United States v. Bowler , 252 F.3d 741 ( 2001 )

REVISED JULY 5, 2001
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-31370
_____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
MICHAEL J BOWLER
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________________________________________________
May 25, 2001
Before KING, Chief Judge, and REAVLEY and JONES, Circuit Judges.
PER CURIAM:
Defendant-Appellant Michael J. Bowler appeals from the
district court’s denial of his motion for a new trial based on
newly discovered evidence. For the following reasons, we AFFIRM.
I. FACTUAL AND PROCEDURAL HISTORY
On November 17, 1994, Defendant-Appellant Michael J. Bowler
was charged in a fifteen-count superseding indictment with one
count of conspiracy to commit mail fraud, in violation of 18
U.S.C. §§ 2 and 371, and fourteen substantive counts of mail
fraud, in violation of 18 U.S.C. §§ 2 and 1341.1 The charges
against Bowler arose out of his management of Pelican State
Mutual Insurance Company (“Pelican”) and its subsidiary Magnolia
Fire and Casualty Insurance Company (“Magnolia”) from August 1986
to August 1992. The indictment alleged that Bowler “devised and
intended to devise a scheme and artifice to defraud,” that as
part of that scheme Bowler created the false impression that
Pelican was solvent in order to obtain money and benefits for his
personal use, and that he used the United States Postal Service
to execute the scheme.
On July 7, 1995, the jury returned a verdict of guilty on
one count of conspiracy to commit mail fraud and four of the
substantive counts of mail fraud, including, inter alia, mailing
Pelican’s 1991 Annual Statement on March 16, 1992; mailing
Pelican’s March 31, 1992 Quarterly Statement on May 14, 1992; and
mailing the 1991 Annual Statements of Pelican and Magnolia on May
22, 1992 (“Count Fifteen”). On January 29, 1996, Bowler was
sentenced to terms of sixty months imprisonment for the
conspiracy count and three of the substantive mail fraud counts,
to be served concurrently, and to one term of eighteen months on
1
The indictment charged both Bowler and his brother-in-law
Walter Sentenn, Jr. with the fifteen counts. Only Bowler’s
conviction is the subject of this appeal.
2
Count Fifteen, to be served consecutively. He was also required
to pay $100,000 in restitution and ordered to be placed on a
three-year term of supervised release following his term of
imprisonment.
On May 28, 1997, this court affirmed the judgment of the
district court. Bowler’s petition for rehearing was denied, and
this court issued its mandate on February 26, 1998. On October
5, 1998, Bowler’s petition for a writ of certiorari was denied by
the Supreme Court.
Bowler, proceeding pro se, filed a 28 U.S.C. § 2255 motion2
(the “§ 2255 motion”) on April 19, 1999, and a motion for a new
trial based on newly discovered evidence pursuant to Federal Rule
of Criminal Procedure 33 (“Rule 33 motion”) on May 10, 1999, in
district court. In his Rule 33 motion, Bowler alleged that the
final accounting of the Louisiana Insurance Guaranty Association
(“LIGA”)3 through March 1999 established that Pelican was not
insolvent, and therefore, he should not have been convicted of
scheming to cover up Pelican’s insolvency.
2
In his § 2255 motion, Bowler argued that his trial
counsel had labored under an undisclosed conflict of interest.
He argued further that he was denied his right to a jury trial
when the district court excused one juror during deliberation and
allowed the jury to continue deliberations with only eleven
members, without Bowler’s express consent.
3
According to testimony, LIGA “is set up to pay the claims
of insolvent property and casualty companies that do business in
the State of Louisiana.” When Pelican was placed into
liquidation, it became the responsibility of LIGA to settle
claims against Pelican.
3
The parties filed a series of pleadings in district court
regarding Bowler’s Rule 33 motion. The government argued that
Bowler’s motion was untimely because it was not filed within
three years of the jury verdict, as required by the present
version of Rule 33, nor did the motion fit within any of the
exceptions to the three-year time limit. Alternatively, the
government argued that even if the Rule 33 motion was timely, the
new evidence did not meet the standard necessary to warrant a new
trial.
Bowler countered that the present version of Rule 33, which
became effective December 1, 1998, did not apply to his case and
that, under the prior version of Rule 33, which allowed a motion
for a new trial to be filed within two years of final judgment,
his Rule 33 motion was timely. Additionally, he asserted that
the evidence did meet the requirements necessary for the granting
of a new trial.
On November 24, 1999, the district court declined to pass on
the procedural bars raised by the government, and, instead,
denied both the § 2255 motion and the Rule 33 motion on the
merits. On December 8, 1999, Bowler filed a notice of appeal and
a motion for a certificate of appealability (“COA”) on the denial
of his § 2255 and Rule 33 motions. On December 15, 1999, the
district court denied Bowler’s COA, and Bowler subsequently
sought a COA from this court. On June 20, 2000, this court
denied Bowler’s COA request, holding that Bowler had failed to
4
make a substantial showing of the denial of a constitutional
right. This court also noted, however, that no COA was required
for an appeal of the denial of a Rule 33 motion, stating that
“[s]hould Bowler wish to continue the appeal from the denial of
his motion for new trial, he is directed to discuss in his brief
whether the motion was timely under Rule 33.”
Bowler appeals from the district court’s denial of his Rule
33 motion.4
II. TIMELINESS OF BOWLER’S RULE 33 MOTION
As a threshold issue, we must address the timeliness of
Bowler’s Rule 33 motion, which turns on whether the amended
version of Rule 33, effective December 1, 1998, or the pre-
amendment version of Rule 33 is applicable to the present case.
We do so because the time limits of Rule 33 are jurisdictional.
See United States v. Brown, 587 F.2d 187, 189-90 (5th Cir. 1979);
see also United States v. Lussier, 219 F.3d 217, 220 (2d Cir.
2000); United States v. Bramlett, 116 F.3d 1403, 1405 (11th Cir.
1997); Harrison v. United States, 191 F.2d 874, 875-76 (5th Cir.
1951). “Jurisdiction is a question of law which we review de
novo.” Groome Res. Ltd., L.L.C. v. Parish of Jefferson, 234 F.3d
192, 198 (5th Cir. 2000).
4
We note that Bowler is no longer appearing pro se.
5
We pause briefly to explain why this inquiry (i.e., which
version of Rule 33 applies) is significant in this case. The
current Rule 33 provides in relevant part: “A motion for new
trial based on newly discovered evidence may be made only within
three years after the verdict or finding of guilty.” FED. R.
CRIM. P. 33. The jury verdict was entered against Bowler on July
7, 1995, but he did not file his Rule 33 motion until May 10,
1999, almost four years later. Under the current Rule 33,
Bowler’s Rule 33 motion would be untimely, and we would not have
jurisdiction to hear it.
However, the Rule 33 in effect prior to December 1, 1998
provided in relevant part: “A motion for a new trial based on
the ground of newly discovered evidence may be made only before
or within two years after final judgment.” FED. R. CRIM. P. 33
(1998) (amended 1998). Importantly, final judgment is measured
from the date the appellate court issues its mandate. See United
States v. Granza, 427 F.2d 184, 185 n.3 (5th Cir. 1970) (“When a
conviction is appealed, a motion for a new trial may only be made
before or within two years after the issuance of the mandate of
affirmance by the appellate court.”). This court issued its
mandate on February 26, 1998, and Bowler filed his Rule 33 motion
on May 10, 1999. Because his Rule 33 motion was filed within the
two-year limit, if the pre-amendment version of Rule 33 applies,
Bowler’s Rule 33 motion is timely, and we have jurisdiction to
hear it.
6
To determine whether the amended version of Rule 33 applies,
we look at the order accompanying the submission of the proposed
December 1998 amendments to Congress, which states: “That the
foregoing amendments to the Federal Rules of Criminal Procedure
shall take effect on December 1, 1998, and shall govern all
proceedings in criminal cases thereafter commenced and, insofar
as just and practicable, all proceedings in criminal cases then
pending.” Order of April 24, 1998 of the Supreme Court of the
United States Adopting and Amending the Federal Rules of Criminal
Procedure, 523 U.S. 1229 (1997). The language in this enabling
act accompanying the amendment to Rule 33 is not unique to the
amendment of Rule 33, but is the language submitted by the Court
with all such amendments to the Federal Rules. See, e.g., United
States v. Roberts, 88 F.3d 872, 878 (10th Cir. 1996) (“[S]ince
1975, the Supreme Court has used identical language in almost
every instance when amending any of the various Federal Rules.”),
superseded by statute as stated in United States v. Meacham, 115
F.3d 1488, 1491 (10th Cir. 1997); In re Search of Kitty’s East
(Kitty’s East v. United States), 905 F.2d 1367, 1370 (10th Cir.
1990) (quoting same language in reference to the 1989 amendment
of Federal Rule of Criminal Procedure 41(e)); United States v.
DePrima, 165 F.R.D. 61, 62 & n.2 (E.D. Va. 1996) (quoting same
language in reference to the 1995 amendment of Federal Rule of
7
Criminal Procedure 43(b) and noting that “[t]his language is
generally sent with rule changes”).5
The government argues that the plain language of the
enabling act indicates that the new Rule 33 applies to
proceedings commenced after the effective date of the amendment
and, insofar as just and practicable, to proceedings pending on
the effective date of the amendment. The government reasons that
because there were no proceedings in Bowler’s criminal case
pending when the new rule took effect, Bowler’s Rule 33 motion is
a proceeding commenced after the effective date of the amendment,
and the new Rule 33 applies. Bowler counters that the new Rule
33 applies only to cases commenced after the effective date of
the amendment or, insofar as just and practicable, to proceedings
pending on the effective date of the amendment, neither of which
applies to his Rule 33 motion. Alternatively, Bowler argues
5
There were three purposes for amending Rule 33. First,
the amendment was meant to remove the inconsistent application of
the Rule. See FED. R. CRIM. P. 33 advisory committee notes 1998
amendments. Under the prior Rule, some courts had held that
“final judgment” indicated the date of the appellate court’s
judgment, while others held that “final judgment” did not occur
until the issuance of the appellate court’s mandate, leading to
disparities in the amount of time defendants had to file timely
motions. See id. Second, the amendment was intended to further
consistency within the Rule itself by tying the time for filing
Rule 33 motions to the same event, whether the motion was based
on newly discovered evidence or on any other grounds. See id.
Third, the time limit to file a motion for a new trial based on
newly discovered evidence was increased from two years to three
years “to compensate for what would have otherwise resulted in
less time than that currently contemplated in the rule for filing
such motion.” Id.
8
that, even if his case was pending as of the effective date of
the new rule, it would not be just and practicable to apply the
new rule to his Rule 33 motion because that would have required
Bowler to file the motion five months before the effective date
of the new rule.
We agree that the timeliness of Bowler’s Rule 33 motion
turns on whether the phrase “all proceedings in criminal cases
then pending,” as described in the Supreme Court Order, refers to
proceedings pending on the effective date of the amendment or to
cases pending on the effective date of the amendment. The
precise issue before this court, whether the amendment applies in
a case in which final judgment was entered and no motions were
pending on the effective date of the amendment, is a matter of
first impression for this court.6
6
Bowler argues that his interpretation finds support in
the holdings of United States v. Jean, No. 92 CR 157-1, 1999 WL
301652 (N.D. Ill. Apr. 29, 1999), and United States v. Zuno-Arce,
209 F.3d 1095 (9th Cir. 2000). However, both of those cases are
distinguishable because the defendants’ Rule 33 motions were
filed before the effective date of the amendment. In Jean, the
district court applied the old Rule 33 to the pending Rule 33
motion because it would not have been “just and practicable” to
apply the new rule. See 1999 WL 301652, at *2. In Zuno-Arce,
the court applied the old Rule 33 to the pending Rule 33 motion,
but noted that neither party had even argued that the new Rule 33
should apply. See 209 F.3d at 1097 & n.1. In contrast to these
two cases, Bowler filed his Rule 33 motion after the effective
date of the amendment.
Courts have not addressed whether the current Rule 33 should
apply to a Rule 33 motion filed after the effective date of the
amendment, when the amendment to the Rule occurred after the
issuance of the mandate by the appellate court and while no
motions were pending. We do note that, in an unpublished
opinion, the Court of Appeals for the Sixth Circuit summarily
9
Although no courts have addressed the issue in the context
of Rule 33, several courts have done so in analogous
circumstances (i.e., to determine the applicability of other
amendments to the Federal Rules to cases before them). While
these cases have not been called upon to determine whether the
precise enabling act language before us is applicable in these
precise circumstances, many of these cases have interpreted this
“standard language,” see supra text, to apply to pending cases,
and not merely to pending proceedings. See, e.g., Roberts, 88
F.3d at 878-79 (stating, in interpreting an amendment to Federal
Rule of Evidence 413, that Congress knew how to make amendments
“applicable to pending cases” by using the “standard language”
(emphasis added)); Silvious v. Pharaon, 54 F.3d 697, 700-01 (11th
Cir. 1995) (noting, in interpreting the 1993 amendment to Federal
Rule of Civil Procedure 4, that “[t]he plain language of the
Supreme Court’s order indicates that the district court may apply
. . . the rule in effect when the complaint was filed and the
case thereby commenced” (emphasis added)); Cleveland v. Porca
Co., 38 F.3d 289, 294 (7th Cir. 1994) (interpreting the language,
applied the current Rule 33 to determine that a Rule 33 motion
filed in May 1999 was untimely because the jury had convicted the
appellant in December 1994. See United States v. Blue, 238 F.3d
424 (6th Cir. 2000) (unpublished table decision), available at
No. 99-4131, 2000 WL 1800499, at *1 (6th Cir. Nov. 30, 2000).
Because the opinion is unpublished and did not discuss whether
the prior version of Rule 33 should have been applied, but simply
applied the current Rule 33, we do not consider the case
authoritative on the issue.
10
“proceedings in appellate cases then pending,” accompanying the
1993 amendment to Federal Rule of Appellate Procedure 3 to
“govern pending cases” (emphasis added)); Skoczylas v. Fed.
Bureau of Prisons, 961 F.2d 543, 545 (5th Cir. 1992) (stating
that “[s]ince the amended [Federal Rule of Civil Procedure 15]
took effect on December 1, 1991 (while the case was pending on
appeal), we must determine whether it applies to this case”
(emphasis added)); In re Jones (Jones v. W.J. Servs., Inc.), 970
F.2d 36, 38 (5th Cir. 1992) (finding, in interpreting the 1991
amendment to Federal Rule of Appellate Procedure, that
“proceedings in appellate cases thereafter commenced and, insofar
as just and practicable, all proceedings in appellate cases then
pending” applied because “it is an ‘appellate case[] . . .
commenced after December 1, 1991’” (emphasis added)). Therefore,
that the amended Rule 33 applies to cases commenced after
December 1, 1998, and, insofar as just and practicable, to cases
pending on December 1, 1998, would be in accord with the approach
taken in similar contexts.
Interpreting the language in the enabling act to refer to
pending cases and not merely to pending proceedings is also
supported by the following reasons. Construing the language in
the Supreme Court Order to apply to cases commenced after the
effective date of the amendment and to pending cases, insofar as
just and practicable, furthers one of the policies behind the
amendment, i.e., it avoids allowing the defendant less time to
11
file his Rule 33 motion “than that currently contemplated in the
rule for filing such motion.” FED. R. CRIM. P. 33 advisory
committee notes 1998 amendments. Also, there is a “general rule
that courts apply procedural rules as they exist at the time of
decision, as long as no manifest injustice results.” In re
Jones, 970 F.2d at 38; see also Burt v. Ware, 14 F.3d 256, 258-59
(5th Cir. 1994); Skoczylas, 961 F.2d at 546 & n.3. For Bowler’s
Rule 33 motion to be timely under the amended Rule 33, it would
have to have been filed almost five months before the effective
date. We believe that to hold him to that limitation would
result in manifest injustice.
For these reasons, we find that the new Rule 33 applies to
cases commenced after December 10, 1998 or, insofar as just and
practicable, to cases pending after the effective date. Because
Bowler’s case was obviously commenced prior to December 1, 1998,
the amended Rule 33 may only be applied in this case if it is
just and practicable. We find that applying the amended Rule 33
to Bowler’s Rule 33 motion would not be just and practicable. As
stated above, if the new Rule 33 were applied, Bowler would have
been required to file his Rule 33 motion almost five months
before the amended Rule was effective. It would be incongruous
to apply the new rule in this situation. See United States v.
Jasin, No. CRIM. 91-602-08, 2000 WL 1793397, at *2 (E.D. Pa. Nov.
22, 2000) (“It would be entirely anomalous to apply the current
time limit to defendant’s motion. Doing so would mean that the
12
motion was barred before amended Rule 33 came into effect.”);
United States v. Soler, No. 94 CR. 533(TPG), 2000 WL 385514, at
*1 (S.D.N.Y. Apr. 17, 2000) (“It would be entirely anomalous to
apply the current time limit to defendant’s motion. Doing so
would mean that Soler’s motion was barred before the revision of
Rule 33 even came into effect.”).
Applying the prior version of Rule 33, we find that Bowler’s
Rule 33 motion was filed within two years of final judgment.
Therefore, as explained at the outset, the motion is timely, and
we have jurisdiction to hear it.
III. MERITS OF RULE 33 MOTION
We turn next to the merits of Bowler’s Rule 33 motion. We
review for an abuse of discretion the district court’s denial of
a motion for a new trial based on newly discovered evidence. See
United States v. Lowder, 148 F.3d 548, 551 (5th Cir. 1998).
Motions for a new trial based on newly discovered evidence are
disfavored and reviewed with great caution. See United States v.
Gonzalez, 163 F.3d 255, 264 (5th Cir. 1998). In order to warrant
a new trial on the basis of newly discovered evidence, Bowler
must demonstrate that
(1) the evidence is newly discovered and was unknown to
the defendant at the time of trial; (2) failure to
detect the evidence was not due to a lack of diligence
by the defendant; (3) the evidence is not merely
cumulative or impeaching; (4) the evidence is material;
13
and (5) the evidence introduced at a new trial would
probably produce an acquittal.
Lowder, 148 F.3d at 551. Unless all factors are met, the motion
should be denied. See United States v. Sullivan, 112 F.3d 180,
183 (5th Cir. 1997).
Bowler argues that a newly discovered LIGA report (the “1999
LIGA report”), which states the actual amount of money LIGA paid
on claims from the date of insolvency to March 1999, warrants a
new trial. See supra note 3. The district court found the 1999
LIGA report to be irrelevant. First, the district court noted
that the jury had been made aware that an insurance company’s
solvency must be assessed through statistical projections of
future claims and that such actuarial projections are
speculative. Second, to the extent the new evidence impeached
the testimony and evidence presented by Michael Scruggs, the
actuary hired by the Louisiana Department of Insurance, Bowler’s
counsel had effectively challenged Scruggs’s knowledge,
qualifications, and credibility at trial. Finally, several
witnesses, in addition to Scruggs, had testified that Pelican was
insolvent. Based on these factors, the district court held that
the “fortuitous fact that fewer claims than were projected were
ultimately made does not change the reality that by the time
Pelican was seized, the virtually unanimous projections made by
the various actuaries and accountants in this case indicated it
was ‘insolvent’ and had been for some time.”
14
Bowler argues that the district court erred because
“solvency” is not an evidentiary matter, but an objective fact,
and because the 1999 LIGA report proves that Pelican was solvent.
As such, Bowler was actually innocent. Moreover, Bowler argues
that the district court erred in finding that the new evidence
was “cumulative and impeaching.” He contends that although the
evidence is impeaching and cumulative, it is also direct and
independent corroboration of Bowler’s testimony regarding the
adequacy of the loss reserves and warrants the granting of a new
trial.
The government avers that the district court did not err in
denying Bowler’s Rule 33 motion. It contends that (1) the jury
was made aware of the uncertain nature of actuarial projections,
(2) several actuaries testified that Pelican was insolvent, (3)
the evidence contained in the report was substantially the same
information provided by a witness at trial, and (4) Bowler had an
adequate opportunity to impeach Scruggs at trial. The government
argues that the new evidence does not warrant a new trial, but is
merely impeaching and cumulative. We agree with the government
that the district court’s denial of Bowler’s Rule 33 motion was
not an abuse of discretion.
First, we note that the information contained in the 1999
LIGA report is substantially similar to evidence presented during
trial. The 1999 LIGA report states that, as of March 1999, 1468
Pelican and Magnolia files (or claims) had been closed at a cost
15
of $23,696,166.47.7 At trial, Lawrence Uter, the associate
executive director of LIGA, testified that the LIGA report on
Pelican through April 1995 (the “1995 LIGA report”) stated that
there were 1411 paid or open claims and that total reserve and
disbursements for those claims equaled $23,995,251.48.8
Therefore, the district court did not abuse its discretion in
finding that the “newly discovered” 1999 LIGA report was
cumulative of the 1995 LIGA report.
Second, several witnesses testified that Pelican was
insolvent.9 Robert F. Wolf, an employee for William M. Mercer,
7
Additionally, there remain 83 open claims against Pelican
and Magnolia and a reserve projected for those claims of
$2,588,922. This indicates that the total cost of settling all
1551 claims will be $26,285,088.47.
8
It is unclear if the figures from the 1995 LIGA report
include claims against Magnolia. Not including the Magnolia
figures, the 1999 LIGA report states there are 1338 closed and 79
open claims against Pelican, for a projected total of 1417
claims. Additionally, the report states that to close those
files has so far cost LIGA $22,694,084 and that LIGA has set
aside a reserve of $2,558,176 for the remaining open claims. In
other words, even if we excluded the claims against Magnolia, the
reported figures in the 1999 LIGA report are greater, not less,
than those contained in the 1995 LIGA report.
9
Bowler contends that much of the evidence and testimony
regarding Pelican’s insolvency may not be considered because the
evidence relates to time periods before March 1992, the date of
the first substantive count on which Bowler was convicted.
Because the district court interpreted “the verdict to reflect
that the defendant was acquitted of all charges prior to 1991,”
Bowler argues that the only evidence of insolvency that may be
considered was the testimony and reports of Scruggs and Constance
Korte. He argues further that because Korte based her report on
Scruggs’s analysis, the only evidence of insolvency actually was
Scruggs’s analysis, which the new evidence establishes was
incorrect.
16
Inc. (“Mercer”), testified that Mercer was retained at the end of
1991 to form an opinion on the adequacy of the loss reserves
contained in Pelican’s 1991 annual statement. He informed
Lawrence Pratt in January 1992 that the reserves as presented in
the annual statement were understated by several million dollars.
Further, he testified that if the asset side of the balance sheet
was correct, increasing the loss and loss adjustment reserves to
the appropriate number would change Pelican’s reported $1,883,373
surplus position to a deficit.
Lawrence Pratt, Pelican’s executive vice-president of
operations and treasurer, testified that Bowler requested a
second opinion on the adequacy of the loss reserves. Pelican
hired Mihn Trinh to render his actuarial opinion. According to
Pratt, although Trinh’s numbers were more beneficial to Pelican,
had Trinh’s numbers been substituted for the numbers on the 1991
annual statement, “the company would have been insolvent, the
same result as Mr. Mercer, or Mr. Wolfe’s [sic] evaluation.”
Scruggs and Constance Korte also testified that Pelican was
insolvent. Scruggs described the methodology he used for his
We do not interpret the district court’s language to
preclude consideration of the other actuaries’ and accountants’
testimony. Although Bowler “was acquitted of all charges prior
to 1991,” this does not mean that the evidence relating to the
financial condition of Pelican during 1991 may not be considered.
In fact, Bowler was found guilty of two substantive counts of
mailing the 1991 Annual Statements of Pelican and Magnolia for
which the issue of Pelican’s financial state during 1991 is
obviously relevant.
17
analysis and testified that he concluded that the loss and loss
adjustment expense reserves stated in Pelican’s March 31, 1992
quarterly report were understated by over $19 million. Using
Scruggs’s figures, Korte determined that Pelican was insolvent
and had a surplus deficiency of about $23 million.10
Third, we do not agree that the solvency of Pelican is a
fact that may only be determined once all claims have been
settled. The determination of the solvency of an insurance
company necessarily includes loss reserves for future claims.
See Stephens v. Nat’l Distillers & Chem. Corp., 6 F.3d 63, 65 (2d
Cir. 1993) (“Because future claims will be a drain on an
insurer’s resources, ‘loss reserves’ are established to estimate
the value of claims which will be paid on policies which the
company is carrying. . . . Although they are only estimates, both
case reserves and [incurred-but-not-reported] reserves must be
reported as liabilities in the financial records of an insurance
company.”). The use of actuarial projections is an acceptable
way to calculate the adequacy of those reserves. Bowler was free
at trial to introduce his own actuarial experts or to challenge
the calculations of the government experts.
10
To the extent that Bowler argues that the 1999 LIGA
report proves that Scruggs’s testimony and report were incorrect,
we find the evidence to be merely impeaching. Bowler had ample
opportunity to attempt to impeach Scruggs’s testimony and report
and did do so. He did not choose, however, to impeach Scruggs
either by calling his own actuarial expert or by using the
evidence contained in the 1995 LIGA report.
18
Thus, we agree with the district court that the 1999 LIGA
report is merely cumulative and impeaching. We find that the
district court’s holding that the newly discovered evidence does
not warrant a new trial was not an abuse of discretion.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the order of the
district court denying Bowler’s motion for a new trial.
19