     Case: 13-11100      Document: 00512823065         Page: 1    Date Filed: 11/03/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-11100                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                November 3, 2014
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

HERBERT JENA,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:07-CR-186


Before REAVLEY, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       A jury convicted Herbert Jena, currently federal prisoner # 36370-177,
of two charges arising from his preparation of tax returns. The district court
entered judgment. While his direct appeal was pending, Jena filed in the
district court a motion for a new trial pursuant to Rule 33 of the Federal Rules
of Criminal Procedure. The district court denied the motion, and Jena filed
the current appeal. We AFFIRM.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                       PROCEDURAL BACKGROUND
      Jena was indicted for offenses relating to his tax-preparation business,
which had multiple locations in the Dallas and Fort Worth area. A jury found
Jena guilty of two of the counts in his indictment, one for conspiracy to defraud
the United States in violation of 18 U.S.C. § 371, and the other for obstruction
of justice under 18 U.S.C. § 1503. Jurors were unable to reach a verdict on 24
other counts, and the district court declared a mistrial on those. In November
2010, Jena appealed his conviction and sentence, and we affirmed. United
States v. Jena, 478 F. App’x 99, 101 (5th Cir. 2012).
      In January 2012, before this court affirmed his conviction, Jena filed a
motion for new trial in district court. He asserted two grounds for a new trial.
The district court denied his motion, and Jena brought the current appeal.
      In his first ground for a new trial, Jena claimed that he had newly
discovered evidence in the form of a CD delivered from Yahoo!. Jena alleges
he could have used the evidence to impeach witness Kara Garner.              The
obstruction of justice charge was based in part on evidence that Jena caused
fraudulent employee termination letters to be delivered to the government. At
trial, Garner testified that after Jena learned the IRS was investigating his
business for fraudulent activities, he had asked her to create termination
letters for employees he alleged were perpetrating the fraud. She testified that
she had emailed them to Jena, that he had sent them back to be backdated,
and that Garner had hand-delivered them upon completion. According to Jena,
the government relied extensively on the factual assertion that Garner
communicated about the fraudulent documents through email.             The new
evidence from Yahoo! allegedly establishes that Garner never emailed the
back-dated termination letters to him as she testified.


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      In his second ground for relief, Jena asserted that the government
suppressed evidence that he could have used to impeach Aurora Perez and
Nancy Munoz. During the trial, these witnesses denied that they had gone to
work for Jena’s partner, Kudzai Mangoma, or that that they had prepared tax
returns for him at a different location.      Jena contends that the IRS has
evidence showing that Perez and Munoz submitted tax returns using
Mangoma’s electronic filing identification numbers, potentially indicating that
their testimony was false. According to Jena, if he had been given access to
these materials, he could have impeached the witnesses’ testimony and
supported his theory that Mangoma had conspired with or directed the
employees to falsify returns and that Jena had been unaware of the fraud.


                                     DISCUSSION
      This court reviews the denial of a motion for a new trial for an abuse of
discretion. United States v. Infante, 404 F.3d 376, 387 (5th Cir. 2005). We
consider an alleged Brady violation de novo. United States v. Turner, 674 F.3d
420, 428 (5th Cir. 2012). To receive a new trial based on newly discovered
evidence, Jena must show that (1) the evidence was newly discovered and was
not known to him at the time of his trial, (2) his failure to discover the evidence
earlier was not due to a lack of diligence on his part, (3) the evidence was not
simply cumulative or impeaching, (4) the evidence was material, and (5) the
evidence in question would likely produce an acquittal if introduced at a new
trial. See United States v. Piazza, 647 F.3d 559, 565 (5th Cir. 2011). To prevail
on a Brady claim, Jena must show that the government: (1) suppressed
evidence, (2) that was favorable to the defense, and (3) that was material. See
Lawrence v. Lensing, 42 F.3d 255, 257 (5th Cir. 1994) (citing Brady v.
Maryland, 373 U.S. 83 (1963)).
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      Jena has not made the requisite showings. With respect to the allegedly
non-existent emails from Garner, Jena could at most have used that evidence
to try to impeach Garner on how she delivered the fraudulent termination
letters. Jena did not dispute that he directed Garner to type the letters, and
the email records were irrelevant to that central incriminating fact. A district
court does not abuse its discretion by denying a new trial based on newly
discovered evidence that serves only to impeach a witness. United States v.
Villarreal, 324 F.3d 319, 325-26 (5th Cir. 2003). The district court found that
the evidence was not material given the peripheral relevance of the mode of
delivery of the termination letters and the minimal effect such evidence would
have on the question whether Jena directed the creation of false evidence to be
provided to the government. See United States v. Barraza, 655 F.3d 375, 380
(5th Cir. 2011) (indicating that evidence is material if there would have been a
reasonable probability of a different result if it had been presented).
      Likewise, Jena has not shown that the evidence usable to impeach
Munoz and Perez was either material or exculpatory. See Lawrence, 42 F.3d
at 257. The question whether either witness worked for Mangoma in his
separate tax preparation business is peripheral to the question whether Jena
directed them to include false information on tax returns. Thus, he has not
shown a reasonable probability of a different outcome. See Barraza, 655 F.3d
at 380. Additionally, the evidence would have simply corroborated a defense
that was presented at trial and rejected, which does not warrant a new trial.
See United States v. Shugart, 117 F.3d 838, 847-48 (5th Cir. 1997). Finally,
even if Jena is able to show that Munoz and Perez worked for Mangoma
individually, and even if he establishes that Munoz and Perez engaged in the
same fraudulent activity while performing that work, this does not negate the
evidence that Jena also directed the employees to falsify tax returns.
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      Jena also argues that the government elicited false testimony.           “[A]
conviction obtained through use of false evidence, known to be such by
representatives of the State, must fall under the Fourteenth Amendment.”
Napue v. Illinois, 360 U.S. 264, 269 (1959). A district court’s “grant of a new
trial based upon a Napue violation is proper only if (1) the statements in
question are shown to be actually false; (2) the prosecution knew that they
were false; and (3) the statements were material.” United States v. O’Keefe,
128 F.3d 885, 893 (5th Cir. 1997) (citing United States v. Blackburn, 9 F.3d
353, 357 (5th Cir.1993)). We also have held that a new trial should be granted
if the government knew or should have known the testimony it was offering
was false and “there is any reasonable likelihood that the false testimony
affected the judgment of the jury.” United States v. Wall, 389 F.3d 457, 473
(5th Cir. 2004) (citing United States v. MMR Corp., 954 F.2d 1040, 1046-47
(5th Cir.1992)); see also id. (“if the government used false testimony that it
knew or should have known was false, then the standard applied for newly
discovered evidence is slightly more lenient.”).
      Jena has not established those elements. Even if the Yahoo! CD is devoid
of emails from Garner to Jena, it fails to prove they were never sent. Similarly,
even if the EFIN numbers show Perez and Munoz filed tax returns using those
numbers, it does not prove that they worked directly for Mangoma. Jena also
has no evidence that the government knew whether Garner actually sent the
emails or whether Perez and Munoz had previously worked for Mangoma.
Finally, neither piece of evidence is material as discussed above.
      Jena has not established that the district court abused its discretion in
denying his motion for a new trial. See Infante, 404 F.3d at 387. Although
Jena presented other allegations of newly discovered or suppressed evidence
in the district court, he does not raise them before this court, and they are
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therefore deemed abandoned. See United States v. Flores, 63 F.3d 1342, 1374
n.36 (5th Cir. 1995).
      Consequently, the judgment of the district court is AFFIRMED.




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