                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    May 13, 2010
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,                         No. 10-1017
                                               (D.C. No. 1:09-cr-00151-CMA)
 v.                                                      (D. Colo.)

 LAWANNA CLARK,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, HAWKINS ** and MURPHY, Circuit Judges.


      Lawanna Clark (“Clark”) appeals her jury trial conviction for perjury in

connection with her grand jury testimony. We affirm.

      We review claims of insufficient evidence de novo, determining whether,

viewing the evidence in the light most favorable to the government, any rational

trier of fact could have found the defendant guilty beyond a reasonable doubt.

United States v. Hooks, 551 F.3d 1205, 1212 (10th Cir. 2009). For a perjury


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
        The Honorable Michael Daly Hawkins, Senior Circuit Judge, United
States Court of Appeals for the Ninth Circuit, sitting by designation.
conviction, the government was required to prove (1) Clark made the statement

under oath in a grand jury proceeding, (2) the statement was false, (3) she knew

the statement was false when made, and (4) the false statement was material to

the grand jury proceeding. United States v. Leifson, 568 F.3d 1215, 1220 (10th

Cir. 2009).

      At trial, Clark did not contest that the statement was made under oath.

Although on appeal she contends that the question posed was imprecise, read in

context, the question and Clark’s answer were not unclear. A reasonable juror

could have found that she testified falsely.

      Clark argues there is insufficient evidence she knew the statement was false

at the time she testified, because nearly four years had passed and she was asked

only a single, general question without specifying a time frame. However, the

withdrawals involved significant amounts of cash – $8,000 on a single day. An

agent who examined Clark’s other bank accounts also testified that it was unusual

for Clark to make cash withdrawals at all. As there is rarely direct evidence of

knowledge of falsity, its presence here is a fair inference to be drawn from all the

circumstances. See United States v. Larranaga, 787 F.2d 489, 495 (10th Cir.

1986). A rational juror could have inferred from these circumstances that Clark

knew she had made a substantial withdrawal from the account at the time she told

the grand jury she did not.




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         Clark also claims there was insufficient evidence that the statement was

material to the grand jury. “To be material, the false declaration must have a

natural tendency to influence, or be capable of influencing, the decision required

to be made.” Leifson, 568 F.3d at 1220 (internal quotation and citation omitted).

The testimony need not have an actual effect; it only need be “capable of

influencing” the grand jury. United States v. Girdner, 773 F.2d 257, 259 (10th

Cir. 1985). Here, the foreperson of the grand jury testified that the jury was

interested in the answer to the withdrawal question, that it mattered “whether

[Clark] took money out or not and if she was being truthful about it,” and that the

jury had been presented with bank records at that time which would have helped

to ascertain whether Clark was being truthful. It is reasonable to infer that it was

material to the grand jury whether Clark ever withdrew money from the IRC

Solutions account because it went to her scope of involvement and whether she

was lying about her limited role in the company. This was sufficiently connected

to the overall investigation to be at least capable of influencing the grand jury’s

investigation. See, e.g., United States v. Vap, 852 F.2d 1249, 1253 (10th Cir.

1988).

         Finally, Clark argues that the district court abused its discretion by denying

her motion for a new trial. To prevail on a motion for new trial based on newly

discovered evidence, Clark must prove “(1) the evidence was discovered after

trial, (2) the failure to learn of the evidence was not caused by . . . lack of

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diligence, (3) the new evidence is not merely impeaching, (4) the new evidence is

material to the principal issues involved, and (5) the new evidence is of such a

nature that in a new trial it would probably produce an acquittal.” United States

v. La Vallee, 439 F.3d 670, 700 (10th Cir. 2006) (citation omitted). The district

court did not abuse its discretion because the “new” handwriting evidence could

have been discovered earlier with due diligence and because it was not likely to

result in an acquittal. The jury could compare signatures itself, see United States

v. Phillips, 869 F.2d 1361, 1366 n.1 (10th Cir. 1988); in addition, Clark’s driver’s

license was noted on one of the withdrawal slips and the trial jury heard

testimony that it was customary for banks to require photo identification for cash

withdrawals such as those in this case.

      AFFIRMED.



                                                Entered for the Court


                                                Michael Daly Hawkins
                                                Circuit Judge




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