United States v. Clark , 377 F. App'x 818 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
May 13, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 10-1017
(D.C. No. 1:09-cr-00151-CMA)
v. (D. Colo.)
LAWANNA CLARK,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, Chief Judge, HAWKINS ** and MURPHY, Circuit Judges.
Lawanna Clark (“Clark”) appeals her jury trial conviction for perjury in
connection with her grand jury testimony. We affirm.
We review claims of insufficient evidence de novo, determining whether,
viewing the evidence in the light most favorable to the government, any rational
trier of fact could have found the defendant guilty beyond a reasonable doubt.
United States v. Hooks, 551 F.3d 1205, 1212 (10th Cir. 2009). For a perjury
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
The Honorable Michael Daly Hawkins, Senior Circuit Judge, United
States Court of Appeals for the Ninth Circuit, sitting by designation.
conviction, the government was required to prove (1) Clark made the statement
under oath in a grand jury proceeding, (2) the statement was false, (3) she knew
the statement was false when made, and (4) the false statement was material to
the grand jury proceeding. United States v. Leifson, 568 F.3d 1215, 1220 (10th
Cir. 2009).
At trial, Clark did not contest that the statement was made under oath.
Although on appeal she contends that the question posed was imprecise, read in
context, the question and Clark’s answer were not unclear. A reasonable juror
could have found that she testified falsely.
Clark argues there is insufficient evidence she knew the statement was false
at the time she testified, because nearly four years had passed and she was asked
only a single, general question without specifying a time frame. However, the
withdrawals involved significant amounts of cash – $8,000 on a single day. An
agent who examined Clark’s other bank accounts also testified that it was unusual
for Clark to make cash withdrawals at all. As there is rarely direct evidence of
knowledge of falsity, its presence here is a fair inference to be drawn from all the
circumstances. See United States v. Larranaga, 787 F.2d 489, 495 (10th Cir.
1986). A rational juror could have inferred from these circumstances that Clark
knew she had made a substantial withdrawal from the account at the time she told
the grand jury she did not.
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Clark also claims there was insufficient evidence that the statement was
material to the grand jury. “To be material, the false declaration must have a
natural tendency to influence, or be capable of influencing, the decision required
to be made.” Leifson, 568 F.3d at 1220 (internal quotation and citation omitted).
The testimony need not have an actual effect; it only need be “capable of
influencing” the grand jury. United States v. Girdner, 773 F.2d 257, 259 (10th
Cir. 1985). Here, the foreperson of the grand jury testified that the jury was
interested in the answer to the withdrawal question, that it mattered “whether
[Clark] took money out or not and if she was being truthful about it,” and that the
jury had been presented with bank records at that time which would have helped
to ascertain whether Clark was being truthful. It is reasonable to infer that it was
material to the grand jury whether Clark ever withdrew money from the IRC
Solutions account because it went to her scope of involvement and whether she
was lying about her limited role in the company. This was sufficiently connected
to the overall investigation to be at least capable of influencing the grand jury’s
investigation. See, e.g., United States v. Vap, 852 F.2d 1249, 1253 (10th Cir.
1988).
Finally, Clark argues that the district court abused its discretion by denying
her motion for a new trial. To prevail on a motion for new trial based on newly
discovered evidence, Clark must prove “(1) the evidence was discovered after
trial, (2) the failure to learn of the evidence was not caused by . . . lack of
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diligence, (3) the new evidence is not merely impeaching, (4) the new evidence is
material to the principal issues involved, and (5) the new evidence is of such a
nature that in a new trial it would probably produce an acquittal.” United States
v. La Vallee, 439 F.3d 670, 700 (10th Cir. 2006) (citation omitted). The district
court did not abuse its discretion because the “new” handwriting evidence could
have been discovered earlier with due diligence and because it was not likely to
result in an acquittal. The jury could compare signatures itself, see United States
v. Phillips, 869 F.2d 1361, 1366 n.1 (10th Cir. 1988); in addition, Clark’s driver’s
license was noted on one of the withdrawal slips and the trial jury heard
testimony that it was customary for banks to require photo identification for cash
withdrawals such as those in this case.
AFFIRMED.
Entered for the Court
Michael Daly Hawkins
Circuit Judge
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