United States v. Warren David Miller , 135 F. App'x 226 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 04-13577 ELEVENTH CIRCUIT
JUNE 2, 2005
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D.C. Docket No. 04-00013-CR-T-23TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WARREN DAVID MILLER,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 2, 2005)
Before TJOFLAT, DUBINA and MARCUS, Circuit Judges.
PER CURIAM:
Warren David Miller appeals his conviction for theft of government property --
specifically, a government-owned colonoscope -- from the Orlando Veterans
Administration hospital, in violation of 18 U.S.C. § 641. On appeal, he argues that
the district court erred by (1) denying his motions for judgment of acquittal, based on
the sufficiency of the evidence, and (2) denying his motion for a new trial based on
newly discovered evidence. We review challenges to the sufficiency of the evidence
de novo, resolving all reasonable inferences from the evidence in favor of the jury’s
verdict. See United States v. Rudisill, 187 F.3d 1260, 1267 (11th Cir. 1999). The
evidence is sufficient where a reasonable trier of fact, choosing among reasonable
interpretations of the evidence, could find guilt beyond a reasonable doubt. United
States v. Lluesma, 45 F.3d 408, 409-10 (11th Cir. 1995). “We review the denial of
a motion for a new trial based on newly discovered evidence for abuse of discretion.”
United States v. Jernigan, 341 F.3d 1273, 1287 (11th Cir. 2003).
After thorough review of the record, as well as careful consideration of the
parties’ briefs, we find no reversible error and affirm.
First, Miller argues that there was no evidence in this case upon which a
reasonable jury could conclude, beyond a reasonable doubt, that he stole and sold the
colonoscope to Philip Lonbeck, who testified against him at trial. Miller contends
that Lonbeck’s inconsistent statements over the course of the investigation and during
the trial did not create a reasonable basis from which to impute guilt. He asserts that
Lonbeck’s testimony was incredible as a matter of law.
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“It is not necessary that the evidence exclude every reasonable hypothesis of
innocence or be wholly inconsistent with every conclusion except that of guilt,
provided that a reasonable trier of fact could find that the evidence established guilt
beyond a reasonable doubt. A jury is free to choose among the constructions of the
evidence.” United States v. Calderon, 127 F.3d 1314, 1324 (11th Cir. 1997). Indeed,
“[c]redibility determinations are the exclusive province of the jury.” Id. at 1325(quotation omitted).
For testimony of a government witness to be incredible as a matter of
law, it must be unbelievable on its face. It must be testimony as to facts
that [the witness] physically could not have possibly observed or events
that could not have occurred under the laws of nature. Further, the fact
that [the witness] has consistently lied in the past, engaged in various
criminal activities, [and] thought that his testimony would benefit him
does not make his testimony incredible.
Id. (citations and quotations omitted).
Section 641 of Title 18 provides: “Whoever . . . steals . . . or without authority,
sells, conveys or disposes of any . . . thing of value of the United States or of any
department or agency thereof . . . Shall be fined under this title or imprisoned not
more than ten years, or both.” 18 U.S.C. § 641. The elements of theft of government
property are: (1) the property belongs to the United States; (2) the defendant stole the
property; (3) the defendant did so knowingly and wilfully with intent to deprive the
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owner of the use or benefit of the property; and (4) the property had a value in excess
of $1,000. See 11th Cir. Pattern Jury Instr. (Crim.), Offense Instr. 21 (2003).
In the present case, the district court did not err by denying Miller’s motions
for judgment of acquittal. The government presented testimony establishing that the
colonoscope was United States property and was valued in excess of $1,000, and that
Miller had access to the colonoscope and the opportunity to steal it. Hospital
employees who testified for the government stated that the colonoscope was never
delivered to them, but instead remained in Miller’s department. Lonbeck stated that
Miller sold the colonoscope to him, and was able to produce evidence of payment.
In short, the government presented sufficient evidence from which “a
reasonable fact finder could have concluded that the evidence established the
defendant’s guilt beyond a reasonable doubt.” United States v. Fallen, 256 F.3d
1082, 1087 (11th Cir. 2001). Miller’s arguments with respect to the inconsistency
and incredibility of witnesses are without merit. Credibility determinations are the
sole province of the jury, and we, in reviewing sufficiency of the evidence, must
construe all credibility inferences in favor of the government. Calderon, 127 F.3d at
1325. Miller offered no evidence that Lonbeck’s testimony was “unbelievable on its
face” or contained facts or events that could not have possibly occurred. Id. Thus, the
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district court did not err by denying Miller’s motions for acquittal based on the
sufficiency of the evidence.
We likewise are unpersuaded by Miller’s argument that newly discovered
evidence of a hospital employee’s theft of prescription forms, after this employee
testified for the government at Miller’s trial, satisfied the test for granting a new trial.
Miller argues that the new evidence is material and not merely cumulative or
impeaching because it relates to the crime of stealing from the hospital and impugns
the witness’s testimony regarding the whereabouts of the missing scope. He asserts
that the new evidence would produce an acquittal because in light of it, a reasonable
jury would not have convicted him on the circumstantial evidence. We disagree.
To succeed on a motion for new trial based on newly discovered
evidence, the movant must establish that (1) the evidence was
discovered after trial, (2) the failure of the defendant to discover the
evidence was not due to a lack of due diligence, (3) the evidence is not
merely cumulative or impeaching, (4) the evidence is material to issues
before the court, and (5) the evidence is such that a new trial would
probably produce a different result. Indeed, we have held that motions
for a new trial are highly disfavored, and that district courts should use
“great caution” in granting a new trial motion based on newly
discovered evidence.
Jernigan, 341 F.3d at 1287 (citations and quotations omitted).
The government concedes that the first two prongs of the Jernigan test are
satisfied. However, Miller failed to show that the remaining three prongs are met.
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The fact that the employee-witness stole prescription forms may impeach her
testimony regarding the whereabouts of the missing colonoscope, but her other
testimony is unaffected by the new evidence and confirms the witness’s testimony.
The newly discovered evidence is merely cumulative or impeaching and is not
material. Additionally, Lonbeck’s testimony that Miller sold him the scope, sent it
to him, and accepted a check as payment is also unaffected. It is unlikely that a new
trial encompassing the new evidence would produce a different result. Id. On this
record, the district court did not abuse its discretion by denying Miller’s motion for
a new trial based on newly discovered evidence.
For the above reasons, we affirm the district court.
AFFIRMED.
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