The Hono rable Joseph E. Stevens, Jr., United States District Judge for th e 1 Western District of Missouri, sitting by designation. T he Honorable Garnett Thomas Eisele, United States District Judge for th e 2 Eastern District of Arkansas. United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-2075EA

_____________ United States of America, * * Appellant, * * On Appeal from the United v. * States District Court * for the Eastern District * of Arkansas. Jimmy Wilkins and Fred Baine, * * Appellees. *

___________ Submitted: November 20, 1997 Filed: March 18, 1998

___________ Before R ICHARD S. ARNOLD, Chief Judge, McMILLIAN, Circuit Judge, an d STEVENS, District Judge.

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___________ RICHARD S. ARNOLD, Chief Judge.
The Unit ed States appeals from the District Court’s order granting Jimmy 2 Wilkins and Fred Baine a new trial. We affirm.-2- I. On November 13, 1996, a federal grand jury returned a sixteen-count indictment against Fred Baine, Sherry Baine, Michael Smallwood, Charles Smallwood, Jimm y Wilkins, and Kenny Vogles. The indictment charged the defendants with conspiring to coll ect crop insurance proceeds and government disaster relief payments b y intentionally causing crops on farms in Arkansas and Mississippi to fail to mature and then claiming that the poor crop yield s were due to natural conditions. The indictment also charged several acts of mail fraud in furtherance of the conspiracies. During a two- week trial, the District Court granted motions to dismiss some of the counts for insufficient evidence, and granted judgments of acquittal for some of the defendants. After these motions were granted, only Jimmy Wilkins, Fred Baine, and Charles Smallwood remained defendants, and the jury was allowed to co nsider only the nine remaining counts of the indic tment. The jury acquitted Charles Smallwood on all the counts with which he was charged, and acquitted Jimmy Wilkins and Fred Baine on all but one count. Baine and Wilkins were found guilty on Count 10 of th e indictment, which charged them with conspiring to defraud the United States b y su bmitting a false disaster claim to the federal Agricultural Stabilization an d Conservation Service (ASCS). Specifically, Count 10 charged Baine and Wilkins with underplanting a farm in Mississippi for the purpose of producing a failed rice crop, and then submitting false seed tickets and appraisal worksheets to the ASCS in an attempt to obtain federal disaster relief payments.
Wilkins and Baine filed motions for judgment of acquittal notwithstanding the jury v erdict, and, in the alternative, motions for a new trial. In an order filed o n March 17, 1 997, the District Court denied the motions for judgment of acquittal bu t grantedthe new trial motions. The District Court justified a new trial in part on it s belief that Baine and Wilkins were prejudiced when the jury he ard evidence on charges-3-

of illegal conduct whic h were taken from the jury by the Court. The government now appeals.
II.
A District Court may grant a criminal defendant a new trial “if required in th e interes t of justice.” Fed. R. Crim. P. 33. This Court will reverse a District’s Cour t decision to grant a new trial only if the District Court has abused its discretion. United States v. Robbins , 21 F.3d 297, 299 (8th Cir. 1994); United States v. Wang , 964 F.2d 811, 813 (8th Cir. 1992).
We hold that the district judge did not abuse his discretion when he ordered a new trial. In the middle of the trial, the Court dismissed for lack of evidence Counts 12 and 13 of the indictment, which charged Baine and Wilkins with crop insuranc e fraud arising out of their Miss issippi farming operation. The dismissal of these counts wa s largely due to the testimony of Richard Cummins, the crop insurance adjuste r supervisor for Crop Hail Management In surance Company who inspected Baine’s and Wilkins’s Mississippi farm. Cummins testified that he recommended to Crop Hai l Management that the defendants ’ insurance claim be denied, and that he had prepared a report to that effect. However, Cummins was not able to produce this report from his files
. The Court subsequently found that Cummins’s testimony was unreliable an d refused to admit any of Crop Hail Management’s records into ev idence. Because these records were the basis of Counts 12 and 13, the Court dismissed those counts. Though t he Court dismissed the two charges of crop insurance fraud on th e Mississippi farm, it allowed the jury to consider C ount 10, which charged a conspiracy to obtain federal ASCS payments for the Mississippi farm. When the jury considered Count 10, it had heard Richard Cummins’s testimony about the dismissed charges of crop in surance fraud on the same farm. The District Court thought that the spill-over ef fect of this evidence, and that of certain other evidence introduced on other counts,-4-

tainted the jury’s consid eration of Count 10. The District Court is in the best position to make a judgment of this kind. We do not know what we would have done in it s pla ce. We do know that the District Court did not abuse the broad discretio n committed to it in matters of this kind. See United States v. McBride , 862 F.2d 1316, 1319 (8th Cir. 1988).
Affirmed. A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.