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USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS


FOR THE FIRST CIRCUIT
____________________

No. 96-1187

UNITED STATES OF AMERICA,

Appellee,

v.

HAROLD F. CHORNEY,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Raymond J. Pettine, Senior U.S. District Judge]


__________________________

____________________

Before

Torruella, Chief Judge,


___________

Campbell, Senior Circuit Judge,


____________________

and Boudin, Circuit Judge.


_____________

____________________

Scott A. Lutes for appellant.


______________
Seymour Posner, First Assistant
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Sheldon Whitehouse, United
___________________

States

United States Attorney, with w


Attorney, was

United States.

____________________

on

brief for

OCTOBER 29, 1996


____________________

Per Curiam.
__________

On May

27, 1993,

a jury

in the

federal

district court in Rhode Island found Harold Chorney guilty of

seven

counts of

making a

federally insured

bank in

false report

violation

and statement

of 18

U.S.C.

to a

1014.

United States v. Chorney, 63 F.3d 78, 80 (1st Cir. 1995).


_____________
_______

trial, the gravamen of

"engineered a false

that the

rare

the case against Chorney was

offered

vastly

more than

their actual

obtain

of

direct

conviction and

the

appeal was

as collateral

review,

sentence.

this

were

value, thus enabling

loans, extensions

totaled $2.5 million by May 1989.

On

that he

appraisal" in order to convince the bank

coins he

series

At

and

renewals

him to

that

Chorney, 63 F.3d at 79-80.


_______

court

affirmed

Chorney's

Chorney, 63 F.3d at 81, 83.


_______

pending, Chorney

worth

filed a

motion for

While

a new

trial based

on newly discovered

evidence, Fed. R.

Crim. P.

33, and supplemented the motion with claims of Brady and Fed.
_____

R.

Crim. P. 16 violations.

motion

The district

court denied that

on January 22, 1996, and Chorney now appeals from the

denial.

At

provided

trial,

critical

by William

question in 1985,

testimony

Tebbetts,

Company, that

who appraised

Chorney

was

the coins

in

and Ann Fiumefreddo, Chorney's

Tebbetts testified that Chorney

to purchase

against

the business,

ultimately

gave him the money necessary

renamed Mayflower Coin

appraised

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secretary.

the

coins.

and Stamp

Tebbetts

examined

Chorney

hundreds

coins

pledged

as collateral

by

to Eastland Bank, and graded all of them between MS-

62 and MS-64.

two

of the

months

However, at Chorney's request, Tebbetts agreed

later to

sign

an appraisal

Mayflower letterhead which stated that

letter

written on

all of the coins were

of substantially higher MS-65 "gem" quality.

Tebbetts testified

that he signed the

appraisal letter

to avoid

losing his

job.

The letter

did not reveal

Chorney owned Mayflower and employed Tebbetts.

who typed

she

the letter at Chorney's

asked Chorney

whether it

was

that

Fiumefreddo,

direction, testified that

appropriate to

have one

company that he owned appraise another company that he owned.

Chorney responded,

"You're better

ask questions; something

off not knowing

to that effect."

or don't

Chorney, 63 F.3d
_______

at 79-80.

In

his new

trial

motion, Chorney

contended that

original "collateral" coins were either removed and

the

replaced

with coins of lesser value or mishandled and damaged, causing

them to lose value.

To support his theories of switching or

mishandling, Chorney pointed to videotapes, still photographs

and a stenographic

his

also

transcript of the August

company's assets by order

relied

inventories of

upon

alleged

of a bankruptcy

discrepancies

the collateral coins

bank.

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1990 removal of

trustee.

He

between different

which were held

by the

Chorney's

constitutes

position

newly

is

discovered

contends

that

the failure

related

records

of the

defense

involved

and Fed.

responds that it offered

of

August

the

evidence

the videotapes

1990 coin

by

this

In addition,

provide

under Brady v.
_____

R. Crim.

all

evidence.

to

violation

disclosure duties

(1963)

that

transfer

government

P. 16(a)(1)(C).

and

to the

of

Maryland, 373 U.S.


________

he

its

83, 87

The government

videotapes to Chorney's lawyer, who

chose not to view them.

In

any

case,

Chorney's business

coins at

issue.

the

recorded

assets involved

The connection

that any government carelessness

August

1990

none

of the

is simply

removal

of

collateral

Chorney's claim

evident from the videotapes

and

other

evidence

movement of

would

suggest

953 collateral coins

that

the

among bank

branches on

separate occasion (for valuation purposes in

Chorney's

bankruptcy

case)

probably

government's

connection with

involved

similar

carelessness and damage to the coins.

As for the inventory discrepancies--which do involve the

inventory

Although

between

coins--the

Chorney claims

would

is

that there

also

extremely

were 141

thin.

discrepancies

two different inventories (one by the FBI and one by

Sotheby's),

number.

inference

But

it

appears

that

in any case

represent

less than

this

greatly overstates

even differences as

two

percent of

the

the

to 141 coins

7820 coins

-4-4-

offered

as collateral for the bank loan and appraised as MS-

65 for significantly more than their actual value.

Chorney's Brady and Rule 16 claims, and his motion for a


_____

new trial based on newly discovered evidence, all fail unless

Chorney

shows that

the evidence

to which

likely produce a different result on retrial.

he points

would

United States
_____________

v.

Watson,
______

76 F.3d

4, 7

States v. Hemmer, 729


______
______

(1st

Cir. 1996)

(Brady); United
_____
______

F.2d 10, 13 (1st Cir.),

cert. denied,
____________

467 U.S. 1218 (1984)

(Rule 16); United States v.


_____________

F.3d

Cir.

965,

971 (1st

denied), 116 S.
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1995) (new

Ct. 2554 (1996).

trial

Even if

Tibolt, 72
______

motion), cert.
_____

we considered the

issue of prejudice de novo (the standard of review is complex


_______

and not worth pursuing

here), Chorney's showing of prejudice

is patently inadequate.

As our brief (and

evidence shows,

Chorney.

suggests

understated) description of the trial

the government

By contrast,

that there

was

had a powerful

nothing in the

any massive

case against

evidence now adduced

switch of

collateral

coins or that they were damaged en masse during the course of


________

some relocation.

The likelihood that this new evidence would

have altered the outcome of the trial approaches zero.

Affirmed.
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