Petition for Writ of Certiorari — Yarbrough v. United States (No. 08-247)

Supreme Court. y.g-

FILED ean

)

No.og. 08-247 JUN 23 2008

OFFICE OF Tike. Cee RK

IN THE

Supreme Court of the United States

a

DAVID JAMES YARBROUGH,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COuRT OF APPEALS

FOR THE TENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Mick G. HARRISON RICHARD E.. ConpitT

THE CALDWELL CENTER Counsel of Record

323 S. Walnut c/o THE GOVERNMENT

Bloomington, IN 47401 ACCOUNTABILITY PROJECT

(812) 323-7274 (voice) 1612 K Street, NW

mickharrisonesq@earthlink.net Suite 1100

Washington, D.C. 20006

(202) 408-0034 ext. 142

rlconditl @earthlink.net

Attorneys for Petitioner

217793 ce

COUNSEL PRESS

(800) 274-3321 » (800) 359-6859

a

QUESTIONS PRESENTED

A) Whether the United States Court of Appeals for the

Tenth Circuit in the instant case of United States v.

David James Yarbrough misconstrued the rules of law

established by this Court regarding when the

Constitution requires that a new trial be granted to a

criminal defendant when the government has used false

evidence to obtain his conviction, and decided an

important question of federal law in a manner that

conflicts with the Supreme Court’s decisions in

United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392

(1976); Napue v. Illinois, 360 U.S. 264 (1959); and

Miller v. Pate, 386 U.S. 1 (1967).

B) Whether the United States Court of Appeals for the

Tenth Circuit in the instant case of United States v.

Daaid James Yarbrough misconstrued the rules of law

established by this Court regarding when the

Constitution requires that a new trial be granted to a

criminal defendant when the government has failed to

disclose evidence favorable to the defense including

evidence relating to the government’s use of false

evidence to obtain his conviction, and decided an

important question of federal law in a manner that

conflicts with the Supreme Court’s decisions in

Kyles v. Whitley, 514 U.S. 419 (1995).

i

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................ i

8 8. ig). : ii

Beeeeme We APPENDICES ........ccccceeess iv

TABLE OF CITED AUTHORITIES ......... Vv

CITATIONS OF THE OPINIONS AND

ORDERS ENTERED IN THE CASE ...... it

STATEMENT OF JURISDICTION .......... |

CONSTITUTIONAL PROVISIONS,

TREATIES, STATUTES, ORDINANCES,

AND REGULATIONS INVOLVED ........ 2

SIATEMENT OF THE CASE ............... 2

REASONS FOR GRANTING THE PETITION .. 24

A. A UNITED STATES COURT OF

é&PPEALS HAS DECIDED AN

IMPORTANT QUESTION OF

FEDERAL LAW IN A WAY THAT

CONFLICTS WITH RELEVANT

DECISIONS OF THIS COURT AND

OTHER CIRCUITS REGARDING

WHEN THE CONSTITUTION

REQUIRES THAT A NEW TRIAL BE

Contents

GRANTED TO A _ CRIMINAL

DEFENDANT WHEN THE

GOVERNMENT HAS USED FALSE

EVIDENCE TO OBTAIN’ HIS

CONVICTION

A UNITED STATES COURT OF

APPEALS HAS DECIDED AN

IMPORTANT QUESTION OF

FEDERAL LAW IN A WAY THAT

CONFLICTS WITH RELEVANT

DECISIONS OF THIS COURT AND

OTHER CIRCUITS REGARDING

WHEN THE CONSTITUTION

REQUIRES THAT A NEW TRIAL BE

GRANTED TO A CRIMINAL

DEFENDANT WHEN THE

GOVERNMENT HAS FAILED TO

DISCLOSE EVIDENCE FAVORABLE

TO THE DEFENSE INCLUDING

EVIDENCE RELATING TO THE

GOVERNMENT’S USE OF FALSE

EVIDENCE TO OBTAIN HIS

CONVICTION

CONCLUSION

iv

TABLE OF APPENDICES

Page

Appendix A — Opinion Of The United States

: Court Of Appeals For The Tenth Circuit Filed

Pe BE a ns Kh ka es) lea nae ees la

Appendix B — Order Of The United States

Court Of Appeals For The Tenth Circuit

Denying Petition For Rehearing Filed March

ey Mea Koh Ras a ate eee 8a

TABLE OF CITED AUTHORITIES

CASES

Brown v. Borg, 951 F.2d 1011 (9th Cir. 1991) ...

Kyles v. Whitley, 514 U.S. 419 (1995)

Larrison v. United States, 24 F2d 82 (7th Cir.

Miller v. Pate, 386 U.S. 1 (1967)

Napue v. Illinois, 360 U.S. 264 (1959) i, 26, 27

United States v. Agurs, 427 U.S. 97 (1976) .... i, 26

UNITED STATES CONSTITUTION

U.S. Const. Amendment V

STATUTES

18 U.S.C. § 1001

28 U.S.C. § 1254(1)

RULE

Rule 29.4(b) or (c )

]

CITATIONS OF THE OPINIONS AND

ORDERS ENTERED IN THE CASE

The decision by the United States Court of Appeals

for the Tenth Circuit entered below is reported at

United States v. David James Yarbrough, 261 Fed.

Appx. 80 (10th Cir. 2008). Rehearing was denied by

Order dated march 25, 2008.

STATEMENT OF JURISDICTION

The United States Court of Appeals for the Tenth

Circuit issued its opinion affirming the District Court’s

decision on January 14, 2008. Rehearing was denied by

Order dated March 25, 2008. The Petitioner filed this

Petition within 90 days of March 25, 2008 via commercial

carrier for delivery to the Court within three days.

28 U.S.C. § 1254(1) is the statutory provision which

confers on this Court jurisdiction to review on a Writ of

Certiorari the judgment and orders of the United States

Court of Appeals for the Tenth Circuit in question in

this case.

No special notifications pursuant to Rule 29.4(b)

or (c ) are required.

2

CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES, ORDINANCES, AND

REGULATIONS INVOLVED

Amendment V

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a

presentment or indictment of a grand jury,

except in cases arising in the land or naval

forces, or in the militia, when in actual service

in time of war or public danger; nor shall any

person be subject for the same offense to be

twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a

witness against himself, nor be deprived of life,

liberty, or property, without due process of law;

nor shall private property be taken for public

use, without just compensation.

United States Constitution.

STATEMENT OF THE CASE

Mr. Yarbrough was indicted via a superceding

indictment that alleged in eight different counts that

Mr. Yarbrough, an Army manager in charge of air

monitoring for chemical warfare agent (agent

monitoring) at the Army’s CAMDS chemical weapons

test facility near Tooele, Utah, had knowingly made

false statements in violation of 18 U.S.C. § 1001.

Apl. App. at 14.

3

Mr. Yarbrough, who asserted his innocence, was

tried before a jury on July 28-30, 2003. The jury verdict

of guilty on seven of eight counts was issued July 30,

2003. Apl. App. at 21. Mr. Yarbrough’s defense was that

he had not knowingly recorded false data on his

worksheets and had not knowingly submitted false data

to federal agencies. Mr. Yarbrough asserted that the

applicable Army procedures for the recertification

baselines in question allowed use of any non-first-

challenge data he had used. Apl. App. at 1825-29, 1331-

41, 1428-31, 1433, 14389.

The prosecuting attorneys argued, and other Army

employees testified, that only the first challenge of the

day was permissible under Army procedure. Ap]. App.

at 998-99, 1416, 1441, 1253, 1255. A post-trial proceeding

was held shortly after trial on Defendant Yarbrough’s

initial motion for new trial based on newlv discovered

evidence available at that time. In that hearing, an Army

manager admitted that her testimony at trial had been

false that there was a more recent Army procedure

(LQAP) in place than the one Mr. Yarbrough relied on.

This manager admitted post-trial that the LQAP relied

on by Mr. Yarbrough at trial was in fact the correct

LQAP Apl. App. at 1453-60.

The District Court denied relief on Defendant

Yarbrough’s initial motion for new trial and

Mr. Yarbrough appealed. On appeal, the Tenth Circuit,

although finding that the Government had not

established that any Army procedure existed that

required use of first challenge results, accepted the

argument by the Government that Mr. Yarbrough had

not acted consistent with his asserted defense because

4d

his worksheet data numbers could not all be found

somewhere on the logs. United States v. David James

Yarbrough, Order and Judgment at p.12 (10“ Cir. June

28, 2005).

Several months after trial, Mr. Yarbrough obtained

new documentary evidence from the Army via efforts of

his new counsel, including documents not produced by

the Government pre-trial or during trial. These

documents, which included computer recorded data from

the agent monitors in question (the “PDARS”), several

strip charts which recorded the readings of the ACAMS

monitors, and two monitoring data compilations

prepared for the Army Commander post-trial, contained

substantial evidence favorable to Mr. Yarbrough’s

defense. These new documents also evidenced the

existence of additional favorable evidence that the

Government had yet to produce. This newly discovered

evidence supported the conclusion that the Government

had knowingly obtained Mr. Yarbrough’s conviction by

use of false evidence at trial. This newly discovered

evidence also allowed Mr. Yarbrough to explain the

discrepancies between his worksheets and the ACAMS

operators’ logs.

Mr. Yarbrough brought this newly discovered

evidence to the attention of the District Court in a

second motion for new trial based on newly discovered

evidence, and requested an evidentiary hearing.

Apl. App. at 28, 26, 784, 792, 873. The District Court

denied Mr. Yarbrough’s new motion for new trial and

also denied Mr. Yarbrough’s request for discovery and

an evidentiary hearing. Apl. App. at 872, 873, 905-06.

Mr. Yarbrough timely appealed the District Court’s

5

denial of his motions for new trial, discovery, and an

evidentiary hearing. Apl. App. at 908.

In the prior appeal to this Court of Appeals, the

Government argued that Mr. Yarbrough’s asserted

defense — that he acted in good faith in implementing

the procedure he believed applied at the time — should

not be believed because the monitoring data numbers

on Mr. Yarbrough’s worksheets in many cases did not

match any first or later challenge result .ecorded in the

operator logs.

The Court of Appeals, although finding that the

Government had not established that any Army

procedure (LQAP) existed that specifically required use

of first challenge results, accepted the argument by the

Government that Mr. Yarbrough had not acted

consistent with his asserted defense because his

worksheet data numbers could not be found on the logs.

United States v. David James Yarbrough, Order and

Judgment at p.12 (10 Cir. June 28, 2005).

Mr. Yarbrough, in his statement to CID agent Pavlik

and at trial, explicitly disclaimed any involvement in

altering operator logs. See Aplt. App. at 386, 1343.

CID agent Pavlik testified that Pavlik was not even

aware that operator logs had been altered. Aplt. App.

at 1248. This trial testimony by Army CID Agent Pavlik

was apparently simply false, because in manager

Kevin Draper’s subsequent deposition testimony

Draper explicitly describes meetings in which Draper

explained to Agent Pavlik the evidence of log

falsifications found and testified that Pavlik seemed

“pleased” that these log alterations could be proven.

See Aplt. App. at 735-36.

6

Army monitoring manager Kevin Draper, who was

tasked to investigate some aspects of the alleged use of

false data in the 2002 CAMDS ACAMS baselines in

question, testified in a post-trial deposition in

Mr. Yarbrough’s whistleblower employment case on

January 10 and 11", 2005 that he discovered before

Mr. Yarbrough was indicted that the operator logs in

question had been altered, See Aplt. App. at 569-99,

650-55, 659-60, 728-31, 734-37, 740-42, 747, and he

reported his findings regarding falsified logs to Army

officials, the Army CID agent (the Government’s

criminal investigator) and apparently to the prosecuting

attorneys (Army counsel’s assertion of attorney client

privilege during this deposition, apparently in regard

to Mr. Draper’s communications with the prosecuting

attorneys, prevented details from being fully disclosed),

Aplt. App. at 574-85, 594-95, 654-55, 727-34, 748.

Mr. Draper also testified in this same deposition that

Army statistician Cherise Day had discovered some logs

had been altered, she may have had possession of both

versions of those logs, and she certainly had an altered

version of some logs which she showed to Draper;

Draper himself confirmed the alteration of both copies

of logs and log originals (which were locked in manager

King’s office after collection) that had been written over

with pen to alter failing numbers to passing numbers

by, for example changing a “3” to an “8”; Draper also

observed some logs where the value recorded in the first

challenge (P1) box logs was inconsistent with the

comments made by the operator in the bottom comments

section of the logs regarding failing challenges, and some

logs were observed to have numbers altered in both the

top (P1) section and the bottom (comments) section.

7

Aplt. App. at 569-99, 650-55, 659-60, 728-31, 734-37, 740-

42, 747. Mr. Draper testified that he had no evidence

that Mr. Yarbrough was responsible for the log

alterations found, that CID Agent Pavlik to his

knowledge also had no evidence that Mr. Yarbrough was

responsible for the log falsifications found, and that he

and Pavlik had no idea beyond mere suspicions who had

altered the logs. Aplt. App. at 738, 743.

After the trial, new counsel Harrison requested in

writing that the U.S. Attorney produce to Defendant

various operator log pages in the Government’s

possession that were not previously produced, including

pages from the Government’s incomplete trial exhibits

and alternate versions of the logs that were produced

to the Defense and at trial. See Aplt. App. at 518-19.

The U.S. Attorney refused to produce those logs.

Three years after his conviction, based on the new

evidence he had discovered post-trial, Mr. Yarbrough

filed a motion for new trial. Aplt. App. at 23-36. The

newly discovered evidence was attached to Defendant

Yarbrough’s motion for new trial as exhibits A-S and

EE, FF Aplt. App. at 37-283, 520-783. Other relevant

evidence that should be read together with the new

evidence to understand its full significance was also

presented as attachments to that motion. Aplt. App. at

284-519.

The new documentary evidence submitted by

Defendant Yarbrough had been obtained after trial and

after the denial of his first motion for new trial via efforts

of his new counsel. These documents, which included

computer recorded data from the chemical agent air

8

monitors in question (the “PDARS”), several strip charts

which recorded the readings of the “ACAMS” chemical

agent air monitors in question, two monitoring data

compilations prepared for the Army Commander post-

trial (the “Commander’s Spreadsheet” and the

“Commander’s INACCMO”), and the deposition of

Army monitoring manager Kevin Draper contained

substantial evidence favorable to the Defense.

The newly discovered evidence shows a pattern of

falsification of the chemical agent air monitoring test

results by the making of physical alterations to operator

log entries including by writing over failing numbers

originally entered on logs in order to make the results

appear to be passing, and recording false numbers on

the logs. At least a substantial portion of this pattern

was discovered by the Government pre-trial. Aplt. App.

569-99, 650-55, 659-60, 728-31, 734-37, 740-42, 747.

Station 569 is one of the stations forming the basis

for count 8 in the indictment. Aplt. App. at 19-20.

On the Station 569 operator’s log, Aplt. App. at 337-38,

presented by the Government at trial, there are passing

values on the operator’s log for July 16", 17 and 20"

but the Commander’s Spreadsheet, Aplt. App. at 274,

shows operator log values that were failing for each of

these three dates. Upon close physical examination of

the version of the operator’s log for Station 569 put into

evidence by the Government at trial (a magnifying glass

is useful) prompted by the discovery of this discrepancy,

it was apparent that each of the three log values in

question had been written over to make failing entries

noted in the Commander’s Spreadsheet appear passing.

Compare Station 569 values reported at Aplt. App. at

274, with same at Apit. App. at 337-38.

9

The July 16" original failing entry of .31 was altered

by writing over the 3 in the log to make it appear to be

an 8, resulting in a false passing .8] entry in the log,

Aplt. App. at 337, which also appears on Mr. Yarbrough’s

worksheet, Aplt. App. at 336. The July 17" original failing

entry of .57 was altered by writing over the 5 in the log

to make it appear to be an 8, resulting in a false passing

.87 log entry, Aplt. App. at 337, which also appears on

Mr. Yarbrough’s worksheet, Aplt. App. at 336. The July

20" original failing entry of .68 was altered by marking

out the 6 in the log and adding a 0 to the right of the 8

to make the number appear to be a false passing .80 log

entry, Aplt. App. at 337, which also appears on

Mr. Yarbrough’s worksheets, Aplt. App. at 386. The strip

charts for 569 were concealed or destroyed. Aplt. App.

at 274 (Commander’s Spreadsheet noting missing strip

charts), 284-89 (Government Trial Exhibit List omitting

these strip charts).

The PDARS data for Station 569 or other stations

was not produced to the Defense by the Government or

offered into evidence at trial. Had it not been for the

post-trial disclosure by the Army of the Commander’s

Spreadsheet, Aplt. App. at 274, which summarized the

operator log, PDARS and strip chart data available to

the Commander at the time of the creation of this

“spreadsheet” or data chart, the fact that the operator’s

log for Station 569 had been physically altered to falsify

the data might never have been discovered.

The newly discovered evidence confirms that

numerous failing ACAMS challenges in the CAMDS

CTF baseline were falsified on the operator logs to

appear to be passing. The ACAMS challenges in the

10

CTF baseline were the subject of 7 of the 8 counts of

the superseding indictment. Aplit. App. at 14-20. This

new evidence proves that the following CTF baseline

operator log entries are false:

1) Station 713 for July 22": PDARS = 0.27, Aplt.

App. at 227, false log Pl entry = 0.76, Aplt. App. at 350,

and note false strip chart entry = 0.76, Aplt. App. at

265;

2) Station 713 for July 20": strip chart = 1.35, Aplt.

App. at 263; PDARS = 1.32, Aplt. App. at 226, false log

Pl entry = 1.03, Aplit. App. at 349;

3) Station 713 for July 19": strip chart = 1.33, Aplt.

App. at 262, PDARS = 1.32, Aplt. App. at 226, false log .

Pl entry = 1.25, Aplt. App. at 349;

4) Station 712 for July 15“: strip chart = missing,

Apit. App. at 276, PDARS is in malfunction (negative

reading), Aplt. App. at 221, false log Pl entry = 1.15,

Aplt. App. at 346 (was 1.50, visibly altered), Note:

Commander’s Spreadsheet reports a log value of 1.50,

Aplt. App. at 276;

5) Station 711 for July 22"%: strip chart = missing,

Aplt. App. at 276, PDARS = 0.2, 2.92, 3.0, 1.22, Aplt.

App. at 219, false log Pl entry = 1.24, Aplt. App. at 344;

6) Station 711 for July 20“: strip chart = missing,

Aplt. App. at 276, PDARS = 0.6, Aplt. App. at 217, false

log P1 entry = 0.78 noted in Commander’s Spreadsheet,

Apt. App. at 276; the Government has not produced

this log;

1]

7) Station 570 for July 22": strip chart = 0.60, Aplt.

App. at 251, PDARS = 0.57, Aplt. App. at 175, false log

P1 entry = 0.78, Aplt. App. at 340;

8) Station 570 for July 21*': strip chart = 0.68, Aplt.

App. at 250, PDARS = 0.67, Aplt. App. at 165, false log

P1 entry = 0.80 noted in the Commander’s Spreadsheet,

Aplt. App. at 275; the Government did not produce this

log;

9) Station 570 for July 19": strip chart = 1.3, Aplt.

App. at 247, PDARS = 1.3, Aplt. App. at 157, the

Government did not produce this log, the Commander’s

Spreadsheet reports a log entry of 1.48, Aplt. App. at

275. Yarbrough had 1.18 on his worksheet. Aplt. App. at

339. The log was likely falsified to read a passing 1.18

by writing over the “3” in the original log value (matching

the strip chart 1.3) to make an “8” and inserting a “1” to

the left of the “3”, as observed on other falsified stations,

causing Yarbrough’s worksheet entry of 1.18, and then,

in an attempt to cover the falsification after the

investigation commenced, the second “1” in the false 1.18

was altered by writing over to make the 1.48 shown on

the Commander’s spreadsheet;

10) Station 569 for July 23": strip chart = missing,

Aplt. App. at 274, PDARS = 0.70, Aplt. App. at 137, false

log Pl entry = 0.79, Aplt. App. at 338;

11) Station 569 for July 20": strip chart = missing,

Aplt. App. at 274, PDARS = 0.67, Aplt. App. at 135, false

log Pl entr, = 0.80, Aplt App. at 337, Note: The

Commander’s Spreadsheet reports a log entry of 0.68,

Aplt. App. at 274;

12

12) Station 569 for July 17": strip chart = missing,

Apit. App. at 274, PDARS = 0.55, Aplt. App. at 134, false

log Pl entry = 0.87, Aplt. App. at 337, Note: The

Commander’s Spreadsheet reports a log entry of 0.57,

Aplt. App. at 274;

13) Station 569 for July 16": strip chart = missing,

Aplt. App. at 274, PDARS = 0.3, Aplt. App. at 134, false

log Pl entry = 0.81, Aplt. App. at 337, Note: The

Commander’s Spreadsheet reports a log entry of 0.31,

Aplt. App. at 274;

14) Station 568 for July 20“: strip chart = 0.73, Aplt.

App. at 238, PDARS = 0.72, Aplt. App. at 127, false log

Pl entry = 0.77, Apit. App. at 334;

15) Station 567 for July 21%: strip chart = missing,

Aplt. App. at 274, PDARS = 0.57, Aplt. App. at 112, false

log Pl entry = 0.81, Aplt. App. at 331;

16) Station 274 for July 21*: strip chart = 0.67

(written over), Aplt. App. at 233, PDARS = 0.6, Aplt.

App. at 84, false log Pl entry = 0.99, Aplt. App. at 329;

17) Station 274 for July 20": strip chart = 0.77, Aplt.

App. at 232, PDARS = 0.67, Apit. App. at 84, false log

P1 entry = 0.82, Aplt. App. at 329;

18) Station 120 for July 20": strip chart = missing,

Aplt. App. at 277, PDARS = 0.57, Aplt. App. at 71, log

has marked out .60, .78, 1.00 then late entry 0.67/1.09,

Aplt. App. at 326; Note: This is another example of a

falsified number altered back to a correct value as a

coverup.

13

19) Station 120 for July 19": strip chart = missing,

Aplt. App. at 277, PDARS = 0.7, Aplt. App. at 69, false

log P1 entry = 0.78, Aplt. App. at 326;

20) Station 26D for July 23°: strip chart = 0.73,

Aplt. App. at 462, PDARS = 0.72, Aplt. App. at 59, false

log Pl entry = 0.75, Aplt. App. at 324;

21) Station 26D for July 19": strip chart = 1.41,

Aplt. App. at 458, PDARS = 1.40, Aplt. App. at 56, false

log Pl entry = 1.7, Aplt. App. at 323; Note: Yarbrough’s

worksheet had an entry of 1.2, Aplt. App. at 321. Note:

This example may involve an inadvertent misreading of

a 1.7 as a 1.2. It is also possible that the 1.7 on the log

was created in an after the fact attempt to hide a prior

false log entry of 1.2 (by use of white out);

22) Station 26 for July 24": strip chart 10Z = 7.25,

Aplt. App. at 454(a), PDARS 10Z = 7.22, Aplt. App. at

53, log 10Z entry = false 7.85 (original 7.25 written over)

marked out, then 7.25 again, Aplt. App. at 320;

Yarbrough W.S. 10Z = 7.25 written over to be 7.85, Aplt.

App. at 318 (the passing range for 10Z challenges is +/

- 25% as for 1Z challenges, see Aplt. App. at 487, 503,

1017, which makes the acceptable 10Z range 7.5-12.5,

whereas for 1Z challenges the range is 0.75-1.25);

23) Station 26 for July 22": strip chart = 0.54, Aplt.

App. at 452, PDARS = 0.52, Aplt. App. at 52, log P1

entry = 0.84 marked out, then 0.54, Aplt. App. at 320.

14

In addition to these documented false entries, which

include some indicted stations and dates, there are a

number of additional ACAMS operator log entries which

fit this log faisification pattern, including the additional

Yarbrough worksheet data points that were subject to

the superceding indictment, and which probably were

falsified in the same manner. The most common method

of log falsification was to write over the ten’s digit

(a value from 1-7) of a failing value to make an eight,

leaving the one’s digit unchanged. This would change a

value below 0.75 (below the minimum required, i.e.

failing) to a value above 0.75 (passing). If the failing value

was in the range of .71-.74, the one’s digit was sometimes

written over to make a value 7 or larger. Due to key

documentary evidence in the Government’s control still,

to this day, not having been produced by the

Government, the following additional examples cannot

be established with certainty as log falsifications, but

are highly probable log falsifications:

1) Station 714 for July 16%: PDARS = NA, Aplt. App.

at 276, Strip chart: missing, Aplt. App. at 276,

Commander’s Spreadsheet reports a log Pl entry =

0.64, Aplt. App. at 276, Yarbrough WS. = 0.84, Aplt.

App. at 351,; Note: The Government did not produce

this log.

2) Station 711 for July 16": PDARS = 0.65, Aplt.

App. at 216, Strip chart: missing, Aplt. App. at 276,

Commander’s Spreadsheet reports a log Pl entry =

0.71, Aplt. App. at 276, Yarbrough WS. = 0.76, Apit.

App. at 343; Note: The Government did not produce this

log.

15

3) Station 703 for July 23°: PDARS = 0.67/0.72,

Aplt. App. at 197, Strip chart: missing, Aplt. App. at 275,

log Pl entry = 0.72, Aplt. App. at 342, DJY WS. = 0.78,

Aplt. App. at 341;

4) Station 703 for July 22°7: PDARS = 0.40, Aplt.

App. at 196, Strip chart: missing, Aplt. App. at 275, log

Pl entry = 0.43, Aplt. App. at 342, DJY WS. = 0.83,

Aplt. App. at 341;

5) Station 703 for July 17": PDARS = 0.55, Aplt.

App. at 194, Strip chart: missing, Aplt. App. at 275,

Commander’s Spreadsheet reports a log Pl entry =

0.55, Aplt. App. at 275, DJY WS. = 0.85, Aplt. App. at

341; the Government did not produce this log;

6) Station 703 for July 16°: PDARS = 0.32, Aplt.

App. at 193, Strip chart: missing, Aplt. App. at 275,

Commander’s Spreadsheet reports a log Pl entry =

0.33, Aplt. App. at 275, DJY WS. = 0.83, Aplt. App. at

341; the Government did not produce this log;

7) Station 570 for July 16": PDARS = 0.52, Aplt.

App. at 148, Strip chart: missing, Aplt. App. at 275, the

Commander’s Spreadsheet reports a log Pl entry =

0.53, Aplt. App. at 275, DJY WS. = 0.838, Aplt. App. at

339; the Government did not produce this log;

8) Station 567 for July 20": PDARS = 0.87, Aplt.

App. at 110, Strip chart: missing, Aplt. App. at 274, log

Pl entry = 0.73, Aplt. App. at 331, DJY WS. = 0.78,

Aplt. App. at 330; Note that this worksheet entry may

have been an original 0.73 altered by writing over the

“3”, and as such may be better classified in the list of

16

proven falsifications given above; Also note that

discovery would be expected to show the PDARS value

in this case resulted from an improper calibration

procedure;

9) Station 567 for July 19": PDARS = 0.57, Aplt.

App. at 105, Strip chart: missing, Aplt. App. at 274, log

Pl entry = 0.74, Aplt. App. at 331, DJY WS. = 0.79,

Aplt. App. at 330;

10) Station 274 for July 24": PDARS = 0.67, Aplt.

App. at 85, Strip chart: 0.78, Aplt. App. at 236, log

“missing,” Aplt. App. at 276, Yarbrough W.S. = 0.78,

Aplt. App. at 328;

11) Station 120 for July 21%: PDARS = 0.65, Aplt.

App. at 72, Strip chart: missing, Aplt. App. at 277, log

P1 entry = 0.67/1.09, Aplt. App. at 326, Yarbrough WS.

= 0.67/1.09, Aplt. App. at 325; Note: the log shows that

the 1.09 was entered first and the 0.67 inserted later.

12) Station 120 for July 16": PDARS = 0.25, Aplt.

App. at 68, Strip chart: missing, Aplt. App. at 277, log

Pl entry = 0.25, Aplt. App. at 326, Yarbrough WS. =

0.85, Aplt. App. at 325; Note: The log comments section

notes a later challenge of 0.85, Aplt. App. at 326.

13) Station 26D for July 17": PDARS = 0.62, Aplt.

App. at 56, Strip chart: missing, Aplt. App. at 274, log

P1 entry = 0.66, Aplt. App. at 323, Yarbrough WS. =

0.80, Aplt. App. at 321; Note: Failing values between .66

and .69 are difficult to falsify by writing over one digit

without arousing suspicion because a .66 converted to a

.86 by writing over the first 6, for example, would cause

17

the corrective action/preventative maintenance noted

in the log comment section for the failing challenge to

become a red flag (i.e. no such action is required or

expected for any value greater than 0.85). This dilemma

for the perpetrators caused visible marking out of digits

for similar values in some of the documented examples

above of falsified log entries. See, e.g., Station 569 log

for July 20" where 0.68 became a (messy) 0.80, Aplt. App.

at 337.

14) Station 26D for July 16": PDARS = 0.35, Aplt.

App. at 55, Strip chart: missing, Aplt. App. at 274, log

P1 entry = 0.37, Aplt. App. at 323, Yarbrough WS. =

0.81/0.87, Aplt. App. at 321; Note: Regarding the indicted

numbers on station 26D, Cherise Day’s notes indicate

that she reviewed a log for station 26D and observed

entries that concerned her enough to report them to

her superiors. Aplt. App. at 379. This was probably the

altered, not produced, version of the operator’s log for

station 26D. The one page of Grand Jury testimony

produced by the Government, Aplt. App. at 517, suggests

that this log alteration discovered by Ms. Day was falsely

attributed to Mr. Yarbrough by the prosecutor by

making use of Mr. Yarbrough’s ill-advised statement to

CID Agent Pavlik in the absence of his attorney,

regarding a “change” he made to data on Station 26D,

in which CID statement Mr. Yarbrough was referring

to a different (and innocent) change on his worksheet

for July 16", see Aplt. App. at 321, not on a log. Agent

Pavlik actually made clear on cross examination at trial

that based on his interview with Mr. Yarbrough, the only

“change” or “alteration” of data Mr. Yarbrough

discussed having made, and the only change or

alteration of data Pavlik accused Yarbrough of making,

18

was in regard to Yarbrough’s decision to use different

challenge numbers on Yarbrough’s worksheets than

appeared on the logs. Aplt. App. at 1248-49. Pavlik

acknowledged that this limitation and definition of terms

applied to any alleged change of data Yarbrough made

in regard to Station 26D as well. /d.

15) Station 26 for July 20": PDARS = 0.65, Aplt.

App. at 51, Strip chart: 0.68, Aplt. App. at 274 (Note:

this strip chart value is reported in the Commander’s

Spreadsheet), log Pl entry = 0.68, Aplt. App. at 319

(indications of white-out use), Yarbrough WS. = 0.80,

Aplit. App. at 318; Note: This is another probable

example of a messy alteration of an initial failing value

between 0.66 and 0.69, with the altered version of log

not produced, and/or use of white-out.

16) Station 26 for July 18": PDARS = 0.67, Aplt.

App. at 50-51, Strip chart: missing, Aplt. App. at 274,

log Pl entry = 0.70, Aplit. App. at 319, DJY WS. = 0.80,

Aplt. App. at 318.

The superseding indictment had eight counts, seven

of which concerned the CTF baseline tests. The false

and suspect data just presented above was from the

CTF baseline tests. In the remaining count of the

superseding indictment, Mr. Yarbrough was accused of

making similar false statements regarding another

baseline test at CAMDS, the “Filter Farm” baseline.

Aplt. App. at 18-19 (Count 7). There is also evidence

that the filter farm baseline was subject to log

falsifications. For the Filter Farm baseline, Defendant

can establish false log entries on station 411 for July 6

(.35 on strip chart, .32 on PDARS, but the log entry is

19

1.19, all data reported in manager Draper’s worksheets,

Aplt. App. at 355, Trial Exhibit 31); Station 431 for July

6 (strip chart reports 0.53 as first challenge, PDARS

shows 0.52, but log entry is 0.81, Aplt. App. at 356);

Station 431 for July 5 (strip chart shows 0.51 as first

challenge, PDARS reports 0.65, but log value is 0.83,

Aplt. App. at 356); Station 431 for July 4(PDARS shows

.50, but the log shows .89, Aplt. App. at 356); Station

546 for July 4 (strip chart shows 0.59, PDARS shows

0.52, but log shows 1.06, Aplt. App. at 357); Station 551

for June 29 (log comment reports first challenge of 0.70,

Aplt. App. at 306, but log P1 entry is an ambiguous 0.78,

Aplt. App. at 306); and Station 551 for June 30 (showing

log entries in both top Pl and bottom comments sections

that appear altered then altered back, Aplt. App. at 306).

This list is non-exhaustive list. Discovery and witness

examination at a hearing would be expected to generate

a longer list of such examples.

Station 550 in the Filter Farm baseline was the focus

of count 7 in the superceding indictment. However, the

operator log page for Station 550 for June 29 through

July 3 was not produced by the Government or offered

at trial. See Aplt. App. at 284, 303 (Government Trial

Exhibit List and Exhibit for Station 550 log). The

available data for this Station fits the pattern of

falsification otherwise documented. For Station 550 on

July 2" the strip chart first challenge value in Army

manager Draper’s notes, Aplt. App. at 304, 353,

Government Trial Exhibits 9B and 31, is .387, but

Mr. Yarbrough’s worksheet shows 0.96. However, the

only PDARS computer recorded value reported by

Draper is 0.96, Aplt. App. at 353, which matches

Yarbrough’s worksheet. Draper reports no log sheet

20

value for this date. Jd. The log page withheld by the

Government is expected to falsely show 0.96 as the first

challenge result, explaining Yarbrough’s 0.96.

It is undisputed, and apparent from the

Government’s trial exhibits, that the Government failed

to offer at trial any version of the log sheets for July 15-

July 21 for stations 570, 703, 711, and 714; the log sheets

for the later portion of the CTF baseline, July 22" -

July 24", for stations 274 and 714; and log sheets for

the first part of the FF baseline for stations 431 and

550. These logs were never produced to the Defense.

Defendant requested these logs post-trial, but was

refused by the Government. Aplt. App. at 518-19. The

newly discovered evidence shows that some and possibly

all of these log pages contain false entries and likely show

visible evidence of tampering which would have been

apparent to the Defense and the jury. For example, the

log entry for station 570 for July 21*' was 0.80 as reported

on the Commander’s spreadsheet, Aplt. App. at __,

Exhibit R, but the challenge result recorded on the strip

chart was reported as .68. Aplt. App. at 275. The log

entry for station 711 for July 20" was 0.78 as reported

on the Commander’s spreadsheet, Aplt. App. at 276, but

the PDARS computer data is reported as showing a

challenge result of 0.60, Aplt. App. at 276. Army

procedures require the PDARS recorded value to be

within 0.05 of the actual ACAMS reading. Aplt. App. at

503.

The newly discovered evidence shows the pattern

of numbers on the operator logs, as reported on

the Commander’s spreadsheet, compared to

Mr. Yarbrough’s worksheets for Stations 703 and 714

21

match the pattern of log falsification documented above.

On station 703, e.g., the first challenge (P1) log entry

reported on the Commander’s spreadsheet for July 16"

is 0.33. Aplit. App. at 275. Mr. Yarbrough’s worksheet

shows a 0.83. Aplt. App. at 341. For station 703 the log

entry on the Commander’s spreadsheet for July 17" is

0.55, Apit. App. at 2/5, and Mr. Yarbrough’s worksheet

shows a 0.85, Aplt. App. at 341. This data matches the

expected pattern based on the other examples of log

falsification now documented —- the writing over of a

failing number often by making a lower value appear to

be an “8” to create the appearance of a passing number.

It is likely that these withheld log sheets again show

visible evidence that the logs had been tampered with,

which log tampering caused Mr. Yarbrough’s

worksheets to contain false numbers. As another

example, for CTF station 274 for July 24" the strip chart

value on the Commander’s spreadsheet was .78, Aplt.

App. at 276, but the PDARS shows .675, Apit. App. at

276. Thus, this strip chart entry is apparently false and

the missing log would likely reflect this false value as

well.

The newly discovered evidence points to additional

likely log falsifications on logs suppressed by the

Government. For Filter Farm (FF) station 431 for

June 29", the strip chart value in trial Exhibit 31, Aplt.

App. at 356, was 0.65 for the first challenge, a failing

value, and 0.79 for a later passing challenge. The only

PDARS value reported by manager Draper in Trial

Exhibit 31 was 0.80. Aplt. App. at 356. Mr. Yarbrough’s

worksheet entry was 0.79. Apit. App. at 293. The log

page not produced by the Government may reflect a 0.79

value matching Mr. Yarbrough’s worksheet, even though

22

that value will be false in that it is not the first challenge

value. For FF station 550 for July 2d, the strip chart

first challenge value in Trial Exhibit 31 was 0.37, with a

later challenge value reported as 0.96. Aplt. App. at 353.

Draper’s reported PDARS value was 0.96 only. /d.

Yarbrough’s worksheet reflected the PDARS value of

0.96. Aplt. App. at 301. It is likely that the log page not

produced by the Government reflects the false 0.96

value.

The newly discovered two data compilations

prepared for the Army Commander, the Commander’s

Spreadsheet, Aplt. App. at 274-77, and the Commander’s

INACCMO, Aplt. App. at 278-83, as well as the PDARS

data and Kevin Draper’s 2005 deposition testimony,

establish with certainty that significant evidence

favorable to the Defense exists, or existed, such as two

versions of the ACAMS operator logs, and Draper’s

report of his findings regarding, inter alia, ACAMS

operator log falsifications during the baseline tests in

question which he submitted to Army officials and the

Government investigator, CID Agent Pavlik, and

apparently to the federal prosecutors (see record cites

supra), that was not produced to the Defense, and the

existence of which was not disclosed to the Defense.

Cherise Day obtained the first seven days, July 15-

July 21, of the operator logs for the July, 2002 CTF

baseline and input this data into her computer. See Aplt.

App. at 513. Her initial INACCMO run using seven days

of log data and the last three of ten days of data from

Yarbrough’s worksheets proves that she had the yet-

to-be-altered log sheets at that time. See Aplt. App. at

352, Government Exhibit 30, (reporting 5 failing low log

23

P1 values for station 569 in the “NUMLO” column,

compared to the altered version of that log produced

by the Government at trial, Aplt. App. at 337-38, which

shows only Z failing low challenges). Thus, Ms. Day,

Mr. Pavlik, Mr. Draper, and apparently the U.S.

Attorney had access to the unaltered versions of logs

but produced at trial only the altered version of some,

such as 569 and 570. Ms. Day’s statement to agent Pavlik

reflects that the log sheets she had were given to

Government investigator Pavlik, Aplt. App. at 514-15.

The Commander’s spreadsheet, Aplt. App. at 274-77,

also shows that the Army had these log sheets because

it reports specific yet-to-be-altered failing log entry

values for Station 569.

Additional evidence of the existence of both altered

and unaltered log versions, and the fact that the

Government possessed both is seen in the evidence

regarding Station 712. The Station 712 operator log

version produced to the Defense and offered as

Government Trial Exhibit 24A,B, Aplt. App. at 346-47,

shows a passing first hazard challenge entry of 1.15 for

July 15". It is possible to confirm that the 1.15 is a false

log entry because the log value reported on the

Commander’s spreadsheet, Aplt. App. at 276, is a failing

1.50, and a visual inspection of Trial Exhibit 24A, Aplt.

App. at 346, shows the original 1.50 was physically

altered by marking out the zero and squeezing in a one

before the five. Mr. Yarbrough’s worksheet, Aplt. App.

at 345, Government Trial Exhibit 24, reflects the false

1.15 log entry, again as one would expect given the

false log.

24

If the two Commander’s data compilations, the

Commander’s Spreadsheet and the Commander’s

INACCMO were prepared after trial, then the

Government must have had the unaltered (yet to be

altered) versions of the logs for Stations 569 and 570,

data from which was used in these two Commander’s

data compilations, but failed to disclose those to the

Defense prior to or at trial. On the other hand, if these

two Commander’s data compilations were prepared

prior to trial, then these data compilations themselves

are examples of favorable evidence the Government

failed to disclose to the Defense.

REASONS FOR GRANTING THE PETITION

A. A UNITED STATES COURT OF APPEALS HAS

DECIDED AN IMPORTANT QUESTION OF

FEDERAL LAW IN A WAY THAT CONFLICTS

WITH RELEVANT DECISIONS OF THIS

COURT AND OTHER CIRCUITS REGARDING

WHEN THE CONSTITUTION REQUIRES THAT

A NEW TRIAL BE GRANTED TO A CRIMINAL

DEFENDANT WHEN THE GOVERNMENT HAS

USED FALSE EVIDENCE TO OBTAIN HIS

CONVICTION

The Court of Appeals below focused on two aspects

of the case, 1) the Court’s perception that most of the

evidence Yarbrough claimed was newly discovered was

in some form available at trial, and 2) the sufficiency for

a conviction of the other evidence produced by the

Government at trial, such as Mr. Yarbrough’s

statements, which were construed as admissions, as

discussed infra, and portions of the testimony of CID

25

Agency Pavlik (ignoring the fact that Mr. Draper’s

deposition showed that Agent Pavlik gave material false

testimony. The post trial deposition of Kevin Draper

establishes that Agent Pavlik gave false testimony at

the trial when he denied knowledge of any falsification

of the operator logs because Draper had presented him

with the results of Draper’s investigation showing a

pattern of log falsifications.

The Court of Appeals found it significant that

several examples of altered log entries were discussed

at trial but failed to note that at no time during the trial

was Kevin Draper’s investigation findings of a pattern

of log falsifications disclosed, at no time was Kevin

Draper’s written report produced to the defense or

offered into evidence, and at no time did a single witness

or a Government lawyer admit to “falsification” of the

logs, not even in isolated examples let alone the pattern

that Draper had uncovered and reported to Agency

Pavlik. The Court of Appeals failed to note that Agent

Pavlik disclaimed any knowledge of log falsifications or

that Pavlik had been informed of this pattern of

falsification by Draper himself.

The Court of Appeals concluded that the Constitution

would not require a new trial notwithstanding the

Government’s knowing use of false evidence in

Mr. Yarbrough’s trial because either: 1) Mr. Yarbrough’s

trial counsel should have discovered the use of the false

evidence based on the exhibits and testimony presented

at. trial; or 2) Sufficient evidence remained to support a

conviction after discounting the false evidence. Neither

of these two rationales comports with the law as stated

by the Supreme Court.

26

The Supreme Court has clearly articulated the

standard to be applied in cases where a defendant seeks

a new trial based upon the Government’s use of false

evidence. In United States v. Agurs, 427 U.S. 97 (1976),

the Court held that “a conviction obtained by the

knowing use of perjured testimony is fundamentally

unfair, and must be set aside if there is any reasonable

likelihood that the false testimony could have affected

the judgment of the jury.” Agurs, 427 U.S. at 103

(footnote omitted).

The Court in Agurs further stated that the

prosecutor is “the ‘servant of the law, the twofold aim of

which is that guilt shall not escape or innocence suffer.”

427 U.S., at 111 (quoting Berger v. United States, 295

U.S. 78, 88 (1935)). The Court in Agurs stated that

holding the prosecution to a higher standard is

necessary because of the “special significance” of “the

prosecutor’s obligation to serve the cause of justice.”

Agurs, 427 U.S., at 111. In Napue v. Illinois, 360 U.S.

264 (1959), the Court noted that a conviction obtained

by the Government’s knowing use of false testimony

cannot stand. Prosecuting attorneys have a duty not to

argue false or inadmissible evidence to the jury. Miller

v. Pate, 386 U.S. 1 (1967). Likewise, Prosecuting

Attorneys have a duty to correct false evidence when it

is offered. Napue v. Illinois, 360 U.S. 264, 269 (1959).

As previously indicated, our own

evaluation of the record here compels us to

hold that the false testimony used by the State

in securing the conviction of petitioner may

have had an effect on the outcome of the trial.

27

Accordingly, the judgment below must be

Reversed.

Napue v. Illinois, 360 U.S. 264, 265-72 (1959). Also see,

Brown v. Borg, 951 F.2d 1011 (9th Cir. 1991); Larrison

v. United States, 24 F-2d 82 (7th Cir. 1928). The rule

applied by the Tenth Circuit here clearly conflicts with

the decisions of two other circuits. See, Brown v. Borg,

951 F2d 1011 (9th Cir. 1991); Larrison v. United States,

24 F'2d 82 (7th Cir. 1928).

The Court of Appeals failed to perform the required

analysis to determine whether, notwithstanding the

issue of whether sufficient evidence remained that could

have supported a conviction, the withheld and newly

discovered evidence of a pattern of intentional operator

log falsifications that could explain the incorrect

numbers on Yarbrough’s worksheets for which he was

indicted placed the case in such a new light that there

was a reasonable likelihood that the judgment of the

jury could have been affected. Critical in regard to this

failure was the Court of Appeal’s failure to even

acknowledge that the Jury acquitted Yarbrough on the

one count for which the jury was presented with clear

testimony that a log entry had been altered.

For these reasons, the Supreme Court should grant

Mr. Yarbrough’s Petition for a Writ of Certiorari and

clarify the applicable law for the nation’s courts on this

important constitutional question, and to resolve the

differing interpretations on this issue reflected in the

various circuits.

28

B. A UNITED STATES COURT OF APPEALS HAS

DECIDED AN IMPORTANT QUESTION OF

FEDERAL LAW IN A WAY THAT CONFLICTS

WITH RELEVANT DECISIONS OF THIS

COURT AND OTHER CIRCUITS REGARDING

WHEN THE CONSTITUTION REQUIRES THAT

A NEW TRIAL BE GRANTED TO A

CRIMINAL DEFENDANT WHEN THE

GOVERNMENT HAS FAILED TO DISCLOSE

EVIDENCE FAVORABLE TO THE DEFENSE

INCLUDING EVIDENCE RELATING TO THE

GOVERNMENT?’S USE OF FALSE EVIDENCE

TO OBTAIN HIS CONVICTION

As discussed supra, the Court of Appeals

improperly focused on what evidence would have

remained to support a conviction after discounting any

evidence impeached by the withheld favorable evidence

but the Court of Appeals did not analyze the critical

question under the standard stated by the Supreme

Court:

Bagley’s touchstone of materiality is a

“reasonable probability” of a different result,

and the adjective is important. The question

is not whether the defendant would more

likely than not have received a different

verdict with the evidence, but whether in its

absence he received a fair trial, understood

as a trial resulting in a verdict worthy of

confidence. A “reasonable probability” of a

different result is accordingly shown when the

Government’s evidentiary suppression

29

“undermines confidence in the outcome of the

trial.” Bagley, 473 U.S., at 678.

The second aspect of Bagley materiality

bearing emphasis here is that it is not a

sufficiency of evidence test. A defendant need

not demonstrate that after discounting the

inculpatory evidence in light of the

undisclosed evidence, there would not have

been enough left to convict. The possibility of

an acquittal on a criminal charge does not

imply an insufficient evidentiary basis to

convict. One does not show a Brady violation

by,demonstrating that some of the inculpatory

evidence should have been excluded, but by

showing that the favorable evidence could

reasonably be taken to put the whole case in

such a different light as to undermine

confidence in the verdict. [footnote omitted]

Kyles v. Whitley, 514 U.S. 419 (1995). The Court of

Appeals failed to apply this standard and focused in

error on the sufficiency of the residual evidence.

For these reasons, the Supreme Court should grant

Mr. Yarbrough’s Petition for a Writ of Certiorari and

clarify the applicable law for the nation’s courts on this

important constitutional question.

30

CONCLUSION

For the all the foregoing reasons, Petitioner David

Yarbrough respectfully requests that the Supreme

Court of the United States grant his Petition for Writ

of Certiorari.

Respectfully submitted,

RICHARD E. ConpIT

Counsel of Record

c/o THE GOVERNMENT

ACCOUNTABILITY PROJECT

1612 K Street, NW

Suite 1100

Washington, D.C. 20006

(202) 408-0034 ext. 142

rlcondit] @earthlink.net

Mick G. HARRISON

THE CALDWELL CENTER

323 5. Walnut

Bloomington, IN 47401

(812) 323-7274 (voice)

mickharrisonesq@earthlink.net

APPENDIX

la

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE TENTH

CIRCUIT FILED JANUARY 14, 2008

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 06-4301

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

Vv.

DAVID JAMES YARBROUGH,

Defendant - Appellant.

261 Fed. Appx. 80; 2008 U.S. App. LEXIS 981

January 14, 2008, Filed

JUDGES: Before KELLY, ANDERSON, and

TYMKOVICH, Circuit Judges.

OPINION BY: Paul J. Kelly, Jr.

OPINION

2a

Appendix A

ORDER AND JUDGMENT’

Defendant-Appellant David Yarbrough appeals from

the district court’s denial of his second motion for a new

trial and request for discovery and an evidentiary

hearing. We exercise jurisdiction pursuant to 28 U.S.C.

§ 1291, and we affirm.

Background

Mr. Yarbrough was indicted in a superceding

indictment on eight counts of making false statements

to the government in violation of 18 U.S.C. § 1001 and

§ 2(b). On July 30, 2003, Mr. Yarbrough was found guilty

on seven counts and acquitted on count 5. Following the

jury verdict, he filed a motion for a new trial. The district

court denied his motion and sentenced him to six

months’ imprisonment, to be followed by three years’

supervised release. Mr. Yarbrough appealed the

district court’s denial of his motion for a new trial, and

we affirmed the district court’s decision. United

States v. Yarbrough, 137 F. App’x 147 (10th Cir. 2005)

(unpublished).

We described the facts underlying Mr. Yarbrough’s

case in detail in our previous disposition, see id. at 149-

53; thus, we only provide a summary here. Mr. Yarbrough

worked as the division chief for the monitoring division

* 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.

3a

Appendix A

at the Deseret Chemical Depot (Depot) near Tooele,

Utah. He supervised technicians who maintained various

air-monitoring systems as part of the Depot’s program

of destroying chemical weapons. The technicians

maintain an automated continuous air monitoring

system (ACAMS), comprised of a series of machines or

units, that continuously monitor the air released from

the test facilities for any trace of toxic chemicals.

Technicians continuously test the ACAMS units by

injecting the unit with a dose of a toxic chemical to ensure

the accuracy and reliability of their operation.

Technicians record the data from those challenges in

three ways. First, the technicians record the results of

their challenges on log sheets kept with each ACAMS

unit. Second, the units themselves record the results

on a strip of paper known as a strip chart which serve

as a backup corroborating the log readings. Third, a

computer records the data from all the ACAMS units.

Every four weeks, a report, known as an INACCMO

report, is prepared for the Depot’s supervisors as we!l

as various regulatory and military agencies.

The government’s theory at trial was that

Mr. Yarbrough recorded data from the ACAMS on his

personal worksheets that differed from the log sheets.

The motive was to make it appear that baseline tests of

certain units were passing. At trial, Mr. Yarbrough

admitted that he directed a statistician to use the data

from his worksheets to create the INACCMO report.

Aplt. App. at 1373-74. Anthony Pavlik, the investigator,

testified that Mr. Yarbrough admitted to changing the

data to make it appear that a unit (station 26D) passed

4a

Appendix A

when it had failed. Jd. at 1232-35. When Mr. Pavlik asked

about another unit, Mr. Yarbrough stated “since I

admitted to the one, what’s the point in going through

all of them?” Jd. at 1235. Mr. Yarbrough was convicted

on seven counts for making the false statements and

for causing these false statements to be included in two

INACCMO reports. Mr. Yarborough defended on the

basis that the operational logs were designed for a

continuous baseline test and that it was unnecessary to

consider failing data on a recertification baseline test.

Id. at 1338-87, 13864, 1366-67.

Following his prior appeal, Mr. Yarbrough filed a

second motion for a new trial based on newly-discovered

evidence and requested discovery and an evidentiary

hearing. The following documents, which the

government produced following trial, is the evidence

which forms the basis of Mr. Yarbrough’s motion:

computer recorded data (the “PDARS”), several strip

charts which recorded the readings of the “ACAMS” air

monitors, and two monitoring data compilations

prepared for the Depot Commander (“the Commander’s

Spreadsheet”). In his motion, Mr. Yarbrough argued

that these documents show that the government

possesses two versions of the logs, altered and

unaltered, and that the grand jury must have been

shown the unaltered logs. The district court heard

argument on the motion and in an oral ruling followed

by asummary order denied Mr. Yarbrough’s motion for

a new trial and request for discovery and an evidentiary

hearing.

5a

Appendix A

On appeal, Mr. Yarbrough claims that he is entitled

to (1) discovery and an evidentiary hearing on his motion

for a new trial; (2) a new trial based on newly discovered

evidence favorable to him and not disclosed; (3) a new

trial based on newly discovered evidence that his

conviction was obtained with false evidence; and (4)

dismissal of the superseding indictment because false

evidence was presented to the grand jury and was

materially different from evidence at trial.

Discussion

A district court may grant a new trial in “the interest

of justice.” Fed. R. Crim. P 33. To establish a violation

under Brady v. Maryland, 3738 U.S. 83, 83 S. Ct. 1194,

10 L. Ed. 2d 215 (1963), warranting a new trial,

“a defendant must demonstrate that (1) the prosecution

suppressed evidence, (2) the evidence was favorable to

the defendant, and (3) the evidence was material.”

United States v. Combs, 267 F.3d 1167, 1172 (10th Cir.

2001) (citations omitted). We review de novo the district

court’s denial of Mr. Yarbrough’s Rule 33 motion

because it alleges a Brady violation. United States v.

Pearl, 324 F}38d 1210. 1215 (10th Cir. 2003). A prosecutor

who knowingly presents false evidence violates due

process, regardless of whether the evidence is relevant

to substantive issues or to witness credibility. Napue v.

Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 3 L. Ed. 2d

1217 (1959). In order to establish a due process violation,

a defendant must show that (1) the evidence was in fact

false, (2) the prosecution knew it to be false, and (3) the

evidence was material. United States v. Cabaliero, 277

6a

Appendix A

FE’: 3d 1235, 1243 (10th Cir. 2002). We review the district

court’s rejection of this theory de novo. Foster v. Ward,

182 F.3d 1177, 1192 (10th Cir. 1999). Finally, we review

the denial of an evidentiary hearing for an abuse of

discretion. United States v. Smith, 413 F.3d 1258, 1282

(106th Cir. 2005).

We have carefully reviewed the “newly discovered

evidence” against a backdrop of what occurred at trial.

Substantially all of the evidence Mr. Yarbrough claims

is newly discovered was disclosed to him and available

at trial. Even assuming some was not available, he has

not established that the “newly discovered evidence” is

material, i.e., a reasonable probability that the outcome

would have been different had the evidence been

disclosed. See United States v. Robinson, 39 F-3d 1115,

1118 (10th Cir. 1994). His defense at trial was that first-

shot failures need not be recorded as part of

recertificetion. His ‘urrent defense is that he merely

reported data from the log sheets that others had

falsified. The evidence to present this defense is not new

or is simply in a different format, i.e., on the annotated

copies of Mr. Yarbrough’s worksheets which Kevin

Draper produced as part of his investigation. Aplt. App.

at 353-75. Regardless, at trial, many witnesses testified,

on both direct and cross examination, regarding

alterations in the log sheets. See, e.g., id. at 1149-52,

1159-61, 1165-66, 1190-92, 1204-05. Merely because prior

data has been compiled in a different form o* marshaled

for a different theory (a theory that obviously cuts both

ways and would meet strong resistance given the extant

testimony) does not warrant a new trial.

Ta

Appendix A

Im addition, most of the new evidence is not material

becauise Mr. Yarbrough was charged with providing ~

inaccwrate data recorded on his worksheets to be

incoryporated into the INACCMO reports. Thus, the

“newliy discovered evidctice” does not somehow vitiate,

let alcone undermine, the substantial evidence upon

whicm he was convicted at trial. In that regard,

Mr. Yearbrough has always been in the best position to

know what happened, and we have the investigator’s

testimony that Mr. Yarbrough admitted to falsifying

data, 7d. at 1232-35, the signed statement admitting he

altere2d the data so the baseline woald pass, zd. at 1241,

1383, :and the cross examination of Mr. Yarbrough where

he admitted to giving data to Ms. Day that omitted first-

shot feailures and differed from the log sheets, zd. at 1373.

Sufficze it to say that Mr. Yarbrough has not met his

burde?n under any of his theories warranting a new trial

or disscovery and an evidentiary hearing.

AIFFIRMED.

Entered for the Court

Paul J. Kelly, Jr.

Ciircuit Judge

8a

APPENDIX B — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

DENYING PETITION FOR REHEARING

FILED MARCH 25, 2008

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 06-4301

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

Vv.

DAVID JAMES YARBROUGH,

Defendant - Appellant.

ORDER

Before KELLY, ANDERSON, and TYMKOVICH,

Circuit Judges.

Appellant’s petition for rehearing is denied.

The petition for rehearing en banc was transmitted

to all of the judges of the court who are in regular aciive

service. As no member of the panel and no judge in

regular active service on the court requested that the

court be polled, that petition is also denied.

9a

Appendix B

Entered for the Court,

s/ Elisabeth A. Shumaker

ELISABETH A. SHUMAKER, Clerk