United States v. Maynard , 77 F. App'x 183 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4605
JACOB C. MAYNARD,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4607
LEONARD S. KERSEY,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4367
LEONARD S. KERSEY,
Defendant-Appellant.

Appeals from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CR-00-99)
Submitted: July 31, 2003
Decided: October 9, 2003
Before MOTZ and GREGORY, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
2 UNITED STATES v. MAYNARD
Affirmed by unpublished per curiam opinion.
COUNSEL
Grafton E. Skaggs, SKAGGS & SKAGGS, Fayetteville, West Vir-
ginia; Clinton W. Smith, Charleston, West Virginia, for Appellants.
Kasey Warner, United States Attorney, L. Anna Crawford, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Jacob Maynard and Leonard Kersey (the Appellants) were con-
victed by a jury of conspiracy to manufacture counterfeit United
States obligations, 18 U.S.C. § 371 (2000) (Count 1), and aiding and
abetting the passing of counterfeit obligations, 18 U.S.C. §§ 472, 2
(2000) (Counts 2-4).1 Maynard and Kersey contend on appeal that
their convictions were obtained through the use of false or perjured
testimony on the part of two government witnesses, Alicia Bennett
and Cecil Green.2 Kersey also appeals the district court’s denial of co-
1
Jacob Maynard was acquitted on Count Five, which charged witness
intimidation on April 23, 2000. Jacob Maynard’s son, Danny, was also
convicted on Counts One through Four; his appeal is being decided sepa-
rately. Christopher Priestly was convicted on Counts One, Two, and
Four, but has not appealed.
2
Although Jacob Maynard and Leonard Kersey have completed their
terms of imprisonment and have been released, this appeal is not moot
because they have not yet completed their three-year terms of supervised
release. United States v. Lira-Barraza, 941 F.2d 745, 746 n.1 (9th Cir.
1991).
UNITED STATES v. MAYNARD 3
defendant Danny Maynard’s post-judgment motion for new trial
based on newly discovered evidence, in which Appellants joined.3 We
affirm the convictions and the district court’s order denying the new
trial motion, and deny Appellants’ motions to remand for an evidenti-
ary hearing on newly discovered evidence.
On December 19, 1999, the Appellants, Jacob’s son Danny May-
nard, and fifteen-year-old Cecil Green drove around in Jacob May-
nard’s van visiting convenience stores and small businesses where
counterfeit notes were passed. Eighteen-year-old Jonathan Adkins
was also present.4 That evening, Leonard Kersey was arrested by an
off-duty deputy when he attempted to pass a twenty-dollar bill at a
gas station. The others waiting in the van were taken into custody,
questioned, and released. The Appellants and Danny Maynard were
indicted on the above charges in April 2000.
At the trial, Green testified that he was with the Appellants, Danny
Maynard, and Adkins on December 19, 1999, when they used a com-
puter, scanner, and printer to manufacture counterfeit twenty-dollar
bills. Green said they all helped to cut and trim the bills before driving
around to convenience stores and gas stations where Kersey passed
the bills.
Alicia Bennett testified that she dated Danny Maynard for about
two months in the fall of 1999. She said that, on December 9, 1999,
she accepted Danny Maynard’s invitation to drive to Lincoln County,
West Virginia, to attend a party where Danny and others would be
playing music. She said she and Danny Maynard set out in Jacob
Maynard’s van with Leonard Kersey, Jacob Maynard, Chris Priestly,
Rachel Skeens, and Minnie Maynard, Danny Maynard’s mother. Ben-
nett testified that, on the way, they stopped at a small out-building in
a field where Danny Maynard, Leonard Kersey, and Chris Priestly got
out of the van for about fifteen minutes and returned with a clipboard
with a sheet of uncut twenty-dollar bills on it. Bennett testified that,
after making eye contact with Danny Maynard, she felt frightened and
3
Kersey and Jacob Maynard adopted the argument in Danny May-
nard’s reply to the government’s response to the new trial motion.
4
Adkins was not charged and testified for the defense.
4 UNITED STATES v. MAYNARD
threatened. She said she asked Jacob Maynard to take her home and
he did so. On the trip home, according to Bennett, Danny Maynard
grabbed her neck, squeezed it, and told her that, if she talked about
what she had seen or heard, he would kill her. She said she did not
go to a party in Lincoln County with Maynard on that day or any
other day.
In the early hours of December 13, 1999, Bennett’s trailer was
destroyed by fire. She testified that, during the preceding evening, she
was at a party at Terry Hurley’s house where she overheard Danny
Maynard urging Cecil Green to set her trailer afire and instructing
him how to do it. Bennett testified that she left Hurley’s, got some
clothes from her trailer, and got a ride to her uncle’s house, where she
spent the night. Cecil Green testified that he set the fire after Danny
Maynard offered him money and a car to do so, and that Danny May-
nard was with him when he started the fire.
Defense witnesses contradicted some of the details of Alicia Ben-
nett’s testimony, calling into question her assertion that she had never
attended a party in Lincoln County with Danny Maynard, and that she
had left Terry Hurley’s house before the fire to spend the night at her
uncle’s house. Terry Hurley testified that Bennett passed out after
drinking beer at his house and spent the night there. His testimony
was corroborated to some degree by Cecil Green and by Robin Foster,
who said she gave Bennett a ride from Hurley’s house to Bennett’s
uncle’s house the next morning. Michael Baisden testified that he had
traveled to Lincoln County with Danny Maynard to play music at a
party twice in the fall of 1999, and that Danny Maynard was accom-
panied by Alicia Bennett on one occasion.
Cecil Green’s testimony was contradicted by Jonathan Adkins,
who was in Jacob Maynard’s van with the Defendants on December
19. Adkins testified that he did not hear any conversation about coun-
terfeit money or know that anyone was passing counterfeit bills until
after he had been taken into custody. In addition, Danny Haynes testi-
fied that he was with Danny Maynard in Maynard’s house when Ben-
nett’s nearby trailer burned. Green was also questioned about his
grand jury testimony, in which he said that Danny Maynard had set
the fire, although he had admitted setting the fire at Maynard’s direc-
tion when the police questioned him about it on December 19, 1999.
UNITED STATES v. MAYNARD 5
Despite these challenges to the testimony given by Bennett and
Green, the jury found that the government had presented credible evi-
dence concerning the counterfeiting activity and convicted the May-
nards and Kersey of the counterfeiting offenses.
Appellants noted timely appeals, alleging that the government used
false or perjured testimony by Alicia Bennett and Cecil Green to
obtain their convictions. While the appeals were pending, Danny
Maynard, joined by Appellants, filed in the district court a motion for
new trial based on newly discovered evidence, which consisted of an
affidavit from Rachel Skeens that contradicted some of Bennett’s tes-
timony. After the government responded, additional affidavits and
statements challenging Bennett’s testimony on certain points were
submitted. We granted Appellants’ motion to hold the appeals in
abeyance until the district court ruled on the new trial motion, and
deferred action on their motions to remand for an evidentiary hearing.
In January 2003, the district court denied the motion for new trial.
Use of False or Perjured Evidence
Appellants claim that Bennett’s and Green’s testimony was false
and perjured and that, without this testimony, the evidence was insuf-
ficient to sustain their convictions. Due process is violated if a prose-
cutor knowingly uses perjured testimony or fails to disclose that
testimony used to obtain a conviction is false. United States v. Bagley,
473 U.S. 667, 678 (1985); United States v. Kelly, 35 F.3d 929, 933
(4th Cir. 1994). However, mere inconsistencies in testimony are not
enough to warrant relief; a defendant must show that the testimony
was false and that the prosecutor or another government official knew
the testimony was false. United States v. Griley, 814 F.2d 967, 970-
71 (4th Cir. 1987).
Appellants point out that Bennett’s testimony was contradicted by
defense witnesses in certain respects and that Green gave inconsistent
accounts of his participation in the arson. They also claim that
Green’s description of how the counterfeit twenty-dollar bills were
made was not consistent with the case agent’s testimony as to the pro-
cess necessary to create counterfeit bills.5 We find the argument
5
The agent’s testimony was not included in the joint appendix.
6 UNITED STATES v. MAYNARD
unpersuasive. Although the Appellants’ witnesses created a credibility
issue for the jury with respect to the testimony of both Bennett and
Green, Appellants have not met their burden of showing that the gov-
ernment knowingly permitted either Bennett or Green to give false
testimony at trial.
Jacob Maynard makes the additional argument that his conviction
was not supported by sufficient evidence because only Cecil Green
testified that he knew that counterfeit bills were being passed on
December 19, 1999, and Green’s testimony was not credible. How-
ever, the uncorroborated testimony of a defendant’s accomplice is
enough to support a guilty verdict. United States v. Hobbs, 136 F.3d
384, 390 n.11 (4th Cir. 1998). The jury found Green credible as to the
counterfeiting activity. A reviewing court does not review a witness’
credibility. Id.Newly Discovered Evidence
The district court applied the test set out in United States v. Custis,
988 F.2d 1355 (4th Cir. 1993), which directs that a new trial should
be granted based on newly discovered evidence only if five elements
are satisfied:
(a) the evidence must be, in fact, newly discovered, i.e., dis-
covered since the trial; (b) facts must be alleged from which
the court may infer diligence on the part of the movant; (c)
the evidence relied on must not be merely cumulative or
impeaching; (d) it must be material to the issues involved;
and (e) it must be such, and of such nature, as that, on a new
trial, the newly discovered evidence would probably pro-
duce an acquittal.
Id. at 1359; see also United States v. Chavis, 880 F.2d 788, 793 (4th
Cir. 1989) (same).
In its order denying the motion for new trial based on newly dis-
covered evidence, the district court focused primarily on Rachel
Skeens’ affidavit because it was the only affidavit timely filed with
the new trial motion. Skeens stated that she had not traveled with Ali-
UNITED STATES v. MAYNARD 7
cia Bennett in Jacob Maynard’s van to Lincoln County on December
9, 1999, as Bennett had testified, and that Bennett became drunk on
December 13, 1999, and spent the night at Terry Hurley’s house.
Danny Maynard had also filed an affidavit from Joseph Perdue with
his reply to the government’s response to his motion. Perdue asserted
that, on or about December 9, 1999, he traveled to a residence in Lin-
coln County with the Appellants, Danny Maynard, and Michael Bais-
den. Perdue said they went back to play a second time, and were
accompanied on that trip by Alicia Bennett and Angela Fensterm-
acher. He said they made no stops on the way, that Bennett was affec-
tionate to Danny Maynard, and that he witnessed no threats to
Bennett. The other affidavits and statements, all inconsistent in some
respect with Bennett’s testimony, were filed even later.
The district court found that Skeens’ information was not newly
discovered because Skeens testified before the grand jury and her tes-
timony was given to the defense a month before trial. It found that
Danny Maynard had not alleged facts from which the court could
infer diligence on his part in that his attorney’s investigator merely
stated in an affidavit that he tried to locate Skeens for two days with-
out success. The court found that Skeens’ testimony would have been
no more than cumulative or impeaching, and material only to the
issue of Bennett’s credibility. Although Bennett’s credibility was an
important issue, the Custis test requires that a defendant satisfy each
of the five elements. The court found that the other affidavits and
statements also failed to meet the Custis test.
Appellants argue in this appeal that the district court erred when it
applied the Custis test, and should instead have used the test set out
in United States v. Roberts, 262 F.3d 286, 293 (4th Cir. 2001) (new
trial may be granted if court is reasonably satisfied that testimony
given by material witness was false, without it jury might have
reached different conclusion, and party seeking new trial was sur-
prised by false testimony), cert. denied, 535 U.S. 991 (2002); see also
United States v. Wallace, 528 F.2d 863, 866 (4th Cir. 1976); United
States v. Larrison, 24 F.2d 82, 87-88 (7th Cir. 1928). This claim is
without merit because the Roberts test is applied only when a witness
recants trial testimony, and is applied in addition to the Custis test.
See United States v. Lofton, 233 F.3d 313, 318 (4th Cir. 2000). No
witness’ testimony was recanted in this case.
8 UNITED STATES v. MAYNARD
Appellants also contend that the district court erred in denying the
new trial motion because they have produced evidence that estab-
lishes that Alicia Bennett testified falsely when she said she did not
attend a party in Lincoln County with Danny Maynard, testified
falsely about who was present when she drove to Lincoln County
with the Maynards on December 9, 1999, and testified falsely that she
left Terry Hurley’s house before the fire on December 13, 1999.
While testimony from the persons whose affidavits and statements
were submitted as exhibits to the new trial motion would have created
a more serious credibility issue for the jury, Appellants have not
shown that Bennett’s testimony was actually false. More importantly,
they have not shown that the government knowingly allowed Bennett
to give false testimony. At most, the information they have produced
is merely impeaching of Bennett’s testimony and cumulative of evi-
dence that was presented at trial by the defense. Consequently, we
conclude that the district court did not abuse its discretion in denying
the motion for new trial.
For the reasons discussed, we affirm the convictions. We affirm the
district court’s denial of the post-judgment motion for new trial. We
deny Appellants’ motions to remand their cases for an evidentiary
hearing. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
AFFIRMED