USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 96-1187
UNITED STATES OF AMERICA,
Appellee,
v.
HAROLD F. CHORNEY,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
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Before
Torruella, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Scott A. Lutes for appellant.
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Seymour Posner, First Assistant United States Attorney, with whom
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Sheldon Whitehouse, United States Attorney, was on brief for the
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United States.
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OCTOBER 29, 1996
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Per Curiam. On May 27, 1993, a jury in the federal
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district court in Rhode Island found Harold Chorney guilty of
seven counts of making a false report and statement to a
federally insured bank in violation of 18 U.S.C. 1014.
United States v. Chorney, 63 F.3d 78, 80 (1st Cir. 1995). At
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trial, the gravamen of the case against Chorney was that he
"engineered a false appraisal" in order to convince the bank
that the rare coins he offered as collateral were worth
vastly more than their actual value, thus enabling him to
obtain a series of loans, extensions and renewals that
totaled $2.5 million by May 1989. Chorney, 63 F.3d at 79-80.
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On direct review, this court affirmed Chorney's
conviction and sentence. Chorney, 63 F.3d at 81, 83. While
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the appeal was pending, Chorney filed a motion for a new
trial based on newly discovered evidence, Fed. R. Crim. P.
33, and supplemented the motion with claims of Brady and Fed.
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R. Crim. P. 16 violations. The district court denied that
motion on January 22, 1996, and Chorney now appeals from the
denial.
At trial, critical testimony against Chorney was
provided by William Tebbetts, who appraised the coins in
question in 1985, and Ann Fiumefreddo, Chorney's secretary.
Tebbetts testified that Chorney gave him the money necessary
to purchase the business, renamed Mayflower Coin and Stamp
Company, that ultimately appraised the coins. Tebbetts
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examined hundreds of the coins pledged as collateral by
Chorney to Eastland Bank, and graded all of them between MS-
62 and MS-64. However, at Chorney's request, Tebbetts agreed
two months later to sign an appraisal letter written on
Mayflower letterhead which stated that 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 that
Chorney owned Mayflower and employed Tebbetts. Fiumefreddo,
who typed the letter at Chorney's direction, testified that
she asked Chorney whether it was appropriate to have one
company that he owned appraise another company that he owned.
Chorney responded, "You're better off not knowing or don't
ask questions; something to that effect." Chorney, 63 F.3d
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at 79-80.
In his new trial motion, Chorney contended that the
original "collateral" coins were either removed and 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 transcript of the August 1990 removal of
his company's assets by order of a bankruptcy trustee. He
also relied upon alleged discrepancies between different
inventories of the collateral coins which were held by the
bank.
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Chorney's position is that all of this evidence
constitutes newly discovered evidence. In addition, he
contends that the failure to provide the videotapes and
related records of the August 1990 coin transfer to the
defense involved violation by the government of its
disclosure duties under Brady v. Maryland, 373 U.S. 83, 87
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(1963) and Fed. R. Crim. P. 16(a)(1)(C). The government
responds that it offered videotapes to Chorney's lawyer, who
chose not to view them.
In any case, the recorded August 1990 removal of
Chorney's business assets involved none of the collateral
coins at issue. The connection is simply Chorney's claim
that any government carelessness evident from the videotapes
and other evidence would suggest that the government's
movement of 953 collateral coins among bank branches on a
separate occasion (for valuation purposes in connection with
Chorney's bankruptcy case) probably involved similar
carelessness and damage to the coins.
As for the inventory discrepancies--which do involve the
inventory coins--the inference is also extremely thin.
Although Chorney claims that there were 141 discrepancies
between two different inventories (one by the FBI and one by
Sotheby's), it appears that this greatly overstates the
number. But in any case even differences as to 141 coins
would represent less than two percent of the 7820 coins
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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
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new trial based on newly discovered evidence, all fail unless
Chorney shows that the evidence to which he points would
likely produce a different result on retrial. United States
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v. Watson, 76 F.3d 4, 7 (1st Cir. 1996) (Brady); United
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States v. Hemmer, 729 F.2d 10, 13 (1st Cir.), cert. denied,
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467 U.S. 1218 (1984) (Rule 16); United States v. Tibolt, 72
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F.3d 965, 971 (1st Cir. 1995) (new trial motion), cert.
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denied), 116 S. Ct. 2554 (1996). Even if we considered the
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issue of prejudice de novo (the standard of review is complex
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and not worth pursuing here), Chorney's showing of prejudice
is patently inadequate.
As our brief (and understated) description of the trial
evidence shows, the government had a powerful case against
Chorney. By contrast, nothing in the evidence now adduced
suggests that there was any massive switch of collateral
coins or that they were damaged en masse during the course of
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some relocation. The likelihood that this new evidence would
have altered the outcome of the trial approaches zero.
Affirmed.
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