United States of America v. Justin Lyle Izatt

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUSTIN LYLE IZATT,
Defendant - Appellant.
No. 13-30155
D.C. No. 1:10-cr-00112-EJL-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Submitted December 9, 2014**
Seattle, Washington
Before: HAWKINS, McKEOWN, and TALLMAN, Circuit Judges.
Following his conviction of Possession with Intent to Distribute
Methamphetamine, affirmed by this court in 2012, Justin Izatt (“Izatt”) appeals the
denial of his Rule 33 motion for a new trial. We affirm.
FILED
DEC 11 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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“A new trial is not warranted under Rule 33 unless a defendant can establish
five elements: ‘(1) the evidence is newly discovered; (2) the defendant was diligent
in seeking the evidence; (3) the evidence is material to the issues at trial; (4) the
evidence is not (a) cumulative or (b) merely impeaching; and (5) the evidence
indicates the defendant would probably be acquitted in a new trial.’” United States v.
King, 735 F.3d 1098, 1108 (9th Cir. 2013) (quoting United States v. Berry, 624 F.3d
1031, 1042 (9th Cir. 2010)).
The district court did not abuse its discretion by denying Izatt’s motion. Izatt
proffered new evidence that Chris Ayers was later convicted for distributing
methamphetamine, but this was cumulative of trial testimony offered by defense
witness Mariah Pace that Ayers was a drug dealer. Evidence of Ayers’ conviction is
not the type of evidence that indicates a new trial would likely result in acquittal.
Indeed, the government did not dispute this point at trial. Rather, the government
focused on the implausibility of Pace’s story that the drugs stored in the ceiling of the
garage at Izatt’s house actually belonged to Ayers, who had allegedly left Pace in
charge of a storage shed full of drugs while he was imprisoned.
Evidence regarding irregularities at the Idaho State Police Laboratory, where
Izatt’s blood was tested for methamphetamine, was merely impeaching and not the
sort of evidence that made a different result likely, particularly where there was other
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evidence of Izatt’s drug use. In addition, the methamphetamine found in his garage
was tested at a different laboratory.
Nor did the “clarifications” by trial witness Brandon Harvey warrant a new trial.
The failure to discover these clarifications sooner was the result of a lack of diligence
on the defendant’s part, who both called Harvey as a direct witness and had the
opportunity to cross-examine him as a government witness. The district court
correctly noted that “failing to ask relevant questions of its own witnesses does not
justify a new trial.” Harvey did not recant his trial testimony or otherwise claim that
any part of his earlier testimony was untrue. Moreover, even if considered, the
clarifications are not the sort of evidence that would likely impact the outcome of the
trial.
AFFIRMED.
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