
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                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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  United States Attorney, with whom            ______________        Sheldon  Whitehouse, United  States  Attorney, was  on  brief for  the        ___________________        United States.                                 ____________________                                   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  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            _____________    _______            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.                                               _______                 On   direct  review,   this  court   affirmed  Chorney's            conviction and  sentence.  Chorney, 63 F.3d at 81, 83.  While                                       _______            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.                                                           _____            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                                         -2-                                         -2-            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                                                         _______            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.                                         -3-                                         -3-                 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                                     _____     ________            (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                                         -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  he points  would            likely produce a different result on retrial.   United States                                                            _____________            v.  Watson,  76 F.3d  4, 7  (1st  Cir. 1996)  (Brady); United                ______                                     _____   ______            States v. Hemmer, 729  F.2d 10, 13 (1st Cir.),  cert. denied,            ______    ______                                ____________            467 U.S. 1218 (1984)  (Rule 16); United States v.  Tibolt, 72                                             _____________     ______            F.3d  965,  971 (1st  Cir.  1995) (new  trial  motion), cert.                                                                    _____            denied), 116 S.  Ct. 2554 (1996).  Even if  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  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                                            ________            some relocation.  The likelihood that this new evidence would            have altered the outcome of the trial approaches zero.                 Affirmed.                 _________                                         -5-                                         -5-
