98-3306 Morris v. U.S.

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“We need not consider whether there is deficient performance in the failure to use the New letter in this case, because there is no prejudice. … Our review of the trial transcript reveals that the New letter was indeed cumulative of testimony elicited on cross-examination by counsel for Morris’ co-defendant Gardner. New was questioned regarding those same assets, and acknowledged the developments that occurred in the fourth quarter. For instance, New acknowledged that West Chester was moved from Deed Foreclosure status into Real Estate Owned status in the fourth quarter, but he further stated that although it happened in the fourth quarter, they were aware of it in the second and third quarter. Under questioning, New admitted that the stock market crash of October 1987 was a very significant event in the fourth quarter. New also agreed that he did not anticipate the way that Peat, Marwick would treat the industrial revenue bond properties, but asserted that the difference was not $3.3 million, but was approximately a million or a million and a half because the SA recommended some of that amount as basket reserves. When confronted with his prior testimony in which he stated that the industrial revenue bond properties of West Chester, Silver Springs, and Oak Brook, resulted in three and a half million of reserves that he had not planned on in August or September, he said that was a true statement. That extensive questioning regarding the developments of the fourth quarter renders the New letter cumulative. New effectively acknowledged the same facts presented in the New letter, and provided an explanation that the jury could choose to credit or not. Because New testified consistently with the statements in the New letter and it was merely cumulative of other testimony elicited on cross-examination, New was not prejudiced by his attorney’s failure to discover or utilize the letter at trial.”

Affirmed.

Appeal from the United States District Court for the Southern District of Illinois, Beatty, J., Rovner, J.