United States v. Bowler

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-31370
_____________________

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

MICHAEL J BOWLER

Defendant - Appellant

_________________________________________________________________

Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________________________________________________

May 25, 2001

Before KING, Chief Judge, and REAVLEY and JONES, Circuit Judges.

PER CURIAM:

Defendant-Appellant Michael J. Bowler appeals from the

district court’s denial of his motion for a new trial based on

newly discovered evidence. For the following reasons, we AFFIRM.

I. FACTUAL AND PROCEDURAL HISTORY

On November 17, 1994, Defendant-Appellant Michael J. Bowler

was charged in a fifteen-count superseding indictment with one
count of conspiracy to commit mail fraud, in violation of 18

U.S.C. §§ 2 and 371, and fourteen substantive counts of mail

fraud, in violation of 18 U.S.C. §§ 2 and 1341.1 The charges

against Bowler arose out of his management of Pelican State

Mutual Insurance Company (“Pelican”) and its subsidiary Magnolia

Fire and Casualty Insurance Company (“Magnolia”) from August 1986

to August 1992. The indictment alleged that Bowler “devised and

intended to devise a scheme and artifice to defraud,” that as

part of that scheme Bowler created the false impression that

Pelican was solvent in order to obtain money and benefits for his

personal use, and that he used the United States Postal Service

to execute the scheme.

On July 7, 1995, the jury returned a verdict of guilty on

one count of conspiracy to commit mail fraud and four of the

substantive counts of mail fraud, including, inter alia, mailing

Pelican’s 1991 Annual Statement on March 16, 1992; mailing

Pelican’s March 31, 1992 Quarterly Statement on May 14, 1992; and

mailing the 1991 Annual Statements of Pelican and Magnolia on May

22, 1992 (“Count Fifteen”). On January 29, 1996, Bowler was

sentenced to terms of sixty months imprisonment for the

conspiracy count and three of the substantive mail fraud counts,

to be served concurrently, and to one term of eighteen months on

1
The indictment charged both Bowler and his brother-in-law
Walter Sentenn, Jr. with the fifteen counts. Only Bowler’s
conviction is the subject of this appeal.

2
Count Fifteen, to be served consecutively. He was also required

to pay $100,000 in restitution and ordered to be placed on a

three-year term of supervised release following his term of

imprisonment.

On May 28, 1997, this court affirmed the judgment of the

district court. Bowler’s petition for rehearing was denied, and

this court issued its mandate on February 26, 1998. On October

5, 1998, Bowler’s petition for a writ of certiorari was denied by

the Supreme Court.

Bowler, proceeding pro se, filed a 28 U.S.C. § 2255 motion2

(the “§ 2255 motion”) on April 19, 1999, and a motion for a new

trial based on newly discovered evidence pursuant to Federal Rule

of Criminal Procedure 33 (“Rule 33 motion”) on May 10, 1999, in

district court. In his Rule 33 motion, Bowler alleged that the

final accounting of the Louisiana Insurance Guaranty Association

(“LIGA”)3 through March 1999 established that Pelican was not

insolvent, and therefore, he should not have been convicted of

scheming to cover up Pelican’s insolvency.

2
In his § 2255 motion, Bowler argued that his trial
counsel had labored under an undisclosed conflict of interest.
He argued further that he was denied his right to a jury trial
when the district court excused one juror during deliberation and
allowed the jury to continue deliberations with only eleven
members, without Bowler’s express consent.
3
According to testimony, LIGA “is set up to pay the claims
of insolvent property and casualty companies that do business in
the State of Louisiana.” When Pelican was placed into
liquidation, it became the responsibility of LIGA to settle
claims against Pelican.

3
 The parties filed a series of pleadings in district court

regarding Bowler’s Rule 33 motion. The government argued that

Bowler’s motion was untimely because it was not filed within

three years of the jury verdict, as required by the present

version of Rule 33, nor did the motion fit within any of the

exceptions to the three-year time limit. Alternatively, the

government argued that even if the Rule 33 motion was timely, the

new evidence did not meet the standard necessary to warrant a new

trial.

Bowler countered that the present version of Rule 33, which

became effective December 1, 1998, did not apply to his case and

that, under the prior version of Rule 33, which allowed a motion

for a new trial to be filed within two years of final judgment,

his Rule 33 motion was timely. Additionally, he asserted that

the evidence did meet the requirements necessary for the granting

of a new trial.

On November 24, 1999, the district court declined to pass on

the procedural bars raised by the government, and, instead,

denied both the § 2255 motion and the Rule 33 motion on the

merits. On December 8, 1999, Bowler filed a notice of appeal and

a motion for a certificate of appealability (“COA”) on the denial

of his § 2255 and Rule 33 motions. On December 15, 1999, the

district court denied Bowler’s COA, and Bowler subsequently

sought a COA from this court. On June 20, 2000, this court

denied Bowler’s COA request, holding that Bowler had failed to

4
make a substantial showing of the denial of a constitutional

right. This court also noted, however, that no COA was required

for an appeal of the denial of a Rule 33 motion, stating that

“[s]hould Bowler wish to continue the appeal from the denial of

his motion for new trial, he is directed to discuss in his brief

whether the motion was timely under Rule 33.”

Bowler appeals from the district court’s denial of his Rule

33 motion.4

II. TIMELINESS OF BOWLER’S RULE 33 MOTION

As a threshold issue, we must address the timeliness of

Bowler’s Rule 33 motion, which turns on whether the amended

version of Rule 33, effective December 1, 1998, or the pre-

amendment version of Rule 33 is applicable to the present case.

We do so because the time limits of Rule 33 are jurisdictional.

See United States v. Brown, 587 F.2d 187, 189-90 (5th Cir. 1979);

see also United States v. Lussier, 219 F.3d 217, 220 (2d Cir.

2000); United States v. Bramlett, 116 F.3d 1403, 1405 (11th Cir.

1997); Harrison v. United States, 191 F.2d 874, 875-76 (5th Cir.

1951). “Jurisdiction is a question of law which we review de

novo.” Groome Res. Ltd., L.L.C. v. Parish of Jefferson, 234 F.3d

192, 198 (5th Cir. 2000).

4
We note that Bowler is no longer appearing pro se.

5
 We pause briefly to explain why this inquiry (i.e., which

version of Rule 33 applies) is significant in this case. The

current Rule 33 provides in relevant part: “A motion for new

trial based on newly discovered evidence may be made only within

three years after the verdict or finding of guilty.” FED. R.

CRIM. P. 33. The jury verdict was entered against Bowler on July

7, 1995, but he did not file his Rule 33 motion until May 10,

1999, almost four years later. Under the current Rule 33,

Bowler’s Rule 33 motion would be untimely, and we would not have

jurisdiction to hear it.

However, the Rule 33 in effect prior to December 1, 1998

provided in relevant part: “A motion for a new trial based on

the ground of newly discovered evidence may be made only before

or within two years after final judgment.” FED. R. CRIM. P. 33

(1998) (amended 1998). Importantly, final judgment is measured

from the date the appellate court issues its mandate. See United

States v. Granza, 427 F.2d 184, 185 n.3 (5th Cir. 1970) (“When a

conviction is appealed, a motion for a new trial may only be made

before or within two years after the issuance of the mandate of

affirmance by the appellate court.”). This court issued its

mandate on February 26, 1998, and Bowler filed his Rule 33 motion

on May 10, 1999. Because his Rule 33 motion was filed within the

two-year limit, if the pre-amendment version of Rule 33 applies,

Bowler’s Rule 33 motion is timely, and we have jurisdiction to

hear it.

6
 To determine whether the amended version of Rule 33 applies,

we look at the order accompanying the submission of the proposed

December 1998 amendments to Congress, which states: “That the

foregoing amendments to the Federal Rules of Criminal Procedure

shall take effect on December 1, 1998, and shall govern all

proceedings in criminal cases thereafter commenced and, insofar

as just and practicable, all proceedings in criminal cases then

pending.” Order of April 24, 1998 of the Supreme Court of the

United States Adopting and Amending the Federal Rules of Criminal

Procedure, 523 U.S. 1229 (1997). The language in this enabling

act accompanying the amendment to Rule 33 is not unique to the

amendment of Rule 33, but is the language submitted by the Court

with all such amendments to the Federal Rules. See, e.g., United

States v. Roberts, 88 F.3d 872, 878 (10th Cir. 1996) (“[S]ince

1975, the Supreme Court has used identical language in almost

every instance when amending any of the various Federal Rules.”),

superseded by statute as stated in United States v. Meacham, 115

F.3d 1488, 1491 (10th Cir. 1997); In re Search of Kitty’s East

(Kitty’s East v. United States), 905 F.2d 1367, 1370 (10th Cir.

1990) (quoting same language in reference to the 1989 amendment

of Federal Rule of Criminal Procedure 41(e)); United States v.

DePrima, 165 F.R.D. 61, 62 & n.2 (E.D. Va. 1996) (quoting same

language in reference to the 1995 amendment of Federal Rule of

7
Criminal Procedure 43(b) and noting that “[t]his language is

generally sent with rule changes”).5

The government argues that the plain language of the

enabling act indicates that the new Rule 33 applies to

proceedings commenced after the effective date of the amendment

and, insofar as just and practicable, to proceedings pending on

the effective date of the amendment. The government reasons that

because there were no proceedings in Bowler’s criminal case

pending when the new rule took effect, Bowler’s Rule 33 motion is

a proceeding commenced after the effective date of the amendment,

and the new Rule 33 applies. Bowler counters that the new Rule

33 applies only to cases commenced after the effective date of

the amendment or, insofar as just and practicable, to proceedings

pending on the effective date of the amendment, neither of which

applies to his Rule 33 motion. Alternatively, Bowler argues

5
There were three purposes for amending Rule 33. First,
the amendment was meant to remove the inconsistent application of
the Rule. See FED. R. CRIM. P. 33 advisory committee notes 1998
amendments. Under the prior Rule, some courts had held that
“final judgment” indicated the date of the appellate court’s
judgment, while others held that “final judgment” did not occur
until the issuance of the appellate court’s mandate, leading to
disparities in the amount of time defendants had to file timely
motions. See id. Second, the amendment was intended to further
consistency within the Rule itself by tying the time for filing
Rule 33 motions to the same event, whether the motion was based
on newly discovered evidence or on any other grounds. See id.
Third, the time limit to file a motion for a new trial based on
newly discovered evidence was increased from two years to three
years “to compensate for what would have otherwise resulted in
less time than that currently contemplated in the rule for filing
such motion.” Id.

8
that, even if his case was pending as of the effective date of

the new rule, it would not be just and practicable to apply the

new rule to his Rule 33 motion because that would have required

Bowler to file the motion five months before the effective date

of the new rule.

We agree that the timeliness of Bowler’s Rule 33 motion

turns on whether the phrase “all proceedings in criminal cases

then pending,” as described in the Supreme Court Order, refers to

proceedings pending on the effective date of the amendment or to

cases pending on the effective date of the amendment. The

precise issue before this court, whether the amendment applies in

a case in which final judgment was entered and no motions were

pending on the effective date of the amendment, is a matter of

first impression for this court.6

6
Bowler argues that his interpretation finds support in
the holdings of United States v. Jean, No. 92 CR 157-1, 1999 WL
301652 (N.D. Ill. Apr. 29, 1999), and United States v. Zuno-Arce,
209 F.3d 1095 (9th Cir. 2000). However, both of those cases are
distinguishable because the defendants’ Rule 33 motions were
filed before the effective date of the amendment. In Jean, the
district court applied the old Rule 33 to the pending Rule 33
motion because it would not have been “just and practicable” to
apply the new rule. See 1999 WL 301652, at *2. In Zuno-Arce,
the court applied the old Rule 33 to the pending Rule 33 motion,
but noted that neither party had even argued that the new Rule 33
should apply. See 209 F.3d at 1097 & n.1. In contrast to these
two cases, Bowler filed his Rule 33 motion after the effective
date of the amendment.
Courts have not addressed whether the current Rule 33 should
apply to a Rule 33 motion filed after the effective date of the
amendment, when the amendment to the Rule occurred after the
issuance of the mandate by the appellate court and while no
motions were pending. We do note that, in an unpublished
opinion, the Court of Appeals for the Sixth Circuit summarily

9
 Although no courts have addressed the issue in the context

of Rule 33, several courts have done so in analogous

circumstances (i.e., to determine the applicability of other

amendments to the Federal Rules to cases before them). While

these cases have not been called upon to determine whether the

precise enabling act language before us is applicable in these

precise circumstances, many of these cases have interpreted this

“standard language,” see supra text, to apply to pending cases,

and not merely to pending proceedings. See, e.g., Roberts, 88

F.3d at 878-79 (stating, in interpreting an amendment to Federal

Rule of Evidence 413, that Congress knew how to make amendments

“applicable to pending cases” by using the “standard language”

(emphasis added)); Silvious v. Pharaon, 54 F.3d 697, 700-01 (11th

Cir. 1995) (noting, in interpreting the 1993 amendment to Federal

Rule of Civil Procedure 4, that “[t]he plain language of the

Supreme Court’s order indicates that the district court may apply

. . . the rule in effect when the complaint was filed and the

case thereby commenced” (emphasis added)); Cleveland v. Porca

Co., 38 F.3d 289, 294 (7th Cir. 1994) (interpreting the language,

applied the current Rule 33 to determine that a Rule 33 motion
filed in May 1999 was untimely because the jury had convicted the
appellant in December 1994. See United States v. Blue, 238 F.3d
424 (6th Cir. 2000) (unpublished table decision), available at
No. 99-4131, 2000 WL 1800499, at *1 (6th Cir. Nov. 30, 2000).
Because the opinion is unpublished and did not discuss whether
the prior version of Rule 33 should have been applied, but simply
applied the current Rule 33, we do not consider the case
authoritative on the issue.

10
“proceedings in appellate cases then pending,” accompanying the

1993 amendment to Federal Rule of Appellate Procedure 3 regarding

to “govern pending cases” (emphasis added)); Skoczylas v. Fed.

Bureau of Prisons, 961 F.2d 543, 545 (5th Cir. 1992) (stating

that “[s]ince the amended [Federal Rule of Civil Procedure 15]

took effect on December 1, 1991 (while the case was pending on

appeal), we must determine whether it applies to this case”

(emphasis added)); In re Jones (Jones v. W.J. Servs., Inc.), 970

F.2d 36, 38 (5th Cir. 1992) (finding, in interpreting the 1991

amendment to Federal Rule of Appellate Procedure, that

“proceedings in appellate cases thereafter commenced and, insofar

as just and practicable, all proceedings in appellate cases then

pending” applied because “it is an ‘appellate case[] . . .

commenced after December 1, 1991’” (emphasis added)). Therefore,

that the amended Rule 33 applies to cases commenced after

December 1, 1998, and, insofar as just and practicable, to cases

pending on December 1, 1998, would be in accord with the approach

taken in similar contexts.

Interpreting the language in the enabling act to refer to

pending cases and not merely to pending proceedings is also

supported by the following reasons. Construing the language in

the Supreme Court Order to apply to cases commenced after the

effective date of the amendment and to pending cases, insofar as

just and practicable, furthers one of the policies behind the

amendment, i.e., it avoids allowing the defendant less time to

11
file his Rule 33 motion “than that currently contemplated in the

rule for filing such motion.” FED. R. CRIM. P. 33 advisory

committee notes 1998 amendments. Also, there is a “general rule

that courts apply procedural rules as they exist at the time of

decision, as long as no manifest injustice results.” In re

Jones, 970 F.2d at 38; see also Burt v. Ware, 14 F.3d 256, 258-59

(5th Cir. 1994); Skoczylas, 961 F.2d at 546 & n.3. For Bowler’s

Rule 33 motion to be timely under the amended Rule 33, it would

have to have been filed almost five months before the effective

date. We believe that to hold him to that limitation would

result in manifest injustice.

For these reasons, we find that the new Rule 33 applies to

cases commenced after December 10, 1998 or, insofar as just and

practicable, to cases pending after the effective date. Because

Bowler’s case was obviously commenced prior to December 1, 1998,

the amended Rule 33 may only be applied in this case if it is

just and practicable. We find that applying the amended Rule 33

to Bowler’s Rule 33 motion would not be just and practicable. As

stated above, if the new Rule 33 were applied, Bowler would have

been required to file his Rule 33 motion almost five months

before the amended Rule was effective. It would be incongruous

to apply the new rule in this situation. See United States v.

Jasin, No. CRIM. 91-602-08, 2000 WL 1793397, at *2 (E.D. Pa. Nov.

22, 2000) (“It would be entirely anomalous to apply the current

time limit to defendant’s motion. Doing so would mean that the

12
motion was barred before amended Rule 33 came into effect.”);

United States v. Soler, No. 94 CR. 533(TPG), 2000 WL 385514, at

*1 (S.D.N.Y. Apr. 17, 2000) (“It would be entirely anomalous to

apply the current time limit to defendant’s motion. Doing so

would mean that Soler’s motion was barred before the revision of

Rule 33 even came into effect.”).

Applying the prior version of Rule 33, we find that Bowler’s

Rule 33 motion was filed within two years of final judgment.

Therefore, as explained at the outset, the motion is timely, and

we have jurisdiction to hear it.

III. MERITS OF RULE 33 MOTION

We turn next to the merits of Bowler’s Rule 33 motion. We

review for an abuse of discretion the district court’s denial of

a motion for a new trial based on newly discovered evidence. See

United States v. Lowder, 148 F.3d 548, 551 (5th Cir. 1998).

Motions for a new trial based on newly discovered evidence are

disfavored and reviewed with great caution. See United States v.

Gonzalez, 163 F.3d 255, 264 (5th Cir. 1998). In order to warrant

a new trial on the basis of newly discovered evidence, Bowler

must demonstrate that

(1) the evidence is newly discovered and was unknown to
the defendant at the time of trial; (2) failure to
detect the evidence was not due to a lack of diligence
by the defendant; (3) the evidence is not merely
cumulative or impeaching; (4) the evidence is material;

13
 and (5) the evidence introduced at a new trial would
probably produce an acquittal.

Lowder, 148 F.3d at 551. Unless all factors are met, the motion

should be denied. See United States v. Sullivan, 112 F.3d 180,

183 (5th Cir. 1997).

Bowler argues that a newly discovered LIGA report (the “1999

LIGA report”), which states the actual amount of money LIGA paid

on claims from the date of insolvency to March 1999, warrants a

new trial. See supra note 3. The district court found the 1999

LIGA report to be irrelevant. First, the district court noted

that the jury had been made aware that an insurance company’s

solvency must be assessed through statistical projections of

future claims and that such actuarial projections are

speculative. Second, to the extent the new evidence impeached

the testimony and evidence presented by Michael Scruggs, the

actuary hired by the Louisiana Department of Insurance, Bowler’s

counsel had effectively challenged Scruggs’s knowledge,

qualifications, and credibility at trial. Finally, several

witnesses, in addition to Scruggs, had testified that Pelican was

insolvent. Based on these factors, the district court held that

the “fortuitous fact that fewer claims than were projected were

ultimately made does not change the reality that by the time

Pelican was seized, the virtually unanimous projections made by

the various actuaries and accountants in this case indicated it

was ‘insolvent’ and had been for some time.”

14
 Bowler argues that the district court erred because

“solvency” is not an evidentiary matter, but an objective fact,

and because the 1999 LIGA report proves that Pelican was solvent.

As such, Bowler was actually innocent. Moreover, Bowler argues

that the district court erred in finding that the new evidence

was “cumulative and impeaching.” He contends that although the

evidence is impeaching and cumulative, it is also direct and

independent corroboration of Bowler’s testimony regarding the

adequacy of the loss reserves and warrants the granting of a new

trial.

The government avers that the district court did not err in

denying Bowler’s Rule 33 motion. It contends that (1) the jury

was made aware of the uncertain nature of actuarial projections,

(2) several actuaries testified that Pelican was insolvent, (3)

the evidence contained in the report was substantially the same

information provided by a witness at trial, and (4) Bowler had an

adequate opportunity to impeach Scruggs at trial. The government

argues that the new evidence does not warrant a new trial, but is

merely impeaching and cumulative. We agree with the government

that the district court’s denial of Bowler’s Rule 33 motion was

not an abuse of discretion.

First, we note that the information contained in the 1999

LIGA report is substantially similar to evidence presented during

trial. The 1999 LIGA report states that, as of March 1999, 1468

Pelican and Magnolia files (or claims) had been closed at a cost

15
of $23,696,166.47.7 At trial, Lawrence Uter, the associate

executive director of LIGA, testified that the LIGA report on

Pelican through April 1995 (the “1995 LIGA report”) stated that

there were 1411 paid or open claims and that total reserve and

disbursements for those claims equaled $23,995,251.48.8

Therefore, the district court did not abuse its discretion in

fining that the “newly discovered” 1999 LIGA report was

cumulative of the 1995 LIGA report.

Second, several witnesses testified that Pelican was

insolvent.9 Robert F. Wolf, an employee for William M. Mercer,

7
Additionally, there remain 83 open claims against Pelican
and Magnolia and a reserve projected for those claims of
$2,588,922. This indicates that the total cost of settling all
1551 claims will be $26,285,088.47.
8
It is unclear if the figures from the 1995 LIGA report
include claims against Magnolia. Not including the Magnolia
figures, the 1999 LIGA report states there are 1338 closed and 79
open claims against Pelican, for a projected total of 1417
claims. Additionally, the report states that to close those
files has so far cost LIGA $22,694,084 and that LIGA has set
aside a reserve of $2,558,176 for the remaining open claims. In
other words, even if we excluded the claims against Magnolia, the
reported figures in the 1999 LIGA report are greater, not less,
than those contained in the 1995 LIGA report.
9
Bowler contends that much of the evidence and testimony
regarding Pelican’s insolvency may not be considered because the
evidence relates to time periods before March 1992, the date of
the first substantive count on which Bowler was convicted.
Because the district court interpreted “the verdict to reflect
that the defendant was acquitted of all charges prior to 1991,”
Bowler argues that the only evidence of insolvency that may be
considered was the testimony and reports of Scruggs and Constance
Korte. He argues further that because Korte based her report on
Scruggs’s analysis, the only evidence of insolvency actually was
Scruggs’s analysis, which the new evidence establishes was
incorrect.

16
Inc. (“Mercer”), testified that Mercer was retained at the end of

1991 to form an opinion on the adequacy of the loss reserves

contained in Pelican’s 1991 annual statement. He informed

Lawrence Pratt in January 1992 that the reserves as presented in

the annual statement were understated by several million dollars.

Further, he testified that if the asset side of the balance sheet

was correct, increasing the loss and loss adjustment reserves to

the appropriate number would change Pelican’s reported $1,883,373

surplus position to a deficit.

Lawrence Pratt, Pelican’s executive vice-president of

operations and treasurer, testified that Bowler requested a

second opinion on the adequacy of the loss reserves. Pelican

hired Mihn Trinh to render his actuarial opinion. According to

Pratt, although Trinh’s numbers were more beneficial to Pelican,

had Trinh’s numbers been substituted for the numbers on the 1991

annual statement, “the company would have been insolvent, the

same result as Mr. Mercer, or Mr. Wolfe’s [sic] evaluation.”

Scruggs and Constance Korte also testified that Pelican was

insolvent. Scruggs described the methodology he used for his

We do not interpret the district court’s language to
preclude consideration of the other actuaries’ and accountants’
testimony. Although Bowler “was acquitted of all charges prior
to 1991,” this does not mean that the evidence relating to the
financial condition of Pelican during 1991 may not be considered.
In fact, Bowler was found guilty of two substantive counts of
mailing the 1991 Annual Statements of Pelican and Magnolia for
which the issue of Pelican’s financial state during 1991 is
obviously relevant.

17
analysis and testified that he concluded that the loss and loss

adjustment expense reserves stated in Pelican’s March 31, 1992

quarterly report were understated by over $19 million. Using

Scruggs’s figures, Korte determined that Pelican was insolvent

and had a surplus deficiency of about $23 million.10

Third, we do not agree that the solvency of Pelican is a

fact that may only be determined once all claims have been

settled. The determination of the solvency of an insurance

company necessarily includes loss reserves for future claims.

See Stephens v. Nat’l Distillers & Chem. Corp., 6 F.3d 63, 65 (2d

Cir. 1993) (“Because future claims will be a drain on an

insurer’s resources, ‘loss reserves’ are established to estimate

the value of claims which will be paid on policies which the

company is carrying. . . . Although they are only estimates, both

case reserves and [incurred-but-not-reported] reserves must be

reported as liabilities in the financial records of an insurance

company.”). The use of actuarial projections is an acceptable

way to calculate the adequacy of those reserves. Bowler was free

at trial to introduce his own actuarial experts or to challenge

the calculations of the government experts.

10
To the extent that Bowler argues that the 1999 LIGA
report proves that Scruggs’s testimony and report was incorrect,
we find the evidence to be merely impeaching. Bowler had ample
opportunity to attempt to impeach Scruggs’s testimony and report
and did do so. He did not choose, however, to impeach Scruggs
either by calling his own actuarial expert or by using the
evidence contained in the 1995 LIGA report.

18
 Thus, we agree with the district court that the 1999 LIGA

report is merely cumulative and impeaching. We find that the

district court’s holding that the newly discovered evidence does

not warrant a new trial was not an abuse of discretion.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the order of the

district court denying Bowler’s motion for a new trial.

19