                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-3979
                                    ___________

United States of America,             *
                                      *
            Plaintiff-Appellee,       *
                                      * Appeal from the United States
v.                                    * District Court for the
                                      * Western District of Missouri.
M.J. L’Donna,                         *
aka Marilyn J. Ashton,                *
                                      *
            Defendant-Appellant.      *
                                 ___________

                              Submitted: May 11, 1999

                                   Filed: June 17, 1999
                                    ___________

Before WOLLMAN, Chief Judge, BEAM and MURPHY, Circuit Judges.
                             ___________

MURPHY, Circuit Judge.

        M.J. L’Donna was convicted by a jury of use of interstate commerce facilities
in the commission of murder for hire, in violation of 18 U.S.C. § 1958, and transferring
a firearm to be used to commit a crime of violence, in violation of 18 U.S.C. § 924(h).
L’Donna filed a motion for a new trial based on the false testimony of a prosecution




                                         -1-
witness. The motion was denied, and on appeal she argues that the district court1 erred
by denying the motion. We affirm.

       There was evidence at trial that L’Donna, the owner of a horse-carriage business
in Kansas City, had approached an employee known as Shawn Butner and asked if he
would be willing to kill someone for her. Butner contacted the Bureau of Alcohol,
Tobacco and Firearms (ATF) and told agents about this conversation. They arranged
for Butner to wear a digital micro-recorder during subsequent conversations with
L’Donna. During tape-recorded meetings both in person and over the telephone,
L’Donna talked about three potential targets. She discussed killing several people: her
stepfather who was in the process of divorcing her mother, her primary competitor in
the horse-carriage business, Mary Goodale, and her boyfriend, John Encell. She
eventually asked Butner to kill Encell, who had named her as the beneficiary of his life
insurance policy. In the course of these meetings, L’Donna gave Butner a handgun to
use in the killing and a total of $300 in cash, promising an additional $5,000 when she
received the proceeds of Encell’s life insurance.

        At trial L’Donna testified that these conversations were all part of a game that
Butner had wanted her to play and that she had had no intention of actually having
anyone killed, but she did not offer this explanation at the time of her arrest. She also
testified that she had not known that she was Encell’s life insurance beneficiary, but she
had referred to the policy in her taped conversations with Butner, and Encell testified
that she knew about the provisions of his policy. The jury convicted L’Donna on both
counts in the indictment, and she was sentenced to 121 months.

       During Butner’s direct examination at trial, the prosecutor asked about his
activities in relation to a well-publicized arson case involving an explosion that killed
several Kansas City firefighters. Butner responded that he had called the bomb and


      1
      The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri.

                                           -2-
arson squad during the investigation of that case and told it that his brother and sister,
Thomas and Cindy Butner, had information about the case. He said that Thomas and
Cindy had been paid for testimony they subsequently gave in that case, but he denied
having had further involvement in the firefighters case or having told anyone that he
had been a witness in it. He acknowledged that ATF had paid him for his assistance
in the case against L’Donna, including paying for his apartment. The defense produced
evidence to contradict Butner’s denial that he had testified in the firefighters case in
exchange for fees, as well as several witnesses who testified that Butner had a poor
reputation for truthfulness.

       The day Butner testified at trial L’Donna’s attorney received an anonymous call
saying that Shawn Butner’s real name was Tommy. A local news broadcast on that day
had included film footage of Butner, and additional photographs of him appeared in the
media on the day the verdict was announced. A number of other anonymous callers
then contacted defense counsel and said the man pictured in the report was Thomas
Butner. L’Donna’s attorney learned after the trial that Butner had lied about his
identity at trial, had falsely denied having testified in exchange for witness fees in the
firefighters case, and had had a prior misdemeanor conviction that went undiscovered
because he had used a false identity.2 Based on this information L’Donna moved for
a new trial.

      The district court denied the motion for a new trial, stating that Butner had been
“effectively cross-examined, impeached, and discredited by the defense,” that
L’Donna’s trial testimony and tape-recorded exchanges with Butner presented ample
evidence of her guilt beyond a reasonable doubt, and that the newly discovered


      2
        Butner was eventually charged with perjury and admitted he had lied about his
identity. He told ATF agents that he had changed his identity after testifying in the
firefighters case in order to avoid appearing on a probation violation warrant. He also
told the agents that he had testified truthfully at L’Donna’s trial concerning matters
other than about his identity and his testimony in the other case.

                                           -3-
evidence was merely cumulative, immaterial, and not of a nature that would probably
have produced an acquittal. The court concluded that although the government’s
failure to discover Butner’s true identity “may be puzzling,” there was no evidence that
the prosecution had known that Butner was lying at the time of trial.

      L’Donna appeals, arguing that the district court applied the incorrect legal
standard in deciding whether to grant her post-trial motion and that she is entitled to a
new trial. We review a district court’s decision to deny a motion for a new trial based
on newly discovered evidence for clear abuse of discretion. See United States v.
Warren, 140 F.3d 842, 743-44 (8th Cir. 1998); United States v. Ward, 544 F.2d 975,
977 (8th Cir. 1976).

       L’Donna correctly states that the standard for whether she should have received
a new trial depends on the presence or absence of prosecutorial misconduct. Where
the prosecution knowingly, recklessly or negligently uses perjured testimony, a
conviction must be set aside if there is “any reasonable likelihood that the false
testimony could have affected the judgment of the jury.” See United States v. Tierney,
947 F.2d 854, 860-61 (8th Cir. 1991). Appellant claims that the district court should
have used this Tierney standard rather than the Ward standard, which applies if the
government’s use of perjured testimony was unwitting and which requires a greater
showing for the defendant to prevail. See 544 F.2d at 977. Under Ward, the defendant
must show that the evidence had not been discovered until after the trial, that the
defendant had used due diligence before the trial, that the evidence was not merely
cumulative or impeaching, that the evidence was material to the issues involved, and
that the newly discovered evidence would probably produce an acquittal at a new trial.
See id. at 977; see also Warren, 140 F.3d at 744.

        L’Donna claims that the prosecutor was at least negligent in allowing Butner to
testify as he did and that she therefore only has to meet the Tierney standard to win a
new trial. L’Donna claims that the prosecution had reason to suspect that Butner was
not who he claimed to be before he testified at trial. According to L’Donna, an

                                          -4-
investigator working with defense counsel had remarked to the prosecutor during a
meeting that it seemed as if Butner had no past before he went to work with the City
Lights Limousine Service and met an associate of L’Donna’s. She also claims that the
investigator asked the prosecutor if he was sure that Shawn Butner was the real name
of the witness. The prosecutor does not recall either of these statements but recalls
telling the investigator that Butner was a “clean” witness. Defense counsel asked the
prosecutor if Butner had testified in the firefighters case, and L’Donna claims that this
inquiry should have triggered additional investigation by the government. L’Donna
contends that the government should have discovered that Shawn Butner was actually
the Thomas Butner who had testified in the firefighters case because the United States
Attorney’s office handled both cases and the same special agent worked on both
investigations.

       L’Donna has not shown that the district court erred in refusing to apply the
Tierney standard. The special agent whom Butner first contacted had taken steps to
verify his identity, including running his name and license tag number through the
Kansas City police department records and through the Missouri Department of
Revenue and confirming his name, address, date of birth, social security number and
driver’s license number. This investigation did not turn up anything suspicious. There
is also no indication in the record that defense counsel brought information about
Thomas Butner’s testimony in the other case to the attention of the prosecutors
handling L’Donna’s case. L’Donna has not shown that the prosecutor was negligent
or that the motion should have been decided under the Tierney standard.

       Moreover, L’Donna has failed to demonstrate that she is entitled to a new trial
under either the Tierney or Ward standards. She has not shown a reasonable likelihood
that the false testimony could have affected the judgment of the jury, see Tierney, 947
F.2d at 861, much less that it would probably have produced an acquittal, see Ward,




                                          -5-
544 F.2d at 977.3 The evidence of her guilt was great, and the most damaging portions
came from L’Donna herself in the form of the self-incriminating statements in the taped
conversations and her unconvincing testimony during trial. Butner was cross-examined
at trial regarding his participation in the firefighters case and his credibility was
impeached. Given these circumstances, the additional evidence would have been
cumulative and there was no foreseeable likelihood that any possible further
impeachment value from it would have affected the final judgment of the jury.

      Accordingly, the judgment is affirmed.


      A true copy.


             Attest:


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




      3
        Appellant argues that the district court erred by failing to hold an evidentiary
hearing to develop what the prosecution knew or should have known about Butner’s
false identity and which standard was appropriate to apply. Because L’Donna was not
entitled to a new trial under either standard, such a hearing would not have impacted
the outcome.

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