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She testified that when the loan applications came in, the front page of the application was complete with the applicant's signature and the date of that signature. Becker further testified that San Angelo employee Audrey Russell filled in the back side of the loan applications and would, on the basis of the Board of Directors' meeting, fill in the name of the borrower, the amount of the loan, the term of the loan, the interest rate, and the date that the Board had approved the loan.
After the defendants unsuccessfully challenged their convictions on appeal, they discovered that the Government's theory of loan application processing allegedly was mistaken.
Becker's testimony that the front of the loan applications was “complete” when she received them. The defendants' main contention is that the district court erred when it concluded that the defendants' attorneys did not act with due diligence in discovering Audrey Russell's testimony about the “true” reason the loan applications were backdated. Walus, 616 F.2d 283, 304 (7th Cir.1980), they argue that the Berry Rule should be “ ‘circumscribed by a rule of reason.’ ” As such, argue the defendants, the district court's conclusion that the original documents were available to the defendants' attorneys “completely ignores the fact that both defense counsel were told that the photocopies were ‘exactly’ like the originals.” The defendants conclude that the district court was ostensibly punishing the defendants for trusting the Government's representations. MMR Corp., 954 F.2d 1040, 1049 (5th Cir.1992) (presenting the history of the Larrison Rule in the Fifth Circuit).
The defendants claim that in an affidavit presented to the district court, Ms. Trusting the Government, assert the defendants, must amount to due diligence (or at least, not justify a finding of “undue” diligence). Time, 21 F.3d 635, 642 (5th Cir.1994) (finding lack of due diligence where defendant knew of information and had opportunity to investigate matter further); United States v. We do not decide whether the Larrison Rule is viable, however, because the district court's findings in its due diligence analysis convince us that Sullivan and Sallee would not prevail under the Larrison standard either.
Armed with this newly discovered evidence, the defendants moved the district court for a new trial. Pena, 949 F.2d 751, 758 (5th Cir.1991) (holding that just because witness was uncooperative and unavailable did not preclude attorney from discovering needed evidence from other sources). 1 (5th Cir.1956) (applying the Larrison Rule) with United States v.
Moreover, the defendants argued that they could not have known about Russell's alterations because the Government only provided the defendants with photocopies of the loan documents, which did not (and could not) reveal the correction fluid used on the applications. We have canvassed the record and our cases and conclude that the district court did not abuse its discretion in concluding that under these facts, the attorneys' failure to expose the “true” nature of the backdating was the result of a lack of diligence on their part. Accordingly, we need not address the question of whether the district court erred in its analysis of the remaining Berry factors.2. Munoz, 957 F.2d 171, 173 (5th Cir.) (failing to call witness at trial amounted to lack of due diligence), cert. As such, Sullivan and Sallee have failed to meet prong (c) of the Larrison Rule. Harvey: That's impressive, but you're sitting at a computer. Sorry, if you want to beat me, you're going to have to do it at something else. Mike: I told you - I like to read and once I read something I understand it, and once I understand it I never forget it. Mike: Well, not if you can find actions to cover up the violations established in the Sixth Circuit May 2008.The defendants claimed that because they were in the heat of trial and were informed by the Government that the applications were “exactly like the originals,” they did not investigate the matter further. It claimed that the original documents had been pulled, copies were marked “Original Pulled,” and the defense attorneys were informed that they could have access to the original documents if the attorneys so desired. CONCLUSIONFinding that the district court did not abuse its discretion when it denied the defendants' motion for a new trial, we AFFIRM. Sullivan and Sallee also argue that we should take into consideration the comparatively fewer resources available to appointed defense attorneys in our determination of whether, under the totality of circumstances, counsel for Sullivan and Sallee exercised due diligence in discovering the “true” backdater of the loan applications. The facts of this case convince us that the superior resources of the Government did not make defense counsel's job of legal representation unreasonably onerous. Faced with these competing stories about the circumstances surrounding the dating of the loan applications, the district court denied the defendants' motion. As we point out in the text, defense counsel had a number of legal tools available to them, tools they opted not to use.