* 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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 96-40239

Summary Calendar

___________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DANNY L. SCARBOROUGH,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 9:95-CR-9-1

--------------------

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.
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 beetleinfested 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

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
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

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

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
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

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
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

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
7

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
8

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 casein-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.),
9

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
10

Scarborough’s appeal presents no reversible error. His

conviction and sentence are accordingly

AFFIRMED.