U.S. v. Ballard

Dist. Ct. did not err in granting defendant’s motion for new trial following jury’s guilty verdict on three counts of bank fraud stemming from defendant‘s receipt of proceeds from construction loans that defendant spent on property that was different from property he asserted in loan application. Basis of said motion was defendant’s receipt of newly discovered audiotape of conversation involving key govt. witness (who was officer at subject bank) that was generated during different criminal investigation, where contents of audiotape cast doubt on witness’ testimony that disputed defendant’s claim that defendant did not read or sign subject loan applications prior to their submission to bank. Record supported finding of Brady violation involving govt. withholding of said audiotape that contained favorable and material evidence that tended to impeach bank officer’s testimony, where: (1) content of audiotape indicated that bank had filled out false Suspicious Activity Report related to different loan application; (2) govt. had never prosecuted said bank officer, even though bank officer indicated that he might be subject to criminal charges; (3) it could be inferred that witness had received some benefit from govt. for his favorable testimony, where no charges had been filed against him; and (4) if jury did not believe bank officer, it could have found defendant more credible. (Dissent filed.)