                         United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                 _____________

                                 No. 97-2075EA
                                 _____________

United States of America,              *
                                       *
            Appellant,                 *
                                       * On Appeal from the United
      v.                               * States District Court
                                       * for the Eastern District
                                       * of Arkansas.
Jimmy Wilkins and Fred Baine,          *
                                       *
            Appellees.                 *
                                  ___________

                             Submitted: November 20, 1997
                                 Filed: March 18, 1998
                                  ___________

Before RICHARD S. ARNOLD, Chief Judge, McMILLIAN, Circuit Judge, and
      STEVENS,1 District Judge.
                                ___________

RICHARD S. ARNOLD, Chief Judge.


      The United States appeals from the District Court’s2 order granting Jimmy
Wilkins and Fred Baine a new trial. We affirm.


      1
      The Honorable Joseph E. Stevens, Jr., United States District Judge for the
Western District of Missouri, sitting by designation.
      2
       The Honorable Garnett Thomas Eisele, United States District Judge for the
Eastern District of Arkansas.
                                           I.

       On November 13, 1996, a federal grand jury returned a sixteen-count indictment
against Fred Baine, Sherry Baine, Michael Smallwood, Charles Smallwood, Jimmy
Wilkins, and Kenny Vogles. The indictment charged the defendants with conspiring
to collect crop insurance proceeds and government disaster relief payments by
intentionally causing crops on farms in Arkansas and Mississippi to fail to mature and
then claiming that the poor crop yields were due to natural conditions. The indictment
also charged several acts of mail fraud in furtherance of the conspiracies.

       During a two-week trial, the District Court granted motions to dismiss some of
the counts for insufficient evidence, and granted judgments of acquittal for some of the
defendants. After these motions were granted, only Jimmy Wilkins, Fred Baine, and
Charles Smallwood remained defendants, and the jury was allowed to consider only the
nine remaining counts of the indictment. The jury acquitted Charles Smallwood on all
the counts with which he was charged, and acquitted Jimmy Wilkins and Fred Baine
on all but one count. Baine and Wilkins were found guilty on Count 10 of the
indictment, which charged them with conspiring to defraud the United States by
submitting a false disaster claim to the federal Agricultural Stabilization and
Conservation Service (ASCS). Specifically, Count 10 charged Baine and Wilkins with
underplanting a farm in Mississippi for the purpose of producing a failed rice crop, and
then submitting false seed tickets and appraisal worksheets to the ASCS in an attempt
to obtain federal disaster relief payments.

        Wilkins and Baine filed motions for judgment of acquittal notwithstanding the
jury verdict, and, in the alternative, motions for a new trial. In an order filed on
March 17, 1997, the District Court denied the motions for judgment of acquittal but
granted the new trial motions. The District Court justified a new trial in part on its
belief that Baine and Wilkins were prejudiced when the jury heard evidence on charges


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of illegal conduct which were taken from the jury by the Court. The government now
appeals.

                                           II.

       A District Court may grant a criminal defendant a new trial “if required in the
interest of justice.” Fed. R. Crim. P. 33. This Court will reverse a District’s Court
decision to grant a new trial only if the District Court has abused its discretion. United
States v. Robbins, 21 F.3d 297, 299 (8th Cir. 1994); United States v. Wang, 964 F.2d
811, 813 (8th Cir. 1992).

       We hold that the district judge did not abuse his discretion when he ordered a
new trial. In the middle of the trial, the Court dismissed for lack of evidence Counts
12 and 13 of the indictment, which charged Baine and Wilkins with crop insurance
fraud arising out of their Mississippi farming operation. The dismissal of these counts
was largely due to the testimony of Richard Cummins, the crop insurance adjuster
supervisor for Crop Hail Management Insurance Company who inspected Baine’s and
Wilkins’s Mississippi farm. Cummins testified that he recommended to Crop Hail
Management that the defendants’ insurance claim be denied, and that he had prepared
a report to that effect. However, Cummins was not able to produce this report from his
files. The Court subsequently found that Cummins’s testimony was unreliable and
refused to admit any of Crop Hail Management’s records into evidence. Because these
records were the basis of Counts 12 and 13, the Court dismissed those counts.

       Though the Court dismissed the two charges of crop insurance fraud on the
Mississippi farm, it allowed the jury to consider Count 10, which charged a conspiracy
to obtain federal ASCS payments for the Mississippi farm. When the jury considered
Count 10, it had heard Richard Cummins’s testimony about the dismissed charges of
crop insurance fraud on the same farm. The District Court thought that the spill-over
effect of this evidence, and that of certain other evidence introduced on other counts,

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tainted the jury’s consideration of Count 10. The District Court is in the best position
to make a judgment of this kind. We do not know what we would have done in its
place. We do know that the District Court did not abuse the broad discretion
committed to it in matters of this kind. See United States v. McBride, 862 F.2d 1316,
1319 (8th Cir. 1988).

      Affirmed.

      A true copy.


             Attest:


                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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