United States of America v. Barrie Dempsey

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BARRIE DEMPSEY,
Defendant - Appellant.
No. 09-50133
D.C. No. 3:08-cr-01723-JLS-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Submitted July 14, 2010**
Pasadena, California
Before: FARRIS, HALL, and SILVERMAN, Circuit Judges.
Barrie Dempsey appeals his conviction, after a two-day jury trial, of one
count of bringing an illegal alien into the country without presentation in violation
FILED
JUL 23 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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of 8 U.S.C. § 1324(a)(2)(B)(iii). We have jurisdiction under 28 U.S.C. § 1291 and
we affirm.
Dempsey contends that the district court erred in denying his motion for a
new trial, which was based on a claim that the government failed to disclose
material impeachment evidence and knowingly solicited false testimony from a
witness. See Giglio v. United States, 405 U.S. 150 (1972); Napue v. Illinois, 360
U.S. 264, 269-71 (1959). Dempsey produced evidence that a material witness, the
smuggled alien, believed that the government had threatened to prosecute her if she
refused to testify at Dempsey’s trial. The government introduced no admissible
evidence in response, but argued that before trial it had disabused the witness of
her misimpression that she would be prosecuted unless she testified. The witness
ultimately testified at trial that the government had not promised whether or not to
prosecute her in relation to her testimony.
We may not accept the government’s unsubstantiated version of the events.
Nevertheless, even taking the evidence in the light most favorable to Dempsey, the
allegedly suppressed evidence is not material because there is not a reasonable
probability that the result of the trial would have been different had Dempsey been
able to impeach the government’s witness with evidence of bias. See Jackson v.
Brown, 513 F.3d 1057, 1071 (9th Cir. 2008) (“‘[A] reasonable probability of a

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different result [exists] when the government’s evidentiary suppression undermines
confidence in the outcome of the trial.’” (quoting Kyles v. Whitley, 514 U.S. 419,
434 (1995) (second alteration in original))).
Dempsey struggles to identify any conflict between his own testimony and
that of the material witness. In fact, at trial, Dempsey embraced the witness’s
testimony, arguing that it was “crucial” to showing his innocence. He now argues
that the government used the witness to discredit his testimony that he did not
know that there was an alien in the car’s hidden compartment. However, there was
overwhelming evidence that Dempsey did know that there was an alien in the
compartment. After being arrested, Dempsey admitted that he knew what the
compartment was for, that he was offered a reduced fee to drive the car with a girl
in the compartment, that he had seen the smugglers attempt to fit several girls into
the compartment, and that he did, in fact, believe that there was an alien in the
compartment at the time he drove away toward the border. A videotape of those
admissions was played at trial.
Any conflict between Dempsey’s testimony and that of the material witness
pales in comparison to Dempsey’s admissions, so there is not a reasonable
probability that Dempsey’s ability to impeach the witness would have changed the
outcome of the trial. See Strickler v. Greene, 527 U.S. 263, 294 (1999) (holding

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that undisclosed impeachment evidence was not material where the “record
provide[d] strong support for the conclusion that petitioner would have been
convicted of capital murder and sentenced to death, even if [a witness] had been
severely impeached.”). Dempsey’s claim that the government knowingly solicited
false testimony fails for the same reason. See Hall v. Director of Corrections, 343
F.3d 976, 983-84 (9th Cir. 2003) (per curiam).
Dempsey further argues that the district court committed plain error by
allowing the prosecutor to use an “I submit” statement during her closing
argument. That argument fails both because we have approved the type of
statement used by the prosecutor, see United States v. Necoechea, 986 F.2d 1273,
1279 (9th Cir. 1993), and because Dempsey has not established a reasonable
probability that the jury would have acquitted him if the prosecutor had not been
allowed to argue as she did, see United States v. Sine, 493 F.3d 1021, 1041 (9th
Cir. 2007).
AFFIRMED.

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