captain Hodak opined that, b ased on demeanor, positioning

, and body lang uag e, Meneses and Martinez ser v e d a s lookouts.

Salaz a r testified that h e was serving sentences for armed bank r o bbery and possession of contraband. H e confirmed that he was a Sureño, and that the Mex ican Mafia controls the Sureños “to an ex tent.” According to Salaz a r, the white inmates and the Sureños were “friendly ” and “would hang out tog ether.”

On April 11, 2005, Salaz ar and Scopaz z i started to drink wine tog e ther “rig ht after breakfast

. . . approx imately 7 in the morning

. ” Scopaz z i became “ overly drunk. He was loud. He was being phy sical with people

. . . hitting on people.

. . . ” Salaz a r had never before observed Scopaz z i in this condition.

Murillo told Salaz ar t hat Scopaz z i “had disrespected [ Murillo] in a sense where he was using the restroom on the toilet and [ Scopaz z i] opened the door and said something to the effect o f, I could’ve g ot y ou, something like t h a t.” Althoug h Mur i l lo a

n d Scopaz z i were friends, Murillo was “upset about what happened.” Salaz ar went to Scopaz z i’s c ell
to talk to him. Salaz ar intended to tell Scopaz z i that Scopaz zi “was drunk, and that h e was disrespecting people and he needed to g o to sleep.” Salaz ar a s ked Scopaz z i “what’s up with y ou a

nd [ Murillo] ? ” According to Salaz ar, Scopaz zi joking ly said that he and Murillo c o uld g o to the te l e v i sion

room and fig ht. Scopaz z i eventually apolog iz ed. Salaz ar did not observe any shanks or other weapons in Scopaz z i’s cell.U N I T E D S T A T E S V

. R O D R I G U E Z 16

After speaking with Scopaz zi, Salaz ar informed Murillo that Scopaz z i had apolog iz ed, and sug g ested that Murillo talk
to Scopaz z i the nex t day when Scopaz z i was n o l ong er intox icated. However, Murillo “ w a s upset over the disrespect and he f

elt th at he had that apolog y coming from [ Scopaz z i]

. . . ” According to Salaz ar, he did not k n o w that Scopaz z i was g o ing to b e harmed and did not realiz e that Scopaz z i had been stabbed until after the incident. Althoug h he descri b e d himself a s a mediator, Salaz ar acknowledg ed that he did not accompany Murillo to Scopaz z i’s cell.

After t h e assault on Scopaz zi, Salaz ar observed a shank in Rodrig u ez ’s cell. Rodrig u ez d i d n o t tell Salaz ar that Scopaz z i had a ttacked them. Salaz ar learned t h a t Scopaz zi had been stabbed from “the white g uy s on the tier.”

Murillo testified that, while h e was using the toilet in his cell, Scopaz zi entered Murillo’s c e ll and “put his hands on his waist” and said, “I could have g ot y ou slipping

. . . ” Murillo thoug ht that Scopaz z i “was play ing arou nd.” L ater in the day

, Scopaz zi entered Murillo’s c e l l with Ultsch a nd Scopaz z i “mov[ ed] his body back and forth like he w anted to punch [ Murillo]

. . .” Murillo did not believe that “they were play ing around any

more.”

Murillo talked to Salaz ar because he “didn’t want this to escalate into a big g er problem.” Murillo told Salaz ar that “[ t ] h ese g uy s keep coming to my cell and disrespecting

me.

. . .” A l t houg h Salaz ar told Murillo that Scopaz z i h ad apolog iz ed, Muri l lo went to Scopaz z i’s cell for a direct apolog y

. Murillo denied having a shank when he w en t to Scopaz z i’s c ell. Acco r d i ng to Murillo, Scopaz zi started swearing at Murillo and r e a ched f or a shank. According toU N I T E D S T A T E S V

. R O D R I G U E Z 17

Murillo, he disarmed Scopaz z i a nd used Scopaz z i’s shank to stab Scopaz z i in self-defense.

Rodrig uez testified that, w hen Rodrig uez , Murillo, a nd Mujica went to Scopaz zi’s c e ll, they did not have a ny shanks. Scopaz z i started to scream a t them when they entered the c ell and Rodrig uez thoug ht that Rondeau had a shank, althoug h he

never saw it. According to Rodrig uez , he saw a shank tucked into Scopaz zi’s waistband.

J ames Reed Harr i s (Harris), an inmate at the Victorville federal prison who was serving s e n t e n ces for b a nk robbery and “weapons, assault,” testified that h e was Davis’ cellmate

o n the day of the assault. Davis had inject e d methamphetamine at least twice, had not slept for four day s, and was “g etting real p aranoid.” Harris described D a v i s a s “acting rational enoug h

, ” but Harris was c oncerned that D avis “mig ht f all over

. . .” Harris e x plained that h e was “testify ing because Ry

a n Davis [ w as] ly ing to g et a time cut.”

The jury convicted Murillo and Rodrig uez of conspiracy
to commit murder, first deg ree murder, an d assault with a dang erous weapon with intent to do bodily harm as to U ltsch and Rondeau. The jury acquitted Murillo an d R o drig uez o f

as s a u l t w ith intent to commit murder as to Ultsch a nd Rondeau.

The jury c o n v i c ted Mujica of conspiracy to commit murder and first deg ree murder, but a c quitted Mujica o f assault with intent to commit murder and a s s a u l t with a dang erous weapon with intent to do bodily harm as to U ltsch and Rondeau.U N I T E D S T A T E S V

. R O D R I G U E Z 18

Appellants filed a motion for new trial beca u se the
g overnment failed to disclose that Davis had r eceived an undisclosed sentence reduction a nd had served as a DEA informant. 5 Appellants ma i n tained that Davis had a tacit
ag r eement with the g overnment for a sentence reduction because the g overnment soug ht to reduce Davis’ sentence on the same d ay as the verdicts were rendered. The motion was denied.

Appellants filed timely

notices of appeal.

II. STANDARDS OF REVIEW

“W e review d e novo whether an evidentiary e rror rises to the level o f a constitutional v iolation.

. . .” United States v

. Pineda-Doval

, 614 F .3d 1 019, 1032 (9th Cir. 2010) (citation omitted).

“W e r eview the district court’s evidentiary ruling s for abuse of discretion and its underly ing factual determinations for clear error.” United S tates v. L u k

a s h ov , 694 F .3d 1107, 1114 (9th Cir. 2012) (citation omitted).

“W e review d e novo a district court’s denial of a n ew trial

mo tion based on a Brady violation.” United States v

. Sedaghaty

, 728 F .3d 885, 899 (9th Cir. 2013) (citation omitted ). “L ikewise, the question of materiality is a leg al
matter that we review de novo.” Id. (citations, alteration, a nd internal quotation marks omitted).

5 W e g ran ted a lim i ted rem a n d fo r t he d istrict co u rt to co n s id er A p pellan t s’ m otio n

.U N I T E D S T A T E S V

. R O D R I G U E Z 19

W e also r eview d

e novo the district court’s denial of a

new trial based on an asserted M ooney-Napue violation. See United States v

. Houston
, 648 F

. 3d 806, 814 (9th Cir. 2011).

III. DISCUSSION

A. Medical Evidence Concerning Scopazzi’s Death

Appellant s c ontend that the district court denied them a complete defense by improperly ex cluding evidence that
g ross medical neg lig ence and Scopaz z i’s remov al of his brea thing tube contributed to Scopaz z i’s death. Appellants maintain that the ex cluded medical evidence was relevant to Appellant s ’ defense that the stab wounds were not the
prox imate cause of Scopaz z i’s death and that they lacked the requisite intent to kill Scopaz z i.

The resolution of Appellants’ evidentiary challeng e is larg e ly controlled by our decision in Pineda-Do v a l

. I n that
case, Pineda-Doval challeng ed his c onvictions f o r “ten c ounts of transportation of illeg al a liens resulting in death.” PinedaDoval

, 614 F .3d at 1022. He maintained that “the jury should have been instructed that i t c o u l d find the defendant g uilty only if his conduct was the prox imate cause of the ten charg ed deaths.

. . .” Id. Pineda-Doval ar gu e d that the
prox imate cause of the aliens’ death was t h e n eglig ent deploy m e n t b y B order Patrol ag e nts of a spike strip that caused the d efendant’s vehicle to flip over. See id. at 1024. Prior to tri a l

, the district court g ranted the g overnment’s motion in limine to e x clude as irrelevant evidence that the B order Patrol ag ents had failed to comply with t h e re quisite procedures for deploy

ment of the spike strip. See id.U N I T E D S T A T E S V

. R O D R I G U E Z 20

Pineda-Doval arg ued that the district court failed to properly instruct the jury that the “resulting in death” element require d proof that his acts were the p rox imate c ause o f the aliens’ deaths. Id. at 1025. W e observed that “[ a] b a sic tenet of c r iminal law is that, w hen a criminal statute requires that the defend a n t ’ s conduct has resulted in an injury

, the
g overnment must p r ove that the defendant’s conduct was the leg al o r prox imate cause of the result i n g i njury

. . . . ” I d. at 1026 (citation and internal q u o t ation marks omitted). W e

ex p lained that proof of prox imate cause required a s howing by the g overnment that the h arm suffered by the victim was

a foreseeable outcome of the defendant’s conduct. See id. at 1028. T he prox imate cause showing is more easily met when the intervening event is “not a coincidence or unrelated to the defenda n t ’s prior conduct, b u t rather w as a response to that conduct.” Id. W hen the intervening event is a response to the defendant’s conduct, “the question is whether the intervening
act w as abnormal—that is, whether, l o o k i n g at the matter with hindsig ht, it seems ex traordinary

. . . .” Id. (c i t a t ion omitted). W e held:

Pined a -Doval’s failed attempt to swerve around t h e spike strip was the prox imate cause of the deaths of ten individuals. I t was entirely f oreseeable t hat the B order Patrol would deploy a [ spike strip] ag a i n s t the d efendant’s Suburba

n a n d t h a t P i n e d a

- D o v a l ’ s d a n g e r o u s d r i v i n g w o u l d en d i n a n accident.

. . . No reasonable jury could have found that a car accident w as an ex traordinary result.

Id. at 1029.U N I T E D S T A T E S V

. R O D R I G U E Z 21

W e rejected the defen d an t ’s arg u ment that the B order Patrol ag ents’ neg lig ence “constituted a superseding cause o f the accident. . . .” Id. at 1029. W e opined:

I f we assume that [ the B order Patrol ag e nt] made a mistake by pulling th e [ spike strip]

across the road several seconds too early

, this mistake was not so ex traordinary a s t o break the chain of caus a tion. Pineda-Doval created the dang e rous conditions . . . and, because he refused to pull over in response to [ the B order Patrol ag ent’s] lig hts and sirens, forced the B o rder Patrol to u s e drastic measures to stop him. T he resulting deaths of his
t e n p a s s e n ge r s w e r e t r a g i c , b u t n o t

unex p e cted. . . .

Id. at 1029–30.

W e held that any error in the district court’s ex clusion o f evidence that the B order Patrol ag ents were n e gl ig ent in failing to follow the r equisite p ro c e dures for deploy ment o f the spike strip was h a

r mless. “ [ O] ccasional neg lig ence that should have b een anticipated by the d efendant does not defeat
prox imate c ause.

. . .” I d

. at 1029 (citation and internal quotation marks omitted). “To show that the actions of [ the B order Patrol ag ent] constituted a superseding c a u se that broke the c hain of causation between P i neda-Doval’s dang erous driving

, that neg li ge nce would have had to be so

ex traordinary that it would be unfair to hold the defendant responsible for the resulting a ccident and deaths.” Id. at 1034 ( c itation and internal quotation marks omitted). “E v e n assuming that the defenda n t p e r suaded the jury that timing

was e ssential to the correct and safe deploy ment of [ the spikeU N I T E D S T A T E S V

. R O D R I G U E Z 22

strip] and that [ the B order Patrol ag ent] made the mistake o f pulling the spike strip across the r o a d s everal seconds too early

, n o reasonable jury could have found that [ the B order Patrol ag ent’s] actions were e x traordinary and could not have been foreseen b y [ the defendant] .” Id. (citations a nd footnote reference omitted). T herefo re,“[ t] he district court’s e rror in

ex c luding evidence o f [ the B order Patrol] p o licies on spike strips was harmless bey

ond a reasonable doubt.” Id.

Similarly

, in this case we co nclude that any error in the district court’s ex clusion of e vidence concerning medical
neg lig ence or Scopaz z i’s removal of his breath i n g t u be was h a r mless bey ond a reasonable doubt. B ecause medi c al
treatment was a f

oreseeable response to Appellants’ conduct of stabbing Scopaz z i, prox imate cause was established by the
g overnment. See id. at 1028. Appellants failed to p r o ff er evidence establishing medical neg lige n c e as a superseding

cause o f Scopaz zi’s d eath. To make t h e r e q uired showing

, Appe l l a n ts would have to demonstrate that medical
neg lig ence and Scopaz zi’s removal of h is breathing tube were “so e x traordinary that it would be u nfair to hold [ Appellants] responsible f

o r the resulting

. . . d eath[ ] .” Pineda-Doval

, 614 F .3 d at 1 034 (citation a nd internal quotation marks omitted); see also Mitchell v. Pru n t y , 1 07 F .3d 1337, 1341 n.8 (9th Cir. 1997), as amended

, overruled on other grounds by Santamaria v. Horsley

, 133 F .3d 1242, 1248 (9th Cir. 1998) (observing that “if g ross maltreatment of the wound

wa s t h e s o le cause of death, the person inflicting the wound will n ot be liable, because the wound was not the prox imate cause of death. I n this case, g ross maltreatment would have been required to render [ the victim’s] g unshot wounds fatal.”) (citation and internal quotation marks omitted).U N I T E D S T A T E S V

. R O D R I G U E Z 23

As it was foreseeable in P ineda-Doval that B order Patrol
ag ents would deploy a spike strip to stop a fleeing suspect, it

was similarly foreseeable in this case that a victim of multiple deep stab wounds would receive medical care. See PinedaDoval , 614 F .3d at 1034. A nd, as we held in Pineda-Doval

, any neg lig ence in the foreseeable response to the stab wounds does not break the causation chain. See id. The same is true reg ard i n g Scopaz z i’s removal of his breathing tube. See Sedation and D elirium in the Intensive Care Unit
, 14 New Eng land J

. o f Med. 4 44 (J an. 30, 2014) (discussing the accidental removal of endotracheal tube due to delirium and
ag itation).

Dr. Morg a

n’s proffered t e s t i m o n y d id not address whether medical neg lig ence was the sole c a use of Scopaz z i’s death o r

even an intervening cause. Althoug h Dr. Morg an purportedly opined that “the medical attention [ Scopaz z i] did receive fell well below well-recog

niz e d standards o f care resulting in [ Scopaz z i’s] death,” Dr. Morg an did n o t s tate that

ex traordinary medical n eg lig ence or Scopaz z i’s removal o f his breathing tube caused Scopaz z i’s death independent o f the stab w ounds themselves. Althoug h the district c ourt ruled that Dr. Morg an could testify “ reg arding the nature o f [ Scopaz z i’s] wounds a

nd the deg ree o f force used to cause them,” Dr. Morg an n ever actually testified. Appellants also informed the district court that they did not intend to rely on medical n egl ig ence a s an affirmative defense. Thus, the di s trict court’s ex clusion o f Appellants’ proffered evidence had no beari n g on the fairness o f Appellants’ trial because that evidence did not establish medical neg lig ence or removal of the breathing tube a s a superseding cause of Scopaz zi’s death.U N I T E D S T A T E S V

. R O D R I G U E Z 24

Our conclusion that Appellants failed to proffer admissible evidence that e x traordinary medical neg lig ence o r Scopaz z i’s removal o f his breathing tube co n stituted a supervening cause of Sc o p az z i’s death is bolstered b y the Seventh Circuit’s rationale in B rackett v. Peters
, 11 F .3d 78 ( 7 th Cir. 1993). I n Brackett

, the habeas petitioner was convicted of felony m u r der based on his rape and assault o f

an 85-y ear-old woman. S e e id. at 79. The victim “was admitted to the hospital w ith a broken arm, a broken rib, a nd

ex tensive bruises. During h er stay in the hospi tal, which lasted several w eeks, she—described a s feisty b efore the rape and beating

—became depressed, resisted efforts to feed her, and became p rog ressively weaker.” I d. (internal quotation marks omitted). After her transfer to a nursing home, she continued to reg ress, even thoug h her phy sical injuries were healing

. B eca u s e of her lack of appetite, her doctor ordered placement of a nasal g a stric feeding tube. However, the tube could not be inserted, in part because the victim’s facial injuries made insertion of the tube too painful. See id. Approx imately

ten day s after her admission, the victim died when a larg e quantity of food became lodg ed in her trachea, asphy x iating her. S

ee id. The h abeas p etitioner contended that the n eg lig ence of the nur s e who was feeding the victim caused her death. See id. at 80.

I n rejecting the h abeas petitioner’s arg ument and holding that th e p etitioner’s assault was the prox imate cause o f the victim’s death, the Seventh Circuit o bserved that “an act is a

cause o f an e vent if two conditions are satis f i e d : the event would not have occurred w ithout the a ct; the act m a d e t h e event more likely .” Id. at 79. The Seventh Circuit opined that the nurse’s purported neg lig ence w as nothing more than

a n o t h er c ause of the victim’s death. See id. at 8 0. T h e S eventh Circuit concluded that “a murderer does not a v o i dU N I T E D S T A T E S V

. R O D R I G U E Z 25

conviction by pointing out that his act was only o n e of many causes that concurred to b ring about his victim’s death.” Id. “I t is enoug h if h is act w as one of the causes-enoug h therefore if [ the petitioner’s] assault made [ the victim’s] d e a t h more likely and if, but f or the a ssault, she would n o t h ave d ied as soon a s she did.

. . .” I d. (citations o mi t t e d ). “Death was the last link in a continuous series of events that beg an with the assault. [ The v ictim] died a month later, never having returned home.

. . .” Id. The court emphasiz ed that had the victim never been assaul t e d

, i t is unlikely that she would have been admitted to th e h o s p ital to die one month later. See id.

The petitioner also a

rg ued that the assault caused the victim to become clinically d epressed and suicide-prone. According to the petitioner, the victim committed suicide b y

r e f u s i ng to eat, and that suicide was a superseding c ause o f the victim’s d eath. See id. at 80–81. T he S e v enth Circuit rejected this arg ument, reasoning that “[ t] he fact that a psy chiatric condition, whether or not by p recipitating suicide, is one of the causes o f a victim’s de a t h does not ex cuse his murderer. O therwise, it would b e op e n s e ason on sufferers from mental illness.” Id. at 81 (citations omitted). The court contrasted a c hance occurre n ce , such as a fire at a nursing home, that would be a superseding c au s e if death resulted. See id. at 80.

Other circuits have also held that defendants are liable for

m u r d e r n o t w i t h s t a n d i n g additional occurrences. F or ex amp l e , in United S t a tes v. Swallow

, 109 F .3d 656 (10th Cir. 1997), the Tenth Ci r c uit affirmed the defendant’s murder convictions despite the defendant’s arg ument that the district
court erred in failing to p rovide a “proposed instru c t i on characteriz [ ing ] an independent intervening cause as theU N I T E D S T A T E S V

. R O D R I G U E Z 26

u n foreseeable g ross n eg lig ence of a third party that relie v e s the defendant of responsibility for the d eath of the victim.

. . .” Id

. a t 659 (citations omitted). I n rejecting the defendant’s arg

ument that neg lig ence on the part of rescuers contributed to the victims’ d eaths, the Tenth Circuit held that “in cases involving death from injuries inflicted in a n assault,
courts h a ve uniformly held that the person who inflicted the injury w ill be liable for the death d e s p i te the failure of third
persons to save the victim.” Id. at 660 (citat i o n s and alteration omitted).

Similarly

, in United S

tates v. Guillette

, 5 4 7 F .2d 743 (2d Cir. 1976), the Second Circuit held that the d e f e n dant was liable for the death of a v i c tim w ho may have a ccidently trig g ered a bomb. See i d

. at 747–48. “The trial judg e instructed the jury that even if [ the victim] died accidentally throug h h is own actions, the d efendants w ould nonetheless be
g uilty of conspiracy with death r esulting if [ the victim’s] death w as induced or br o u gh t about by some act of a conspiracy in furtherance o f the purpos e s o f a conspiracy

. ” Id. at 748. The Second Circuit rule d t h a t “[ a ] fundamental principle of criminal law is that a p e r son is held responsible for all consequences prox imately caused by his criminal

c onduct. The concept of prox imate cause incorporates t h e

no t i on that an a ccused may be charg ed with a criminal offense even thoug h h is acts were n ot the immediate cause o f the victim’s death or injury

. ” I d. at 7 49 (citation o m i t t e d ). “I n many situations g iving rise to criminal liability

, the death

or injury is not directly c a used by the acts of the defendant but rather results from intervening f o r c e s o r events, such a s neg lig ent medical treatment, escape attempts, or the n eg lig ent

or intentional acts of a t h i rd p arty .” Id. “W here such intervening events are foreseeable an d naturally r esult from

a perpetrator’s criminal conduct, the law considers the chainU N I T E D S T A T E S V

. R O D R I G U E Z 27

of leg al causation unbroken and h olds the perpetrat o r criminally

responsible for the resulting harm.” Id. (citations omitted); see also United States v. Rodriguez

, 279 F .3d 947, 950–51 (11th Cir. 2002) (holding in the sentencing enhancement contex t that “one may be held criminally liable for a victim’s death even where medical n egl i g ence o r mistreatment also c ontributed to the victim’s death”) (citation omitted).

State courts have also consistently held that the defendant
must demonstrat e ex traordinary medical neg lig ence as the sole cause of death to break the causation c h a i n

. See, e.g. , People v. Mars
, 985 N.E.2d 5 70, 575 (I ll. App. Ct. 2 012), as modified (“The presumption [ of causation] must be rebutted by the defendant’s presentation of contrary evidence that the sole cause of death was the intervening g ross neg li g e n ce o f phy sicians. U nskilled or improper m e dical treatment that
ag g r avates a victim’s preex isting condition or contributes to the victim’s death is considered reasonabl y f o r eseeable a

nd does not constitute an intervening act unless the treatment is

s o bad that it can be classified as g ross neg lig e nce o r intentional malpractice.

. . .”) (citations omitted) (emphasis in the orig inal); State v. Shabazz

, 719 A.2d 4 4 0
, 445 (Conn. 1998) (“The rule

. . . t h a t such g ross neg lig ence may p ermit the d efendant to e scape liability when it w as the sole cause o f the death, strikes an appropriate balance between the n otions of c riminal responsibility for one’s conduct, on one hand, a nd intervening cause, o n the other.”) (citation omitted); S tate v. Kirby

, 3 9 P.3d 1, 12 ( Kan. 2002) (“I t i s clear that the phy sicians’ actions were n ot so unusual, abnormal, o r

ex traordinary that they cou l d n o t have been f oreseen. The phy sicians’ neg lig e n ce, if any , did not supersede the effect o f
t he wounds inflicted by [ the defendant] so as to become the sole leg a l cause of [ the victim’s] death.”); People v. R oberts

,U N I T E D S T A T E S V

. R O D R I G U E Z 28

826 P.2d 274, 295 (Cal. 1992) (in ban k )

, a s modified (“I f a person inflicts a dang erous wound on another, it is ordinarily

no defense that inadequate medi c a l t reatment contributed to t h e victim’s death. T o be sure, when medical treatmen t i s grossly improper, it may discharg e liability for homicide i f the maltreatment is the sole cause of d eath and hence an unforeseeable intervening cause. . . .”) (citations omitted).

Given the weig ht of such consistent federal a nd state precedent, we conclude that Appellants failed to proffer any probative evidence that ex traordinary medical neg lig ence o r Scopaz z i’s removal of his b reathing tube was the sole cause

o f Scopaz z i’s death. I ndeed, Scopaz z i would n ot have needed medical care or a breathing tube abse nt Appellants’ infliction of five s t a b w ounds, including a wound that punctured Scopaz z i’s lung

. The alleg ed medical neg lig e nce

or removal of Scopaz z i’s breathing t u b e may have been “another cause of [ Scopaz z i’s] death

, ” but neither was a supervening event ex o nerating Appellants f r o m the death resulting from their assault. Brackett

, 11 F .3d at 80 (citations omitted). I t was not sufficient for App e l l a n ts to simply proffer some evidence of medical n e g lig en c e or Scopaz zi’s removal of h is breathing tube without otherwise satisfy ing the standard for prox imate c a

use. See Pineda-Doval

, 614 F .3d at 1034; see also Guillette

, 547 F .2d a t 749 (“W here such intervening e v ents are foreseeable and naturally r esult from

a perpetrator’s criminal conduct, the law considers the chain of leg al causation unbroken a n d h olds the perpetrator criminally responsible f

or the resulting harm

. T h is principleU N I T E D S T A T E S V

. R O D R I G U E Z 29

applies even w here the d irect cause o f death is a f orce set in motion by

the victim himself. . . .”) (citations omitted). 6

United States v. Main
, 113 F

. 3d 1046 (9th Cir. 1 997) does
not compel a contrary re s u lt. I n Main
, we d elineated the applicable standard for prox imate cause involving an involuntary mansl a u g hter conviction resulting from the defendant’s reck less driving while intox icated. See id. at 10 4 7

. I n reversing the conviction, we held that the district
court f ailed to properly instruct the jury that it must find that the d efendant’s acts w ere the prox imate cause of the victim’s deat h

. S e e id. at 1 049–50. W e observed that “[ a] ll of the authorities ag ree that to be g uilty of involuntary manslaug hter the h armful result must be within the risk foreseeably created by the accused’s conduct; if the phy sical c a u s a tion is too remote, the law will not tak e c o g n i z ance of it.

. . .” Id. at 1049. W e c onsidered the foreseeability determination more difficult when the manslaug hter charg es stem from e x cessive

s p e e d or drunk driving because many individuals speed and/or drive while impaired without killin g a ny one. See id. Therefore, the foreseeability determinat i o n would require

6 Co n sisten t w ith its p rio r ru lin g s on th e g o v ern m en t’ s m o tio n s in limin e , th e d istrict co u r t d id n o t ab u se its d iscretio n w h en it d en ied A

p p ellan ts’
req u est to cro ss- ex am in e Dr. Ho lt, th e m ed ical ex am in er, reg ard in g h is d escrip tio n o f “ t

h e seq u elae o f p u n ctu re w o u n d s” u ltim ately lead in g to Sco p azzi’ s d eath

. A

p p e l l a n t s s p ecif

ically so u g h t to q u estio n Dr. H o l t

co n cern i n g Sco p azzi’ s rem o v al o f h is b rea t h i n g t u be, a su d d en lo ss of b lo o d

, card iac arrest, an d b rain sw ellin g

. Dr. Ho lt’ s testim o n y d id n o t

o p en th e do o r to t

h is a d d i t i o n al m ed ical ev id en ce b ecau se D r. H o l t ack n o w led g ed th at th e co m p licatio n s “ f

lo w ed f ro m th e f

act th at [Sco p azzi] w as s tab b ed .” In an y ev en t, A pp ellan ts’ p ro f

f er d id n ot satisf

y th e p ro x im ate cau se stan d ard o f co m p lic a tio n s “ so ex trao rd in ary t h at i t

w o u ld b e u

n f air to h o ld [A p p ellan t s] resp o n sib le f o r th e resu ltin g

. . . d eath [ ].” Pin ed

a -Do va l

, 6 1 4 F .3 d at 10 3 4 (citatio n an d in tern al q u o tatio n

m ark s o m itted ); see a lso Bra ckett , 1 1 F.3 d at 8 0

.U N I T E D S T A T E S V

. R O D R I G U E Z 30

careful ex amination of the individual “conduct eng ag ed in.” I d

. W e held that reversal of the conviction was warrant e d because “ [ w] h en the jury

is not told that it must find that the victim’s death was within the risk created by the defendant’s conduct a

n e l e m e n t of the crime has been erroneously withdrawn from the jury

. ” Id. at 1050 (citations omitted). 7

I n stark c ontrast to Main
, A ppellants’ con victions were not premised on the more ambig uous acts of “ex c essive speed

or drunk driving. ” Main
, 113 F .3d at 1049. Rather, Appellants’ use of deadly weapons to directly inflict serious stab wounds carried the completely foreseeable risk that Scopaz z i’s injuries would r e sult i n d e a th. Moreover, the district court included the c oncept of p rox imate cause in the instruction on voluntary manslaug h t er , and the concept o f foreseeability

in other instructions. 8

7 W e o f f ered th e f o ll o w i n g ex am

p le o f a su f

f icien t i n terv en i n g cau se: “S u p p o se [th e v ictim ] h ad been p in n ed in t h e w reck an d th en eaten b y a b ear. H is death w ou ld h a v e b een th e resu lt o f th e w reck ; b u t f

o r [th e d ef en d an t ’ s] d riv in g , h e w o u ld n o t h av e been k illed

, y et a j u ry co u ld f in d

a s a f act th at th e d eath w as n o t w ith in th e risk t h at [th e d ef

en d an t] h a d created

. In th e lan g u ag e o f t h e A m erican L aw In stitu

te d eath f ro m a bear

w as n o t w ith in th e risk f o reseeab ly created b y th e reck less d riv i n g [.]” Ma in , 1 1 3 F.3 d at 1 0 4 9 (citatio n o m itted ).

8 A p p ellan ts’ relian ce o n Un ited S ta t es v. Ch o u t e a u , 1 02 U.S. 6 0 3 (1 8 8 0) i s also m i sp laced

. In Ch o utea u , th e Su p rem e Co u rt co n sid ered

w h eth er a d istiller w as lia b l e f o r b reach o f certain b o n d co n ditio n s. S ee id

. at 6 0 8 . W ith in

th at co n tex t, th e Su

p rem e Co u rt m erely

o b serv ed th at

“ [i]f , f o r ex am p l e, a p arty

sh o u ld ch arg e an o t

h er w ith in f lictin g u p o n h is
p erso n a w o u n d b y w

h ich h e lo s t an arm , it w o u ld b e a g o o d def en ce to sh o w th at th e l o ss resu lted f ro m u n sk ilf

u l m ed ical treatm en t or n eg lect an d

n o t f ro m th e w o u

n d in f licted

. So h ere, it i s e n o u g h f o r th e s u reties to sh o w t h at th e lo s s to th e g o v ern m en t w as pro d u ced b y o th er m ea n s t han th e p articu lar b reach o f d u t y b y th eir p rin cip al, o f

w h ich th e g o v ern m en t

co m plain s.

. . .” Id

. at 6 0 9

. N eed l ess to say , th e law h a s e vo l ve d i n th eU N I T E D S T A T E S V

. R O D R I G U E Z 31

B e cause Appellants failed to demonstrate that any medical neg lig ence or removal of a breathing tube was “so

ex traordinary that it would be unfair to hold [ Appellants] responsible f

o r the resulting

. . . d e a t h [ ] ,” Pineda-Doval

, 614 F .3d at 1034 (citation a nd internal quotation marks omitted), and because the jury instructions included the concepts of foreseeability and prox imate cause, the district
court a cted within its discretion when it cabined the medical evidence.

B. Evidence of

G ang Af f iliation

Appellants nex t c onte n d that the district court erred in admitting irrelevant and p r ejudicial evidence concerning Appellants’ alleg ed connection to the Mex ican Mafia. Appellants also maintain that the d i s trict court erred in holding that the evidence’s probative val u e outweig hed any prejudice under F ederal Rule of Evidence 403.

I n United States v. Santiago
, 46 F .3d 885 (9th Cir. 1995),

we rejected an analog ous evidentiary c halleng e. I n that c ase, to e stablish the motive for the defendant’s first d eg ree murder of another inmate, the g overnment introduc e d a cellmate’s testimony that the defendant soug ht to b eco me a member o f
t h e M e x i can Mafia. S

ee id. at 887–88. I n affirming the district court’s admission of evidence concerning the defendant’s ties t o the Mex ican Mafia, we observed that the testimony did not v iolate Rule 404(b) because i t “did not relate to o ther crimes,” and it fell within t h e e x c eption for evidence reg arding motive. Id. at 888–89. “[ T] h e testimony relating to the Mex ican Maf i a was necessary to ex plain the

cen tu ry

- p lu s sin ce Ch o u t e a u w as decid ed

. S ee Pin ed a -Do va l

, 6 14 F.3 d at 1 0 3 4

.U N I T E D S T A T E S V

. R O D R I G U E Z 32

reason that Santiag o would kill a str a n g er – to be accepted into th e ga n g – and to show how and why other inmates assisted him in o b t a i n i n g the w eapon.” Id. at 889. W e

r ejected the arg ument that the g overnment’s u se of t h e testimony w as a pretense intended to denig rate the defendant for his affiliation wi t h a prison g ang

. See id. at 889–90. Because the evidence reflected that the defendant h a d

ex p ressed interest in the g ang and had a ssociated with g ang members, including on the nig h t before the murder, a sufficient foundation was laid to admit the testimony

. S ee id. at 890.

W e similarly conclude that testimony relating to t he Mex ican M afia w as relevant to Appellants’ murder o f Scopaz z i

, a nd that its p robative value was not substantially outweig hed by any prejudice. Altho u g h Appellants attempt to disting uish Santiago on the basis that the g overnment did
not present any e vidence that Appella nts stabbed Scopaz zi based on their ties to the Mex ican Mafia, the record supports

a contrary conclusion. A s in Santiago
, the Mex ican Mafia testimo n y w as critical to the g overnment’s theory that Appellants did not act in self-defense and that their attack on Scopaz z i for seeming ly insig nificant acts of disrespect was motivated by their ties to the Mex ican Mafia. See Santiago
, 46 F .3d a t 889–90. The g overnment also introduced the kite from Murillo’s cell t h at i m p lied the attack on Scopaz z i was motivated by Scopaz z i’s disrespect of the Sureños.

Appellants’ trial was also permeated w i t h references to their g a ng a ffiliations, and A g ent E vanilla’s ex pert testimony addressed the connection between the Su r e ñ o s and the Mex ican Mafia within the prison g a n g hierarchy

. Given Appellants’ admitted g ang connections, the ex pert testimony concerning the Mex ican M a f i a a n d p h otog raphs of AppellantsU N I T E D S T A T E S V

. R O D R I G U E Z 33

with members of t he Mex ican Mafia was not unduly prejudicial as “ the Mex ican Mafia w as not the entire theme o f the trial, so as to infect the trial with the threat of g uilt b y association.

. . .” Santiago
, 46 F .3d at 889 ( cit ation, alteration, a

nd internal q u o t a tion marks omitted). T h is is particularly true in this case where the trial focused p rimarily

on the events th a t transpired in Scopaz zi’s cell a nd the jury

was presented with numerous photog raphs and videos of the
events without reference to Appellants’ connectio n s to the Mex ican Mafia.

Notably

, the district c ourt also took several steps t o minimiz e a

ny undue p rejudice. I n particular, the district court permitted on l y “a limited number of photog raphs o f [ Appellants] posing wi t h certain members of the Mex ican Mafia” and “brief testimony by qualified witnesses reg arding the hierarchy

, customs, practices and tenets of the Mex ican Mafia and its relationship and connectio n t o the Sureños.” T h e d i s t rict court also committed to “include in its voir dire of prospective jurors ex amination on th i s subject a nd its effect, if any , on any juror’s a bility to judg e the ca s e fairly and objectively .” Appellants rejected the district court’s offer
to provide a limiting instruction concerning why the Mex ican Mafia testimony was being ad m i tted into evidence. See United States v

. Decoud

, 456 F .3d 996, 1012 (9th Cir. 2 006) (rejecting evidentiary c halleng e in part because the defendant “did not take up the d istrict court on its offer to provide the jury with a limiting instruction that could h ave mitig ated, if not neg ated, [ the defendant’s] concerns”).

W e c o n clude that the d istrict c o urt did not abuse its discretion in admitting evidence pertaining to the connection between the Sureños and the Mex ican Mafia as relevant to Appellants’ motive in attack i n g S c o p az z i. See Santiago
,U N I T E D S T A T E S V

. R O D R I G U E Z 34

46 F .3d at 889–90; see also United States v. Major
, 676 F .3d 803, 810 (9th Cir. 2012) (holding that the district c o u r t did
not abuse its discretion in admitting g ang affiliation evidence as relevant to motive).

Appellants’ reliance on K ennedy v. Lockyer

, 3 79 F .3d 1041 (9th Cir. 2004), as amended

, Spivey v. Rocha

, 194 F .3d 971 (9th Cir. 1999), and Dawson v. Delaware

, 503 U.S. 159 ( 1 9 9 2 ) i s misplaced as t h o s e c a s e s a r e e n t i r el y disting u i s h a b le. I n Kennedy

, we did not address an evidentiary challeng e to g ang affiliation evidenc e

. I nstead,

we h e l d t h a t a habeas p etitioner was prejudiced because the attorney for his retrial w as not provided a c omplete trial transcript that included the trial court’s prior ruling ex cluding such evidence. See Kennedy

, 3 79 F .3d a t 1042–43. B ecause the p r o secution elicited the precluded testimony in the second
tr i a l i n v iolation of the trial c ourt’s prior order, we held that the p etitioner w as prejudiced in p art because “where, as h ere, g ang evidence is proffered to p rove a substantive element of the crime (and not for impeachment purposes), it would likely be unduly prejudicial. . . .” Id. at 1056 (citation and internal quotation marks omitted).

I n Spivey
, w e considered whether the trial c ourt erred in

ex cluding evidence of the witnesses’ g ang affiliation proffered by the defendant. See S pivey
, 1 94 F .3d at 9 77. The trial court ex cluded the e vidence b ecause it did not support the defendant’s assertion that the victim “was killed by a phantom killer” a

nd there was already sufficient evidence o f the witness’s potential bias. Id. W e h e l d t h at, because the evidence was purely specula t i v e , ex clusion of the evidence did not render the defendant’s trial fundamentally unfair. See id. at 979. Contrary

to Appellants’ a ssertion, Spivey did not hold that the prosecution was required to establish that g angU N I T E D S T A T E S V

. R O D R I G U E Z 35

affiliation was the actual motive for the murder. I nstead, we articulated that, under California law, “[ i] n order for evidence of another suspect to b e admissible

. . . there must be direct o r circumstantial evidence linking the third person to the actual
p e r p etration of the crime. Motive or opportunity is n o t enoug h. . . .” S

pivey
, 194 F .3d a t 978 (citations and internal quotation marks omitted).

I n Dawson
, the Supreme Court held that evidence concerning the Ary a

n B rotherhood was inadmissible because it contravened the d efendant’s associational r ig hts. See Dawson
, 503 U.S. at 164–65. The Supreme Court opined that “the Ary an B rotherhood evidence was not tied in any way to the murde r o f [ the defendant’s] victim” and that “the inference which the jury was invited to draw

. . . tended to prove nothing m o r e t han the abstract beliefs of [ a particular Ary an B rotherhood] chapter.

. . .” I d. a t 1 6 6

. Unlike in Dawson
, the Mex ican Mafia evidence in t h i s case was “tied to the murder” of Scopaz z i as evidence of motive.

C. Brady and Mooney-Napue Claim s

1. Non-Disclosure of A Tacit A g reem e nt That Davis Would Receive A Sentence Reduction

Appellants posit that a new trial is warranted because the
g overnm e n t’s failure to disclose a tacit ag reement to reduce Davis’ s e ntence c ontravened Brady

. “Under Brady

, the suppression by the prosecutio n of e vidence favorable to an accused upon r equest violates due process where the evidence is material either to g uilt or to p unishment.” United States v

. Stinson
, 647 F .3d 1196
, 1 2 0 8 (9th Cir. 2011), a s amended (citation and internal quotation mark s o mitted). “There a re three components of a B rady violation: the e vidence a t issueU N I T E D S T A T E S V

. R O D R I G U E Z 36

must be favorable to the accu s e d

, ei ther because it is

ex c u lpatory

, or because it is impeaching ; that evidence must have been suppressed by the State, either w i llfully o r inadvertently ; a

nd prejudice must have ensued.” Id. (citation, alteration, and internal qu o tation marks omitted). “To determine whether prejudice ex ists, w e look to the materiality of the suppressed evidence. W hen looking to materiality

, the questi o n is whether admission of the suppressed evidence would have created a reasonable probability of a d i fferent result, so the defendant must show only that the g overnment’s evidentiary suppression und e rm ines confidence in the
outcome of the trial.” I d. (citation and internal quotation marks omitted).

The record reflects that there was no Brady violation premised on D avis’ cooperation

. Althoug h the g overnment initiated the process under F e deral Rule of Criminal Procedure 35 to r educe Davis’ sentence on the same day the jury found A ppellants g uilty

, w e are unable to conclude that this temporal prox imity alone establishes a Brady violation. At trial, D avis testified that e arly termination of his sentence

was p ossible based on his cooperation. D avis r elated that the letter ag reement required that he testify truthfully and that the
ag reement did not provide any promises of leniency or a sentence reduction conting ent upon the trial’s outcome. A s reflected by Davis’ testimony

, the g overnment fully disclosed the letter ag reeme nt and the F B I interviews. 9 Appellants failed to d emonstrate that a ny of the g overnment’s post9 A p p ellan ts m ain tain th at Dav is f al s e ly d en ied th at h e ex p ected an y len i en cy b ased o n h is testim o n y

. Ho w ev er, A p p ellan ts h av e n o t p resen ted

an y ev id en ce o f a tacit ag reem en t f o r len i en cy o r th at Dav is w as aw are of

an y su ch ag reem en t.U N I T E D S T A T E S V

. R O D R I G U E Z 37

verdict a ctions were inconsistent with the letter ag reement o r were premised on an undisclosed tacit ag reement. 1 0

W e conclude that n o Brady violation occurred because there was no tacit ag reement to disclose. See United States v

. Price
, 566 F .3d 900, 910 n.11 ( 9th Cir. 2009) (“I f the record is conclusive that a ll relevant a g ents of the go vernment did
not know about the Brady material, then, of course, no Brady violation has occurred a s the g o vernment has no oblig ation to produce information which it does not possess or of which it is unaware.

. . .”) (citation and internal quot ation marks omitted) (emphasis in the orig inal). The district court also cautioned the jury th at Davis “may have received, or may receive, benefits from the g overnment in connection with this case” and that the jur y should ex amine Davis’ testimony “with g reater c aution than that of other witnesses.” 1 1 Davis’

10 A pp ellan ts’ relian ce o n Siva k v. H a rd i so n , 6 5 8 F.3 d 8 9 8 (9 th Cir. 2 0 1 1 ) is u n av ailin g

. In th at case, th e w itn ess testif ied th at certain ch arg es

w ere d ism i ssed b u t “ h e d id n o t k n o w w h eth er th e p ro secu t o r’ s o f f ice w as in v o lv ed in th e d ism issals.” S iva k

, 6 5 8 F.3 d at 9 0 4

. T h e w itn ess also testif ied th at h e co o p erated b ased on f ears f o r h is f am ily ’ s saf

ety an d th at h e w as n o t “ seek in g an y p ar t i c ular f av o ritism f

ro m State au th o rities in

ex ch an g e f

o r h is testim o n y

. . .” Id

. at 9 0 3 (in ter n a l q u o t atio n m ark s

o m itted ). We h eld th at th ere w as a Bra d y v io latio n b ased o n u n d isclo s ed letters ref lectin g a tacit ag reem en t f o r len ien cy

. See id

. at 9 0 9

– 1 0

. Dav is,

u n lik e th e w itn ess in S

p i v a k

, ack

n o w led g ed th at h e h o p ed th at h is

co o p erat i o n w o u l d resu lt in a sen ten ce red u ctio n an d n o tacit ag reem en t f o r len ien cy

w as u n earth ed

.

11 A p p ellan t s m ain tain th at th e d istrict co u rt’ s in stru ctio n w as in ef f ectiv e b ecau se it req u ired th e j u ry to sp ecu l ate. Ho w ev er, it is u n clear h o w th e d istrict co u rt’ s in stru ctio n w as in ef f ectiv e as it sp ecif

ically cau tio n ed th e j u ry ab o u t th e p o t e nt i a l im p act o f an y ben ef

its Dav is receiv ed f

o r h is

co o p eratio n

.U N I T E D S T A T E S V

. R O D R I G U E Z 38

c r e d i b i l i t y , t h e r e f

o r e , w a s s i gn i fi c a n t l y u n d e r m i n e d irrespective of any

tacit ag reement for a sentence reduction.

2. Non-Disclosure o f Davis As A DEA Inf orm ant

Appellants also arg ue that a new trial is r equired because the g overnment failed to d isclose that Davis served as a DEA informant.

Althoug h it is arg uable that the g overnment was r equired
to disclose this information a s i mpeachment evidence, see United States v. S i
, 3 43 F .3d 1 116, 1123 (9th Cir. 2 003) (observing that “these [ informant] reports can be considered favorable to [ the d e f

endant] b ecause, a s inf

ormation about [ the witness’s] ong oing inf ormant activities, they would constitute impeachment e videnc e tending to show [ the witness’s] motives in testify ing for the g overn m ent”), its disclosure would not “have led to a different result

. . . . ” United S tates v

. Olsen

, 704 F .3d 1172, 1184 (9th Cir. 2 013) (citation omitted). As discussed, Davi s ’ c r edibility was sufficiently undermined by the defens e , g iven his admitted cooperation w ith the prosecution, his ex tensive cr i minal history

, and his illicit p r i s o n a ctivities. Althoug h the DEA report may have further d emonstrat ed Davis’ willing ness to cooperate w ith the g overnment, Appellants do n ot point to any benefits that Davis received from his c o operation, particu l arly as A ppellants do n ot r ebut the g overnment’s representation that Davis was n e v e r c l assified as a DEA informant. “The cross-ex a mination of [ Davis] raised reasonable doubts as to his motivation for testify ing and there

was sufficient impeachment evidence for the jury to question seriously the veracity o f [ Davis’] orig inal statement. Thus,
reg ardless of the fa i l u r e to d isclose the informant status o f [ Davis]

, [ A p pellants] received a trial resulting in a verdictU N I T E D S T A T E S V

. R O D R I G U E Z 39

worthy of c onfidence.” Gentry v. Sinclair

, 705 F .3d 884, 905 (9th Cir. 20 1 3 ), as amended (citation and internal quotation marks omitted); see a lso Si
, 34 3 F .3d at 1123 (holding that information of witness’s role as an informant in u nrel a ted cases was not material).

3. Mooney-Napue

Violation

Appellants contend that the g overnment knowing ly failed
to correct Davis’ false testimony that he was not promised a sentence reduction in violation of Mooney and Napue

.

“A c onvictio n obtained using knowing ly p erjured testimony violates due process, even if the witness’s p erjured testimony g oes only to his credibility as a witness and not to the defendant’s g uilt.” United States v. Houston
, 6 4 8 F. 3 d 806, 814 (9th Cir. 2011) (citations omitted). “ The
g overnment ’s failure to c o r rect testimony that it later learns is perjured is also a Mooney–Napue violation.” Id. (citation omitted). “To prevail on a Mooney–N a p ue claim, the defendant must show that (1) the testimony was actua lly false, (2) the prosecution k new or should have known that the testimony was actually false, and (3) that the false testimony

was material.” Id. (citation, a lteration, and internal quotation marks omitted). “I n assessing ma t e r i ality under Napue
, we determine w hether there is any reasonable likelihood that the false testimony could have affected the judg ment of the jury ; if so, then the conviction must be set aside. Under this materiality standard, the question is n o t whether the defendant would more likely t han not have received a different verdict with the evidence, but whether in its absence he recei v ed a fair trial, understood as a trial resulting in a

ve r dict worthy of c o nfidence.” Id. (citation omitted). “However, if it is established that the g overnment knowing lyU N I T E D S T A T E S V

. R O D R I G U E Z 40

permitted the introd u c t ion of false testimony reversal is virtually automatic.” Id. (citation omitted).

Appellants’ Mooney-Napue claim i s premised on their contention th a t there was a tacit ag reement that the
g overnment would assist Davis in receiving a s entence

r e d uction based on his favorable testimony

. However
, Appellants failed to proffer any e vidence of a tacit ag r eement, particularly as the g o vernment’s post-verdict act i o ns were consistent with the fully disclosed letter ag reement and with Davis’ testimony that the letter ag reement was not c onting ent upon the trial’s outcome. Appella n ts are unable to demonstrate that Davis’ testimony “was actually false” or that “the pros e cu t i on knew or should h ave known that the testimony was actually false

. . .” Id. (citation omitted). Thus, a new trial was not warranted. 1 2

IV. CONCLUSION

The distri ct court’s ex clusion of evidence concerning medical neg lig ence and Scopaz z i’s removal of his breathing tube does not warrant reversal of A p p e l lants’ convictions. Appellants failed to demonstrate that any medical neg lig e nce related to Scopaz z i’s multiple sta b w o u n ds and his removal of h is breathing tube w ere the sole c auses of Scopaz z i’s death

or w ere so ex traordinary and unforeseeable as to absolve Appellants of liability for their v icious assau l t

. The district

12 A lth o u g h A

p p ellan ts m ain tain th at cu m u lativ e erro r w arr a n t s a n ew trial, th ere w ere n o erro rs, cu m u lativ e o r o th erw ise, req u irin g rev ersal o f A p pellan t s’ co n

v ictio n s. S

ee Pin ed a

- D o va l

, 6 1 4 F.3 d at 1 0 3 6 (h o ld in g t h a t ev en if th e d ef

en d an t h ad b een p erm itted to i n tro d u ce ev id en ce

co n cern i n g p ro x im ate ca u s e , “[t]h ere w as n o p rej u dice, cu m u lativ e or

o th erw i se”).U N I T E D S T A T E S V

. R O D R I G U E Z 41

court did not abuse its discretion in a dmitting evidence o f Appellants’ connections to the Mexi can Mafia to demonstrate Appellants’ motive for murdering Scopaz z i. E x p er t testimony concerning the connections b etween the S u re ñ os and the Mex ican Mafia within the prison g ang hierarchy a nd photog raphs of Appellants w ith Mex ican Mafia members did
not render their trial unfair because the district court properly minimiz ed any p rejudice s t e m m ing from the evidence a nd Appellants’ trial was replete w i t h admissible evidence
reg arding Appellants’ g ang af fi l iations. Appellants also failed to demonstrate that a new trial was warranted based on the go v ernment’s f

ailure to d isclose immaterial information
reg arding Davis’ sentence r eduction and his cooperation in a DEA investig ation.

AF F IRMED.