Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.
Concurring opinion filed by Circuit Judge SILBERMAN.
Concurring opinion filed by Circuit Judge KAREN LeCRAFT HENDERSON.
KAREN LeCRAFT HENDERSON, Circuit Judge:
J.C. Herbert Bryant appeals his conviction on one count of impersonating a federal official in violation of 18 U.S.C. § 912 and one count of making false statements in violation of 18 U.S.C. § 1001. For the reasons set out below we affirm his conviction on each count.
On September 2, 1992, Bryant, a Virginia resident, drove his truck into the District of Columbia and parked it near the entrance to the Mayflower Hotel, which was then hosting an Israeli diplomatic delegation. In the front window of the truck was a placard bearing the words "United States Marshal" in large bold print and in the rear compartment, visible from without, lay 6 guns: three 9 mm Beretta pistols, a .44 caliber magnum revolver, a .357 caliber magnum revolver and a .22 caliber derringer. After a brief time inside the hotel, Bryant emerged to move the truck and discovered it had attracted the attention of several government officials, among them two United States Diplomatic Security Service Agents and two officers of the Metropolitan Police Department (MPD).
After Bryant approached the truck and identified himself as its driver, he was questioned at length about the weapons and about his identity. Bryant explained that he had left the firearms in the truck after a target shooting session at a northern Virginia firing range and informed the officers that he was a Warren County, Mississippi deputy sheriff, producing a badge and identification card as proof. According to the testimony of Diplomatic Security Service Agent Mark Conord, he also identified himself as a "Special Deputy U.S. Marshal." Excerpt from 10/3/94 Trial Tr. 1, 12, 45. The MPD officers on the scene contacted the District of Columbia United States Marshal's office to clarify his status. Responding to the call, Robert Williamson, a supervisory deputy marshal, arrived at the scene a short time later. Williamson testified at trial that he also heard Bryant identify himself as a "Special Deputy U.S. Marshal." Excerpt from 10/4/94 Trial Tr. at 21, 27. In addition, both Williamson and MPD Officer Anthony Suarez testified that Bryant claimed he had left his Marshals Service credentials in a briefcase at home.
During Bryant's detention outside the Mayflower, Marshal Herbert M. Rutherford III, United States Marshal for the District of Columbia, contacted the national Marshals Service headquarters in Virginia and attempted to ascertain Bryant's official status from several Marshals Service officials. When his attempts proved fruitless, Rutherford arranged, with the consent of the MPD officers, for Bryant and his truck to be brought to the District of Columbia Marshals Service office. After a brief interview, Rutherford released Bryant and his truck but retained the firearms. It was later determined that Bryant held no official position with the Marshals Service at the time of the incident, although he had previously been a "Special Deputy Marshal" for several suc eessive one-year terms, the last of which ended on June 30,1992.
Almost two years later, on June 14, 1994, Bryant was indicted on 3 counts: (1) violating 18 U.S.C. § 912 in that he "did falsely assume and pretend to be a Special Deputy United States Marshal and in such pretended character, demanded and obtained that he not be arrested by the Metropolitan Police Department for possessing and carrying weapons in the District of Columbia"; (2) violating D.C.Code § 22-3204(a) in that he "did carry, openly, and concealed on or about his person, pistols, without a license issued as provided by law"; and (3) violating 18 U.S.C. § 1001 in that "in a matter within the jurisdiction of a department and agency of the United States, to wit, the United States Marshals Service, did knowingly make a false and fraudulent statement." Appellant's App. 10-11.
A bench trial was held in October 1994 at which Bryant asserted as a defense to counts 1 and 3 that he never stated on September 2, 1992 that he was then a special deputy marshal and as a defense to count two that he was a duly appointed deputy sheriff of Warren County, Mississippi, exempt under D.C.Code § 22~3205(a) from the statutory prohibition against carrying pistols without a license.
The district court convicted Bryant on counts 1 and 3 and acquitted him on count 2. On count 1, the court "specifically f[ound] that Mr. Bryant claimed to be a Special Deputy United States Marshal during the course of his conversations with the law enforcement officials on the scene," "eredit[ing] the clear, firm and unequivocal testimony of Special Agent Conord," which he accepted "as honest and truthful," and "the clear and unequivocal testimony of Supervisory Deputy Marshal Williamson." Excerpt from 10/16/94 Trial Tr. 7. The court expressly rejected Bryant's "self-serving testimony that he never said he was a Special Deputy U.S. Marshal." Id. 8. On count 3, the court similarly found "that Mr. Bryant represented to Special Agent Conord and to Deputy Williamson that he was a Special Deputy U.S. Marshal, and that he had credentials at home in a briefcase that would substantiate his claimed status." Id. 9. He further found "beyond a reasonable doubt that Mr. Bryant deceitfully represented that he was a Special Deputy U.S. Marshal, and this false statement is a criminal offense under 18 U.S.C. Section 1001." Id. 10. Bryant appeals his convictions on four grounds. We address each in turn.
First, Bryant asserts that the evidence fails to support his conviction under either count 1 or count 3 because the government failed to prove that he ever represented he was a special deputy marshal. "'The governing standard for reviewing the sufficiency of the evidence in non-jury cases is the same as that applied in jury cases: The conviction must be reversed when the evidence is such that a reasonable mind could not find guilt beyond a reasonable doubt.' " United States v. Thomas, 864 F.2d 188, 191 (D.C.Cir.1988) (quoting United States v. Castellanos, 731 F.2d 979, 984 (D.C.Cir.1984)). Bryant argues that standard has been met because the "overwhelming" evidence, including testimony of witnesses he characterizes as more credible than those on whom the district court relied, supports his version of the facts. "'Our task,"' however, "'is to view the evidence in the light most favorable to the government, allowing the government the benefit of all reasonable inferences that may be drawn from the evidence, and permitting the [factfinder] to determine the weight and credibility of the evidence.' " Id. (quoting United States v. Sutton, 801 F.2d 1346, 1358 (D.C.Cir.1986)). We "do not . 'weigh[ ] the evidence anew" nor do we require that the evidence 'exclude all reasonable hypotheses of innocence or lead inexorably to the conclusion that the defendant is guilty.'" United States v. Wynn, 61 F.3d 921, 923 (D.C.Cir.1995) (quoting United States v. Poston, 902 F.2d 90, 94 (D.C.Cir. 1990); United States v. Teffera, 985 F.2d 1082, 1085 (D.C.Cir.1993)). Deferring to the district judge's credibility determinations here, we must uphold his verdict because the testimony of Conord and Williamson, which we earlier described and which the district court expressly credited, suffices to persuade a reasonable person to find beyond a reasonable doubt that Bryant falsely identified himself as a special deputy marshal on September 2,1992.
Second, Bryant asserts that count 1 of the indictment was invalid and that the evidence was insufficient to support the judge's verdict on that count because the indictment does not allege and the evidence does not support a finding that Bryant, if he represented himself as a special deputy marshal, "act[ed] as such, or in such pretended character demand[ed] or obtain[ed] any money, paper, document, or thing of value," as required under 18 U.S.C. § 912. We reject this argument as well. The indictment expressly alleges that in impersonating a special deputy marshal Bryant "demanded and obtained that he not be arrested by the Metropolitan Police Department for possessing and carrying weapons in the District of Columbia." Appellant's Appendix 10-11. We must, as we noted above, accept as true the district court's finding that Bryant in fact made the misrepresentations alleged. We must likewise accept the district court's finding that Bryant "made these misrepresentations knowingly and willfully with the purpose of avoiding arrest for possessing weapons in the District of Columbia," Excerpt from 10/12/94 Trial Tr. 8, because it too is sufficiently supported by the trial evidence. Suarez testified that when Bryant first returned to his truck MPD Sergeant Joseph Sandora asked whether he "was with the U.S. Marshal [sic] Service," to which Bryant replied that he was, Excerpt from 10/3/94 Trial Tr. 57-58, while Bryant himself testified that at the same time he was thinking about the weapons and the trouble they might cause him, Excerpt from 10/6/94 Trial Tr. 70. Bryant also testified that he was aware his truck might be towed and he himself taken to MPD headquarters, id. 75, and that he was "trying to stall for time" in the hope that someone from the Marshals Service would identify him, id. 78; see also id. 140-41. This testimony is sufficient to permit a reasonable person to find, at least inferentially, that Bryant misrepresented his status in order to avoid arrest.
Third, Bryant argues that the violation of section 1001 charged in count 3 is a lesser included offense of the section 912 violation charged in count 1 and therefore his conviction on both counts results in double punishment in violation of the double jeopardy clause of the fifth amendment to the United States Constitution. Again we disagree. The Supreme Court recently affirmed that whether a defendant is punished twice for the same offense in violation of the double jeopardy clause is determined "by applying the rule set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932)," namely, "If 'the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.'" Rutledge v. United States, 517 U.S. 292, -, 116 S.Ct. 1241, 1245, 134 L.Ed.2d 419 (1996) (quoting Block-burger, 284 U.S. at 304, 52 S.Ct. at 182). While each statute here entails a misrepresentation, each also contains an element absent from the other. Section 912 requires that the misrepresentation (specifically an impersonation) be used to "demand[ ] or obtain[] a benefit" and section 1001 requires that the offending misrepresentation be made "within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States." Thus, there is no double punishment and no double jeopardy violation.
Finally, Bryant contends the district court erred in denying his motion under Rule 33 of the Federal Rules of Criminal Procedure to vacate the judgment and take new testimony based on newly discovered evidence, to wit: credentials establishing his membership in the United States Marshal's Association. We find no error in the court's denial. A new trial may be granted under Rule 33 "only when five conditions are met: '(1) [T]he evidence must have been discovered since the trial; (2) the party seeking the new trial must show diligence in the attempt to procure the newly discovered evidence; (3) the evidence relied on must not be merely cumulative or impeaching; (4) it must be material to the issues involved; and (5) of such nature that in a new trial it would probably produce an acquittal.'" United States v. Sensi, 879 F.2d 888, 901 (D.C.Cir. 1989) (quoting United States v. Kelly, 790 F.2d 130, 133 (D.C.Cir.1986)). The evidence cited by Bryant fails to satisfy at least two of the criteria: it is neither material nor likely to produce an acquittal. Membership in the Marshal's Association, which the district court described as "a private booster organization with no law enforcement status whatsoever," has no bearing on whether Bryant misrepresented himself to be a "special deputy marshal," the dispositive factual issue below.
For the preceding reasons, the judgment of the district court is
Affirmed.
. This statute provides:
Officer or employee of the United States Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined under this title or imprisoned not more than three years, or both.
18 U.S.C. § 912.
. At the time of trial this statute, since amended, provided:
Statements or entries generally
Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both. 18 U.S.C. § 1001.
. A special deputy is designated pursuant to 28 C.F.R. § 0.112, which provides:
The Director, United States Marshals Service, is authorized to deputize the following persons to perform the functions of a Deputy U.S. Marshal in any district designated by the Director:
(a) Selected officers or employees of the Department of Justice;
(b) Selected federal, state, or local law enforcement officers whenever the law enforcement needs of the United States Marshals Service so require;
(c) Selected employees of private security companies in providing courtroom security for the Federal judiciary;
(d) Other persons designated by the Associate Attorney General pursuant to 28 CFR 0.19(a)(3).
All such deputations shall expire on a date certain which shall be stated on the face of the deputation.
. This section provides in part: "No person shall carry within the District of Columbia either openly or concealed on or about their [sic] person, a pistol, without a license issued pursuant to District of Columbia law, or any deadly or dangerous weapon capable of being so concealed."
. This section provides in part: "The provisions of § 22-3204 shall not apply to marshals, sheriffs . or their deputies____"
.He further concluded that Bryant's "assertion that he had credentials which were relevant to this issue was itself a misrepresentation within the meaning of Section 1001." Excerpt from 10/16/94 Trial Tr. 9.
. Bryant does not dispute that police forbearance from arresting him qualifies as a "thing of value" within the meaning of 18 U.S.C. § 912. See Appellant's Br. 17-19 (discussing United States v. Rippee, 961 F.2d 677, 679 (7th Cir.1992) ("Forbearance by the National City Police conferred •upon Rippee a substantial benefit because if Rip-pee had received a ticket (instead of forbearance) he may have had to pay a fine, appear in court, and perhaps even shoulder an increase in insurance premiums.")).
. In fact, given that each of the statutory offenses contains an element unnecessary to the other, neither can be a lesser included offense of the other. See Schmuck v. United States, 489 U.S. 705, 709, 109 S.Ct. 1443, 1447, 103 L.Ed.2d 734 (1989) (adopting "elements test" for lesser included offense "whereby one offense is necessarily included within another only when the elements of the lesser offense form a subset of the elements of the offense charged").
. United States v. Bryant, Criminal Action No. 94-249 (D.D.C. filed July 27, 1995).