NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v.
TYRELL HENDERSON,

Defendant

- Appellant. No. 17

- 30136

D.C. No. 4:16

- cr

- 00010

- BMM

- 1

MEMORANDUM *

Appeal from the United States District Court for the District of Montana Brian M. Morris, District Judge, Presiding
Submitted July 12, 2018 ** Portland, Oregon
Before: WARDLAW and OWENS, Circuit Judges, and LEFKOW, *** District Judge.
Tyrell Henderso n appeals from his conviction for two counts of involuntary
manslaughter in violation of 18 U.S.C. § § 1112, 1153(a). As the parties are

* 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 Joan Lefkow, United States District Judge for the Northern District of Illinois, sitting by designation. 

# FILED

JUL 16 2018

MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

familiar with the facts, we do not recount them here. We have jurisdiction under

28 U.S.C. § 1291, and we affirm.

1. Assuming without deciding that the district court erred in allowing the

government to introduc e evidence of Henderson’s prior federal conviction at trial,
the alleged error did not affect Henderson’s substantial rights

. See United States v.
Segal , 852 F.2 d 1152, 1155

– 56 (9th Cir. 1988) ; see also United States v. Olano
, 507 U.S. 725, 732 (1993) . Henderson argues that he was prejudiced by th e alleged

error because the jury was presented with “two plausible but conflicting” accounts

of the car accident and t he jury’s verdict thus depended on its view of his
credibility

. United States v. Jimenez , 214 F.3d 1095, 1099 (9th Cir. 2000). But
Henderson provides no reason to believe that his version of events
, which
contravenes all the physical evidence , as well as lay and expert testimony
, presented at trial
, is plausible. We therefore decline to grant Henderson a new trial
on this ground. See United States v. Glenn , 667 F.2d 1269, 1273 (9th Cir. 1982).

2. The district court did not err in denying Henderson’s motion for a new

trial based on his Brady / Giglio claim. The government concedes that the evidence

at issue

— that one of the government’s witnesses was the subject of two unrelated
misconduct investigations

— w as favorable to Henderson and was in adverte ntly
suppressed. S

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

. B ut
the government also rightly maintains that no prejudice ensued from the omission3

of this impeachment evidence

. See id. At trial, t h e witness in question provid ed
testimony that was cumulative of other evidence presented to the jury. See Turner

v. United States , 137 S. Ct. 1885, 1893

– 95 (2017). And g iven the strength of the

government’s other evidence against Henderson

— including photographs of the

scene, the su rviving victim’s testimony, and expert and lay witnesses who testified

about the accident

— Henderson has fail ed to establish materiality, as the third
prong of the Brady / Giglio test requires

. See Kohring , 637 F.3d at 901

– 02

.

AFFIRMED

.