                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 01-2785
                                  ___________

United States of America,              *
                                       *
                   Appellee,           * Appeal from the United States
                                       * District Court for the Eastern
      v.                               * District of Arkansas.
                                       *
Larry Reed & Sons Partnership,         *      [UNPUBLISHED]
                                       *
                   Appellant.          *
                                  ___________

                             Submitted: January 17, 2002

                                 Filed: January 24, 2002
                                  ___________

Before BOWMAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                          ___________

PER CURIAM.

       In 2001, the agricultural partnership Larry Reed & Sons (the partnership) and
its individual partners were found by a jury to have submitted a false cotton crop
insurance claim eight years earlier. The partnership’s insurance claim requested
coverage for the loss of 194.1 acres of cotton in 1993, but the jury found the claim
violated the False Claims Act because the 194.1 acres in question were not planted
during the 1993 season. After the district court* trebled the $93,686.50 in damages
awarded by the jury, the partnership was liable for $281,059.50 and the partners were
each liable for additional nominal amounts. The court also assessed the partnership
the maximum statutory penalty of $10,000, and it assessed the partners lesser
individual fines. The partnership appeals, contending (1) the damages awarded by
the jury were based on insufficient evidence; (2) the district court abused its
discretion in admitting the written statement of a state witness; and (3) the district
court abused its discretion in allowing expert testimony about the extent of the soil
preparation on the partnership’s land, which was based on computer analysis of
satellite images. We review each argument in turn.

      First, we review damages awarded by the jury for sufficiency of the evidence,
and “[w]e will not reverse a jury verdict for insufficient evidence unless no
reasonable juror could have returned a verdict for the non-moving party.” EFCO
Corp. v. Symons Corp., 219 F.3d 734, 738 (8th Cir. 2000) (standard of review). The
partnership argues that because the complaint alleged just $49,720 in damages against
the partnership and, at trial, the United States proved only a $56,874 loss due to the
partnership’s false cotton crop insurance claim, the jury’s award of nearly $94,000
against the partnership was based on insufficient evidence. In turn, the United States
argues the jury damage award was based on sufficient evidence because a total of
$114,746 was deposited into partnership accounts directly from the partnership’s and
individual partners’ fraudulent cotton crop insurance claims.

       We disagree with the partnership’s argument that the jury lacked sufficient
evidence for the damages assessed against the partnership, even though the award
was more than the amount specified in the initial complaint. The Federal Rules of
Civil Procedure allow issues tried by express or implied consent of the parties—such


      *
       The Honorable Stephen M. Reasoner, United States District Judge for the
Eastern District of Arkansas.

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as the partners’ individual deposits of fraudulent cotton crop insurance proceeds into
partnership accounts—to be treated as though they had been raised in the pleadings.
Fed. R. Civ. P. 15(b). Thus, because we view the complaint as constructively
amended to conform to the proof, see Charles Schmitt & Co. v. Barrett, 670 F.2d 802,
806 (8th Cir. 1982), the United States’ failure to include the partners’ individual
contributions of fraudulent cotton crop insurance proceeds in the original complaint
against the partnership does not nullify the jury’s damage award against the
partnership. We hold reasonable jurors could have reached the same conclusion as
the jurors in this case, who properly considered both the partnership’s direct
fraudulent cotton crop claim and the partners’ contributions to partnership funds from
their individual fraudulent cotton crop claims. The jury’s award against the
partnership was based on sufficient evidence and we will not disturb it.


       Second, we review the district court’s decision to admit the earlier statement
of government witness Lyman Reynolds, a Larry Reed & Sons partner, for abuse of
discretion. See Foster v. Time Warner Entertainment Co., L.P., 250 F.3d 1189, 1197
(8th Cir. 2001) (standard of review). At trial, Reynolds testified he did not know if
Reed had planted cotton in 1993. The court allowed the United States to introduce
Reynolds’ earlier statement—that Reed did not plant cotton—for impeachment
purposes under Federal Rule of Evidence 613. To introduce a witness’s own earlier
statement for impeachment, (1) the statements must be inconsistent, (2) the
inconsistency must be relevant, (3) the inconsistent statement must, on request, be
disclosed to opposing counsel, the witness allowed to explain the inconsistency, and
opposing counsel allowed to question the witness, and (4) the district court should
instruct the jury about the limited purpose of the earlier statement. United States v.
Rogers, 549 F.2d 490, 495-98 (8th Cir. 1976). In Reynolds’s situation, the first three
prongs of the impeachment standard were satisfied, but the fourth prong was not: the
district court did not give the jury a limiting instruction. When neither party requests
a limiting instruction at trial, however, we review the trial court’s failure to issue such


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an instruction for plain error. See McKnight v. Johnson Controls, Inc., 36 F.3d 1396,
1403 n.6 (8th Cir. 1994) (standard of review). Given the context in which Reynolds’s
statement was introduced and the rest of the evidence against the partnership, we find
no plain error here.

       Third, we review for abuse of discretion the court’s decision that Dr. John
Brown’s expert testimony about the soil preparation of the partnership’s farmland,
which was based on the computer analysis of satellite images, was reliable evidence.
See Smith v. Rasmussen, 249 F.3d 755, 758 (8th Cir. 2001) (standard of review).
Generally, expert testimony is admissible when it is reliable and when it will assist
the trier of fact. Fed. R. Ev. 702. Trial courts have substantial latitude to determine
whether specific expert testimony is reliable, and they may consider some or all of the
factors listed in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-95
(1993), when evaluating reliability. Kumho Tire Co. v. Carmichael, 526 U.S. 137,
149-50 (1999).

       When Brown testified about his computer analysis of May 8, 1993 satellite
images which led him to conclude the partnership’s cotton fields were not planted,
he also discussed the acceptance of his methodology. Brown referred to “hundreds
and hundreds” of academic articles published about the process of computer analysis
of satellite images, the use of this method by NASA and about 10 major universities
for the purpose of enhancing agricultural productivity, and the application of this
method in assessing crop hail damage. (Tr. 410-11). Further, when testifying, Brown
clearly explained his method of analysis, presented the satellite data, and illustrated
how he applied the method to the facts before him. We conclude the district court did
not abuse its discretion under Daubert and Kumho Tire when admitting Brown’s
expert testimony as reliable evidence.




                                         -4-
     In conclusion, because the partnership’s claims lack merit, we affirm the jury
damage award and the decisions of the district court. We also grant the government’s
motions to supplement the record and to substitute a trial exhibit.

            A true copy.

                   Attest:

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




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