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United States Court of Appeals
Fifth Circuit
F I L E D
In the
July 15, 2004
United States Court of Appeals
Charles R. Fulbruge III
for the Fifth Circuit
Clerk
_______________
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
I.
BENAVIDES, Circuit Judges.
Blackthorne was convicted and sentenced
to two life sentences for conspiring to commit
JERRY E. SMITH, Circuit Judge:
interstate murder-for-hire, a violation of 18
U.S.C. § 1958, and for causing another to
Allen Blackthorne appeals the denial of his
commit interstate domestic violence, a viola-
second rule 33 motion seeking a new trial on
tion of 18 U.S.C. § 2261(a)(1) and 2(b). Both
the basis of newly discovered evidence. Cf.
charges were in connection with the 1997
FED. R. CIV. P. 33. Because the evidence is
murder of Blackthorne's ex-wife, Sheila Bel-
immaterial to Blackthorne's guilt or innocence,
we affirm.

lush, at her home in Florida.1
v. Gresham, 118 F.3d 258, 267 (5th Cir.
1997). Such motions are not favored and are
The facts underlying Blackthorne's convic-
viewed with great caution. Id; see also United
tion are set forth at length in our prior opinion,
States v. Jamarillo, 42 F.3d 920, 924 (5th Cir.
so we do not repeat them here. Briefly stated,
1995).
the government's theory of the case (as sup-
ported by the evidence) is that Blackthorne
This court applies the `Berry' rule to mo-
and Danny Rocha, a bookie and golf compan-
tions for a new trial on the basis of newly dis-
ion, conspired to arrange the hired murder of
covered evidence. United States v. Freeman,
Bellush. Using Blackthorne's money and Ro-
77 F.3d 812, 816 (5th Cir. 1996) (citing Berry
cha's criminal contacts, they were able to se-
v. Georgia, 10 Ga. 511 (1851)). To receive a
cure the involvement of Sammy Gonzales and
new trial, Blackthorne must show
Joey del ToroSSthe latter of whom traveled
from Texas to Florida and murdered Bellush in
(1) that the evidence is newly discovered
her home. Blackthorne, in contrast, maintains
and was unknown to him at the time of tri-
that he is innocent, that the murder was part of
al; (2) that the failure to discover the evi-
a conspiracy to blackmail him, and that he was
dence was not due to his lack of diligence;
implicated in the murder only to reduce the
(3) that the evidence is not merely cumula-
conspirators' culpability once the blackmail
tive, but is material; and (4) that the evi-
efforts failed.
dence would probably produce an acquittal.
The government proved its case in partial
Gresham, 118 F.3d at 267. "Unless all four
reliance on the testimony of Gonzales and Ro-
elements are satisfied, the motion for new trial
cha, but neither side called del Toro to testify.
must be denied." Id.
Blackthorne relies on that fact to argue that
statements del Toro made in a recent civil de-
B.
position constitute newly discovered evidence
The evidence Blackthorne relies on is im-
favorable to the defense. Blackthorne raised
material to his guilt or innocence. It therefore
those arguments in a rule 33 motion, which the
cannot form the basis for a new trial.2 Id. at
district court denied without holding an ev-
267-68.
identiary hearing.
1.
II.
The first of two categories of evidence
A.
Blackthorne cites consists of statements in del
We review the denial of a motion for new
Toro's deposition indicating that he lacked an
trial only for abuse of discretion. United States
intention to kill Bellush when he traveled to
Florida. In his deposition, del Toro claimed he
was convinced to join the conspiracy only after
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
2 As a result, we express no opinion whether del
Fed. Appx. 88 (5th Cir.), cert. denied, 537 U.S.
Toro's deposition even constitutes newly discov-
1104 (2003).
ered evidence.
2

children, and that he resolved to confirm those
cha was that other person. Proof of del Toro's
allegations before deciding whether to kill her.
involvement in the conspiracy is therefore ex-
traneous to Blackthorne's culpability.
Blackthorne contends that this undermines
the basis for his conviction of conspiracy to
Neither is the government's case weakened
commit murder-for-hire because it narrows the
by evidence that leaves it unable to show that
class of persons with whom he could have
Blackthorne directly conspired with del Toro,
conspired to kill Bellush. He reasons that del
because that was never its theory to begin
Toro's state of mind at the time of travel pre-
with. Rather, t he government relied on evi-
cludes a finding that he joined the conspiracy
dence that showed Blackthorne knew only Ro-
and, as a result, forces the government to rely
cha among the conspirators and was kept at
exclusively on a theory that Blackthorne con-
arms' length from the communications with
spired with Rocha. This weakens the govern-
Gonzales and del Toro. So, the weaker case
ment's case, Blackthorne argues, because Ro-
Blackthorne would ascribe to the government
cha has repudiated his trial testimony and is
is in fact the very same one it used to convict
unlikely to implicate Blackthorne in a new
him in the first place.
trial.
Blackthorne relies on Rocha's subsequent
The elements of conspiracy to commit fed-
recantation to argue that the government
eral murder-for-hire under § 1958 are "(1) an
would be less sure of proving his connection
agreement by two or more persons to achieve
to Rocha at a new trial, but that same claim
the unlawful purpose of [interstate] mur-
was already the subject of a rule 33 motion
der-for-hire; (2) the defendant's knowing and
that was denied on the merits and appealed to
voluntary participation in the agreement; and
this court on procedural grounds only. Black-
(3) an overt act committed by any one of the
thorne therefore has waived all challenges to
conspirators in furtherance of the conspirato-
the district court's determination that Rocha's
rial object." United States v. Hernandez, 141
recantation is not enough to warrant a new
F.3d 1042, 1053 (11th Cir. 1998).3 Thus, to
trial. See United States v. Thibodeaux, 211
carry its burden the government needed to
F.3d 910, 912 (5th Cir. 2000).
show only that Blackthorne conspired with
one other person to commit interstate murder-
Although a fair assessment of whether a
for-hire, and it succeeded in proving that Ro-
new trial "would probably produce an acquit-
tal,"4 requires the court to place all the evi-
dence in its proper context, Blackthorne can-
not obtain a new trial exclusively on the basis
3 See also United States v. Razo-Leora, 961
of evidence that was already the subject of ap-
F.2d 1140, 1144 (5th Cir. 1992) (detailing, in a
peals.5 Those proceedings ended with the con-
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
4 Gresham, 118 F.3d at 267.
of the conspirators in furtherance of the conspir-
acy; and (3) the intent on the part of the defendant
5 In addition to Rocha's recantation, Black-
to further an unlawful objective of the conspir-
thorne relies on evidence that this court, on direct
acy").
(continued...)
3

clusion that Blackthorne was not entitled to a
gests that del Toro might not have committed
new trial, and that view is not the least bit di-
an interstate murder-for-hire because he trav-
minished by new evidence that has no ten-
eled to Florida without the "intent that a mur-
dency to undermine the verdict reached at tri-
der be committed," § 1958, the evidence is still
al. Were our view otherwise, a rule 33 motion
immaterial to Blackthorne's conviction for
could be made on the basis of any inconse-
conspiracy. It is well established that a con-
quential fact not previously known to the de-
spiracy and the related substantive offense are
fendant, with the ultimate goal's being nothing
distinct crimes and that the government need
more than the renewed litigation of claims
not prove the successful completion of the
previously denied.
latter to obtain a conviction for the former.7
Even where a conviction for the substantive
Even assuming, arguendo, that the govern-
offense of federal murder-for-hire fails for
ment had to prove del Toro's participation in
want of interstate travel, a defendant can be
a conspiracy with Blackthorne,6 it still could
convicted of conspiring to commit the offense.
do so comfortably in spite of the evidence
See United States v. Hernandez, 141 F.3d
Blackthorne relies on. Whatever del Toro's
1042, 1052-53 (11th Cir. 1998). As a result,
state of mind at the time he entered Florida, he
this evidence is immaterial to Blackthorne's
ultimately manifested his intention to join the
conviction of conspiracy.
conspiracy when he entered Bellush's home,
killed her, and asked Gonzales for the money
The evidence concerning del Toro's state of
Rocha had promised him. It is of no conse-
mind is also immaterial to Blackthorne's con-
quence that del Toro might have joined the
viction of interstate domestic violence under §
conspiracy after the point at which some overt
2261(a)(1) and 2(b). Section 2261(a)(1)
acts occurred, because "one who joins an on-
makes it a crime for a person to (1) cross state
going conspiracy is deemed to have adopted
lines or enter or leave Indian country; (2) with
the prior acts and declarations of conspirators,
the intent to injure, harass, or intimidate that
made after the formation and in furtherance of
person's spouse or intimate partner; and (3) in
the conspiracy." United States v. Barks-
the course of or as a result of that travel, in-
dale-Contreras, 972 F.2d 111, 114 (5th Cir.
tentionally commit a crime of violence and
1992) (quoting United States v. Cintolo, 818
thereby cause bodily injury to such spouse or
F.2d 980 (1st Cir. 1987)).
intimate partner. § 2261(a)(1).8 Additionally,
§ 2(b) makes Blackthorne liable as a principal
Finally, to the extent Blackthorne argues
for del Toro's actions if he caused them and if
that the evidence is exculpatory because it sug-
7 See United States v. Contreras, 950 F.2d 232,
5(...continued)
240-41 (5th Cir. 1991); United States v. Romeros,
appeal, determined should have been excluded.
600 F.2d 1104, 1105 (5th Cir.1979) (per curiam).
6 Del Toro and Blackthorne may be involved in
8 We assume, without deciding, that Bellush
a single conspiracy despite not knowing each oth-
qualifies as a spouse or intimate partner within the
er's identities. United States v. Payne, 99 F.3d
meaning of the statute, because Blackthorne has
1273, 1279 n.6 (citing Blumenthal v. United
not raised any arguments to the contrary in either
States, 332 U.S. 539, 556-57 (1947)).
of his appeals.
4

the same actions "directly performed by
Insofar as Blackthorne argues that Gonza-
[Blackthorne] would be an offense against the
les's substance abuse denied him the mental
United States." § 2(b).
capacity to join the conspiracy, the evidence
could not affect Blackthorne's guilt, because
The new evidence tends to suggest that del
his participation in the conspiracy is sufficient-
Toro did not "travel[] across a State line . . .
ly established by the agreement with Rocha.
with the intent to injure," as § 2261(a)(1) re-
Even assuming, arguendo, that Gonzales was
quires, but that fact does not exculpate Black-
not a co-conspirator, Blackthorne and Rocha
thorne. Under § 2(b), "only the person
still agreed with one another to kill Bellush,
charged need have the criminal intent, the in-
and they sent del Toro to Florida to achieve
dividual whom the defendant has caused to
that purpose. Because this evidence also does
perform the act may be entirely innocent."
nothing to undermine the jury's conclusion
United States v. Levy, 969 F.2d 136, 141 (5th
that Blackthorne and Rocha conspired with
Cir. 1992).9 Whatever del Toro's intentions,
one another to commit interstate murder-for-
the newly discovered evidence does not cast
hire, it too is incapable of absolving Black-
doubt on the jury's conclusion that Black-
thorne of liability for the conspiracy.
thorne caused del Toro to travel to Florida,
that he intended thereby to injure Bellush, and
Blackthorne also suggests that the evidence
that he succeeded in that objective. As a re-
contradicts Gonzales's testimony at trial,
sult, this first category of newly discovered ev-
where he admitted to cocaine use, but only in
idence is immaterial to Blackthorne's guilt or
lesser quantities. That argument is unavailing,
innocence on either count and cannot form the
because the extent of Gonzales' cocaine habit
basis for a new trial.
does not directly relate to Blackthorne's culpa-
bility, but instead serves only to attack the ver-
2.
acity of Gonzales as a witness. Blackthorne's
The second category of newly discovered
argument fails, therefore, because "evidence
evidence consists of del Toro's statements to
which merely discredits or impeaches a wit-
the effect that he and Gonzales were under the
nesses' testimony does not justify a new trial."
influence of cocaine throughout the period in
United States v. Pena, 949 F.2d 751, 758 (5th
which the crime was planned, including during
Cir. 1991).
a key meeting between themselves and Rocha.
The evidence is not material.
Worse still, the evidence is cumulative.
Though Blackthorne now thinks his lawyer did
an inadequate job of cross-examining Gon-
zales, the jury nevertheless was exposed to
evidence that Gonzales used cocaine during
9 See also United States v. Smith, 584 F.2d
the relevant time period. For that reason as
731, 734 (5th Cir. 1978) ("Section 2(b) removes
well, a new trial is not warranted. See United
all doubt that one who puts in motion or assists in
States v. Villarreal, 324 F.3d 319, 325 (5th
an illegal enterprise or causes the commission of an
Cir. 2003).
indispensable element of an offense by an innocent
agent or instrumentality, is guilty. . . . It is not
necessary for the intermediary to have a criminal
III.
intent."); United States v. Shear, 962 F.2d 488,
Blackthorne contends that the district court
493 n.6 (5th Cir. 1992) (same).
5

abused its discretion in denying his motion
AFFIRMED.
without an evidentiary hearing. "Refusal of a
hearing on a motion for new trial is [] re-
viewed 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 in-
applicable 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 ordi-
narily 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 evi-
dence was immaterial, there was no need to
conduct a hearing to determine whether the
evidence was reliable.11
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 and weighed the credibility of the witness
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 imma-
terial to guilt or innocence).
6