MEMORANDUM *

Reginaldo C. Delossantos, an employee of the United States Postal Service, was convicted of unlawful destruction of mail by a Postal Service employee in violation of 18 U.S.C. § 1703(a).

Following the advice of his counsel, De-lossantos did not testify at trial on the theory that there was nothing to corroborate his proposed testimony, ie. that he was at the dumpster to throw away trash but not mail, and therefore he would appear to be lying because multiple witnesses testified that the dumpster was empty except for the mail.

After trial, pictures of the inside of the dumpster taken by one of the government’s witnesses surfaced. They showed items of trash, including some items Delos-santos would have testified he threw away, in the dumpster. Delossantos filed a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33 arguing that the newly discovered evidence would corroborate his testimony and that he would now testify. The district judge granted the motion for a new trial. That decision was not an abuse of discretion. See United States v. Hinkson, 585 F.3d 1247, 1259 (9th Cir. 2009) (en banc).

AFFIRMED.