UNITED STATES COURT OF APPEALS

Tenth Circuit

Byron White United States Courthouse

1823 Stout Street

Denver, Colorado 80294

(303) 844-3157

Patrick J. Fisher, Jr. Elisabeth A. Shumaker

Clerk Chief Deputy Clerk

September 25, 1996

TO: ALL RECIPIENTS OF THE CAPTIONED ORDER & JUDGMENT

RE: 95-2239 USA v. Pohlman

 September 23, 1996 by The Honorable Deanell Reece Tacha

Please be advised of the following correction to the

captioned decision:

Due to technical problems, the last line of page one

reappears at the top of page two. 

Please make the appropriate corrections.

Very truly yours,

Patrick Fisher, Clerk

Beth Morris

Deputy Clerk
*This order and judgment is not binding precedent, except under the doctrines of law of

the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders

and judgments; nevertheless, an order and judgment may be cited under the terms and conditions

of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 9/20/96

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BELINDA POHLMAN,

Defendant - Appellant.

No. 95-2239

(D. N. Mex.)

(D.Ct. No. CR-93-622-HB)

ORDER AND JUDGMENT*

Before TACHA, BALDOCK, and BRORBY, Circuit Judges.

A jury convicted Belinda Pohlman of one count of possession with intent to

distribute more than fifty kilograms of marijuana in violation of 21 U.S.C. §§ 841

(a)(1) and (b)(1)(C). The Honorable Howard Bratton entered judgment and

sentenced Pohlman to fifty-one months imprisonment and a three-year term of

supervised release.

Pohlman now appeals her conviction on three grounds. First, she claims

that there was insufficient evidence to support the jury’s conclusion that she had
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the requisite intent to distribute marijuana. Second, Pohlman contends that the

trial court erred in refusing to admit hearsay evidence tending to exculpate her

and inculpate the declarant. Third, she argues that the trial court erred in denying

her motion for a new trial based on newly discovered evidence. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291. For the reasons set forth below, we

affirm the conviction. 

BACKGROUND

In 1993, Pohlman and her boyfriend, Eduardo Acosta, traveled from their

home in Las Vegas, Nevada, to El Paso, Texas. During their visit, Pohlman and

Acosta made two trips to Santa Fe, New Mexico. On their journey, they passed

through a United States Border Patrol checkpoint located in Truth or

Consequences, New Mexico. 

When Pohlman later visited El Paso, Acosta’s brother, Joel, asked Pohlman

to help deliver a recently purchased vehicle to a relative in Albuquerque, New

Mexico. Pohlman agreed that she and her daughter, Brianna, would follow Joel

and another relative, Javier Guerrero, in a separate car. After dropping the car off

in Albuquerque, the four would return to El Paso in the other car. 

On the way to Albuquerque, Pohlman and Brianna entered the Truth or

Consequences checkpoint. The agent on duty, Robert Johnson, recognized

Pohlman as a frequent traveler, and thus engaged her in a brief conversation. In
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talking with Pohlman, Agent Johnson noticed that she was extremely nervous. 

Johnson testified that in addition to her “darting eyes” and “trembling lips,”

Pohlman avoided looking at the agent and spoke very rapidly. When Johnson

asked her what she had in the trunk, she replied that she had “just our clothes . . .

you want to look?” When Johnson responded affirmatively, Pohlman attempted to

open the trunk. She had a difficultly putting the key in the lock because her

hands were shaking badly. 

When Pohlman finally opened the trunk, the only visible items were her

suitcases and some loose clothing. Because of Pohlman’s behavior, however,

Johnson asked and received her consent to search the vehicle using a drugsniffing dog. The dog indicated that drugs were hidden in the trunk of the car. A

subsequent search revealed 210 pounds of marijuana located beneath the clothing

and suitcases. 

Pohlman denied any knowledge of the presence of the marijuana. She

alleged that her boyfriend, Acosta, had duped her into hauling the marijuana

without her knowledge. 

In support of her defense, Pohlman sought to admit several hearsay

statements alleged to have been made by Acosta as statements against penal

interest pursuant to Fed. R. Evid. 804(b)(3). The trial court refused to admit the

evidence, finding that Pohlman had failed to demonstrate substantial
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corroborating circumstances which would indicate the trustworthiness of the

statements. Defense counsel then proffered that Dolores Guerrero, Acosta’s

mother, would have testified that her son had told her that he was “responsible”

for the marijuana and that he wanted to “turn himself in.” Defense counsel also

proffered that Robert Anchando, Pohlman’s previous defense counsel, would have

testified that Acosta had been to his office on a number of past occasions to tell

him that “it was my load . . . I want to turn myself in . . can you set that up for

me?” Defense counsel proffered the testimony of Kathy Lewis, Jesus Guerrero,

and Betsy Coalee, who would have testified in a similar fashion. 

At the close of the evidence, the jury returned a verdict of guilty. Prior to

sentencing, Pohlman filed a motion for a new trial based on a claim of newly

discovered evidence. According to the motion, on the previous day, Acosta had

telephoned Pohlman’s defense counsel and told him that he wanted to swear out

an affidavit stating that he had duped Pohlman into transporting the marijuana

past the checkpoint. He stated that he made a point of keeping the contraband a

secret from Pohlman. In accordance with his request, Acosta personally appeared

at defense counsel’s office, swore out the affidavit, and permitted defense counsel

to video-tape his confession. The trial court, however, ultimately denied

Pohlman’s motion for a new trial based on this newly discovered evidence. 

DISCUSSION
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I. Sufficiency of the Evidence

The first issue Pohlman raises on appeal is whether the evidence presented

at trial was sufficient to support the jury verdict. The standard to determine

sufficiency of the evidence is whether enough evidence was presented at trial for

a reasonable juror to find the defendant guilty beyond a reasonable doubt. 

United States v. Grimes, 967 F.2d 1468, 1472 (10th Cir.), cert. denied, 113 S. Ct.

355 (1992). We review the evidence and reasonable inferences drawn therefrom

in a light most favorable to the government. United States v. Hanson, 41 F.3d

580, 582 (10th Cir. 1994). To overturn a jury's conclusion of fact, we must find

that no reasonable juror could have reached the disputed verdict. Thus, we must

make a de novo review of the record to determine whether sufficient evidence

supported the defendant's conviction. United States v. Chavez-Palacios, 30 F.3d

1290, 1294 (10th Cir. 1994).

In order to convict Pohlman on the drug charge, the jury had to find that

she knowingly possessed a controlled substance and that she intended to distribute

that substance. United States v. Johnson, 57 F.3d 968, 971 (10th Cir. 1995).

Pohlman asserts that knowledge of the contraband cannot be inferred from mere

control of a vehicle when the contraband is discovered in hidden compartments

within the vehicle.

We conclude that there was sufficient evidence to support the jury’s
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determination that Pohlman knowingly possessed the marijuana hidden in the car. 

The jury could have reasonably inferred that she had knowledge based on a

combination of Pohlman’s repeated trips through the Truth or Consequences

checkpoint to learn the practices and procedures of the checkpoint, her use of

Brianna as a smokescreen to divert the agents’ suspicions of her as a marijuana

courier, her nervousness and agitation when stopped at the checkpoint, and her

possession of over $150,000 worth of merchandise. Moreover, we have

previously found it "permissible to infer that the driver of a vehicle has

knowledge of the contraband within it." United States v. Levario, 877 F.2d 1483,

1485-86 (10th Cir. 1989). 

 Sufficient evidence also existed to show that Defendant had the intent to 

distribute the marijuana she possessed. This circuit has recognized that an intent

to distribute drugs can be inferred from the possession of a large quantity of a

controlled substance. See United States v. Powell, 982 F.2d 1422, 1430 (10th

Cir. 1992), cert. denied, 508 U.S. 917 (1993). The fact that Pohlman possessed

over two hundred pounds of marijuana supports that inference. In sum, we find

that sufficient evidence existed to support Pohlman’s conviction. 

II. Acosta’s Hearsay Statements

We review the district court’s ruling on the admissibility of hearsay

testimony under the exception set forth in Fed. R. Evid. 804(b)(3) for an abuse of
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discretion. United States v. Elkins, 70 F.3d 81, 82-83 (10th Cir. 1995). “[T]he

need for deference to a trial court ruling on a hearsay objection is particularly

great because the determination of whether certain evidence is hearsay rests

heavily upon the facts of a particular case.” United States v. Rodriquez-Pando,

841 F.2d 1014, 1018 (10th Cir. 1988).

An out-of-court statement against interest is admissible hearsay to the

extent that it:

so far tended to subject the declarant to civil or criminal liability, . . .

[such] that a reasonable person in the declarant's position would not

have made the statement unless believing it to be true. A statement

tending to expose the declarant to criminal liability and offered to

exculpate the accused is not admissible unless corroborating

circumstances clearly indicate the trustworthiness of the statement.

Fed. R. Evid. 804(b)(3). Thus, a defendant seeking to admit hearsay evidence

under Rule 804(b)(3) to exculpate himself must show:“(1) an unavailable

declarant; (2) a statement against penal interest; and (3) sufficient corroboration

to indicate the trustworthiness of the statement. United States v. Porter, 881 F.2d

878, 882 (10th Cir.), cert. denied, 493 U.S. 944 (1989). 

The trial court did not abuse its discretion in refusing to admit Acosta’s

statements because they lacked corroboration to support their trustworthiness. 

“The determination of the sufficiency of such corroborating evidence ‘lies within

the sound discretion of the trial court, which is aptly situated to weigh the

reliability of the circumstances surrounding the declaration.’” Porter, 881 F.2d at
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883 (quoting United States v. Guillette, 547 F.2d 743, 754 (2d Cir. 1976), cert.

denied, 434 U.S. 839 (1977)). No other witness, such as Javier Guerrero or Joel

Acosta, testified that Pohlman had no knowledge of the marijuana. The fact that

Acosta was the boyfriend of Pohlman provides a reason to help her by fabricating

a story that he was “responsible” for the marijuana, especially if he could

exonerate her without ever having to come to court to do it.

 In addition to having insufficient corroboration, Acosta’s statements do not

necessarily “exculpate the accused” as required by Rule 804(b)(3). We

confronted this issue in a similar context in United States v. Perez, 963 F.2d 314

(10th Cir. 1992). In that case, a jury convicted Perez of knowingly possessing a

controlled substance with intent to distribute it. Id. at 315. At trial, the defendant

sought to introduce the testimony of two witnesses who would testify that Perez’s

half-brother had said the drugs “belonged” to him, not Perez. Id. In affirming the

trial court’s refusal to admit the testimony, we stated: 

Rule 804(b)(3) concerns a statement tending to expose the declarant

to criminal liability and “offered to exculpate the accused. . . .” In

this connection, we note that although Sanchez’s statement that the

drugs here involved “belonged” to him might tend to incriminate

him, such statement, however, would not necessarily “exculpate”

Perez. Perez was charged with the possession of heroin and cocaine.

. . . He was not charged with legal ownership thereof, and legal

ownership did not have to be proven by the prosecution. The drugs

may indeed have “belonged” to Sanchez, and at the same time been

in Perez’s possession.

 

Id. at 316. As in Perez, Acosta may well have been “responsible” for the drugs,
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but that does not affect whether Pohlman had knowing possession of them. 

Compare United States v. Lopez, 777 F.2d 543, 553 (10th Cir. 1985) (holding that

a co-defendant’s statement that the defendant did not know about the presence of

the co-defendant’s drugs was a statement against his penal interest). In sum, we

find that the trial court did not abuse its discretion in refusing to admit Acosta’s

statements. 

III. New Trial

"On appeal, we review a district court's denial of a motion for a new trial 

for an abuse of discretion." United States v. Edgmon, 952 F.2d 1206, 1211 (10th

Cir. 1991), cert. denied, 505 U.S. 1223 (1992). This court has consistently held

that motions for new trial based on newly discovered evidence are regarded with

disfavor and are granted only with great caution. United States v. Youngpeter,

986 F.2d 349, 356 (10th Cir. 1993).

Rule 33 of the Federal Rules of Criminal Procedure provides that a court

may grant a new trial “if required in the interests of justice.” To warrant a new

trial, newly discovered evidence must be: (1) more than impeaching or

cumulative evidence; (2) material to the issues involved; (3) evidence that would

probably produce an acquittal; and (4) the type that, with reasonable diligence,

could not have been discovered and produced at trial. United States v. Sutton,

767 F.2d 726, 728 (10th Cir. 1985).
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Pohlman moved for a new trial based on Acosta’s affidavit and videotape

claiming responsibility for the marijuana found in the vehicle driven by Pohlman

at the time of her arrest. The trial court, however, ruled that the information was

not “newly discovered” because Pohlman was aware of the information prior to

trial. The trial court also held that the evidence was cumulative because Pohlman

testified to the same facts herself at trial. Moreover, the district judge found that

Acosta’s proposed testimony was unlikely to override the strong evidence of

Pohlman’s guilt and produce an acquittal. 

We hold that the trial court did not abuse its discretion in denying Pohlman

a new trial because the evidence was not “newly discovered” within the meaning

of Rule 33. In United States v. Muldrow, 19 F.3d 1332, 1339 (10th Cir.), cert.

denied, 115 S. Ct. 175 (1994), we stated:

If a former codefendant who originally chose not to testify

subsequently comes forward and offers testimony exculpating a

defendant, the evidence is not newly discovered if the defendant was

aware of the proposed testimony prior to trial. See United States v.

DiBernardo, 880 F.2d 1216, 1224-25 (11th Cir. 1989) (newly

available exculpatory testimony of codefendant not newly discovered

because known to defendant before trial); United States v. Metz, 652

F.2d 478, 480 (5th Cir. 1981) (same).

In this case, Mr. Sevart's trial testimony is not newly

discovered evidence. The substance of his testimony was known to

defendant's counsel prior to trial and was produced at trial. 

Therefore, Defendant has failed to establish any newly discovered

evidence.

In the same manner that Sevart’s testimony was not “newly discovered,” we hold
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that the trial court did not err in concluding that Acosta’s testimony was known to

Pohlman and her counsel prior to trial. We also agree that the testimony was

cumulative because she testified to the same facts at trial. 

In sum, we hold that sufficient evidence existed to support the jury verdict

convicting Pohlman of possession with intent to distribute marijuana. We also

find that the trial court did not abuse its discretion in refusing to admit Acosta’s

statements under the statement against penal interest exception. Finally, we

conclude that the trial court did not err in denying Pohlman a new trial based on

newly discovered evidence. Accordingly, we AFFIRM.

ENTERED FOR THE COURT,

Deanell Reece Tacha

Circuit Judge