The Honorab le Harold D. Vietor, United States District Judge 1 for the Southern District of Iowa. ____________ No. 96-1322

____________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Southern District of Iowa Melissa Jean Luna, * * Appellant. *

____________ Submitted: May 14, 1996 Filed: August 29, 1996

____________ Before McMILLIAN, FAGG and LOKEN, Circuit Judges.

____________ McMILLIAN, Circuit Judge.

Meli ssa Jean Luna appeals from a final judgment entered in th e Distri ct Court for the Southern District of Iowa, upon a jur y 1 verdict, finding her guilty of possession with intent to dis tribute methamphetamine and possession of cocaine in violation of 21 U.S.C. § 841(a)(1), 18 U.S.C. § 2. The district court sentenced Luna to 41 months imprisonment, 3 years supervised release and a specia l assessment of $50.00. For reversal, Luna argues the distric t court abused i ts discretion in denying her motion for new trial on th e basis of newly discovered evidence because false evidence wa s introduced to establish a moti ve for her participation in an armed robbery. For the reasons discussed below, we affirm the judgment of the district court.-2-

According to the government’s theory of t he case, in December 1993, Luna, her father John Kime, with whom she had only recently become acquainted, Clifford Brown, Randy Groves, and Bobby McGe e decided to rob Kenny Eaton and his mother Sandra Eaton. Kime was the “ma stermind” of the robbery. At the time Luna was Kenny Eaton’s girlfriend and she liv ed with the Eatons. The Eatons were drug dealers. Kime was also a drug dealer. Luna provide d background information about the Eatons’ house -- the layout, the location of drugs, guns and money, and the presence of a gua rd dog. Brown, Groves and McGee carried out the armed robbery o n December 5, 1993. Luna was present in the house at the time of the robber yand controlled the guard dog during the robbery; th e robbe rs treated her as a robbery victim in order to conceal he r role in the robbery. The robbers took money, jewelry, guns, an d about 1.5 ounces of methamphetamine and 10 grams of cocaine. The robbers gave Luna the cocaine and split the methamphetamine among themselves a nd sold it. The Eatons had a total of 4 ounces o f
me thamphetamine and the government speculated that Luna probabl y sold the “missing” 2.5 ounces of methamphetamine.

A f ederal grand jury indicted Luna and charged her wit h
co nspiracyto attempt to possess with intent to distribut e methamphetamine and cocaine inviolation of 21 U.S.C. § 846 (count 1), possession with intent to distribute methamphetamine an d cocaine or aiding and abetting that possession in violation of 21 U.S.C. § 841(a)(1), 18 U.S.C. § 2 (count 2), and causing or aiding and abetting the use or carryi ng of a firearm in connection with a drug trafficking offense in vi olation of 18 U.S.C. §§ 924(c)(1), 2 (count 3). All three counts arose out of the December 5, 199 3 armed robbery of the Eatons. The government dismissed count 1 at trial. At trial the three robbers testified about Luna’ s assistance before and during the robbery and her receiving th e coc aine for her assistance. Groves also testified, on re-direc t-3-

over a defense objection, about a debt Luna allegedly owed Kim e because of a check which Kime had cashed for her. The government-4-

argued that the check incident explained why Luna participated in the ro bbery, that is, in order to “pay back” Kime for the cashe d check. Counts 2 and 3 were submitted to the jury. The jury found Luna guilty of possession of methamphetamine with intent t o distribute, possession of cocaine and aiding and abetting the use
or carrying of a firearm in connection with a drug traffickin g offense.

Luna fi led a motion for new trial and a motion for judgmen t of acquittal on count 3 (the firearms count). The district court granted the motion for judgmen t of acquittal on count 3 and denied the motion for new trial. United States v. Luna , Crimina l No. 95-79 (S.D. Iowa Jan. 11, 1996) (memorandum opinion, rul ing and order). Luna argued that the evidence about the check incid ent was false, irrelevant and prejudicial. Before Luna’s trial, Gro ves had pleadedguilty pursuant to a plea agreement. The stipulation o f facts entered into as part of Groves’s plea agreement provided in part that “[o]n or about December 5, 1993, Clifford Brown, Bobby McGee, and [Groves,] at the direction of Jack Kime, robbed Sand y Eaton at her residence . . . regarding a debt she previously owed to Kime.” During direct examination of Groves, the followin g exchange occurred:

Gov ernment attorney: In the time period leading up t o the Eaton robbery, had MelissaLuna engaged in some sort of a financial transaction with Jack Kime?
Groves: I know she got-- she had a check and she ha d Jack cash it for her. Government attorney: Can you explain the circumstances behind that for the jury? Defense attorney: Your Honor, I’ll object on the basis of 404(b).-5-

District court: I’m going to sustain the objection. Yo u maymake an offer out of the presence of the jury. I don’t know what this is about, I don’t know where we’re going, and unless and until I know what it’s about and I-6-

where you’re going, the object ion is sustained. You may possibly demonstrate to me that it’s relevant. Government attorney: Yes, and it’s not 404(b). District court: I don’t know at this point.
Gov ernment attorney: Rather than send the jury out a t this point in time, I prefer to go on and cover that at some other point in time. II Trans. at 172.
On cross-examination, defense counsel questioned Groves about the reference in the plea agreement’s stipulation of facts to the debt Sandy Eaton owed Kime:
Defense attorney: Were you aw are at the time you signed th is stipulation of some debt between Ms. Eato n (referring to Sandy Eaton) and Mr. Kime?
Groves : Well, I wasn’t really aware, you know, o f actual lya debt. It seemed like everybody owed Jack , even if they didn’t. If you k new him, you’d know what I was talking about. Defense attorney: Well, did you or did you not know whe n you signed this agreement that there was a debt from Ms. Eaton to Mr. Kime?
Groves: I didn’t believe that there was actually a debt

. Defense attorney: So even though you thought that this thing in this factual stipulation was not true, yo u signed it and agreed to it anyway? Groves: I didn’t recall it being in there.
Id. at 204-05.

On re-direct examination, the government attorney questioned Groves about the reference to the debt in the stipulation of facts:-7-

Government attorney: Defense counsel asked you to look at subparagraph B at the top of that page; is that right ?-8-

Groves: That’s right.
Gove rnment attorney: And I believe the statement wa s relative to the robbery at the Eaton residence, referenc e to Sandy Eaton, and then it says, “regarding a debt she’ d previously owed to Kime.”
Groves: Yes. Government attorney: Who in fact did you know relative to the Eaton robbery who owed a debt to Jack Kime at tha t point in time? Groves: Just Missy, I believe. That’s about it. Government attorney: What was that? Defense attorney: I’ll object. I think this is the sam e 404(b) problem. Government attorney: I think counsel has clearly opened up this area of inquiry. District court: The objection is overruled. Groves: It was over a check. Government attorney: What were the circumstances?
Groves: Missy got a check from the lawyer for $1,800 and asked her dad if he’d cash it. He cashed it. And then about three or four days later when he went to deposi t it, they told him the check wa s no good, stopped payment on it. He found out she went to the lawyer and told the lawyer she’d lost the check and the lawyer wrote ou t another check and she cashed it. Government attorney: So Missy Luna actually cashed both of the checks? Groves: Yes, she did. Government attorney: Jack Kime felt he was out $1,800? Groves: Yes. He was upset.
Gov ernment attorney: And that was the only person yo u know of that was actually involved in the Eaton robbery that owed Jack Kime at that time?-9-

Groves: Yes.-10-

Government attorney: Did Jack Kime want that money back ? Groves: He was pretty pissed off about it. Government attorney: After the Eaton robbery, did Jack Kime consider that $1,800 taken care of? Groves: He never really said. Nobody really pushed the issue because it was his daughter.
Id. at 213-15.

In closing argument, the government attorney referred to the check incident as follows:

I think also that it’s clear that Melissa Lun a su ggestedthe Eaton robbery. There is absolutely n o eviden ce that anyone else came up with the idea o f robbing Kenny Eaton for drugs. There’s no evidence that anyone else really knew what would be there, what th e circumstances were with the Eatons, and promoted the ide a originally of robbing the Eatons. There is a suggestion by at least one of th e witnesses on redirect examination followin g cross-examinationthat in fact this may have grown out o f a debt that Melissa Luna owed to her father, Jack Kime. If you remember, that was the testimony about the check fro man attorney for $1,800 that Melissa Luna had Jac k Kime cash for her, then the check turned out to be n o good, and then Melissa Luna went back to the attorney and got another check that was good and cashed it, and sh e kept both sets of the money. Now, that’s the record that’s before you, and that happenedat or about, approximately right before the tim e of the Eaton robbery.
Mot ive is not an element of the crime, but yo u certainly could find a reason why Melissa Luna might be suggesting doing the crime, to get that credit back, get this paid off.-11-

Slip op. at 7-8, citing partial transcript of final arguments.-12-

In c losing argument, defense counsel referred to the chec k incident as follows:

Bythe way, on this matter about the drug debt t o Sandy Eaton, the prosecution’s theory about this matter, in Mr. Groves’ plea agreement was this had to do with a debt that Melissa Luna owed to her father, and they tell some story about a check being cashed twice. Just read Mr. Groves’ stipulation attached to his plea agreement. See if you find anything about a check of Missy Luna in there. It just says “Rob Sandy Eaton at her residence,” gives the address, “regarding a debt she previously owed to Kime.” I think that’s pretty clear.

Id. at 8.

In rebuttal closing argument, the government attorney referr ed to the check incident as follows:

But contrary to what counsel led you to believe , Ran dyGroves specifically said there was no deal. Th e only debt that he could remember that any of these peopl e involv edin this situation owed, was the debt tha t MelissaLuna owed to Jack Kime. Please, check your note s on that.
Id.
After the verdict but within t he time for filing a motion for
ne wtrial, defense counsel investigated the check incident an d presented evidence, which is n ot disputed by the government, that, in fact, the check incident between Luna and Kime had occurred in late January 1994, about two months after the Eaton robbery. Thus, the check incident occurred after the robbery and could not hav e been a motive for Luna’s parti cipation in the Eaton robbery. Luna did not argue that Groves had deliberately lied about the ti ming of-13-

the check incident or that the government attorney knew Groves’ s testimony about the timing of the check incident was false.-14-

The district court denied the motion for new trial. First , the di strict court concluded that the testimony about the chec k incide nt was properly admitted under Fed. R. Evid. 404(b) a s relevant on the issue of motive, that is, it provided a n explanation why Luna would par ticipate in the Eaton robbery. Slip op. at 9. The district court noted that if it had been esta blished at trial that the check incident did not occur until after th e robbery, the check incident could not have been a motive and th e testimony would not have been admissible. Id. The district court also concluded that the evidence about the timing of the chec k incid ent was not in fact newly discovered and that Luna had no t been diligent. Id. at 10 (noting that, although Luna was anactive party to the check incident and knew about it at the time of trial, she did nothing until after trial). The district cour t characterized the new evidence as merely impeaching the cred ibility of Groves, id. , and concluded that, given the evidence of guilt , evenif the evidence about the check incident had been excluded , the jury would not have acquitted Luna. Id. Finally, the d istrict court also considered the motion as an ordinary motion for ne w trial and concluded that “the interests of justice” did not require
new tr ial. Id. at 11 (noting Luna’s failure to respond to th e checkincident at trial and that exclusion of the evidence woul d most likely not result in acquittal on retrial); see 3 Charles A. Wright, Federal Practice & Procedure Criminal § 557, at 316 (2d ed. 1982) (motions for new trial on the basis of newly discovere d evidence made within 7 days of verdict or finding of guil t evaluated as ordinary new trial motions and not under strict er test app liedto motions for new trial based on newly discovere d evidence). This appeal followed.

For re versal, Luna argues the district court abused it s di scretionin denying her motion for new trial on the basis o f newly discovered evidence beca use the evidence about the timing of-15-

the check incident was in fact false. For this reason, she argues the check incident evidence was irrelevant and highly prejudicial-16-

because the check incident could not have provided a motive for her participationin the underlying armed robbery. We hold th e district court did not abuse its discretion in denying the motion for new trial.

In this circuit, it is well-settled that there are fiv e prerequisites which must ordinarily be met t o justif ya new trial on the ground of newly discovere d evidence: (1) the evidence must in fact be newl y discovered, that is, discovered since the trial ; (2) facts must be alleged from which the court may infer dilige nce on the part of the movant; (3) the evidenc e relied upon must not be merely cumulative or impeaching; (4) it must be material to the issues involved; an d (5) it must be of such nature that, on a new trial, the newlydiscovered evidence would probably produce a n acquittal. Moreover, “[t]he g rant or denial of a motion for new trial based on newly discovered evidence i s within the broad discretion of the trial court, and the tr ial court’s decision will not be reversed absent a clear abuse of discretion.”

UnitedStates v. Begnaud , 848 F.2d 111, 113 (8th Cir. 1988 ) (citations omitted). We agree with the district court that th e evidence about the timing of the check incident was not newl y discoveredevidence. The evidence about the timing of the chec k incident was not discovered since the trial and the facts do no t show that Luna acted with diligence. Luna was an active party to the check incident; there was no showing at the time of trial that she did not recall the check incident or when it occurred. Sh e knew about the evidence and could have told defense counsel about the timing of the check incident at the time of trial but did not do so.
Even assuming for purposes of argument that the evidence was newly discovered, the district court did not abuse its discretion because the evidence about the actual timing of the check incident-17-

was not likely to produce an acquittal. The evidence would hav e merely impeached Groves’s testimony and would not have affec ted the-18-

testimonyof the two other robbers implicating Luna in the Eato n robbery.

Fina lly, we reject Luna’s argument that the district cour t erredin admitting the evidence about the check incident a s evidence of other crimes under Fed. R. Evid. 404(b). Lun a correctly argues the check incident was irrelevant as evidence of motive because the check incident occurred after the Eaton r obbery. She also argues that, even if relevant, it was unfairl y prejudicial. Fed. R. Evid. 403. However, the government did not know at the time of trial that the evidence about the timingof the check i ncident was in fact false. The present case does no t inv olve the government’s knowing or reckless or negligent use o f false testimony; here, the government innocently used fals e testimony. United States v. Tierney , 947 F.2d 854, 860-61 (8t h Cir. 1991) (if government innocently used false testimony , defend ant must show acquittal would probably result on retrial)

. The government argues the evidence about the check incident was not extrinsic evidence and thus not within the scope of Fed. R. Evid. 404(b). We agree.
“[W]here evidence of other crimes is ‘so blended or connecte d, withthe one[s] on trial as that proof of one incidentall y involv e[s] the other[s]; or explains the circumstances; or tend s logicallyto prove any element of the crime charged,’ it i s admissible as an integral part of the immediate context of th e crime ch arged.” United States v. Bass , 794 F.2d 1305, 1312 (8t h Cir.) (citing United States v. Derring , 592 F.2d 1003, 1007 (8t h Cir. 197 9)), cert. denied , 479 U.S. 869 (1986). “When the othe r crimes evidence is so integrated, it is not extrinsic and th erefore is not governed by Rule 404(b).” United States v. Bass , 794 F.2d at 13 12; see United States v. Swinton , 75 F.3d 374, 377-78 (8t h Cir. 1996).-19--20- Whe n“it is very difficult to draw a line betwee n the crime charged and other wrongful circumstances with whichit is inextricably intertwined,” th e intrinsic-extrinsic dichotomy blurs and loses lega l signif icance. . . . “It matters little whether th e evidence is viewed as lying beyond the scope of Rule 404 , or as satisfying the test of Rule 404(b).”

UnitedStates v. Mills , 704 F.2d 1553, 1559 (11th Cir. 1983 ) (ci ting 2 Jack B. Weinstein & Margaret A. Berger, Weinstein’ s Evid ence ¶ 404[10], at 404-60 to 404-61 (1982) (Weinstein’ s Evidence)), cert. denied , 467 U.S. 1243 (1984); see United States v. Tate , 821 F.2d 1328, 1331-3 2 (8th Cir. 1987) (analysis of other crimes evidence as both intrinsic and extrinsic evidence), cert
. denied , 484 U.S. 1011 (1988); United States v. White , 645 F. 2d 599, 602-03 (8th Cir.) (same), cert. denied , 452 U.S. 943 (1981).
[T]a king such evidence out of the scope of 404(b ) analysis does not remove all limits on the admission of detailed wrongful acts testimony. The dictates of rule 403 must still be applied to ensure that the probativ e value of this evidence is not [substantially] outweighed by [the danger of unfair prejudice].

UnitedStates v. Bass , 794 F.2d at 1312, citing 2 Weinstein’ s Evidence ¶ 404[10], at 404-80 (1985).

In the present case, the evidence about the check inciden t constitutedan integral part of the operative facts of the crim e charged and as such was intrinsic evidence. The government would have been hard pressed to explain its theory of the case, gi ven the factual circumstances and the relationship between Luna and Kenny Eaton, without advancing a rea son why Luna would have participated in the Eaton robbery. Adequately explaining the circumstances of the E aton robbery, which was the basis for the drug crimes wit h which Luna was charged, necess arily invited reference to the check-21-

incident. Alternatively, the evidence about the check incid ent was relevant to an issue other than the defendant’s bad character or-22-

criminal propensity, that is, her possible motive for partic ipating in the robbery. The evidence about the check incident was no t unfairly prejudicial; it involved a relatively minor crime or bad act and constituted only a limited part of the evidence agains t Luna
. Moreover, the government had already introduced evidenc e that Luna had participated in the robbery of her boyfriend and his mother. The check incident lost much of its prejudicial impac t when viewed in light of that more sensational revelation.
Accordingly, we affirm the judgment of the district court.

A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.