Filed: May 06, 2002
Latest Update: Feb. 21, 2020
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 00-51256 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ALLEN BLACKTHORNE, Defendant-Appellant. _ Appeal from the United States District Court for the Western District of Texas (SA-00-CR-3-ALL) _ May 3, 2002 Before DUHÉ, BARKSDALE, and DENNIS, Circuit Judges. RHESA HAWKINS BARKSDALE, Circuit Judge:* For Allen Blackthorne’s numerous challenges to his convictions for, inter alia, conspiracy to use interstate commerce facilities in the
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 00-51256 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ALLEN BLACKTHORNE, Defendant-Appellant. _ Appeal from the United States District Court for the Western District of Texas (SA-00-CR-3-ALL) _ May 3, 2002 Before DUHÉ, BARKSDALE, and DENNIS, Circuit Judges. RHESA HAWKINS BARKSDALE, Circuit Judge:* For Allen Blackthorne’s numerous challenges to his convictions for, inter alia, conspiracy to use interstate commerce facilities in the c..
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-51256
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALLEN BLACKTHORNE,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(SA-00-CR-3-ALL)
_________________________________________________________________
May 3, 2002
Before DUHÉ, BARKSDALE, and DENNIS, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:*
For Allen Blackthorne’s numerous challenges to his convictions
for, inter alia, conspiracy to use interstate commerce facilities
in the commission of murder for hire, primarily at issue are
evidentiary rulings concerning: portions of the victim’s
(Blackthorne’s former wife’s) deposition in her divorce proceeding
against him, in which she recounted threats Blackthorne made
against her; and other evidence of threats against the victim, as
*
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this opinion should not be published and is not precedent except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.
well as her allegations that Blackthorne sexually abused one of
their children.
Blackthorne also contends: the evidence is insufficient to
support his convictions; extrinsic evidence of prior inconsistent
statements by a key Government witness should have been admitted;
the Government elicited false testimony from another key Government
witness; a mistrial should have been declared; the jury
instructions were erroneous; and an evidentiary hearing should have
been held to consider his new trial motion. AFFIRMED.
I.
In November 1997, Sheila Bellush, Blackthorne’s former wife,
was murdered in her home in Sarasota, Florida. Blackthorne and
Mrs. Bellush married in 1983. As early as 1985, he began
threatening her, saying: if she ever left him, he would either
kill her or have her killed; he would have her “taken care of”; her
face would be maimed and she would never walk again; and he was in
a position to have another person do this.
In 1987, Mrs. Bellush and Blackthorne divorced; she was
awarded custody of their two daughters. The ten years following
their divorce involved a bitter and protracted battle over custody
and child support. Blackthorne withheld child support payments;
and, in 1990, without Mrs. Bellush’s knowledge, he secured a
reduction in his support obligations. In 1991, he attempted to
obtain custody; Mrs. Bellush, to increase his support obligations.
2
During the litigation, the two exchanged accusations.
Blackthorne claimed she physically and psychologically abused their
daughters; Mrs. Bellush, that he sexually abused one of them.
Blackthorne failed in his custody attempt; his support obligations
were increased; and this made him “angry” and “upset”.
Blackthorne again made threats against Mrs. Bellush. In one
instance, while she was visiting her daughters at Blackthorne’s
home, she and Blackthorne discussed the murder of her friend;
according to Mrs. Bellush, it had been committed by her friend’s
husband. Blackthorne told Mrs. Bellush that the victim “pissed
[her husband] off and she got what she deserved”. He warned her:
“Don’t ever piss me off because the same thing will happen to you”.
In another instance, Blackthorne told one of his daughters
that he “hated” Mrs. Bellush, and he “wanted her dead”. He also
confided in a co-worker that “he had the contacts to have [Mrs.
Bellush] taken to Mexico and she wouldn’t return”.
In 1997, Mrs. Bellush, who had remarried, refused to allow
Blackthorne visitation. In attempting to enforce such rights,
Blackthorne accused Mrs. Bellush and her husband of physically
abusing one of their daughters. Mrs. Bellush, in turn, again
accused Blackthorne of sexual abuse and sought to have
Blackthorne’s visitation privileges ended. Blackthorne again
sought custody.
A hearing was held in July 1997, described by the presiding
judge as “very acrimonious”, with Blackthorne and Mrs. Bellush
3
interested only in “settl[ing] the score” with each other and
neither having the children’s best interests in mind. When the
judge suggested that both families receive counseling, Blackthorne
relinquished his paternal rights. According to Blackthorne’s
secretary, he complained that, in all of the court proceedings,
Mrs. Bellush had made the same false child abuse accusations.
That same month (July 1997), while on a trip with Danny Rocha,
a bookie and golf companion, Blackthorne complained to Rocha that
Mrs. Bellush was abusing their children; Blackthorne asked Rocha
whether he knew anyone who would kill her. Rocha responded he did
not, but that “if [Blackthorne] wanted to have her beat[en] up,
[he] could probably get someone to do that”.
Blackthorne decided “that beating her would be a better way of
going about stopping her and asked [Rocha] if [he] would help him
find someone to do it”. As for the severity of the beating,
Blackthorne told Rocha that he wanted Mrs. Bellush “crippled in a
wheelchair with no tongue”. Blackthorne assured Rocha that, if he
would “handle the situation” with Mrs. Bellush, he would give him
a 25 percent ownership interest in a golf course he planned to
build.
The next month (August), Blackthorne asked Rocha if he had
found anyone to do what they had discussed; Rocha replied that he
had someone in mind, but had not contacted him. Later in August,
Rocha approached a friend, Sammy Gonzales, and asked him to find a
person willing to assault Mrs. Bellush. That September, after
4
disagreeing with Rocha over a price and who should pay it,
Blackthorne agreed to pay $4,000. He gave Rocha the money, as well
as Mrs. Bellush’s photograph and address in Boerne, Texas.
Rocha convinced Gonzales to hire someone to commit the
assault, stating: Blackthorne would pay $5,000; and Gonzales could
pay $4,000 and keep $1,000. Rocha gave Gonzales $4,000, Mrs.
Bellush’s picture and address, and promised to pay the remaining
$1,000 later.
That same month, after hitting one of her daughters with her
belt, Mrs. Bellush was arrested for child abuse; the daughter was
placed in a shelter. The next day, Mrs. Bellush was released.
She, her husband, and the rest of their family moved from Texas to
Sarasota, Florida, leaving the daughter in the shelter. The State
of Texas moved to place the daughter in foster care and a hearing
was set for 15 September 1997.
On 12 September, Gonzales unsuccessfully attempted to locate
Mrs. Bellush’s Texas home. He tried again the next morning,
calling Rocha for directions. Rocha obtained the directions from
Blackthorne and relayed them to Gonzales.
After receiving the directions, Gonzales enlisted his cousin,
Joey Del Toro, to assault Mrs. Bellush for $3,000. That same day,
as they drove past Mrs. Bellush’s former house, Gonzales recognized
a woman he believed to be Mrs. Bellush, but she left before Del
Toro could attack her.
5
Mrs. Bellush returned to San Antonio on 14 September to attend
her daughter’s custody hearing. The next day, Mrs. Bellush
regained custody and they returned to Florida. That same day,
however, Gonzales and Del Toro continued to look for Mrs. Bellush;
when they could not find her, Gonzales again called Rocha for
assistance.
Rocha, in turn, called Blackthorne, who informed him that,
because there had been a hearing that day, they should look for
Mrs. Bellush at her attorney’s office. Rocha relayed this
information to Gonzales and Del Toro; but after driving to the
office, they did not find her.
After Mrs. Bellush moved to Florida, fearing Blackthorne, she
tried to prevent him from locating her. She used Mail Boxes, Etc.
to receive her mail; placed title to her home in a different name;
and forbade her daughters from contacting him. Blackthorne,
however, made considerable efforts to locate her. He had his
secretary attempt to obtain the address from Mrs. Bellush’s church
in Florida and asked one of his business associates to follow her
home from church. Eventually, through the services of a private
investigator, Blackthorne obtained her new (Florida) address.
After Mrs. Bellush regained custody of her daughter in mid-
September 1997, Blackthorne complained to Rocha that Mrs. Bellush
had “beat” the child abuse case and offered Rocha $50,000 if he got
his children back, telling Rocha that “the guys” should “use their
imagination”. When Rocha asked “what happens if she dies”,
6
Blackthorne responded: “So be it”. He then told Rocha that the
best way for them to receive the $50,000 was “if no one finds the
body” and further instructed them to “dump her in the ocean or bury
her in the woods”.
Rocha told Gonzales that Blackthorne “wants to get it done”
and that Blackthorne was offering a $10,000 “incentive” if he got
his daughters back. (Rocha, intending to keep $40,000 for himself,
reduced the incentive to $10,000.) Gonzales told Rocha, and Rocha
acknowledged, that Mrs. Bellush “might die of her injuries”.
Gonzales did not then commit to go to Florida, and did not commit
for Del Toro. Subsequently, Rocha continued to pressure Gonzales
to contact Del Toro.
On 4 November 1997, Gonzales arranged for Rocha and Del Toro
to meet. Rocha told Del Toro he would be paid $4,000 to go to
Florida and assault Mrs. Bellush, but that Blackthorne would also
pay $10,000 if he regained custody of his daughters. When Del Toro
observed that such a beating could be fatal, Rocha responded
Blackthorne was aware of that. And, upon Del Toro’s asking how to
get the $10,000, Rocha replied the “easiest way ... is just to
shoot her”. Rocha also told Del Toro that, if he did this job, he
would have future employment for him.
Del Toro then asked Rocha and Gonzales if they knew where he
could obtain a gun. They told him they did not. Rocha gave Del
Toro $500, agreeing to pay an additional $3,500 when he returned;
7
he also gave him Mrs. Bellush’s address, which he had received from
Blackthorne. Rocha also conveyed to Del Toro Blackthorne’s
suggestion that there was a strip center near Mrs. Bellush’s house
where Del Toro could park and walk to Mrs. Bellush’s home; he told
Del Toro that he should wear casual clothes and that it would be
best to do it in the daytime, while Mrs. Bellush’s husband was
absent.
After obtaining a gun, Del Toro left Texas for Florida on 5
November. He called Gonzales and asked him to tell Rocha he was
“on his way”. Rocha relayed this information to Blackthorne. On
6 November, Del Toro reported to Gonzales that he had arrived in
Florida, had found Mrs. Bellush’s house, and was waiting for the
best opportunity.
Del Toro murdered Mrs. Bellush in her home on 7 November. He
attacked her in the laundry room, shooting her once in the face
with a .45 caliber pistol, striking her head with the gun butt, and
slashing her throat with a knife. A trail of blood showed Mrs.
Bellush dragged herself into the kitchen and collapsed, trying to
telephone for help before bleeding to death. Her daughter arrived
home from school to find her dead and Mrs. Bellush’s 23-month-old
quadruplets alone in the house.
Del Toro fled Florida, called Gonzales to tell him he had
killed Mrs. Bellush, and asked Gonzales to contact Rocha because he
needed money — the remaining $3,500, plus $3,000 of the
8
“incentive”. Gonzales notified Rocha, who gave him $3,500 to give
to Del Toro.
The night of the murder (7 November), Rocha went to see
Blackthorne. After learning Mrs. Bellush had been killed in her
home, Blackthorne told Rocha they had “messed up”, because they had
not followed his directive to dispose of her body so that it would
not be found. When Rocha asked Blackthorne for $3,000, as partial
payment of the incentive, Blackthorne responded “he didn’t have it
on him”.
Gonzales gave Del Toro $3,500 the next day, and Del Toro
described to him how he had murdered Mrs. Bellush: he entered
through a window, shot her, and then stabbed her with a kitchen
knife when his gun jammed. Del Toro fled to Mexico on 11 November.
Blackthorne met Rocha the same day and gave him $10,000.
Rocha confirmed for Blackthorne the accuracy of a sketch of Del
Toro that had appeared on television. Blackthorne told Rocha not
to say anything, and that “if anybody gets in trouble, ...
[Blackthorne would] hire lawyers for everybody”. Rocha paid the
$10,000 to an attorney after he learned Del Toro had fled.
In January 2000, Blackthorne was charged, under 18 U.S.C. §
1958(a), with conspiracy to use interstate commerce facilities in
the commission of murder for hire, and, under 18 U.S.C. §§ 2(b),
2261(a)(1) and (b)(1), with causing another to cross state lines to
commit domestic violence. Trial commenced on 12 June 2000; and,
9
after the testimony of, inter alia, Rocha and Gonzales, Blackthorne
was convicted on 6 July. He was sentenced to concurrent life
sentences.
II.
Primarily at issue are the evidentiary rulings regarding Mrs.
Bellush’s divorce deposition and evidence of Blackthorne’s prior
threats against Mrs. Bellush, as well as her accusations that he
sexually abused their daughter. Blackthorne presents numerous
other issues.
A.
Blackthorne, who testified, contends the evidence is
insufficient to support his convictions for causing Del Toro to
cross state lines to commit domestic violence and for conspiring to
use interstate commerce facilities in the commission of a murder
for hire. Blackthorne having timely moved for judgment of
acquittal, “we view the evidence in the light most favorable to the
jury verdict and will affirm if a rational trier of fact could have
found that the government proved all essential elements of the
crime beyond a reasonable doubt”. United States v. Lankford, 196
F.3d 563, 575 (5th Cir. 1999) (internal quotation marks omitted),
cert. denied,
529 U.S. 1119 (2000). All reasonable inferences must
be drawn in favor of the verdict, with “credibility determinations
[being] the sole province of the jury”. See United States v.
Cathey,
259 F.3d 365, 368 (5th Cir. 2001). Accordingly, it was for
10
the jury to make credibility calls concerning the conflicting
testimony presented by Blackthorne and the Government’s witnesses,
especially Rocha and Gonzales.
1.
A violation of 18 U.S.C. § 2261(a)(1) occurs where:
A person ... travels across a State line ...
with the intent to injure ... that person’s
spouse or intimate partner, and who, in the
course of or as a result of such travel,
intentionally commits a crime of violence and
thereby causes bodily injury to such spouse or
intimate partner....
Of course, for aiding and abetting,“[w]hoever willfully causes an
act to be done which if directly performed by him ... would be an
offense against the United States, is punishable as a principal”.
18 U.S.C. § 2(b).
Blackthorne does not contest the sufficiency of the evidence
regarding the elements of § 2261(a)(1). Instead, he maintains it
is insufficient for his causing Del Toro to cross a state line and
injure Mrs. Bellush. According to Blackthorne, neither his $4,000
payment nor the $50,000 incentive caused Del Toro to travel to
Florida.
Instead, Blackthorne contends that Del Toro agreed to travel
to Florida to assault Mrs. Bellush only after Rocha assured Del
Toro he would give him work in the future. According to
Blackthorne, this employment assurance, not the monetary incentives
he made available, was why Del Toro agreed to go to Florida.
11
Blackthorne construes § 2(b)’s causation requirement too
narrowly. The monetary inducements do not have to be the exclusive
cause of Del Toro’s violation of § 2261(a)(1). See United States
v. Levy, 969 F.2d 136, 141 (5th Cir.) (a requirement that the
defendant be the sole cause of the act “would render ... § 2(b)
meaningless”), cert. denied sub nom.
506 U.S. 1040 (1992).
Instead, § 2(b) covers anyone who “puts in motion or assists in an
illegal enterprise”. United States v. Smith,
584 F.2d 731, 734
(5th Cir. 1978).
The Government contends that Blackthorne’s $50,000 incentive
put Del Toro in motion. According to the Government, only because
Rocha reduced the incentive from $50,000 to $10,000 did he offer
Del Toro future work.
We agree that Blackthorne’s payment offers put in motion Del
Toro’s traveling to Florida to assault Mrs. Bellush. Rocha’s
reducing the incentive for his personal gain does not diminish
Blackthorne’s culpability. The $50,000 incentive caused Rocha to
recruit Del Toro and was, thus, a cause of Del Toro’s committing
the act.
Furthermore, Rocha’s future employment assurance was not the
sole cause of Del Toro’s accepting the assignment. The money was
just as, if not more, important in Del Toro’s decision to murder
Mrs. Bellush. On their way to meet Rocha, Gonzales told Del Toro:
“Danny [Rocha] wants to know if you want to go to Florida”. Del
12
Toro replied: “Well, I don’t know. About how much are they
willing to pay”. (Emphasis added.) While meeting with Del Toro,
Rocha asked whether he was “[r]eady to go to Florida”; in response,
Del Toro wanted “to know how much money [Rocha] was going to pay”.
(Emphasis added.)
Viewing the evidence in the light most favorable to the
verdict, a rational juror could have found that Blackthorne’s
monetary inducements were a cause of Del Toro’s traveling to
Florida to commit murder; and that, accordingly, causation was
proved beyond a reasonable doubt.
2.
Blackthorne also contends the evidence is insufficient that he
conspired to use interstate commerce facilities in the commission
of murder for hire. Its elements are: “(1) traveling or causing
another to travel in interstate ... commerce ...; (2) with the
intent that a murder be committed ...; and (3) as consideration for
the receipt of pecuniary value”. United States v. Sharpe, 193 F.3d
852, 863-64 n.6 (5th Cir. 1999), cert. denied,
528 U.S. 1173
(2000); see 18 U.S.C § 1958(a).
Blackthorne’s argument is threefold: there was an agreement
between him, Rocha, Gonzales, and Del Toro only to have Mrs.
Bellush beaten, not to have her killed; his payment offers did not
cause Del Toro to commit the murder; and Del Toro departed the 4
November meeting with Rocha and Gonzales with the option of beating
13
Mrs. Bellush for $4,000, or harming her severely for $10,000,
thereby absolving Blackthorne.
As for Blackthorne’s contention that he did not intend for
Mrs. Bellush to be murdered, he points to Rocha’s disbelief, after
being told of Mrs. Bellush’s murder, and to his own statement,
after learning of the murder, that “[y]ou guys messed up”. These
statements, however, in no way constitute evidence that Blackthorne
did not intend her murder.
Rocha’s initial reaction was skepticism that Gonzales and Del
Toro had finally carried out what they had been hired to do, rather
than “surprise” that Mrs. Bellush had been murdered. According to
Rocha, he “was more interested in finding out if Joey [Del Toro]
actually killed her or not because [he] still wasn’t sure that it
actually had happened”. In other words, Rocha wanted to make sure
Del Toro had done what he had been paid to do.
A rational juror could find that Blackthorne’s assessment that
the three had “messed up” was not in reaction to Mrs. Bellush’s
murder that, instead, Blackthorne was referring to Mrs. Bellush’s
being murdered in her home. Blackthorne had given Rocha “a couple
of scenarios, and his scenarios included no one finding the body”.
Where Del Toro “messed up” was not in murdering Mrs. Bellush, but
in not disposing of her body.
In July 1997, Blackthorne asked Rocha to find someone to
murder Mrs. Bellush. That October, when Rocha observed that she
could die from a beating, Blackthorne responded: “So be it”.
14
Blackthorne also directed that Gonzales and Del Toro “[u]se their
imagination” and that they “dump her in the ocean or bury her in
the woods”.
Blackthorne next asserts that the $4,000 payment and the
$10,000 incentive were not offered in consideration for murdering
Mrs. Bellush. Instead, according to Blackthorne, the $4,000 was
offered in exchange for Mrs. Bellush’s beating, with the $10,000
being offered only as incentive for Blackthorne’s gaining custody
of his daughters.
As detailed above, Blackthorne’s intent that Mrs. Bellush be
murdered is clear. Although the $10,000 payment was predicated on
Blackthorne’s gaining custody, he stated that the best way for them
to “get their $50,000.00 is if no one finds the body”.
Blackthorne’s contention that he is absolved from the conspiracy by
Del Toro’s deciding to seek the $10,000 incentive is nonsensical.
Assuming arguendo the $4,000 payment was solely to have Mrs.
Bellush beaten, the fact that Del Toro chose to pursue the $10,000
incentive does not extinguish Blackthorne’s culpability: Del
Toro’s choice to seek this higher remuneration does not change the
fact that Blackthorne offered this incentive knowing the end
result.
B.
Blackthorne maintains videotapes of a television interview
with Rocha should have been admitted in evidence. “The admission
15
or exclusion of evidence at trial is a matter committed to the
discretion of the trial court”; we review for abuse of that
discretion. United States v. George, 201 F.3d 370, 373 (5th Cir.),
cert. denied,
529 U.S. 1136 (2000); see FED. R. EVID. 103(a) (“Error
may not be predicated upon a ruling which admits or excludes
evidence unless a substantial right of the party is affected”.)
The tapes at issue were out-takes (never aired segments) of an
interview conducted in prison for a television documentary that
aired in January 2000 about Mrs. Bellush’s murder. In that
interview, Rocha denied he or Blackthorne knew she was going to
die; denied it was their intent for her to die; and stated he had
falsely implicated Blackthorne. On cross-examination at trial,
Rocha admitted to these prior statements, which were inconsistent
with his trial testimony.
Federal Rule of Evidence 613(b), which governs the
admissibility of extrinsic evidence of prior inconsistent
statements, provides, inter alia: “Extrinsic evidence of a prior
inconsistent statement by a witness is not admissible unless the
witness is afforded an opportunity to explain or deny the same”.
FED. R. EVID. 613(b). In construing this Rule, our court has held:
“Proof of [a prior inconsistent] statement may be elicited by
extrinsic evidence only if the witness on cross-examination denies
having made the statement”. United States v. Devine, 934 F.2d
16
1325, 1344 (5th Cir. 1990) (emphasis added), cert. denied,
502 U.S.
1065 (1992).
Blackthorne claims he offered the tapes not to impeach Rocha’s
testimony concerning his and Blackthorne’s involvement in the
murder, but instead to impeach other testimony. Before addressing
Blackthorne’s contention, it is necessary to describe the
evidentiary rulings concerning the tapes. During a break in
Rocha’s cross examination, the Government moved to exclude the
tapes as hearsay. The district court reserved ruling, stating
admissibility depended on whether the tapes would be used to show
Rocha had earlier contradicted himself, in which case they would be
admissible, or whether they would be used to show he had made an
inconsistent statement, but had corrected himself, in which case
they would not be admissible.
Blackthorne again moved to introduce the tapes during Rocha’s
cross examination after Rocha stated that both his and
Blackthorne’s intent was Mrs. Bellush’s murder and admitted he had
made the prior inconsistent statements in the interview. After
objection by the Government, and in a hearing outside the jury’s
presence, Blackthorne maintained the tapes were admissible “so you
can see that earnestly the man [Rocha] looks at the camera and in
a very sincere and believable voice, he gives different testimony
than he gave here in Court”. The objection was sustained.
17
During the continued questioning of Rocha, Blackthorne’s
counsel asked him about several of his statements made in the taped
interview. On the basis that Rocha had no specific recall of the
words he then used, Blackthorne moved to admit the tapes as a past
recollection recorded under FED. R. EVID. 803(5). The Government
objected, but the district court allowed Rocha during the next
recess to review the tapes to refresh his memory.
After reviewing the tapes, Rocha again admitted to making the
prior inconsistent statements. Blackthorne moved to admit the
tapes for the purpose of impeaching Rocha’s testimony that he was
a bad liar, after the following testimony by Rocha:
Q. Now, having reviewed those tapes, and
seeing what your demeanor was on the tape,
your inflection on the tape, how you answered
the questions on the tape, would you agree
that you came across on that tape as a very
truthful, honest individual?
A. No, I do not agree.
Blackthorne contends the tapes were admissible not only to
impeach Rocha’s testimony that he was a bad liar, but also “to
allow the jury to determine how persuasive a liar he was so that
the jury could intelligently assess his credibility”. Blackthorne
contends the tapes were relevant for these other purposes under
Rule 401. Evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence”. FED. R. EVID. 401.
18
Assuming arguendo that the tapes do not constitute extrinsic
evidence of prior inconsistent statements, and that Rocha’s opinion
concerning whether he was credible in the taped interview is
relevant, the tapes are still subject to Rule 403’s balancing test:
their probative value must substantially outweigh the “danger of
unfair prejudice, confusion of the issues, or delay, waste of time,
or needless presentation of cumulative evidence”. FED. R. EVID.
403.
Rocha’s opinion on this point has little probative value on
whether he was credible — a matter for the jury to decide.
Conversely, the danger of unfair prejudice and confusion of the
issues is great. Accordingly, there was no abuse of discretion.
C.
Blackthorne claims it was error to admit his prior threats
against Mrs. Bellush, as well as Mrs. Bellush’s allegations he had
abused one of their daughters. He maintains: the district court
should not have ruled pre-trial on admissibility; he was never
given a chance to rebut the evidence of abuse; the Government
repeatedly delved into the issue of abuse; and a mistrial should
have been declared when a witness stated Blackthorne had been
investigated on the basis of the abuse allegations.
1.
Regarding this evidence, Blackthorne moved in limine a week
before trial, asserting the evidence should not be admitted
19
pursuant to Rules 402, 403, and 404(b). On 12 June, the day trial
began, the district court denied the portion of the motion
concerning the threats and abuse allegations. (Blackthorne’s
motion was granted, however, concerning alleged assaults by
Blackthrone against Mrs. Bellush pending a hearing on their
relevance).
Pursuant to the rule extant at the time of Blackthorne’s
trial, if a motion in limine is overruled, the movant must “renew
his objection when the evidence is about to be introduced at
trial”. United States v. Graves, 5 F.3d 1546, 1551 (5th Cir. 1993)
(internal quotation marks omitted), cert. denied,
511 U.S. 1081
(1994). The purpose of that rule was “to allow the trial judge to
reconsider his in limine ruling with the benefit of having been
witness to the unfolding events at trial”.
Id. at 1552. (Such
motion-renewal is no longer necessary under certain circumstances.
Pursuant to an amendment to Rule 103(a), effective 1 December 2000,
where the district court “makes a definitive ruling on the record
admitting or excluding evidence, either at or before trial, a party
need not renew an objection ... to preserve a claim of error for
appeal”. FED. R. EVID. 103(a) (emphasis added). This amendment
does not apply to Blackthorne because his conviction occurred prior
to the amendment.)
Blackthorne objected under Rules 403 and 404 when evidence of
the threats and abuse allegations were introduced at trial.
20
Accordingly, we review the evidentiary rulings for abuse of
discretion. See George, 201 F.3d at 373.
a.
The Government introduced the following evidence of
Blackthorne’s threats: between 1985 and 1987, he threatened to
kill Mrs. Bellush if she ever left him or hurt his business,
including that he would have her “taken care of” and would have
someone else do it; between 1988 and 1992, he told his daughter he
hated Mrs. Bellush, wanted her dead, and “wouldn’t care if she was
killed”, because she caused others to lie about him; in 1990 he
threatened to kill her if she ever angered him; and in 1992, he
stated he had the contacts to have her taken to Mexico and “she
wouldn’t return”.
Under Federal Rule of Evidence 404(b):
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show action in conformity
therewith. It may, however, be admissible for
other purposes, such as proof of motive,
opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or
accident....
FED. R. EVID. 404(b). Whether evidence of prior bad acts, such as
these threats, is admissible involves a two step test. “First, it
must be determined that the extrinsic offense evidence is relevant
to an issue other than the defendant’s character. Second, the
evidence must possess probative value that is not substantially
outweighed by its undue prejudice and must meet the other
21
requirements of Rule 403.” United States v. Beechum, 582 F.2d 898,
911 (5th Cir. 1978) (en banc), cert. denied,
440 U.S. 920 (1979).
Blackthorne challenges the threats’ admissibility on the basis
they are too remote to the 1997 murder. “Although the remoteness
of extrinsic acts evidence may weaken its probative value, the age
of the prior [act] does not bar its use under Rule 404.” United
States v. Broussard, 80 F.3d 1025, 1040 (5th Cir.), cert. denied
sub nom.
519 U.S. 906 (1996).
The threats occurred between approximately five and 12 years
before the murder. In United States v. Richards, 204 F.3d 177, 200
(5th Cir.), cert. denied sub nom.
531 U.S. 826 (2000), we upheld
the admission of acts occurring three to five years before the
charged offense; in United States v. Hernandez-Guevara,
162 F.3d
863, 872-73 (5th Cir. 1998), cert. denied,
526 U.S. 1059 (1999),
admission of an 18-year-old conviction; and in United States v.
Chavez,
119 F.3d 342, 346-47 (5th Cir.), cert. denied sub nom.
522
U.S. 1021 (1997), admission of a 15-year-old conviction.
Obviously, in the light of Blackthorne’s defense that he did
not intend that Mrs. Bellush be murdered, his intent was a
fundamental facet of the Government’s case and these threats were
relevant to that intent. They are also highly probative,
substantially outweighing any prejudicial effect their remoteness
may have had: they demonstrate a pattern of Blackthorne’s desire
to harm, or more specifically, to have someone else harm, Mrs.
22
Bellush. See, e.g., United States v. Hadley, 918 F.2d 848 (9th
Cir. 1990) (upholding admission of a “regular pattern” of similar
conduct over a ten-year period, despite a ten-year hiatus between
the most recent prior conduct and the charged conduct), cert.
dismissed,
506 U.S. 19 (1992).
Such a pattern is especially probative in this case. The
threats occurred during the ten-year custody battle following
Blackthorne and Mrs. Bellush’s divorce.
b.
Regarding the admission of Mrs. Bellush’s abuse allegations,
Blackthorne contends they are not relevant; more prejudicial than
probative; unproven; and remote.
As for relevancy, the Government offered the abuse allegations
to demonstrate Blackthorne’s motive. In the post-divorce,
protracted custody battle, Blackthorne and Mrs. Bellush traded such
allegations. These allegations angered him and, therefore, are
highly relevant as to why he would want Mrs. Bellush dead.
Their probative value also substantially outweighs any
prejudicial effect. Obviously, child abuse allegations can be
prejudicial; but the limiting instructions, discussed infra, cured
any excessive prejudice. Furthermore, brought to the jury’s
attention was the fact that the allegations were only made, not
that they were true. Accordingly, Blackthorne has not demonstrated
their inadmissibility under Rule 403.
23
Blackthorne also contends the Government was required, under
Rule 404(b), to prove the truth of the abuse allegations. See
Huddleston v. United States, 485 U.S. 681, 689 (1988) (“In the Rule
404(b) context, similar act evidence is relevant only if the jury
can reasonably conclude the act occurred and that the defendant was
the actor.”). The Government responds: the allegations do not
fall under Rule 404(b) as extrinsic evidence of other crimes,
wrongs, etc.; instead, their relevance was Mrs. Bellush’s making
the allegations, not that Blackthorne had committed the claimed
abuse.
The district court held: “the evidence of allegations is
probative both on the question of motive and for the purpose of
establishing the relationship between [Blackthorne] and Bellush.
Rule 404(b) is inapplicable here, where the evidence is not offered
to show that [Blackthorne] did engage in the alleged conduct”.
(Emphasis in original.)
We agree. The Government did not seek to introduce evidence
of prior bad acts. Instead, it introduced evidence that Mrs.
Bellush made the allegations against Blackthorne; the veracity of
those allegations was irrelevant to the question of Blackthorne’s
motive. Accordingly, the Government was not required to prove
their truth.
Similar to his challenge to the prior threats, Blackthorne
contends the abuse allegations are too remote. According to him,
24
the allegations occurred in the May 1991, January 1992, June 1993,
and June/July 1997 child custody modification/enforcement actions.
Our prior remoteness analysis regarding the threats concerned
Rule 404(b). Although we have held the abuse allegations are not
Rule 404(b) evidence, our court has recognized that remoteness is
a question of relevance. See United States v. Grimes, 244 F.3d
375, 384-85 (5th Cir. 2001) (holding evidence of prior acts
relevant despite a gap in time).
The abuse allegations are not too remote. This was an ongoing
pattern and practice, with the most recent allegations having been
made approximately only four months before the murder. Our having
held, in some instances, that 15 and 18 years is not too remote,
these allegations, made from several months to approximately six
years before the murder, are likewise not too remote.
2.
As the basis for his claim that the district court should not
have ruled pre-trial on the admissibility of the threats and abuse
allegations, Blackthorne maintains the Rule 403 balancing test
could not be performed until the evidence was offered at trial
“because the incremental probity of the evidence must be balanced
against the prejudice”.
In the pre-trial motion in limine, discussed supra, in
addition to moving to exclude, inter alia, evidence of the threats
and abuse allegations, Blackthorne stated that it would be
25
impossible for the district court to then rule on those issues. It
does not appear that Blackthorne renewed this objection when this
evidence was admitted at trial.
The failure to renew, however, does not prevent preservation
of this claimed error. As discussed supra, we explained in Graves
that the purpose of a renewed objection at trial, following an
adverse in limine ruling, “is to allow the trial judge to
reconsider his [earlier] ruling with the benefit of having been
witness to the unfolding events at
trial”. 5 F.3d at 1552. This
purpose is inapplicable here; this issue solely concerns the
propriety of ruling pre-trial, not the propriety of the evidentiary
ruling. Accordingly, we review the ruling for abuse of discretion.
See
George, 201 F.3d at 373.
The district court’s pre-trial, written ruling is detailed and
comprehensive. Other than the above-quoted general contention,
Blackthorne offers no specific explanation as to why these issues
were not appropriate for a pre-trial ruling. Even assuming
arguendo the district court erred in ruling then, Blackthorne had,
and took advantage of, the opportunity when the evidence was
presented to renew his objections. When he did so, the district
court ruled on such renewed Rules 403 and 404 objections. This
opportunity cured any claimed error in the timing of the district
court’s ruling pre-trial.
26
3.
Claiming the district court erred in “allowing the government
to repeatedly delve” into the abuse allegations, Blackthorne cites
the testimony of nine witnesses who mentioned the allegations.
However, he does not complain of the manner, or of the extent, that
these witnesses testified.
Again, the allegations were essential to prove motive.
Blackthorne has not shown the district court abused its discretion
in allowing the Government to use this number of witnesses to
corroborate Mrs. Bellush’s making the allegations.
4.
Blackthorne also asserts the district court erred in not
allowing him to disprove the abuse allegations, claiming he
demonstrated to the district court that the allegations were false.
Again, the truth of those allegations was not relevant; of
relevance was whether they were only made. As the district court
correctly ruled, “where the evidence is not offered to show that
[Blackthrone] did engage in the alleged conduct[,] the Court
[should] not permit the question of the truth of the allegations to
be litigated”.
5.
Blackthorne next challenges the denial of the mistrial he
sought when a witness testified that law enforcement had
investigated the abuse allegations. The denial is reviewed for
27
abuse of discretion. E.g., United States v. Honer, 225 F.3d 549,
555 (5th Cir. 2000); United States v. Paul,
142 F.3d 836, 844 (5th
Cir.) (“refusal to grant a mistrial based on the admission of
prejudicial evidence is reviewed for an abuse of discretion”),
cert. denied,
525 U.S. 919 (1998).
On direct examination by the Government, Shannon Garcia, an
investigator with the Child Protective Services Division of the
Texas Department of Protective and Regulatory Services, testified
that a sheriff’s department detective attempted to obtain from her
a “videotape of the sexual abuse” allegations by Blackthorne’s
daughter. Blackthorne maintains this put the truth of the
allegations at issue and prejudiced him.
“If the motion for mistrial involves the presentation of
prejudicial testimony before a jury, a new trial is required only
if there is a significant possibility that the prejudicial evidence
had a substantial impact upon the jury verdict, viewed in [the]
light of the entire record.” Paul, 142 F.3d at 844. In addition,
a cautionary instruction can obviate the need for a mistrial. See,
e.g., United States v. Barfield,
527 F.2d 858, 862 (5th Cir. 1976)
(because the “instruction was adequate to assuage the prejudice
injected by the remark ... the district court did not err in
overruling defendant’s motion for mistrial”).
The Government contends the testimony was not prejudicial
because it did not imply the allegations were true, only that they
28
were investigated. Also, the Government points to the limiting
instruction given the jury on the next morning of testimony:
As you have heard me say from time to time,
throughout this trial, the allegations between
Allen Blackthorne and Sheila Bellush reflected
in the pleadings and testimony were only
allegations.... In addition, I had previously
instructed you that Sheila Bellush’s
allegations that Allen Blackthorne had
sexually abused their daughter ... must not be
considered by you as true. I want to
reemphasize that instruction. So I’ll
instruct you that Sheila Bellush’s allegations
that Allen Blackthorne had sexually abused
their daughter ... must not be considered by
you as true. So you should not think or even
suspect that Allen Blackthorne sexually abused
[her]. That’s not part of this case, and it’s
being brought out merely to show some of the
allegations that were made.
(Emphasis added.)
In the light of the entire record (particularly the evidence
against Blackthorne, discussed supra), the limiting instruction,
and the nature of Garcia’s statement, there is not a significant
possibility that this evidence had a substantial impact on the jury
verdict.
D.
Consistent with his objection at trial, Blackthorne next
maintains that portions of Mrs. Bellush’s 1987 divorce deposition
should not have been admitted in evidence. Again, we review for
abuse of discretion. See George, 201 F.3d at 373.
In the portions of her deposition read to the jury, Mrs.
Bellush stated that Blackthorne threatened: to kill her or have
29
someone else do so; to make sure she would never walk again; and to
maim her face. This evidence was admitted pursuant to Rule
804(b)(1).
Under that Rule, excepted from the prohibition on hearsay is:
Testimony given as a witness at another
hearing of the same or a different proceeding,
or in a deposition taken in compliance with
law in the course of the same or another
proceeding, if the party against whom the
testimony is now offered ... had an
opportunity and similar motive to develop the
testimony by direct, cross, or redirect
examination.
FED. R. EVID. 804(b)(1) (emphasis added).
1.
Blackthorne contends he did not have a similar motive to
develop this testimony during the divorce deposition. It did not
exist, according to him, because “where a party is trying to
ascertain what the other side has in the way of dirt in a divorce
case[,] ... [Blackthorne’s] counsel would [not have] want[ed] to
cross examine [Mrs. Bellush] on everything possible: that would be
done at the time of the divorce trial (for strategic reasons)”.
(Parenthetical in original.) The Government responds: Blackthorne
had a similar motive to discredit the testimony during the divorce
deposition because it was critical to child custody, property
division, and tort liability issues.
In United States v. McDonald, 837 F.2d 1287 (5th Cir. 1988),
McDonald and Minteer engaged in a scheme to defraud ANICO, an
30
insurance company. Once aware of the fraud, ANICO sued McDonald
and Minteer. While the civil action was pending, McDonald and
Minteer were indicted.
Prior to their indictment, however, ANICO took Minteer’s civil
discovery deposition; it was exculpatory of McDonald. During the
criminal proceedings, when Minteer exercised his Fifth Amendment
right not to testify, McDonald moved unsuccessfully, under Rule
804(b)(1), to admit Minteer’s helpful deposition.
Our court upheld that ruling on the basis ANICO and the
Government would not have had similar motives:
[A]lthough ANICO and the government had
similar status in their respective claims, ...
the trial strategies were not sufficiently
similar to admit the Minteer deposition.
Minteer’s deposition was taken before either
McDonald or Minteer had been indicted, thus
ANICO, knowing that it would have the
opportunity to cross-examine Minteer at trial
did not have the same incentives to then
develop inaccuracies in the deposition
testimony. The government had no opportunity
to examine Minteer at [the criminal] trial,
because he exercised his right not to testify.
Aware of that risk, the government would, as
in most cases, have had a strong incentive to
develop fully the testimony at the time of the
[earlier civil] deposition.
McDonald, 837 F.2d at 1293.
McDonald essentially placed the Government, with the
circumstances that it faced in the criminal trial, in ANICO’s shoes
at the time of the deposition and determined that the motives were
not similar. The same is true here. Had Blackthorne been faced at
31
the time of the deposition with the circumstances he faced in this
criminal matter, he obviously would not have waited to develop any
flaws or inconsistencies in Mrs. Bellush’s deposition testimony,
especially knowing she would not be subject to cross-examination in
her own murder trial.
Rule 804(b)(1) “does not require that the party against whom
the prior testimony is offered had a compelling tactical or
strategic incentive to subject the testimony to cross-examination,
only that an opportunity and similar motive to develop the
testimony existed”. United States v. Mann, 161 F.3d 840, 861 (5th
Cir. 1998), cert. denied,
526 U.S. 1117 (1999). On the other hand,
pursuant to McDonald, where the party in the subsequent action has
a compelling incentive to subject the testimony to cross-
examination, but did not have that incentive at the time of the
deposition, there is no similar motive. Accordingly, the district
court erred in admitting the deposition testimony.
2.
Our analysis, of course, does not end here. “If we find an
abuse of discretion, then we decide whether ... it constitutes
harmless error.” United States v. Munoz, 150 F.3d 401, 412 (5th
Cir. 1998), cert. denied,
525 U.S. 1112 (1999). “Harmless error is
[a]ny error, defect, irregularity or variance which does not affect
substantial rights. It arises when the mistake fails to prejudice
the defendant. Prejudice occurs when the error ha[s] affected the
32
outcome of the district court proceedings.” Id. at 412-13
(internal quotation marks, citations, and footnote omitted.)
The deposition testimony did not affect the outcome of the
proceedings. As discussed supra, the evidence against Blackthorne,
particularly through Rocha’s and Gonzales’ testimony, was
exceptionally strong.
Furthermore, the portions of the deposition read to the jury
pertained only to threats Blackthorne allegedly made against Mrs.
Bellush. Other evidence firmly substantiated Blackthorne’s making
them. Mrs. Bellush’s sister testified that she witnessed
Blackthorne threaten to kill Mrs. Bellush; Blackthorne’s business
associate, that Blackthorne told him “he had the contacts to have
[Mrs. Bellush] taken to Mexico and she wouldn’t return”; and Mrs.
Bellush’s daughter, that Blackthorne told her he “wouldn’t care if
[Mrs. Bellush] was killed. He wanted her dead”.
Mrs. Bellush’s deposition was cumulative of this testimony.
Arguably, it had less credibility because it was given during
contentious divorce proceedings. Mrs. Bellush and Blackthorne were
engaged in a bitter custody dispute; her motive for veracity was
arguably less than the above-described witnesses. The error was
harmless.
E.
Blackthorne maintains the Government elicited false testimony
from Gonzales in violation of Napue v. Illinois, 360 U.S. 264
33
(1959) (due process denied where Government elicits false testimony
it knows to be false, or, while not eliciting the testimony, knows
of its falsity and allows it to go uncorrected). A new trial based
on a Napue violation is proper only where: “(1) the statements in
question are shown to be actually false; (2) the prosecution knew
that they were false; and (3) the statements were material”.
United States v. O’Keefe, 128 F.3d 885, 893 (5th Cir. 1997), cert.
denied,
523 U.S. 1078 (1998). A statement is “material” if there
is a “reasonable probability of a different outcome”.
Id. at 894
(internal quotation marks omitted).
The Government contends that, because Blackthorne did not make
a Napue objection, we should review only for plain error.
Blackthorne responds that a Napue violation is structural error,
and no objection is necessary to preserve it. We need not resolve
this issue; Blackthorne’s claim fails under even the traditional,
more lenient, standard of review.
On direct examination by the Government, Gonzales testified:
on 13 September 1997, he and Del Toro were in Boerne, Texas,
attempting to locate Mrs. Bellush; and he “saw her in the
backyard”. Blackthorne contends this testimony is false, and the
Government knew it to be so, because Mrs. Bellush’s airline flight
schedule, produced by the Government to the defense, reflects that
she did not travel from her new home in Florida to Texas until 14
September, a day after Gonzales testified he saw her in Texas.
34
The Government maintains the testimony was not false because,
on cross-examination, Gonzales clarified that he thought the woman
he saw was Mrs. Bellush, based on pictures Blackthorne had provided
Rocha. Alternatively, the Government contends the claimed false
testimony was not material, because any falsity was fully explored
and corrected on cross-examination.
Where falsehoods are “sufficiently exposed before the jury to
enable the jury to weigh those falsehoods in its deliberations”,
such falsehoods are not material, because “enough information was
provided to the jury to enable [it] to adequately perform [its]
fact-finding function and to maintain the level playing field
between the prosecution and the defense”. O’Keefe, 128 F.3d at
896-97.
Any false information Gonzales may have conveyed to the jury
was corrected. The testimony was not material.
F.
Blackthorne next contends, with respect both to Count Two of
the indictment (causing another to cross state lines with the
intent to commit domestic violence), and to the evidence of the
abuse allegations, that the district court erred both in its jury
charge and by refusing to give his requested instructions.
“We review jury instructions to determine whether the court’s
charge as a whole[] is a correct statement of the law and whether
it clearly instructs jurors as to the principles of law applicable
35
to the factual issues confronting them.” United States v.
Stouffer, 986 F.2d 916, 925 (5th Cir.) (internal quotation marks
omitted), cert. denied,
510 U.S. 837 (1993). Concerning requested
instructions being refused, we review for abuse of discretion,
determining: “whether the requested instruction (1) is a correct
statement of the law; (2) was substantially given in the charge as
a whole; and (3) concerns important aspects of the trial so that
the failure to give it seriously impaired the defendant’s ability
to effectively present a given defense”.
Id. at 925-26 (internal
quotation marks omitted).
1.
For Count Two, Blackthorne contends the district court erred
by instructing the jury could find Blackthorne directly or
indirectly caused Del Toro to cross state lines. Blackthorne
objected to the inclusion of “directly or indirectly”. According
to him, the instruction was erroneous because this language does
not appear in 18 U.S.C. § 2(b), and its use results in a
constructive amendment of the indictment, which charged that he
caused Del Toro to cross state lines.
a.
Section 2(b) does not include the language “directly or
indirectly”. But, as discussed supra, it covers one who knowingly
and willfully “puts in motion” or “assists in” an illegal
enterprise. United States v. Smith,
584 F.2d 731, 734 (5th Cir.
36
1978). Furthermore, as also discussed supra, § 2(b) does not
require that Blackthorne be the sole cause of the performance of
the act. See United States v. Levy,
969 F.2d 136, 141 (5th Cir.
1992).
b.
Blackthorne’s contention that the instruction constructively
amended the indictment is equally without merit. “A constructive
amendment of the indictment occurs when the jury is permitted to
convict the defendant on a factual basis that effectively modifies
an essential element of the offense charged in the indictment.”
United States v. Millet, 123 F.3d 268, 272 (5th Cir. 1997), cert.
denied,
523 U.S. 1023 (1998).
Millet, a Hobbs Act prosecution, held: “[W]hen the indictment
is drawn generally, the government may offer proof that the act
either directly or indirectly affected interstate commerce”. Id.
at 274 (emphasis added). Likewise, the use of “directly or
indirectly” in the case at hand did not modify the generally
charged essential element of the offense: that Blackthorne caused
Del Toro to cross state lines.
2.
Also for Count Two, Blackthorne contends the district court
erred in not giving his requested instruction on causation. It
states, in part: the jury should determine whether Del Toro
traveled to Florida solely because of Blackthorne’s promise of
37
money, or whether he so traveled because of Rocha’s promise of
future employment; and unless the jury found Del Toro traveled to
Florida solely because of Blackthorne’s promise of money, it must
acquit on Count Two.
The instruction would have required Blackthorne to be the sole
cause of Del Toro’s crossing state lines. As discussed supra, it
was not a correct statement of the law.
3.
Again for Count Two, Blackthorne bases error on the refusal to
give part of his proposed instruction relating to his theory of the
case. The requested instruction stated it was Blackthorne’s
position that he did not cause Del Toro to travel to Florida; that
it was Rocha who did so with his future employment promise.
This was another attempt to have the jury instructed that, if
Rocha’s claimed incentive of future employment in any way caused
Del Toro to cross state lines, then Blackthorne was absolved of
guilt. As discussed supra, even if Rocha’s future employment offer
was a cause of Del Toro’s traveling to Florida, Blackthorne is
still culpable under 18 U.S.C. § 2(b). See
Levy, 969 F.2d at 141.
The rejected portion, therefore, is not a correct statement of the
law and would have been potentially confusing to the jury.
4.
Blackthorne challenges the limiting instructions concerning
the abuse allegations. The district court gave them four times.
38
The first stated, in part: “[N]obody says that it happened or
didn’t happen”. The error, according to Blackthorne, is that “no
one would stand silently by when accused of sexual abuse and not
deny the allegation, unless he was guilty”.
For the second instruction, Blackthorne contends the court’s
statement that the truth of the allegations was not an issue in the
trial implied the allegations were true. For the third, he
complains it “merely informed the jury that all of the allegations
contained in the divorce related proceedings were not being offered
for the truth of the matters asserted”. Finally, concerning the
fourth, Blackthorne reaches the heart of his compliant: the court
did not instruct the jury the allegations were false.
Blackthorne does not demonstrate that the limiting
instructions as a whole were not a correct statement of the law.
He relies on Bruton v. United States, 391 U.S. 123, 135 (1968),
which observed that “there are some contexts in which the risk that
the jury will not, or cannot, follow instructions is so great, and
the consequences of failure so vital to the defendant, that the
practical and human limitations of the jury system cannot be
ignored”. According to Blackthorne, child abuse is such a context.
The limiting instructions were more than adequate. The jury
was repeatedly admonished that the truth of the allegations was not
at issue, and that it was only to consider, for limited purposes,
the fact that the allegations were made.
39
5.
Concerning the evidence of Blackthorne’s prior threats to harm
Mrs. Bellush, the court instructed the jury, in part, that if it
found from the evidence, other than the threats, that Blackthorne
committed the acts charged in the indictment, only then could it
consider the threats for the limited purposes of determining
Blackthorne’s intent, motive, and state of mind, as well as in
determining the relationship between Blackthorne and Mrs. Bellush.
Blackthorne contends the limiting instruction concerning the abuse
allegations should also have contained this language, and moved the
district court to include it. That instruction essentially stated:
the jury must not consider the abuse allegations as true; it could
not consider the prior acts in determining Blackthorne’s innocence
or guilt; and it could consider the allegations only for very
limited purposes.
The language Blackthorne contends should have been included in
the limiting instruction is found in Fifth Circuit Pattern Jury
Instruction 1.30. See 5TH CIR. PATTERN JURY INSTRUCTIONS § 1.30 (West
1990). That instruction is entitled “SIMILAR ACTS”, with the first
sentence stating: “During this trial, you have heard evidence of
acts of the defendant which may be similar to those charged in the
indictment, but which were committed on other occasions”. Id.
(emphasis added.)
40
Obviously, the pattern instruction is intended to be used
where evidence of similar acts is introduced. The abuse
allegations are not evidence of any act by Blackthorne; instead,
they are evidence of allegations made by Mrs. Bellush.
Furthermore, the conduct alleged in those allegations is in no way
similar to the charged conduct.
G.
The district court is claimed to have erred in answering the
following question from the jury: “Can [we] have [an] instruction
on ‘state of mind’?”. “The trial judge retains his discretion to
tailor his jury instructions when he must supplement them during
the jury’s deliberations.” United States v. Duvall, 846 F.2d 966,
977 (5th Cir. 1988). “When evaluating the adequacy of supplemental
jury instructions, we ask whether the court’s answer was reasonably
responsive to the jury’s question and whether the original and
supplemental instructions as a whole allowed the jury to understand
the issue presented to it.” United States v. Sylvester,
143 F.3d
923, 926 (5th Cir. 1998) (internal quotation marks omitted).
Over Blackthorne’s objection, the court answered: “State of
mind means ‘intent’ or ‘knowingly’ as those terms have been used in
these instructions”. Blackthorne maintains the answer was
incorrect because, under the dictionary definition, a person’s
state of mind encompasses more than intent and is subject to
change.
41
The Government responds that the supplemental instruction was
adequate because, when state of mind was used in the instructions,
it was synonymous with intent. Concerning the abuse allegations,
the court had instructed the jury could consider the allegations
“to determine whether the Defendant had the state of mind or intent
necessary to commit the crime”. Concerning the threats, the jury
was instructed it could consider them for, inter alia, “determining
whether the Defendant had the state of mind or intent necessary to
commit the crimes charged”. Finally, in defining intent, the court
had instructed: “You may consider any statement made by the
defendant and all other facts and circumstances in evidence which
indicate his state of mind”. (Emphasis added.)
State of mind may encompass meanings other than knowingly or
intent; but, as the term was used in the jury instructions, it was
synonymous with intent. Accordingly, the supplemental instruction
was reasonably responsive to the jury’s inquiry; and, along with
the earlier instructions, it allowed the jury to understand the
issues presented to them.
H.
The final claimed error is premised on the district court’s
not holding a hearing to consider Blackthorne’s new trial motion
premised, in part, on Rocha’s recantation of his testimony.
Restated, Blackthorne does not challenge the motion’s denial, only
the lack of an evidentiary hearing. We review for abuse of
42
discretion. E.g., United States v. Aguiar, 610 F.2d 1296, 1305
(5th Cir.), cert. denied sub nom.
449 U.S. 827 (1980).
In an undated affidavit claimed to have been delivered to
Blackthorne’s attorney approximately two-and-a-half months after
the verdict, Rocha stated: Blackthorne “had nothing to do with the
murder”; Rocha’s “motive to get involved” was Blackthorne’s
“status”; and Rocha thought that, if he murdered Mrs. Bellush, he
“could go back to [Blackthorne] and benefit from this in some form
of a business deal”. Blackthorne states that, in addition to
Rocha’s affidavit, given to Blackthorne’s civil attorney, that
attorney recorded his conversations with Rocha, for use by the
court.
“Generally, a motion for new trial may be decided upon
affidavits without evidentiary hearings.” United States v. Metz,
652 F.2d 478, 481 (5th Cir. Unit A Aug. 1981). Blackthorne’s
contention is based on his not being able to develop Rocha’s
recantation through use of the taped conversation. He does not
assert, however, that he made the district court aware of the
tapes. Furthermore, he never mentioned them in his new trial
motion. Instead, he stated: “The Court may not be aware that on
September 22, 2000, ... Rocha recanted his trial testimony by
affidavit”. (Emphasis added.) Moreover, neither Rocha’s
affidavit, nor that of the attorney who purportedly recorded the
recantation, mentions the tapes.
43
The district court did not abuse its discretion by not holding
an evidentiary hearing to consider tapes of which it was unaware.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
44
