United States v. Blackthorne

United States Court of Appeals
Fifth Circuit
F I L E D
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
immaterial to Blackthorne’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 viola-
tion 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-

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lush, at her home in Florida.1
The facts underlying Blackthorne’s convic-
tion 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 sup-
ported by the evidence) is that Blackthorne
and Danny Rocha, a bookie and golf compan-
ion, conspired to arrange the hired murder of
Bellush. Using Blackthorne’s money and Ro-
cha’s criminal contacts, they were able to se-
cure the involvement of Sammy Gonzales and
Joey del ToroSSthe latter of whom traveled
from Texas to Florida and murdered Bellush in
her home. Blackthorne, in contrast, maintains
that he is innocent, 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 Ro-
cha, but neither side called del Toro to testify.
Blackthorne relies on that fact to argue that
statements del Toro made in a recent civil de-
position constitute newly discovered evidence
favorable to the defense. Blackthorne raised
those arguments in a rule 33 motion, which the
district court denied without holding an ev-
identiary 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 mo-
tions for a new trial on the basis of newly dis-
covered 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 tri-
al; (2) that the failure to discover the evi-
dence was not due to his lack of diligence;
(3) that the evidence is not merely cumula-
tive, but is material; and (4) that the evi-
dence would probably produce an acquittal.
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 im-
material to his guilt or innocence. It therefore
cannot form the basis for a new trial.2 Id. at
267-68.
1.
The first of two categories of evidence
Blackthorne cites consists of statements 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 conspiracy only after
hearing allegations that Bellush abused her 1 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 discov-
ered evidence.

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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 narrows the
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 pre-
cludes a finding that he joined the conspiracy
and, as a result, forces the government to rely
exclusively on a theory that Blackthorne con-
spired with Rocha. This weakens the govern-
ment’s case, Blackthorne argues, because Ro-
cha has repudiated his trial testimony and is
unlikely to implicate Blackthorne in a new
trial.
The elements of conspiracy to commit fed-
eral murder-for-hire under § 1958 are “(1) an
agreement by two or more persons to achieve
the unlawful purpose of [interstate] mur-
der-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 conspirato-
rial 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 murder-
for-hire, and it succeeded in proving that Ro-
cha was that other person. Proof of del Toro’s
involvement in the conspiracy is therefore ex-
traneous to Blackthorne’s culpability.
Neither is the 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, t he government relied on evi-
dence that showed Blackthorne knew only Ro-
cha 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. Black-
thorne 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 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
of evidence that was already the subject of ap-
peals.5 Those proceedings ended with the con-
3 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 conspir-
acy; and (3) the intent on the part of the defendant
to further an unlawful objective of the conspir-
acy”).
4 Gresham, 118 F.3d at 267.
5 In addition to Rocha’s recantation, Black-
thorne relies on evidence that this court, on direct
(continued...)

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clusion that Blackthorne was not entitled to a
new trial, and that view is not the least bit di-
minished by new evidence that has no ten-
dency to undermine the verdict reached at tri-
al. Were our view otherwise, a rule 33 motion
could be made on the basis of any inconse-
quential fact not previously known to the de-
fendant, with the ultimate goal’s being nothing
more than the renewed litigation of claims
previously denied.
Even assuming, arguendo, that the govern-
ment had to prove del Toro’s participation in
a conspiracy with Blackthorne,6 it 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 conse-
quence that del Toro might have joined the
conspiracy after the point at which some overt
acts occurred, because “one who joins an on-
going 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. Barks-
dale-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 exculpatory because it sug-
gests that del Toro might not have committed
an interstate murder-for-hire because he trav-
eled to Florida without the “intent that a mur-
der be committed,” § 1958, the evidence is still
immaterial to Blackthorne’s conviction for
conspiracy. It is well established that a con-
spiracy 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 del Toro’s state of
mind is also immaterial to Blackthorne’s con-
viction 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’s spouse or intimate partner; and (3) in
the course of or as a result of that travel, in-
tentionally 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 oth-
er’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.

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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) re-
quires, but that fact does not exculpate Black-
thorne. Under § 2(b), “only the person
charged need have the criminal intent, the in-
dividual 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 Black-
thorne caused del Toro to travel to Florida,
that he intended thereby to injure Bellush, and
that he succeeded in that objective. As a re-
sult, this first category of newly discovered ev-
idence 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 Gonza-
les’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 is sufficient-
ly 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-for-
hire, it too is incapable of absolving Black-
thorne of liability for the conspiracy.
Blackthorne also suggests that 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 directly relate to Blackthorne’s culpa-
bility, but instead serves only to attack the ver-
acity of Gonzales as a witness. Blackthorne’s
argument fails, therefore, because “evidence
which merely discredits or impeaches a wit-
nesses’ 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.
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
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 contends that 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).

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abused its discretion in denying his motion
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
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 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).

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