(caption unavailable)

* Local Rule 47.5.1 provides: "The publication of opinions that have no
precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens
on the legal profession." Pursuant to that rule, the court has determined
that this opinion should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 92-7722
Summary Calendar
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
OSCAR HERRERA,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
(CR B 92 133 2)
_________________________
August 18, 1993
Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:*
A two-count indictment charged Oscar Herrera, along with Juan
Ramos and Joaquin Gutierrez-Garcia, with (1) conspiracy to possess
with intent to distribute more than 100 kilograms of marihuana in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and 846 and
(2) aiding and abetting the underlying substantive possession with

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intent to distribute more than 100 kilograms of marihuana in viola-
tion of 21 U.S.C. § 841(a)(1) and (b)(1)(B). The jury found
Herrera guilty on the conspiracy count and not guilty on the pos-
session count. Finding no error, we affirm.
I.
On November 14, 1991, Cameron County, Texas, sheriff's depart-
ment officers went to a house in Brownsville that they had been
informed was a "stash house" containing a large quantity of mari-
huana. Two officers went to the front door, and others were sta-
tioned elsewhere. The two officers knocked on the door, and a
voice asked who was there. The officers identified themselves and
then heard a commotion of people running and yelling inside.
Herrera, Ramos, and Gutierrez-Garcia fled the house through a
window and immediately were apprehended.
Ramos claimed possession of the house and consented to a
search of it. Upon entering, the officers saw in the living room
bundles of marihuana, one apparently in the process of being
wrapped and others already wrapped; more marihuana was found in the
bedroom. Boxes containing marihuana residue were found in the
garage. The total weight of the marihuana seized from the house
was 550 pounds.
When the officers entered the house, it smelled of marihuana.
All three occupants appeared to the officers to have red eyes, as
if they had been smoking marihuana. One officer testified that his
understanding from another defendant was that Herrera was helping

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to package the marihuana. There was no objection to, or cross-
examination about, either the testimony regarding Herrera's eyes or
the hearsay about the co-defendant's comment.
A Toyota truck parked in the driveway belonged to Herrera.
Underneath the seat was a pistol of a type commonly used by drug
traffickers. An informant previously had told police that uniden-
tified residents of the house were storing marihuana there and had
a gun.
Herrera testified that his presence at the house was entirely
innocent. He was a twenty-one-year-old college student who worked
forty hours a week at a warehouse. He said that he never had been
inside Ramos's house until that night and did not know that mari-
huana was there.
Herrera said that he had gone to a mall earlier that night
with some friends and ran into Ramos, whom he had not seen for two
or three years. During their conversation, Herrera said he was
hungry; Ramos said that he was, too. As Herrera was ready to go
home, he told Ramos that he would go to his own home, pick up some
food, and take it to Ramos's house. Ramos gave him directions to
his house. Herrera went home, had some chicken, and took a plate
to the house.
When Herrera arrived, Ramos and Gutierrez-Garcia admitted him
only to the entry hall, where they stayed for ten or fifteen min-
utes. The house smelled of something unpleasant. In Hereara's
words, "The whole house stunk."
The three men stood just inside the front door. Herrera felt

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that the others did not want him to be there; he did not go into
any other room. Herrera testified that he had no idea that Ramos
was involved with drugs and would not have gone to the house had he
known.
Herrera was about to leave when the officers knocked. He
asked who was there. When the officers identified themselves,
Herrera turned around and saw Ramos and Gutierrez-Garcia fleeing
through an open window. Herrera testified, "I didn't know what to
do. They were going to leave me alone there. I went after Juan."
Herrara claims that the gun in his car belonged to a friend of
a friend. Herrera's friend Ruben Peña was taking care of it for
Peña's friend, who was out of town and did not want to leave the
gun at home with his children.
II.
Herrera argues that the district court should have granted him
a new trial, for which he moved on the ground of newly discovered
evidence. Between trial and sentencing, Herrera moved for a new
trial, claiming that Ramos had evidence exculpating him.
A.
Motions for new trial based upon newly discovered evidence are
disfavored, and denials of such motions are reversed only for abuse
of discretion. United States v. Peña, 949 F.2d 751, 758 (5th Cir.
1991). The movant must show (1) the evidence is newly discovered
and was unknown to the defendant at the time of trial; (2) the

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failure to detect the evidence was not caused by his lack of due
diligence; (3) the evidence is material, not merely cumulative or
impeaching; and (4) the evidence must probably produce an acquit-
tal. The movant must satisfy all four elements.
B.
The court ordered Herrera to submit affidavits in support of
the motion, warning that "[f]ailure to submit the affidavits will
result in Denial of the Motion." The court heard the motion at
sentencing. The court stated that it had received no affidavits
from Herrera; counsel explained that he had advised Ramos not to
give an affidavit.
The court then recited an event from trial, to-wit: The
government called Ramos, who thereupon advised the court that he
would invoke his right against self-incrimination and did not wish
to testify for the government. Upon Ramos's invocation of his
Fifth Amendment right, the court would not allow the government to
examine him. For whatever reason, defense counsel, who was not
counsel at the time of the motion for new trial, did not call
Ramos, who, in the court's words, "was available on the spot." In
response to the court's further observation that "there was no
effort, none whatsoever, made by the defense to call the defendant
to testify . . . for the defendant," Herrera's attorney responded,
"That was [Herrara's former] counsel's error, Judge, at the trial
level."
Counsel also responded that Ramos could not have been forced

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to testify, even if the defense had called him. The court re-
sponded, "You don't know because he was never asked . . . . [T]he
Court took up the matter exclusively from the standpoint of being
called by the Government."
Counsel unsuccessfully urged the court to grant the motion
because Ramos had asserted Herrera's innocence at the former's
sentencing hearing. Herrera argues that Ramos, at his
rearraignment, "ambiguously implicated Herrera as having knowledge
of and active participation in the drug smuggling operation . . . .
However, during his sentencing hearing set on 16 Oct 1992, Ramos
stated that Herrera was not involved and was innocent." Herrera
asserts, "The basic premise of the motion being that the co-defen-
dant Ramos previously attempted to exonerate Herrera, but such
information was not known to Herrera until after trial."
At trial, outside the presence of the jury, the government
told the court that it wanted to call Ramos but that Ramos was
going to change his story. The prosecutor said that Ramos could
face possible perjury charges "because of what he said in front of
the court earlier."
Ramos's attorney then invoked the Fifth Amendment on his
client's behalf, and Ramos agreed that such was his wish. The
court allowed Ramos to invoke the Fifth Amendment; Herrara's coun-
sel said nothing.
C.
When a defendant does not attempt to call a witness at trial

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)) even one who is likely to invoke his Fifth Amendment right not
to testify )) the defendant fails in his duty of due diligence. In
the face of such a failing, the court does not abuse its discretion
by denying a new trial. United States v. Munoz, 957 F.2d 171, 173
(5th Cir.), cert. denied, 113 S. Ct. 332 (1992).
The government's announcement at trial that Ramos was going to
change his story certainly put Herrera on notice that Ramos might
be a favorable witness. Herrera may not claim now that he was duly
diligent when he stood silent then.
III.
Herrera argues that he should have been granted a judgment of
acquittal. He moved for acquittal at the conclusion of the govern-
ment's case on the ground of insufficient evidence. The denial of
such a motion will not be disturbed if a rational trier of fact
could have found the defendant guilty beyond a reasonable doubt.
United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en
banc), aff'd, 462 U.S. 356 (1983).
The elements of a conspiracy to possess drugs are, first, the
existence of an agreement to possess; second, knowledge of the
agreement; and third, voluntary participation in the agreement.
The conspiracy may be established by circumstantial evidence.
Discrete circumstances that, standing alone, would be inconclusive
may prove a conspiracy when taken together and corroborated by
moral coincidence. United States v. Rodriguez-Mireles, 896 F.2d
890, 892 (5th Cir. 1990) (internal quotation marks deleted).

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Circumstantial evidence may prove guilt beyond a reasonable doubt
without excluding every reasonable hypothesis of innocence. Bell,
678 F.2d at 549.
Herrera was present in the "stash house." Without more, mere
presence does not establish guilt. United States v. Maltos,
985 F.2d 743, 746 (5th Cir. 1992). Presence, though, is one factor
that may be considered along with other evidence. Id. Herrera did
flee when the police officers identified themselves. "While flight
alone is insufficient to support a guilty verdict, it is relevant
and admissible, and the jury could take into account [the defen-
dant's] flight." United States v. Lopez, 979 F.2d 1024, 1030 (5th
Cir. 1992), cert. denied, 113 S. Ct. 2349 (1993).
Herrera also had a pistol in his truck. An informant had
previously told police that the residents of the house had a gun.
The only gun found at the scene was found in Herrera's truck.
"Weapons and violence are frequently associated with drug transac-
tions, of course." United States v. Coleman, 969 F.2d 126, 132
n.20 (5th Cir. 1992).
Herrera gave an unlikely story of how the gun came to be under
the seat of his truck and produced no evidence to corroborate that
story. "This court has recognized that an `implausible account of
the events provides persuasive circumstantial evidence of the
defendant's consciousness of guilt.'" United States v. Rodriguez,
993 F.2d 1170, 1176 (5th Cir. 1993) (quoting United States v. Diaz-
Carreon, 915 F.2d 951, 955 (5th Cir. 1990)).
An officer testified that his understanding from another

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defendant was that Herrera was helping to pack the marihuana.
There also was testimony that Herrera appeared to have been smoking
marihuana and that a co-defendant said that Herrera was involved in
the packaging operations. This testimony, when combined with
rational inferences that can be drawn from the informant's tip
about the gun, provides sufficient evidence to affirm the verdict.
AFFIRMED.

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