IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-40239
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANNY L. SCARBOROUGH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:95-CR-9-1
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November 13, 1996
Before GARWOOD, JOLLY, and DENNIS, Circuit Judges.*
GARWOOD, Circuit Judge:
Defendant-appellant Danny L. Scarborough (Scarborough) appeals
from his conviction for knowingly falsifying a timber sales tally
sheet, in violation of 18 U.S.C. § 1001, and the subsequent denial
of his motion for a new trial. We affirm.
Facts and Proceedings Below
Scarborough was employed by the United States Forest Service
as a timber marker in the Tenneha district of eastern Texas.
*
Pursuant to Local Rule 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
Scarborough’s job consisted of marking those trees designated for
sale to timber purchasers and recording the volume of timber marked
on a tally sheet. Two measurements from each marked tree were
recorded on the tally sheet: the diameter at breast height (DBH)
and an estimate of tree height, the latter figure represented by
the number of merchantable logs in the tree.1 If the trees
concerned were dead and consequently being harvested as salvage
timber, the DBH and tree height figures were given an appropriate
discount to reflect the trees’ reduced value.2 These adjusted
numbers were then cross-referenced with tree volume tables to
derive the amount of marketable board feet, the figure upon which
the purchase price was based.3 After price was determined the
Forest Service’s administrative branch contacted the purchaser for
payment prior to cutting.
In June of 1994, Russ Arthur, a criminal investigator for the
Forest Service present in the Tenneha district as part of an
unrelated investigation of timber theft, discovered freshly cut
1
The Forestry Service standard log length is sixteen feet.
2
The Tenneha district was part of a salvage sale district.
Salvage sales comprised sales of dead trees, typically those
suffering from the depredations of the southern pine beetle. Under
this salvage program, a prospective buyer who discovered beetle-
infested trees could contact the Service to arrange for their
cutting. The Service would in turn dispatch a marker to designate
the trees to be cut and compile a tally sheet.
3
The process by which the salvage timber discount was
calculated is based upon the testimony of Forest Service employees
at trial as clarified by the new trial affidavit of Larry Trekell.
2
logs next to ten marked stumps. When Arthur was unable to locate
a tally sheet corresponding to this site, he approached
Scarborough, who eventually produced a tally sheet showing a total
of 944 marketable board feet.
Scarborough was indicted for falsifying the information
contained in this tally sheet.4 At trial Ben Cobb, a forester for
twenty-three years, testified that the trees involved had been
green when cut. Lanier Payne, a Forestry Service expert, also
testified that the trees were green and further opined that the 10
trees had contained 5,860 board feet of timber. Scarborough for
his part admitted underscaling the volume on the trees but stated
that he did so because they were dead, i.e., salvage timber. The
jury found Scarborough guilty.
Scarborough moved for a new trial based largely upon the
affidavit of Larry Trekell, a retired Forest Service employee.5
Trekell’s affidavit asserts that most of the trees had been dead or
dying when cut and that the figures, when properly adjusted for the
trees being dead, produced a total of 2,936 board feet of timber.6
4
Scarborough was also indicted for accepting $50 in exchange
for an unspecified “official act,” in violation of 18 U.S.C. § 201.
The jury was unable to agree on this count of the indictment, and
it was subsequently dismissed by the government.
5
Scarborough also presented the affidavits of two purchasers of
the timber declaring that the trees were dead when cut.
6
Trekell’s opinion was based upon an examination of the logs
fourteen months after cutting. The logs had remained undisturbed
where they had been cut.
3
After holding a hearing on the motion, the district court, who had
presided at trial, denied Scarborough a new trial, finding that
Scarborough had failed to prove both that the proffered evidence
was material, not merely cumulative or impeaching, and that it
would probably produce an acquittal on retrial. Scarborough timely
appeals, challenging both the district court’s ruling denying him
a new trial and the sufficiency of the evidence against him.
Discussion
A defendant who challenges a district court’s denial of a new
trial motion ordinarily has the burden of proving that: (1) the
evidence was discovered following trial; (2) the failure to
discover this evidence at or before trial was due to no lack of due
diligence on the defendant’s part; (3) the evidence is material,
not merely cumulative or impeaching; and (4) the evidence is such
that a new trial will probably produce an acquittal. United States
v. Lopez-Escobar, 920 F.2d 1241, 1246 (1991) (citations omitted).
“However, if the government used false testimony and knew or should
have known of its falsity, a new trial must be held if there was
any reasonable likelihood that the false testimony affected the
judgment of the jury.” United States v. MMR Corp., 954 F.2d 1040,
1047 (5th Cir. 1992) (emphasis in original) (citations omitted).
Regardless of the applicable standard we will reverse a district
court’s denial of a new trial only if the record reflects a “clear
abuse of discretion.” United States v. Adi, 759 F.2d 404, 407 (5th
4
Cir. 1985) (citation omitted). See also MMR Corp., 954 F.2d at
1049 (explaining district court’s exceptional qualification, having
viewed the evidence at trial first-hand, to assess the impact of
new evidence).
Scarborough first challenges the use of the “probably produce
an acquittal” standard by the district court, arguing that
Trekell’s affidavit clearly demonstrates the falsity of Cobb and
Payne’s testimony at trial. We disagree. Trekell’s affidavit
implicitly challenges the correctness of the testimony of Cobb and
Payne by stating that the trees were dead when cut and
concomitantly disputes the correctness of their timber volume
calculations by declaring that the applicable measurements should
have been more significantly discounted to account for the trees’
status as salvage timber. While it is clear that Trekell’s
affidavit controverts the government witnesses’ testimony that in
their view the trees were dead, such a difference of opinion does
not render the government’s evidence “false” as that term is
understood in this context. Compare United States v. Nixon, 881
F.2d 1305, 1311-1313 (5th Cir. 1989) (perjurious testimony); Adi,
759 F.2d at 408 (recanting affidavits and witnesses).7
7
Scarborough, a Forestry Service veteran, observed both Cobb
and Payne testify, yet the record reveals no significant cross
examination concerning the methodology used to determine the
government’s timber volume figures. Compare MMR Corp., 954 F.2d at
1050. Given this record, we must assume that the government’s
methods were sound and that the heart of this dispute turns on two
interrelated disputed conclusions, i.e., whether the trees were
5
Furthermore, Scarborough has made no showing that the prosecutor
knew or should have known of any “falsity” in Cobb and Payne’s
testimony. The district court did not err.
Scarborough next contends that, no matter what standard is
applied, the district court abused his discretion by denying
Scarborough a new trial. Scarborough specifically challenges the
district court’s findings that the proffered evidence was merely
cumulative or impeaching and that it would not probably produce an
acquittal.8 Scarborough has a strong argument that the district
court erred in finding that the proffered evidence was not
material. Trekell, an ostensibly impartial Forest Service veteran
with extensive experience, offers an apparently cogent alternative
to the government’s figures while accompanying affidavits present
additional fact witnesses on the question whether the trees were
dead when cut. Since Scarborough himself was the only witness to
testify on his behalf regarding these matters, this evidence is
dead when cut and if so what was the proper discount. Trekell’s
affidavit, even if credible, does not mandate a finding that Cobb
and Payne’s testimony must have been false. Contrast United States
v. McAfee, 8 F.3d 1010 (5th Cir. 1993). We observe the similarity
between the undiscounted timber volume calculated by Trekell, 6,087
board feet, and the government’s figure of 5,860 board feet and
that Trekell examined the logs many months after Cobb and Payne
had.
8
Scarborough assumes that the district court found he had
satisfied the “newly discovered” and “due diligence” prongs of the
test for obtaining a new trial. The district court did not
expressly so find, and we doubt that the record would support a
finding favorable to Scarborough on the “due diligence” prong.
Given our finding that the motion was otherwise properly denied,
however, we do not reach this issue.
6
arguably newly corroborating and not merely cumulative under the
analysis in United States v. Siddiqui, 959 F.2d 1167 (2d Cir.
1992). We need not resolve this issue, however.
We turn to whether this evidence makes a verdict of acquittal
probable. Trekell’s affidavit, while it takes issue with the
government’s proof in an arguably authoritative way, does not
nullify that proof. Furthermore, even were we to assume arguendo
that a prospective jury would choose Trekell’s figures over the
government’s, the fact remains that the timber volume computed by
Trekell (2,936 board feet), with all appropriate discounts
included, is still 3 times more than that reported by Scarborough
(944 board feet). See United States v. Bermea, 30 F.3d 1539, 1565
(5th Cir.) (inference to be drawn from disparity between drug
trafficker’s declared income and actual wealth not negated by newly
discovered DEA report explaining source of funds), cert. denied,
115 S.Ct. 1113, 1825 (1995); Lopez-Escobar, 920 F.2d at 1246-1247
(new defense evidence negating government agent’s testimony does
not warrant new trial where jury would still have convicted
defendant). While Scarborough’s new evidence would doubtless have
bolstered his claims, “[w]hether ... newly obtained evidence would
have been helpful to the defense is not the standard by which we
decide to grant a new trial.” Lopez-Escobar, 920 F.2d at 1247,
quoting United States v. Snoddy, 862 F.2d 1154, 1156 (5th Cir.
1989). Moreover, there was other evidence tending to implicate
7
Scarborough in wrongdoing in this connection. Our review of the
record leads us to conclude that the district court acted within
his broad discretion in denying Scarborough’s request for a new
trial.
Finally, Scarborough contends that the evidence presented was
insufficient to convict him. Because Scarborough did not seek a
judgment of acquittal at either the close of the government’s case-
in-chief or the close of all evidence, his claim is reviewable only
to determine whether there was a manifest miscarriage of justice.
United States v. Laury, 49 F.3d 145, 151 (5th Cir.), cert. denied,
116 S.Ct. 162 (1995). A miscarriage of justice exists when the
record is devoid of evidence pointing to guilt or the evidence on
a key element of the offense is so tenuous that a conviction would
be shocking. United States v. Pierre, 958 F.2d 1304, 1310 (5th
Cir.) (en banc), cert. denied, 506 U.S. 898 (1992).
To establish a violation of section 1001, the government had
to prove that Scarborough’s tally sheet constituted (1) a statement
that was (2) false (3) and material (4) made knowingly and
willfully (5) within the purview of government agency jurisdiction.
United States v. Shaw, 44 F.3d 285, 289 (5th Cir. 1995) (citations
omitted). “The requirement that the false representation be made
‘knowingly and willfully’ is satisfied if the defendant acts
deliberately and with the knowledge that the representation is
false.” United States v. Guzman, 781 F.2d 428, 431 (5th Cir.),
8
cert. denied, 106 S.Ct. 1798 (1986), citing United States v. Smith,
523 F.2d 771, 774 (5th Cir. 1975), cert. denied, 97 S.Ct. 59
(1976).
Scarborough contends that there is no evidence that he
possessed the requisite intent. Rather, Scarborough insists that
his understatement of timber volume was merely an innocent mistake
or error in judgment. We find, however, that the discrepancies
between the tally sheet and the timber volume presented by the
government (and Trekell), given Scarborough’s background and
experience, raise an inference that Scarborough deliberately
falsified his tally sheet in order to mislead the Forest Service.
In re International Systems & Controls Corp, etc., 693 F.2d 1235,
1243 n.13 (5th Cir. 1982) (“discrepancies between figures could
support an inference of specific intent”). After considering these
discrepancies in light of Scarborough’s initial reticence to
disclose the tally sheet, the problems related to other tally
sheets compiled by Scarborough, and the fact that he accepted $50
from a timber purchaser on another occasion, we cannot conclude
that the record is “devoid” of evidence of Scarborough’s guilt or
that the evidence as to his intent was so tenuous that his
conviction is shocking. Indeed, the evidence is plainly adequate
to support his conviction under the standard of review applicable
when proper motion for judgment of acquittal is timely made.
Conclusion
9
Scarborough’s appeal presents no reversible error. His
conviction and sentence are accordingly
AFFIRMED.
10