The Honorable Harold D. Vietor, United States District Judge 1

for the Southern District of Iowa.

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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. *

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 Submitted: May 14, 1996

 Filed: August 29, 1996

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Before McMILLIAN, FAGG and LOKEN, Circuit Judges.

____________

McMILLIAN, Circuit Judge.

Melissa Jean Luna appeals from a final judgment entered in the

District Court for the Southern District of Iowa, upon a jury

1

verdict, finding her guilty of possession with intent to distribute

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 special

assessment of $50.00. For reversal, Luna argues the district court

abused its discretion in denying her motion for new trial on the

basis of newly discovered evidence because false evidence was

introduced to establish a motive for her participation in an armed

robbery. For the reasons discussed below, we affirm the judgment

of the district court.
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According to the government’s theory of the case, in December

1993, Luna, her father John Kime, with whom she had only recently

become acquainted, Clifford Brown, Randy Groves, and Bobby McGee

decided to rob Kenny Eaton and his mother Sandra Eaton. Kime was

the “mastermind” of the robbery. At the time Luna was Kenny

Eaton’s girlfriend and she lived with the Eatons. The Eatons were

drug dealers. Kime was also a drug dealer. Luna provided

background information about the Eatons’ house -- the layout, the

location of drugs, guns and money, and the presence of a guard dog.

Brown, Groves and McGee carried out the armed robbery on

December 5, 1993. Luna was present in the house at the time of the

robbery and controlled the guard dog during the robbery; the

robbers treated her as a robbery victim in order to conceal her

role in the robbery. The robbers took money, jewelry, guns, and

about 1.5 ounces of methamphetamine and 10 grams of cocaine. The

robbers gave Luna the cocaine and split the methamphetamine among

themselves and sold it. The Eatons had a total of 4 ounces of

methamphetamine and the government speculated that Luna probably

sold the “missing” 2.5 ounces of methamphetamine. 

A federal grand jury indicted Luna and charged her with

conspiracy to attempt to possess with intent to distribute

methamphetamine and cocaine in violation of 21 U.S.C. § 846 (count

1), possession with intent to distribute methamphetamine and

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 carrying of a firearm in connection with a

drug trafficking offense in violation of 18 U.S.C. §§ 924(c)(1), 2

(count 3). All three counts arose out of the December 5, 1993

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 the

cocaine for her assistance. Groves also testified, on re-direct
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over a defense objection, about a debt Luna allegedly owed Kime

because of a check which Kime had cashed for her. The government
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argued that the check incident explained why Luna participated in

the robbery, that is, in order to “pay back” Kime for the cashed

check. Counts 2 and 3 were submitted to the jury. The jury found

Luna guilty of possession of methamphetamine with intent to

distribute, possession of cocaine and aiding and abetting the use

or carrying of a firearm in connection with a drug trafficking

offense. 

Luna filed a motion for new trial and a motion for judgment

of acquittal on count 3 (the firearms count). The district court

granted the motion for judgment of acquittal on count 3 and denied

the motion for new trial. United States v. Luna, Criminal

No. 95-79 (S.D. Iowa Jan. 11, 1996) (memorandum opinion, ruling and

order). Luna argued that the evidence about the check incident was

false, irrelevant and prejudicial. Before Luna’s trial, Groves had

pleaded guilty pursuant to a plea agreement. The stipulation of

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 Sandy

Eaton at her residence . . . regarding a debt she previously owed

to Kime.” During direct examination of Groves, the following

exchange occurred:

Government attorney: In the time period leading up to

the Eaton robbery, had Melissa Luna engaged in some sort

of a financial transaction with Jack Kime?

Groves: I know she got-- she had a check and she had

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).
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District court: I’m going to sustain the objection. You

may make 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
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where you’re going, the objection 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. 

Government attorney: Rather than send the jury out at

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 aware at the time you signed

this stipulation of some debt between Ms. Eaton

(referring to Sandy Eaton) and Mr. Kime?

Groves: Well, I wasn’t really aware, you know, of

actually a debt. It seemed like everybody owed Jack,

even if they didn’t. If you knew him, you’d know what I

was talking about. 

Defense attorney: Well, did you or did you not know when

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, you

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:
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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.

Government attorney: And I believe the statement was

relative to the robbery at the Eaton residence, reference

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 that

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 same

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 deposit

it, they told him the check was 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 out

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.

Government attorney: And that was the only person you

know of that was actually involved in the Eaton robbery

that owed Jack Kime at that time?
-9-

Groves: Yes.
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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 Luna

suggested the Eaton robbery. There is absolutely no

evidence that anyone else came up with the idea of

robbing Kenny Eaton for drugs. There’s no evidence that

anyone else really knew what would be there, what the

circumstances were with the Eatons, and promoted the idea

originally of robbing the Eatons. 

There is a suggestion by at least one of the

witnesses on redirect examination following

cross-examination that in fact this may have grown out of

a debt that Melissa Luna owed to her father, Jack Kime.

If you remember, that was the testimony about the check

from an attorney for $1,800 that Melissa Luna had Jack

Kime cash for her, then the check turned out to be no

good, and then Melissa Luna went back to the attorney and

got another check that was good and cashed it, and she

kept both sets of the money. 

Now, that’s the record that’s before you, and that

happened at or about, approximately right before the time

of the Eaton robbery. 

Motive is not an element of the crime, but you

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 closing argument, defense counsel referred to the check

incident as follows: 

By the way, on this matter about the drug debt to

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 referred

to the check incident as follows: 

But contrary to what counsel led you to believe,

Randy Groves specifically said there was no deal. The

only debt that he could remember that any of these people

involved in this situation owed, was the debt that

Melissa Luna owed to Jack Kime. Please, check your notes

on that. 

Id. 

After the verdict but within the time for filing a motion for

new trial, defense counsel investigated the check incident and

presented evidence, which is not 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 have

been a motive for Luna’s participation in the Eaton robbery. Luna

did not argue that Groves had deliberately lied about the timing of
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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 district court concluded that the testimony about the check

incident was properly admitted under Fed. R. Evid. 404(b) as

relevant on the issue of motive, that is, it provided an

explanation why Luna would participate in the Eaton robbery. Slip

op. at 9. The district court noted that if it had been established

at trial that the check incident did not occur until after the

robbery, the check incident could not have been a motive and the

testimony would not have been admissible. Id. The district court

also concluded that the evidence about the timing of the check

incident was not in fact newly discovered and that Luna had not

been diligent. Id. at 10 (noting that, although Luna was an active

party to the check incident and knew about it at the time of trial,

she did nothing until after trial). The district court

characterized the new evidence as merely impeaching the credibility

of Groves, id., and concluded that, given the evidence of guilt,

even if the evidence about the check incident had been excluded,

the jury would not have acquitted Luna. Id. Finally, the district

court also considered the motion as an ordinary motion for new

trial and concluded that “the interests of justice” did not require

new trial. Id. at 11 (noting Luna’s failure to respond to the

check incident at trial and that exclusion of the evidence would

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 discovered

evidence made within 7 days of verdict or finding of guilt

evaluated as ordinary new trial motions and not under stricter test

applied to motions for new trial based on newly discovered

evidence). This appeal followed. 

For reversal, Luna argues the district court abused its

discretion in denying her motion for new trial on the basis of

newly discovered evidence because the evidence about the timing of
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the check incident was in fact false. For this reason, she argues

the check incident evidence was irrelevant and highly prejudicial
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because the check incident could not have provided a motive for her

participation in the underlying armed robbery. We hold the

district court did not abuse its discretion in denying the motion

for new trial. 

In this circuit, it is well-settled that there are

five prerequisites which must ordinarily be met to

justify a new trial on the ground of newly discovered

evidence: (1) the evidence must in fact be newly

discovered, that is, discovered since the trial;

(2) facts must be alleged from which the court may infer

diligence on the part of the movant; (3) the evidence

relied upon must not be merely cumulative or impeaching;

(4) it must be material to the issues involved; and

(5) it must be of such nature that, on a new trial, the

newly discovered evidence would probably produce an

acquittal. Moreover, “[t]he grant or denial of a motion

for new trial based on newly discovered evidence is

within the broad discretion of the trial court, and the

trial court’s decision will not be reversed absent a

clear abuse of discretion.”

United States v. Begnaud, 848 F.2d 111, 113 (8th Cir. 1988)

(citations omitted). We agree with the district court that the

evidence about the timing of the check incident was not newly

discovered evidence. The evidence about the timing of the check

incident was not discovered since the trial and the facts do not

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. She

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
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was not likely to produce an acquittal. The evidence would have

merely impeached Groves’s testimony and would not have affected the
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testimony of the two other robbers implicating Luna in the Eaton

robbery. 

Finally, we reject Luna’s argument that the district court

erred in admitting the evidence about the check incident as

evidence of other crimes under Fed. R. Evid. 404(b). Luna

correctly argues the check incident was irrelevant as evidence of

motive because the check incident occurred after the Eaton robbery.

She also argues that, even if relevant, it was unfairly

prejudicial. Fed. R. Evid. 403. However, the government did not

know at the time of trial that the evidence about the timing of the

check incident was in fact false. The present case does not

involve the government’s knowing or reckless or negligent use of

false testimony; here, the government innocently used false

testimony. United States v. Tierney, 947 F.2d 854, 860-61 (8th

Cir. 1991) (if government innocently used false testimony,

defendant 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 connected,

with the one[s] on trial as that proof of one incidentally

involve[s] the other[s]; or explains the circumstances; or tends

logically to prove any element of the crime charged,’ it is

admissible as an integral part of the immediate context of the

crime charged.” United States v. Bass, 794 F.2d 1305, 1312 (8th

Cir.) (citing United States v. Derring, 592 F.2d 1003, 1007 (8th

Cir. 1979)), cert. denied, 479 U.S. 869 (1986). “When the other

crimes evidence is so integrated, it is not extrinsic and therefore

is not governed by Rule 404(b).” United States v. Bass, 794 F.2d

at 1312; see United States v. Swinton, 75 F.3d 374, 377-78 (8th

Cir. 1996). 
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When “it is very difficult to draw a line between

the crime charged and other wrongful circumstances with

which it is inextricably intertwined,” the

intrinsic-extrinsic dichotomy blurs and loses legal

significance. . . . “It matters little whether the

evidence is viewed as lying beyond the scope of Rule 404,

or as satisfying the test of Rule 404(b).”

United States v. Mills, 704 F.2d 1553, 1559 (11th Cir. 1983)

(citing 2 Jack B. Weinstein & Margaret A. Berger, Weinstein’s

Evidence ¶ 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, 1331-32 (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]aking 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 probative

value of this evidence is not [substantially] outweighed

by [the danger of unfair prejudice].

United States 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 incident

constituted an integral part of the operative facts of the crime

charged and as such was intrinsic evidence. The government would

have been hard pressed to explain its theory of the case, given the

factual circumstances and the relationship between Luna and Kenny

Eaton, without advancing a reason why Luna would have participated

in the Eaton robbery. Adequately explaining the circumstances of

the Eaton robbery, which was the basis for the drug crimes with

which Luna was charged, necessarily invited reference to the check
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incident. Alternatively, the evidence about the check incident was

relevant to an issue other than the defendant’s bad character or
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criminal propensity, that is, her possible motive for participating

in the robbery. The evidence about the check incident was not

unfairly prejudicial; it involved a relatively minor crime or bad

act and constituted only a limited part of the evidence against

Luna. Moreover, the government had already introduced evidence

that Luna had participated in the robbery of her boyfriend and his

mother. The check incident lost much of its prejudicial impact

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.