### REVISED

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-10504

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

THOMAS J. SULLIVAN; H.J. SALLEE, “MICKEY”,

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of Texas

April 25, 1997

Before DUHÉ, BENAVIDES, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

This case is before us a second time. Defendants Thomas J. Sullivan and H.J. “Mickey” Sallee

conducted a complex real estate scheme invo lving bogus loan transactions. They were charged and

convicted of conspiracy, bank bribery, and making false ent ries in their financial books. The

d efendant s were sentenced and ordered to pay over $11 million in restitution. We affirmed their

convictions in an unpublished decision, but remanded the case to the district court for reconsideration

of the sentences and restitution. U nited States v. Sullivan

, No. 94-10583 (5th Cir., Sept. 25, 1995)

(unpublished). After the district court imposed the same sentence on the defendants and vacated its

previous restitution order, the defendants moved for a new trial on the basis of ne wly discovered

evidence. The motion was denied.2

The central issue in this case is whether the district court erred by denying t he defendants’

post-trial, post-appeal motion for a new trial based on newly discovered evidence. The defendants

claim that the Government stressed at trial that three loan applications were backda ted by the

defend ant s. The newly discovered evidence allegedly shows that the defendants could not have

backdated the applications or known about it. Finding that the district court did not abuse its

discretion in denying the defendants’ motion for a new trial, we affirm.

BACKGROUND

This case centers on the circumstances surrounding the disbursement of four loans by

defendants Thomas J. Sullivan and H.J. “Mickey” Sallee to a series of real and “straw” investors.

Sullivan was a Dallas real estate/loan broker and Chairman of the Board of Tristar Capital

Corporation (Tristar). Sallee was Chairman of the Board of San Angelo Savings Association (San

Angelo). The defendants sold land through loans disbursed by San Angelo and property purchased

by Tristar. All four loans subsequently went into default.

As part of its case-in-chief, the Government p resent ed t he theory that Sullivan and Sallee

actually backdated the loan applications themselves, knew about the backdating and did nothing about

it, or instructed someone to backdate the loan applications. The Government proffered the testimony

of Mary Becker, who reviewed loan files at San Angelo at the time the four loans were made. She

testified that when the loan applications came in, the front page of the application was complete with

the applicant’s signature and the date of that signature. The back side of the applications were blank.

Becker further testified that San Angelo employee Audrey Russell filled in the back side of the loan

applications and would, on the basis of the Board of Directors’ meeting, fill in the name of the

borrower, the amount of the loan, the term of the loan, the interest rate, and the date that the Board

had approved the loan.

After the defendants unsuccessfully challenged their convictions on appeal, they discovered

that the Government’s theory of loan application processing was mistaken. According to an affidavit

o btained from Audrey Russell, the front side of the loan applications was only partially completed3

when they reached her desk. Russell stated that either she or Anita Weldon (who is now deceased)

would often change the date on the front side of the loan application to correspond with the date San

Angelo’s Board of Directors approved the loan. These alterations, claimed Russell, “appeared” to

be made on the three loans at issue in the trial. It was only after these changes were made by Russell

or Weldon that Becker would receive the loan applications. The defendants also produced evidence

fro m a fo rensic document expert, Linda Collins, that the type used on one of the backdated lo an

applications matched the type of a letter Ms. Weldon typed around the time of the loan transactions.

Armed with this newly discovered evidence, the defendants moved the district court for a new

trial. They argued that the “true” picture of loan processing rendered “false” Ms. Becker’s testimony

that the front of the loan applications was “complete” when she received them. The defendants claim

that in an affidavit presented to the district court, Ms. Becker admitted that her testimony was false

(although not intentionally false). Moreover, the defendants argued that they could not have known

about Russell’s alterations because the Government only provided the defendants with photocopies

of t h e loan documents, which did not (and could not) reveal the correcti on fluid used on the

applications. The defendants claimed that because they were in the heat of trial and were informed

by the Government that the applications were “exactly like the originals,” they did not investigate the

matter further.

The Government painted a different picture. It claimed that the original documents had been

pulled, copies were marked “Original Pulled,” and the defense attorneys were i nform ed that they

could have access to the original documents if the attorneys so desired.

Faced with these competing stories about the circumstances surrounding the dating of the loan

applications, the district court denied the defendants’ motion. First, the district court concluded that

because the defendants had access to the original loan applicati ons prior to trial, they could have

sought out the “backdater.” Second, the district court held that the defendants did not exercise due

diligence because Ms. Becker testified at the beginning of trial and identified Ms. Russell as the

person responsible for completing t he loan applications. According to the district court, the1 Accordingly, we need not address the question of whether the district court erred in its analysis

of the remaining Berry

factors.

4 defendants had ample time to search out Ms. Russell and obtain any favorable evidence she may have

had. This appeal followed.

STANDARD OF REVIEW

The district court’s denial of the defendants’ motion for new trial is reviewed for an abuse of

discretion. United States v. Pena , 949 F.2d 751, 758 (5th Cir. 1991).

DISCUSSION

“Motions for new trials based on newly discovered evidence ‘are disfavored by the courts and

therefore are viewed with great caution.’” United States v. Pena

, 949 F.2d 751, 758 (5th Cir. 1991)

(quoting United States v. Fowler

, 735 F.2d 823, 830 (5th Cir. 1984)). We have established a fourpart test, known as the “ Berry Rule,” for determining whether a new trial should be granted on the

basi s o f newly discovered evidence. U nited States v. Freeman

, 77 F.3d 812, 816 (5th Cir. 1996).

The four factors are: “(1) the evidence was newly discovered and unknown to the defendant at the

t ime o f t he t rial; (2) failure to detect the evidence was not a result of lack of due diligence by the

defendants; (3) the evidence is material, not merely cumulative or impeaching; and (4) the evidence

will pro bably produce an acquittal.” U nited States v. Ardoin

, 19 F.3d 177, 181 (5th Cir.), cert

.

denied

, 115 S. Ct. 327 ( 1994); Fed.R.Crim.P. 33. If the defendant fails to meet one of the four

factors, the motion for new trial should be denied. See Ardoin , 19 F.3d at 181.

This case turns on whether the defendants’ attorneys exercised due diligence in discovering

the “true” backdater of the loan applications. 1 The defendants’ main contention is that the district

court erred when it concluded that the defendants’ attorney s did not act with due diligence in

discovering Audrey Russell’s testimony about the “true” reason the loan applications were backdated.

Relying on United States v. Walus

, 616 F.2d 283, 304 (7th Cir. 1980), they argue that the Berry Rule

should be “‘circumscribed by a rule of reason.’” As such, argue the defendants, the district court’s

conclusion that the or iginal documents were available to the defendants’ attorneys “completely2 Sullivan and Sallee also argue that we should take into consideration the comparatively fewer

resources available to appointed defense attorney s in our determination of whether, under the totality

of circumstances, counsel for Sullivan and Sallee exercised due diligence in discovering the “true”

backdater of the loan applications. We reject this argument. The facts of this case convince us that

the superior resources of the Government did not make defense counsel’s job of legal representation

unreasonably onerous. As we point out in the t ext , defense counsel had a number of legal tools

available to them, tool s they opted not to use. Nothing in our cases, common sense, or logic supports

their contention.

3 See, e.g.

, United States v. Jaramillo

, 42 F.3d 920, 925 (5th Cir.) (finding lack of due diligence

where defendant knew videotape would be introd uced at trial, yet did nothing to counteract

potentially damaging information on the tape), cert. denied , 115 S. Ct. 2014 (1995); United States

v. Time , 21 F.3d 635, 642 (5th Cir. 1994) (finding lack of due diligence where defendant knew of

information and had opportuni ty to investigate matter further); United States v. Ardoin , 19 F.3d at

181 (failing to subpoena documents counsel knew existed amounted to lack of due diligence); U nited

States v. Munoz

, 957 F.2d 171, 173 (5th Cir.) (failing to call witness at trial amounted to lack of due

diligence), cert. denied

, 506 U.S. 919 (1992); United States v. Pena

, 949 F.2d 751, 758 (5th Cir.

1991) (holding that just because witness was uncooperative and unavailable did not preclude attorney from discovering needed evidence from other sources).

An alternative rule, known as the “ Larrison Rule,” relaxes the standard for granting a new trial

when material, false o r perjured testimony is presented at trial. The rule was born in L arrison v.

United States , 24 F.2d 82 (7th Cir. 1928), in which the Seventh Circuit held that a new trial should

be granted when “(a) [t]he court is reasonably well satisfied that the testimony given by a material

witness was false[;] (b) [t]hat without [the false testimony] the jury might have reached a different

conclusion [; and] (c) [t]hat the party seeking the new trial was taken by surpr ise when the false

testimony was given and was unable to meet it or did not know of its falsity until after the trial.” I d.

at 87-88 (emphasis added). There is, however, some doubt as to whether the L arrison Rule has taken

5 ignores the fact that both defense counsel were told t hat t he pho tocopies were ‘exactly’ like the

originals.” The defendants conclude that the district court was ostensibly punishing the defendants

for trusting the Government’s representations. Trusting the Government, assert the defendants, must

amount to due diligence (or at least, not justify a finding of “undue” diligence). 2

The district court rejected the defendants’ argument, concluding that (1) the defendants at all

t imes had access to the original loan documents; (2) testimony about the processing of the lo an

applications occurred on the first day of a three-week trial; (3) the defendants expressed no surprise

at the introduction of the loan application evidence; and (4) the defendants di d not obj ect to the

evidence or seek a continuance so that the matter could be explored. We have canvassed the record

and our cases and conclude that the district court did not abuse its discretion in concluding that under

these facts, the attorneys’ failure to expose the “true” nature of the backdating was the result of a lack

of diligence on their part. 3hold in this Circuit. C ompare Newman v. United States

, 238 F.2d 861, 862 n.1 (5th Cir. 1956)

(applying the Larrison

Rule) with United States v. Adi

, 759 F.2d 404, 407 (5th Cir. 1985) (declining to apply the Larrison Rule); see also United States v.

MMR Corp.

, 954 F.2d 1040, 1049 (5th Cir. 1992) (presenting the history of the Larrison Rule in the

Fifth Circuit).

We do not decide whether the Larrison Rule is viable, however, because the district court’s

findings in its due diligence analysis convince us that Sullivan and Sallee would not prevail under the

Larrison standard either. We have concluded that the district court did not abuse its discretion when

it determined that the defendants’ attorney s expressed no surprise at trial and that the attorney s had

access to the original loan documents. As such, Sullivan and Sallee have failed to meet prong (c) of

the Larrison

Rule.

6 CONCLUSION

Finding t hat the district court did not abuse its discretion when it denied the defendants’

motion for a new trial, we AFFIRM.

AFFIRMED.