United States v. Stone ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-51208
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTIN TODD STONE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. P-97-CR-225-1
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November 16, 1999
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Martin Todd Stone appeals from a judgment entered after a
jury convicted him of importation of marijuana and possession of
marijuana with intent to distribute. He argues that insufficient
evidence was presented to support either conviction. We have
reviewed the record and find no reversible error. Viewed in the
light most favorable to the verdict, the evidence was sufficient
to support the jury’s determinations. See United States v.
Shabazz, 993 F.2d 431, 441 (5th Cir. 1993). The jury heard
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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evidence that Stone admitted to a law enforcement officer that he
agreed to participate in the drug venture, before it occurred, in
exchange for $1,500. Although Stone testified otherwise at
trial, the jury is solely responsible for determining the weight
and credibility of the evidence. United States v. Martinez, 975
F.2d 159, 161 (5th Cir. 1992). The jury was entitled to credit
the testimony of the law enforcement officer over Stone’s.
Stone argues that the district court committed reversible
error in instructing the jury on deliberate ignorance. The
instruction is proper “‘only when the defendant claims a lack of
guilty knowledge and the proof at trial supports an inference of
deliberate ignorance.’” United States v. Lara-Velasquez, 919
F.2d 946, 951 (5th Cir. 1990) (citation and brackets omitted).
At trial, Stone asserted a lack of guilty knowledge. Having
reviewed the evidence, we conclude that there was evidence of
circumstances “so overwhelmingly suspicious that the defendant’s
failure to question the suspicious circumstances” could have been
used by a reasonable jury to “establish[] the defendant’s
purposeful contrivance to avoid guilty knowledge.” Id. at 952.
Even if we perceived some error in the district court’s use of
the instruction, which we do not, we would find the error
harmless. See United States v. Cartwright, 6 F.3d 294, 301 (5th
Cir. 1993) (finding “substantial evidence of actual knowledge”
when the defendant had confessed).
Stone argues that the trial court should have granted his
motion for a new trial because of a psychologist’s report,
No. 98-51208
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prepared by order of the court after trial, indicating that his
personality allowed him to follow his accomplice unquestioningly.
We review the court’s denial of the motion for abuse of
discretion. United States v. Jaramillo, 42 F.3d 920, 924 (5th
Cir. 1995). “We disfavor these motions and view them with great
caution.” Id.To obtain a new trial under Fed. R. Crim. P. 33 on the basis
of newly discovered evidence, Stone must show, inter alia, that
his earlier ignorance of the evidence was not the result of a
lack of due diligence and that the evidence “would probably
produce an acquittal” if admitted at a new trial. Id. Stone can
show neither. Stone knew that his defense would be that he
lacked any knowledge of the drug deal before it occurred.
Nevertheless, he never sought to obtain any expert testimony to
explain how he could have been so easily led into circumstances
that continually became more and more nebulous. If the court
itself had not ordered the posttrial psychological examination,
Stone apparently would not have ever obtained any expert
testimony. This is not due diligence. Furthermore, having
reviewed the evidence, we conclude that Stone has not shown that
the psychologist’s report “would probably produce an acquittal”
at a new trial. At sentencing, the district judge observed that
the psychologist’s opinion was perplexing, because she suggested
that both Stone and his accomplice led each other astray. Stone
has not disputed this characterization. Such an inconsistent
opinion would hardly be likely to sway a new jury. In addition,
the fact that Stone is easily led astray does not mean that he
No. 98-51208
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did not agree with his accomplice to participate in the drug
deal, and it does not mean that he did not confess his
participation to the law enforcement officer.
AFFIRMED.