NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 18 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 19-50083 Plaintiff-Appellee, D.C. No. 2:15-cr-00511-DMG-2 v. DALIBOR KABOV, AKA Dabo, AKA MEMORANDUM* Dalibor Dabo Kabov, Defendant-Appellant. UNITED STATES OF AMERICA, No. 19-50089 Plaintiff-Appellee, D.C. No. 2:15-cr-00511-DMG-1 v. BERRY KABOV, Defendant-Appellant. Appeal from the United States District Court for the Central District of California Dolly M. Gee, District Judge, Presiding Argued and Submitted October 19, 2022 Pasadena, California * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: WARDLAW, CHRISTEN, and BUMATAY, Circuit Judges.** Defendants Dalibor and Berry Kabov appeal their convictions for drug trafficking, money laundering, and tax-related offenses.1 We have jurisdiction pursuant to 28 U.S.C. § 1291. We vacate defendants’ drug importation convictions (Counts 5 through 8 of the indictment), and remand for the district court to apply the Supreme Court’s decision in Ruan v. United States, 142 S. Ct. 2370 (2022) in the first instance. We affirm on all other grounds. I. Napue, Brady, and Rule 33 Challenges A. Legal Standards Defendants raise a litany of claims based on Napue v. Illinois, 360 U.S. 264, 269 (1959), Brady v. Maryland, 373 U.S. 83 (1963), and Federal Rule of Criminal Procedure 33. We review de novo Napue and Brady claims. United States v. Rodriguez, 766 F.3d 970, 980 (9th Cir. 2014). We review the district court’s factual determinations concerning Napue claims for clear error. United States v. Renzi, 769 F.3d 731, 751–52 (9th Cir. 2014). We review for an abuse of discretion the denial of a Rule 33 motion for a new trial based on newly discovered evidence. ** Judge Wardlaw was randomly selected as a replacement judge for Judge Kleinfeld on this case. Judge Wardlaw has reviewed the briefs and record in this case and has viewed the recording of the oral argument held on October 19, 2022. 1 For clarity purposes, we refer to each defendant by his first name when necessary to distinguish between them. 2 United States v. Hinkson, 585 F.3d 1247, 1259 (9th Cir. 2009) (en banc). To establish a Napue violation, a defendant must show: (1) testimony or evidence presented at trial was “actually false” or misleading; (2) the government knew or should have known that it was false; and (3) the testimony was material, meaning there is a “reasonable likelihood that the false testimony could have affected the judgment of the jury.” Renzi, 769 F.3d at 751 (emphasis added) (quoting United States v. Houston, 648 F.3d 806, 814 (9th Cir. 2011)). Testimony is not “actually false” merely because the witness’s recollection is “mistaken, inaccurate[,] or rebuttable.” Henry v. Ryan, 720 F.3d 1073, 1084 (9th Cir. 2013); see Renzi, 769 F.3d at 752. But testimony that, “taken as a whole,” leaves the jury with a “false impression” will satisfy Napue’s first prong. Alcorta v. Texas, 355 U.S. 28, 31 (1957) (per curiam). To …
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