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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2008

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1261%3A1. Public record. Not legal advice.