The Honorable Joseph E. Stevens, Jr., United States District Judge for the

1

Western District of Missouri, sitting by designation.

The Honorable Garnett Thomas Eisele, United States District Judge for the

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Eastern District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-2075EA

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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. *

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Submitted: November 20, 1997

Filed: March 18, 1998

___________

Before RICHARD S. ARNOLD, Chief Judge, McMILLIAN, Circuit Judge, and

STEVENS, District Judge. 1

___________

RICHARD S. ARNOLD, Chief Judge.

The United States appeals from the District Court’s order granting Jimmy

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Wilkins and Fred Baine a new trial. We affirm.
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I.

On November 13, 1996, a federal grand jury returned a sixteen-count indictment

against Fred Baine, Sherry Baine, Michael Smallwood, Charles Smallwood, Jimmy

Wilkins, and Kenny Vogles. The indictment charged the defendants with conspiring

to collect crop insurance proceeds and government disaster relief payments by

intentionally causing crops on farms in Arkansas and Mississippi to fail to mature and

then claiming that the poor crop yields 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 consider only the

nine remaining counts of the indictment. 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 the

indictment, which charged them with conspiring to defraud the United States by

submitting a false disaster claim to the federal Agricultural Stabilization and

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 verdict, and, in the alternative, motions for a new trial. In an order filed on

March 17, 1997, the District Court denied the motions for judgment of acquittal but

granted the new trial motions. The District Court justified a new trial in part on its

belief that Baine and Wilkins were prejudiced when the jury heard evidence on charges
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of illegal conduct which 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 the

interest of justice.” Fed. R. Crim. P. 33. This Court will reverse a District’s Court

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 insurance

fraud arising out of their Mississippi farming operation. The dismissal of these counts

was largely due to the testimony of Richard Cummins, the crop insurance adjuster

supervisor for Crop Hail Management Insurance Company who inspected Baine’s and

Wilkins’s Mississippi farm. Cummins testified that he recommended to Crop Hail

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 and

refused to admit any of Crop Hail Management’s records into evidence. Because these

records were the basis of Counts 12 and 13, the Court dismissed those counts. 

Though the Court dismissed the two charges of crop insurance fraud on the

Mississippi farm, it allowed the jury to consider Count 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 insurance fraud on the same farm. The District Court thought that the spill-over

effect of this evidence, and that of certain other evidence introduced on other counts,
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tainted the jury’s consideration 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 its

place. We do know that the District Court did not abuse the broad discretion

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.