                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-2244
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Northern District of Iowa.
David Hirsch,                           *
                                        *
            Appellant.                  *
                                        *
                                   ___________

                             Submitted: February 11, 2004

                                 Filed: March 15, 2004
                                  ___________

Before BYE and HEANEY, Circuit Judges, and HOVLAND,1 District Judge.
                             ___________

BYE, Circuit Judge.

       This appeal involves a challenge to David Hirsch's conviction on one count of
perjury in violation of 18 U.S.C. § 1623, which arose from Hirsch's false testimony
at a previous trial in which he was acquitted of two firearms charges. On appeal,




      1
        The Honorable Daniel L. Hovland, Chief Judge, United States District Court
for the District of North Dakota, sitting by designation.
Hirsch contends the district court2 erred in denying his motions to dismiss, for
judgment of acquittal, and for a new trial on the perjury charge. We affirm.

                                            I

       On May 18, 2001, the North Central Iowa Narcotics Task Force conducted a
search of the David Vorland residence and found items associated with manufacturing
methamphetamine. In the detached garage, officers found a Chevy Blazer (the
Blazer) registered to Hirsch. In the Blazer officers found items associated with
manufacturing methamphetamine. In the back yard, officers found a black GMC
Jimmy (the Jimmy) also registered to Hirsch. Officers found several items in the
Jimmy, including: a large number of items used to manufacture methamphetamine;
Hirsch's address book; a receipt for muriatic acid (a substance used in manufacturing
methamphetamine) dated May 18, 2001; a loaded .380 caliber handgun in the front
seat; and a box of .380 caliber ammunition in the Jimmy.

        At his trial on the charge of being a drug user in possession of a firearm, Hirsch
testified the Jimmy (in which police found the handgun) had been inoperable for a
couple of months. The government alleged Hirsch had driven the vehicle the very
morning on which the gun was found. Hirsch claimed that on the day of the search
he was dropped off at the Vorland residence and had only been in the back of the
Jimmy where he placed the receipt for the muriatic acid. He was acquitted on the gun
charge. In response to questions by his attorney, Hirsch testified as follows:




      2
      The Honorable Mark W. Bennett, United States District Judge for the
Southern District of Iowa.

                                           -2-
      a.3    Question: With regards to the GMC Jimmy, had that vehicle been at the
             Vorland property long?

             Answer:          Approximately two months.

             Question:        Why is that?

             Answer:          The – it didn't run. The engine starter was out of it.

      On cross examination, Hirsch gave additional statements about how long and
why the Jimmy was sitting on the Vorland property prior to the search.

      b.     Question:        So what was your truck doing on the Vorland property
                              all this time?

             Answer:          I needed a place to store it and – because it didn't run.

             Question:        Okay. So your testimony is you took it out there and
                              dropped it off and it stayed there until we found it on
                              May 18.

             Answer:          That's correct.

             Question:        Okay. And it was parked there the whole time and
                              wouldn't move?

             Answer:          Yes, that's correct.

      c.     Question:        During – let me back up. You parked your vehicle you
                              said about two months before the search?


      3
       In the perjury trial, Hirsch's various statements about the Jimmy were referred
to separately by letter, the government having alleged that each separately constituted
perjury.

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             Answer:         Approximately, yes.

             Question:       Okay. And so this would have been – May 18, would
                             have been, what, March 18 roughly?

             Answer:         Roughly in that time frame, yes.

      d.     Question:       Okay. The Blazer you hadn't left like the other vehicle
                             there for a long time?

             Answer:         No, the other vehicle – the Blazer was my daily runner.
                             It was just I needed repairs on it. The GMC was there
                             because it didn't run. I didn't really have the time or the
                             money to fix it until – I planned on fixing it with the
                             $295 but . . .

      The jury acquitted Hirsch on the gun charges. The government then brought
perjury charges against Hirsch for his allegedly false statements. The jury convicted
Hirsch, finding his answers to questions a, b, and d constituted perjury, and he was
sentenced to an additional forty-one months. This appeal followed.

                                          II

       In this appeal from the perjury conviction, Hirsch contends the district court
erred when it denied his motion to dismiss the indictment on the ground it failed to
allege a crime. He argues the allegedly perjurious statements were "literally true" or
the questions and answers were vague and ambiguous such that he could not be found
to have committed perjury. This court reviews de novo a district court's ruling
regarding dismissal of an indictment for failure to state an offense. United States v.
Ferro, 252 F.3d 964, 965-66 (8th Cir. 2001).

      Pursuant to 18 U.S.C. § 1623, it is a crime for a person to knowingly make "any
false material declaration" under oath "to any court or grand jury of the United

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States." The perjury indictment alleged Hirsch knowingly made a number of
materially false statements under oath in the district court during his trial on the gun
charge.

       Hirsch's testimony was not fundamentally vague or ambiguous. His statement
the Jimmy was parked on the Vorland property for "approximately two months" was
clear and unambiguous. The clear implication of this testimony was Hirsch had not
driven the Jimmy on the day of the search, because it "did not run." His motion to
dismiss amounted to no more than a request for the court to determine his guilt or
innocence based on factual elements of the offense which were within the purview
of the jury to decide at trial. See United States v. Robbins, 997 F.2d 390, 395 (8th
Cir. 1993) (stating "absent fundamental ambiguity or imprecis[ion] in the questioning,
the meaning and truthfulness of a declarant's answer is for the jury"). See also United
States v. Williams, 552 F.2d 226, 229 (8th Cir. 1977) (stating "[t]he intended meaning
of a question and answer are matters for the jury to decide"). We agree with the
district court it was for the jury to decide whether Hirsch's statements could be shown
to be false by the evidence indicating how long the Jimmy was on the Vorland
property and whether it ran.

       Hirsch next contends the district court erred in denying his motion to dismiss
because his perjury prosecution was either vindictive or selective. This court reviews
a district court's denial of a motion to dismiss an indictment on a claim of selective
or vindictive prosecution for an abuse of discretion. United States v. Kelley, 152 F.3d
881, 885 (8th Cir. 1998).

       Hirsch has the burden of proving the government engaged in selective
prosecution. Id. In order to make a prima facie case of selective prosecution, he must
show: (1) people similarly situated to him were not prosecuted; and (2) the decision
to prosecute was motivated by a discriminatory purpose. United States v. Perry, 152
F.3d 900, 903 (8th Cir. 1998). Hirsch argues others similarly situated were not

                                          -5-
prosecuted and the government's decision to prosecute was motivated by the fact he
exercised his constitutional right to testify at his own trial. There is no credible
evidence in the record to establish a prima facie case of selective prosecution, and
Hirsch's conclusory assertion that discrimination is "easily and readily apparent" is
wholly insufficient to support his claim of selective prosecution.

       Hirsch also raises an argument of vindictive prosecution. He has the burden
of establishing vindictiveness, in the sense of bad faith or maliciousness. Kelley, 152
F.3d at 885. A mere allegation the government was prosecuting defendant because
it was upset over losing at trial is not enough to establish vindictiveness. United
States v. Arias, 575 F.2d 253, 255 (8th Cir. 1978). As with his selective prosecution
claim, we conclude Hirsch has failed to make a threshold showing the government
engaged in improper vindictive prosecution, and his conclusory allegations are
insufficient to support his claim.

      Hirsch next claims, in the alternative, the district court erred in denying him
discovery as to his claims of selective or vindictive prosecution. A district court's
decision whether to hold an evidentiary hearing or grant discovery requests with
regard to claims of selective or vindictive prosecution will be overturned only upon
a showing of abuse of discretion. Kelley, 152 F.3d at 885. In order to obtain
discovery, Hirsch had to produce at least some credible showing of differential
treatment of similarly situated members of other races or a protected class. United
States v. Perry, 152 F.3d 900, 903 (8th Cir. 1998). He has failed to make this
showing, and thus the district court did not abuse its discretion in denying his
discovery requests.

      Hirsch next contends the district court erred in denying his renewed motion for
judgment of acquittal or motion for a new trial on the basis of insufficient evidence
to support the perjury conviction. When reviewing the sufficiency of the evidence,
we consider the evidence in the light most favorable to the verdict rendered and

                                         -6-
accept all reasonable inferences which tend to support the jury verdict. United States
v. Espino, 317 F.3d 788, 792 (8th Cir. 2003). While the evidence need not preclude
every outcome other than guilty, we consider whether it would be sufficient to
convince a reasonable jury beyond a reasonable doubt. United States v. Roach, 28
F.3d 729, 736 (8th Cir. 1994). This court will reverse for insufficient evidence only
if no reasonable jury could have found Hirsch guilty beyond a reasonable doubt.
United States v. Henderson-Durand, 985 F.2d 970, 975 (8th Cir. 1993). This court
will reverse a district court’s denial of a motion for new trial if the district court
abused its discretion. United States v. Campos, 306 F.3d 577, 579 (8th Cir. 2002);
United States v. Espinosa, 300 F.3d 981, 983 (8th Cir. 2002). Pursuant to Fed. R.
Crim. P. 33, the district court may grant a motion for a new trial “if the interests of
justice so require.”

       Hirsch contends the evidence was insufficient to demonstrate he knowingly
made false material statements. In order to convict him of perjury, the government
had to prove the following four elements beyond a reasonable doubt: (1) Hirsch gave
the testimony under oath in his criminal trial; (2) such testimony was false in whole
or in part; (3) at the time he so testified, he knew his testimony was false; and (4) the
false testimony was material. See United States v. Blanton, 281 F.3d 771, 774 (8th
Cir. 2002).

        We find there was ample evidence to establish Hirsch's statements were false
and he knew them to be false. An investigator testified he was able to start the Jimmy
with very simple maintenance, and three weeks prior to the search an officer called
in the license plate from the Jimmy while patrolling a town miles away from the
Vorland residence. Several witnesses testified they saw Hirsch driving the Jimmy on
multiple occasions in the two months preceding the search. Several witnesses also
testified they did not see the Jimmy sitting on the Vorland property during the two
month period prior to the search. In fact, two witnesses testified they saw Hirsch
drive the Jimmy onto the Vorland property the morning of the search. Also, a receipt

                                          -7-
found in the back of the Jimmy dated the same day as the search, suggested the
Jimmy was driven that day. And the grass beneath the Jimmy was not yellowed or
longer than the surrounding grass, as one would expect it to be had it sat in one spot
for two months.

       Turning to the question of whether Hirsch's false statements were material to
his defense, the test of materiality is "whether or not the statements alleged to be
perjurious tend to impede or hamper the course" of the proceeding. Blanton, 281
F.3d at 775 (internal citations and quotations omitted). "The statements need not be
material to any particular issue, but may be material to any proper matter of inquiry."
United States v. Ostertag, 671 F.2d 262, 264 (8th Cir. 1982). In this case, whether
the vehicle was broken and sitting on the property for a long period of time was
material because it hampered the jury's ability to evaluate whether Hirsch knowingly
possessed the loaded handgun found inside the Jimmy.

      For these reasons, we affirm the district court's denial of Hirsch's motions to
dismiss, for judgment of acquittal, and for a new trial.
                      ______________________________




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