United States Court of Appeals

Fifth Circuit

FILED

July 15, 2004

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

_______________

m 03-50627

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ALLEN BLACKTHORNE,

Defendant-Appellant,

_________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________

Before SMITH, WIENER and

BENAVIDES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Allen Blackthorne appeals the denial of his

second rule 33 motion seeking a new trial on

the basis of newly discovered evidence. Cf.

FED. R. CIV. P. 33. Because the evidence is

immaterialtoBlackthorne’s guilt or innocence,

we affirm.

I.

Blackthorne was convicted and sentenced

to two life sentences for conspiring to commit

interstate murder-for-hire, a violation of 18

U.S.C. § 1958, and for causing another to

commit interstate domestic violence, a violation of 18 U.S.C. § 2261(a)(1) and 2(b). Both

charges were in connection with the 1997

murder of Blackthorne’s ex-wife, Sheila Bel-
2

lush, at her home in Florida.1

The facts underlying Blackthorne’s conviction are set forth at length in our prior opinion,

so we do not repeat them here. Briefly stated,

the government’s theory of the case (as supported by the evidence) is that Blackthorne

and Danny Rocha, a bookie and golf companion, conspired to arrange the hired murder of

Bellush. Using Blackthorne’s money and Rocha’s criminal contacts, they were able to secure the involvement of Sammy Gonzales and

Joey del ToroSSthe latter of whom traveled

fromTexasto Florida and murdered Bellush in

her home. Blackthorne, in contrast, maintains

that he isinnocent, that the murder was part of

a conspiracy to blackmail him, and that he was

implicated in the murder only to reduce the

conspirators’ culpability once the blackmail

efforts failed.

The government proved its case in partial

reliance on the testimony of Gonzales and Rocha, but neither side called del Toro to testify.

Blackthorne relies on that fact to argue that

statements del Toro made in a recent civil deposition constitute newly discovered evidence

favorable to the defense. Blackthorne raised

those argumentsin a rule 33 motion, which the

district court denied without holding an evidentiary hearing.

II.

A.

We review the denial of a motion for new

trial only for abuse of discretion. United States

v. Gresham, 118 F.3d 258, 267 (5th Cir.

1997). Such motions are not favored and are

viewed with great caution. Id;see also United

States v. Jamarillo, 42 F.3d 920, 924 (5th Cir.

1995).

This court applies the ‘Berry’ rule to motions for a new trial on the basis of newly discovered evidence. United States v. Freeman,

77 F.3d 812, 816 (5th Cir. 1996) (citing Berry

v. Georgia, 10 Ga. 511 (1851)). To receive a

new trial, Blackthorne must show

(1) that the evidence is newly discovered

and was unknown to him at the time of trial; (2) that the failure to discover the evidence was not due to his lack of diligence;

(3) that the evidence is not merely cumulative, but is material; and (4) that the evidencewould probablyproduce anacquittal.

Gresham, 118 F.3d at 267. “Unless all four

elements are satisfied, the motion for new trial

must be denied.” Id. 

B.

The evidence Blackthorne relies on is immaterial to his guilt or innocence. It therefore

cannot form the basis for a new trial.2Id. at

267-68.

1.

The first of two categories of evidence

Blackthorne cites consists ofstatements in del

Toro’s deposition indicating that he lacked an

intention to kill Bellush when he traveled to

Florida. In his deposition, del Toro claimed he

was convinced to join the conspiracyonlyafter

1 hearing allegations that Bellush abused her Blackthorne appealed those convictions, along

with the denial of his first rule 33 motion, and this

court affirmed in an unpublished opinion. See

United States v. Blackthorne, No. 00-51256, 37

Fed. Appx. 88 (5th Cir.), cert. denied, 537 U.S.

1104 (2003).

2 As a result, we express no opinion whether del

Toro’s deposition even constitutes newly discovered evidence.
3

children, and that he resolved to confirm those

allegations before deciding whether to kill her.

Blackthorne contends that this undermines

the basis for his conviction of conspiracy to

commit murder-for-hire because it narrowsthe

class of persons with whom he could have

conspired to kill Bellush. He reasons that del

Toro’s state of mind at the time of travel precludes a finding that he joined the conspiracy

and, as a result, forces the government to rely

exclusively on a theory that Blackthorne conspired with Rocha. This weakens the government’s case, Blackthorne argues, because Rocha has repudiated his trial testimony and is

unlikely to implicate Blackthorne in a new

trial.

The elements of conspiracy to commit federal murder-for-hire under § 1958 are “(1) an

agreement by two or more persons to achieve

the unlawful purpose of [interstate] murder-for-hire; (2) the defendant’s knowing and

voluntary participation in the agreement; and

(3) an overt act committed by any one of the

conspirators in furtherance of the conspiratorial object.” United States v. Hernandez, 141

F.3d 1042, 1053 (11th Cir. 1998).3 Thus, to

carry its burden the government needed to

show only that Blackthorne conspired with

one other person to commit interstate murderfor-hire, and it succeeded in proving that Rocha wasthat other person. Proof of del Toro’s

involvement in the conspiracy is therefore extraneous to Blackthorne’s culpability.

Neither isthe government’s case weakened

by evidence that leaves it unable to show that

Blackthorne directly conspired with del Toro,

because that was never its theory to begin

with. Rather, the government relied on evidence thatshowedBlackthorne knew onlyRocha among the conspirators and was kept at

arms’ length from the communications with

Gonzales and del Toro. So, the weaker case

Blackthorne would ascribe to the government

is in fact the very same one it used to convict

him in the first place. 

Blackthorne relies on Rocha’s subsequent

recantation to argue that the government

would be less sure of proving his connection

to Rocha at a new trial, but that same claim

was already the subject of a rule 33 motion

that was denied on the merits and appealed to

this court on procedural grounds only. Blackthorne therefore has waived all challenges to

the district court’s determination that Rocha’s

recantation is not enough to warrant a new

trial. See United States v. Thibodeaux, 211

F.3d 910, 912 (5th Cir. 2000). 

Although a fair assessment of whether a

new trial “would probably produce an acquittal,”4

requires the court to place all the evidence in its proper context, Blackthorne cannot obtain a new trial exclusively on the basis

of evidence that was already the subject of appeals.5

 Those proceedings ended with the con3

See also United States v. Razo-Leora, 961

F.2d 1140, 1144 (5th Cir. 1992) (detailing, in a

murder-for-hire case, the elements of a 18 U.S.C.

§ 371 conspiracy as “(1) an agreement between the

defendant and one or more other persons to violate

a law of the United States; (2) an overt act by one

of the conspirators in furtherance of the conspiracy; and (3) the intent on the part of the defendant

to further an unlawful objective of the conspiracy”).

4 Gresham, 118 F.3d at 267.

5

In addition to Rocha’s recantation, Blackthorne relies on evidence that this court, on direct

(continued...)
4

clusion that Blackthorne was not entitled to a

new trial, and that view is not the least bit diminished by new evidence that has no tendency to undermine the verdict reached at trial. Were our view otherwise, a rule 33 motion

could be made on the basis of any inconsequential fact not previously known to the defendant, with the ultimate goal’s being nothing

more than the renewed litigation of claims

previously denied. 

Even assuming, arguendo, that the government had to prove del Toro’s participation in

a conspiracy with Blackthorne,6it still could

do so comfortably in spite of the evidence

Blackthorne relies on. Whatever del Toro’s

state of mind at the time he entered Florida, he

ultimately manifested his intention to join the

conspiracy when he entered Bellush’s home,

killed her, and asked Gonzales for the money

Rocha had promised him. It is of no consequence that del Toro might have joined the

conspiracy after the point at which some overt

acts occurred, because “one who joins an ongoing conspiracy is deemed to have adopted

the prior acts and declarations of conspirators,

made after the formation and in furtherance of

the conspiracy.” United States v. Barksdale-Contreras, 972 F.2d 111, 114 (5th Cir.

1992) (quoting United States v. Cintolo, 818

F.2d 980 (1st Cir. 1987)). 

Finally, to the extent Blackthorne argues

that the evidence is exculpatorybecause itsuggests that del Toro might not have committed

an interstate murder-for-hire because he traveled to Florida without the “intent that a murder be committed,” § 1958, the evidence isstill

immaterial to Blackthorne’s conviction for

conspiracy. It is well established that a conspiracy and the related substantive offense are

distinct crimes and that the government need

not prove the successful completion of the

latter to obtain a conviction for the former.7

Even where a conviction for the substantive

offense of federal murder-for-hire fails for

want of interstate travel, a defendant can be

convicted of conspiring to commit the offense.

See United States v. Hernandez, 141 F.3d

1042, 1052-53 (11th Cir. 1998). As a result,

this evidence is immaterial to Blackthorne’s

conviction of conspiracy.

The evidence concerning delToro’sstate of

mind is also immaterial to Blackthorne’s conviction of interstate domestic violence under §

2261(a)(1) and 2(b). Section 2261(a)(1)

makes it a crime for a person to (1) cross state

lines or enter or leave Indian country; (2) with

the intent to injure, harass, or intimidate that

person’sspouse or intimate partner; and (3) in

the course of or as a result of that travel, intentionally commit a crime of violence and

thereby cause bodily injury to such spouse or

intimate partner. § 2261(a)(1).8 Additionally,

§ 2(b) makes Blackthorne liable as a principal

for del Toro’s actions if he caused them and if

5

(...continued)

appeal, determined should have been excluded.

6 Del Toro and Blackthorne may be involved in

a single conspiracy despite not knowing each other’s identities. United States v. Payne, 99 F.3d

1273, 1279 n.6 (citing Blumenthal v. United

States, 332 U.S. 539, 556-57 (1947)).

7

See United States v. Contreras, 950 F.2d 232,

240-41 (5th Cir. 1991); United States v. Romeros,

600 F.2d 1104, 1105 (5th Cir.1979) (per curiam).

8 We assume, without deciding, that Bellush

qualifies as a spouse or intimate partner within the

meaning of the statute, because Blackthorne has

not raised any arguments to the contrary in either

of his appeals.
5

the same actions “directly performed by

[Blackthorne] would be an offense against the

United States.” § 2(b). 

The new evidence tends to suggest that del

Toro did not “travel[] across a State line . . .

with the intent to injure,” as § 2261(a)(1) requires, but that fact does not exculpate Blackthorne. Under § 2(b), “only the person

charged need have the criminal intent, the individual whom the defendant has caused to

perform the act may be entirely innocent.”

United States v. Levy, 969 F.2d 136, 141 (5th

Cir. 1992).9 Whatever del Toro’s intentions,

the newly discovered evidence does not cast

doubt on the jury’s conclusion that Blackthorne caused del Toro to travel to Florida,

that he intended thereby to injure Bellush, and

that he succeeded in that objective. As a result, thisfirst category of newlydiscovered evidence is immaterial to Blackthorne’s guilt or

innocence on either count and cannot form the

basis for a new trial.

2.

The second category of newly discovered

evidence consists of del Toro’s statements to

the effect that he and Gonzales were under the

influence of cocaine throughout the period in

which the crime was planned, including during

a key meeting between themselves and Rocha.

The evidence is not material. 

Insofar as Blackthorne argues that Gonzales’s substance abuse denied him the mental

capacity to join the conspiracy, the evidence

could not affect Blackthorne’s guilt, because

his participation in the conspiracy issufficiently established by the agreement with Rocha.

Even assuming, arguendo, that Gonzales was

not a co-conspirator, Blackthorne and Rocha

still agreed with one another to kill Bellush,

and they sent del Toro to Florida to achieve

that purpose. Because this evidence also does

nothing to undermine the jury’s conclusion

that Blackthorne and Rocha conspired with

one another to commit interstate murder-forhire, it too is incapable of absolving Blackthorne of liability for the conspiracy.

Blackthorne also suggeststhat the evidence

contradicts Gonzales’s testimony at trial,

where he admitted to cocaine use, but only in

lesser quantities. That argument is unavailing,

because the extent of Gonzales’ cocaine habit

does not directlyrelate toBlackthorne’s culpability, but instead serves only to attack the veracity of Gonzales as a witness. Blackthorne’s

argument fails, therefore, because “evidence

which merely discredits or impeaches a witnesses’ testimony does not justify a new trial.”

United States v. Pena, 949 F.2d 751, 758 (5th

Cir. 1991). 

Worse still, the evidence is cumulative.

ThoughBlackthorne now thinks hislawyer did

an inadequate job of cross-examining Gonzales, the jury nevertheless was exposed to

evidence that Gonzales used cocaine during

the relevant time period. For that reason as

well, a new trial is not warranted. See United

States v. Villarreal, 324 F.3d 319, 325 (5th

Cir. 2003).

III.

Blackthorne contendsthat the district court

9

See also United States v. Smith, 584 F.2d

731, 734 (5th Cir. 1978) (“Section 2(b) removes

all doubt that one who puts in motion or assists in

an illegal enterprise or causes the commission of an

indispensable element of an offense by an innocent

agent or instrumentality, is guilty. . . . It is not

necessary for the intermediary to have a criminal

intent.”); United States v. Shear, 962 F.2d 488,

493 n.6 (5th Cir. 1992) (same).
6

abused its discretion in denying his motion

without an evidentiary hearing. “Refusal of a

hearing on a motion for new trial is [] reviewed for abuse of discretion.” United States

v. Reedy, 304 F.3d 358, 371 n.17 (5th Cir.

2002) (citing United States v. Metz, 652 F.2d

478, 481 (5th Cir. Unit A Aug. 1981)). 

“Generally, a motion for new trial may be

decided upon affidavits without evidentiary

hearing,” Metz, 652 F.2d at 481, but that view

is commonly justified on a ground that is inapplicable here: the trial judge’s previously

acquired familiarity with the evidence. See,

e.g., United States v. MMR Corp., 954 F.2d

1040, 1046 (5th Cir. 1992).10 Blackthorne

succeeded in having the judge recused from

considering his rule 33 motion, so the court

lacked the personal knowledge that can ordinarily substitute for an evidentiary hearing.

Nevertheless, on the facts of this case, the

court did not abuse its discretion in denying

the hearing. Because the district court

correctly determined that the proffered evidence was immaterial, there was no need to

conduct a hearing to determine whether the

evidence was reliable.11

AFFIRMED.

10 See also United States v. DiPaolo, 835 F.2d

46, 51 (2d Cir. 1987) (“The need for a hearing is

diminished when, as here, the judge observed the

demeanor andweighed the credibility ofthewitness

at trial.”); United States v. Olson, 989 F.2d 229,

233 (7th Cir. 1993); United States v. Provost, 969

F.2d 617, 620 (8th Cir. 1992).

11 See United States v. Hausman, 894 F.2d 686,

688 (5th Cir. 1990) (finding that the district court

did not abuse its discretion in denying evidentiary

hearing on rule 33 motion, because even if the

defendant could prove his claims, they were immaterial to guilt or innocence).