United States Court of Appeals
            For the Eighth Circuit
        ___________________________

                No. 16-1980
        ___________________________

             United States of America

       lllllllllllllllllllll Plaintiff - Appellee

                          v.

Philip Delgrosso, also known as Phillip Delgrosso

      lllllllllllllllllllll Defendant - Appellant
         ___________________________

                No. 16-1981
        ___________________________

             United States of America

       lllllllllllllllllllll Plaintiff - Appellee

                          v.

                    Jeffrey Cain

      lllllllllllllllllllll Defendant - Appellant
                      ____________

    Appeals from United States District Court
for the Western District of Missouri - Springfield
                 ____________
                            Submitted: February 9, 2017
                              Filed: March 30, 2017
                                  ____________

Before SMITH, Chief Judge,1 GRUENDER, and BENTON, Circuit Judges.
                              ____________

GRUENDER, Circuit Judge.

       A jury found Philip Delgrosso and Jeffrey Cain guilty of conspiracy to
distribute methamphetamine, money laundering, and conspiracy to commit money
laundering. Delgrosso also was found guilty of failing to file Internal Revenue
Service (“IRS”) Form 8300. On appeal, Delgrosso argues that the district court2 erred
by (1) denying his motion for a new trial based on newly discovered evidence; (2)
denying his motion for a new trial based on government misconduct; (3) instructing
the jury on “willful blindness”; (4) denying his motion for a judgment of acquittal
after the verdict; and (5) denying safety-valve relief at sentencing. Cain joins in
Delgrosso’s first and third points on appeal. For the reasons discussed below, we
affirm.

                                  I. Background

      Delgrosso and Cain operated an automobile dealership called Missouri Auto
Group. In 2013, they became acquainted with Jerry Wright. Wright approached the
two men with a proposed business arrangement: he would provide funds for them to
purchase automobiles at dealer auctions, they would sell those automobiles on the


      1
       The Honorable Lavenski R. Smith became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on March 11, 2017.
      2
       The Honorable Beth Phillips, United States District Judge for the Western
District of Missouri.

                                         -2-
Missouri Auto Group lot, and the three men would split the profits. According to
Delgrosso, Wright admitted to them that he had a criminal past but claimed that he
acquired his money through legitimate means such as scrapping metal, selling other
cars, and saving money from working in prison.

       In reality, Wright acquired the money by operating a drug trafficking
organization (“DTO”). Associates of the DTO would purchase methamphetamine in
Phoenix, Arizona and transport the methamphetamine back to Missouri for
distribution. Wright continued to operate this DTO during his acquaintance with
Delgrosso and Cain.

       Delgrosso and Cain accepted Wright’s offer, and they also hired him to work
part-time at Missouri Auto Group as an independent contractor detailing cars. Over
the next few months, Wright passed over $150,000 through Missouri Auto Group by
providing cash to Delgrosso and Cain to purchase vehicles. For example, on one
occasion, Cain purchased a vehicle in the name of Missouri Auto Group with more
than $13,000 in cash provided by Wright. On other occasions, Delgrosso brought
cash provided by Wright to Regions Bank to purchase cashier’s checks in the name
of Missouri Auto Group. Delgrosso then used these checks to purchase vehicles at
166 Auto Auction.

       Eventually, following an investigation by Drug Enforcement Agency task force
officer Brian Walsh and other law enforcement officers, the DTO was uncovered and
its members arrested. As a result, thirteen of the DTO members, including Wright,
pled guilty to methamphetamine and money laundering offenses. Delgrosso and Cain
were charged with conspiracy to distribute methamphetamine, money laundering, and
conspiracy to commit money laundering. Delgrosso also was charged with failure to
file IRS Form 8300. Delgrosso and Cain proceeded to trial.




                                        -3-
        Previously, in response to an IRS subpoena to Missouri Auto Group,
Delgrosso wrote an eleven-page letter detailing his relationship with Wright, stating
that Wright had purchased multiple vehicles through Missouri Auto Group with funds
that Delgrosso insisted were from legitimate sources. At trial, Delgrosso testified
consistent with his letter. He denied any knowledge that Wright was involved with
drug sales. He also insisted that he had questioned Wright about the source of the
money before accepting his offer. However, Delgrosso admitted he never conducted
a background check, confirmed Wright’s ownership of the vehicles he claimed to
own, or checked with any references or with Wright’s probation officer. Cain
declined to testify.

      Wright invoked the Fifth Amendment and refused to testify at the trial of
Delgrosso and Cain. However, other members of the DTO testified about their
knowledge of the two men. They testified that Cain smoked and snorted
methamphetamine with other members of the DTO. According to one member,
Robert Cantrell, Cain requested that DTO members remove from the Missouri Auto
Group lot a vehicle with five pounds of methamphetamine concealed in it because
someone was coming to visit the lot. Cantrell also testified that Wright gave
methamphetamine to him while Cain sat at the desk in front of them and that, on
another occasion, Wright gave methamphetamine to someone else while in the same
room as Delgrosso. Another member, Perry Adams, testified that Delgrosso called
Wright “convict” and often admonished Wright about avoiding the appearance of
unexplained wealth. The Government also introduced Delgrosso’s past criminal
convictions showing that he had previously attempted to launder money by
converting illicit funds into a cashier’s check.

       At the end of the trial, the district court gave the jury a “willful blindness”
instruction, stating that the jury may find Delgrosso and Cain acted “knowingly” if
it found beyond a reasonable doubt that they “believed there was a high probability
that the financial and monetary transactions [they engaged in with Wright] involved

                                         -4-
funds derived from criminal activity and that they took deliberate actions to avoid
learning of that fact.” Neither defendant objected to this instruction. The jury found
Delgrosso and Cain guilty on all counts. Delgrosso moved for a judgment of acquittal
after the verdict, which was denied.

      After the trial, Wright wrote an affidavit from prison claiming that he misled
Delgrosso and Cain and that he believed they had no knowledge of the drug
conspiracy. Prior to sentencing, Delgrosso and Cain filed motions for a new trial
based on this newly discovered evidence and also based on government misconduct.
The district court denied these motions.

       At sentencing, Delgrosso argued that he met all of the requirements for safety-
valve relief, including the full disclosure requirement. The district court disagreed,
stating that Delgrosso’s testimony “most certainly was not forthright and most
certainly was not designed to come clean.” Hence, the district court overruled
Delgrosso’s objection and sentenced both Delgrosso and Cain to 120 months’
imprisonment, the statutory minimum for the methamphetamine-distribution-
conspiracy count. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846. Delgrosso and Cain
now appeal their convictions.

                                   II. Discussion

                          A. Newly discovered evidence

       Delgrosso and Cain both argue that the district court erred in denying their
motions for a new trial based on Wright’s post-trial affidavit. We review the denial
of a motion for a new trial based on newly discovered evidence for abuse of
discretion. United States v. Duke, 

, 659 (8th Cir. 2001).




                                         -5-
A defendant must satisfy five requirements to justify a new trial on this basis:

      (1) the evidence must have been discovered after trial; (2) the failure to
      discover this evidence must not be attributable to a lack of due diligence
      on the part of the movant; (3) the evidence must not be merely
      cumulative or impeaching; (4) the evidence must be material; and (5) the
      evidence must be likely to produce an acquittal if a new trial is granted.

and Cain fail to satisfy the fifth requirement because Wright’s
affidavit would not “be likely to produce an acquittal if a new trial is granted.” See

affidavit itself likely would be inadmissible at a new trial. An
affidavit offered in lieu of in-court testimony, if offered for the truth of the matter
asserted in the affidavit, is hearsay evidence. See Fed. R. Evid. 801(c). “Hearsay is
inadmissible unless it falls within an established exception.” United States v. Smith,

, 980 (8th Cir. 2010). Delgrosso contends that Federal Rule of Evidence
804(b)(3) would provide such an exception because the affidavit is a statement
against interest insofar as it may expose Wright to new criminal charges. However,
even if so, given Wright’s criminal record, it is far from clear that the district court
would admit the affidavit under Rule 804(b)(3), which requires that the evidence be
“supported by corroborating circumstances that clearly indicate its trustworthiness.”
See Fed. R. Evid. 804(b)(3)(B); United States v. Halk, 

, 490 (8th Cir.
2011) (considering “the general character of the speaker” in determining the
trustworthiness of a hearsay statement against interest (citation omitted)). Thus, for
a jury to consider this new evidence, Wright likely would need to testify at a new
trial, and Wright has not indicated that he is willing to testify.

       Second, even if Wright testified or the affidavit were admitted, the Government
could impeach Wright’s credibility by introducing evidence of his seven prior felony
convictions. See Fed. R. Evid. 609 (allowing use of prior criminal convictions to

                                          -6-
impeach witness); Fed. R. Evid. 806 (allowing impeachment of hearsay declarant
with “any evidence that would be admissible for those purposes if the declarant had
testified as a witness”). Thus, as the district court recognized, Wright would have
serious credibility issues, and his statements “could have actually bolstered the
government’s position.”

       Third, even if a jury believed Wright’s statements, that does not mean that it
likely would acquit Delgrosso and Cain. Wright’s affidavit states that he told
Delgrosso and Cain “half truths and . . . left numerous questions unanswered to
shelter and protect them from the knowledge of the true illegal nature” of the source
of his funds. For example, Wright claimed that he showed them “multiple receipts
where certain weeks $8 to $10,000.00 dollars were made through selling metal to the
scrapyard.” But these statements do not prove that Delgrosso and Cain never realized
the true nature of Wright’s operation.

       In contrast, the Government provided ample evidence that would allow the jury
to conclude that Delgrosso and Cain knew or willfully blinded themselves to the fact
that Wright acquired his cash through drug sales. The Government produced
evidence that Cain smoked and snorted methamphetamine with other DTO members,
watched Wright give methamphetamine to another DTO member, and ordered DTO
members to move a vehicle loaded with methamphetamine off the Missouri Auto
Group lot. The Government also produced evidence that Delgrosso called Wright
“convict” and admonished him to avoid the appearance of unexplained wealth, was
in the same room as Wright when he passed methamphetamine to someone else, and
had previous experience laundering money by converting illicit funds into a cashier’s
check. This evidence was more than enough to allow a jury to infer that Delgrosso
and Cain either knew or willfully blinded themselves to the fact that Wright bought
vehicles with proceeds from methamphetamine sales. See United States v. Ojeda, 

, 1476 (8th Cir. 1994) (noting that a defendant’s knowledge is generally
proven through circumstantial evidence). Thus, even if a jury believes Wright’s

                                         -7-
statements, an acquittal is not likely. Because Delgrosso and Cain have failed to
show that Wright’s affidavit would be likely to produce an acquittal, the district court
did not abuse its discretion in denying their motion for a new trial.

                            B. Government misconduct

       Delgrosso argues that he is entitled to a new trial because the Government
engaged in misconduct that deprived him of due process of law in violation of Brady
v. Maryland, 

(1963). Specifically, Delgrosso contends that the
Government’s case was predicated on police reports and an affidavit of task force
officer Welch that contained false misrepresentations of fact and that the Government
failed to disclose these false misrepresentations and other exculpatory evidence.3
“We review the denial of a motion for a new trial based on a Brady violation for an
abuse of discretion.” United States v. Ladoucer, 

, 636 (8th Cir. 2009).

       As an initial matter, Delgrosso’s motion for a new trial based on government
misconduct was untimely. Federal Rule of Criminal Procedure 33(b)(2) requires that
“[a]ny motion for a new trial grounded on any reason other than newly discovered
evidence must be filed within 14 days after the verdict or finding of guilty.” Here,
the jury returned its guilty verdict on August 28, 2015, and Delgrosso filed this
motion for a new trial on February 11, 2016, well after the 14-day deadline.
Moreover, Delgrosso’s Brady claim does not implicate newly discovered evidence.

      3
        Delgrosso alleges eleven acts of misconduct, including the following: (1)
Welch’s affidavit indicated that there was a Chevy Avalanche with a hidden
compartment containing methamphetamine being transported on a car hauler when
in fact it was not; (2) Welch stated that Wright had an identification card allowing
him access to restricted areas of 166 Auto Auction when in fact he did not; (3) the
Government inflated the amount of money provided to Delgrosso from Wright to
$150,000 when it was in fact less than $70,000; and (4) the Government failed to
disclose financial records of Downstream Casino which would have indicated that
Wright laundered money through the casino and not Missouri Auto Group.

                                          -8-
Rather, Delgrosso was aware of this alleged misconduct during the trial. Indeed, as
the district court noted, Delgrosso raised these same allegations “numerous times
during the pendency of this case.” Thus, his motion was untimely, and it may be
properly rejected on this basis alone. See United States v. Boesen, 

, 876,
878 (8th Cir. 2010) (affirming district court’s ruling that motion for a new trial was
untimely); United States v. Oligmueller, 

, 671 (8th Cir. 1999) (“We may
affirm the district court on any basis supported by the record.”).

       Even if the motion were timely, however, Delgrosso’s Brady claim fails.
“Under Brady v. Maryland, ‘suppression by the prosecution of evidence favorable to
an accused . . . violates due process where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad faith of the prosecution.’” United
States v. Pendleton, 

, 940 (8th Cir. 2016) (quoting 

). “[E]vidence is material if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been
different.” United States v. Keys, 

, 520 (8th Cir. 2013) (quotations
omitted).

        As the district court noted, Delgrosso has “allegations, not evidence,” and even
if Delgrosso had evidence of government misconduct, his allegations would not “have
any probability of changing the outcome of this trial because they either relate to
issues that are irrelevant or are directly contradicted by some strong evidence in this
case.” Indeed, Delgrosso presents no evidence showing that Welch’s statements were
false, that the Government suppressed evidence, or that any suppressed evidence was
material. Therefore, the district court did not abuse its discretion in denying
Delgrosso’s motion for a new trial.




                                          -9-
                        C. Willful blindness jury instruction

        Delgrosso and Cain argue that the district court erred by giving a willful
blindness jury instruction because the evidence did not support an inference of
deliberate ignorance. Because neither defendant objected to the jury instructions at
trial, we review for plain error. United States v. Garcia-Hernandez, 

,
996 (8th Cir. 2015). “[U]nder a plain-error standard of review, the party seeking
relief must show that there was an error, the error is clear or obvious under current
law, the error affected the party’s substantial rights, and the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” United States v.
Poitra, 

, 887 (8th Cir. 2011).

       “A willful blindness instruction is appropriate when the defendant asserts a
lack of guilty knowledge, but the evidence supports an inference of deliberate
ignorance.” United States v. Haire, 

, 998 (8th Cir. 2015) (quotation
omitted). “Ignorance is deliberate if the defendants were presented with facts putting
them on notice criminal activity was particularly likely and yet intentionally failed to
investigate.” United States v. Whitehill, 

, 751 (8th Cir. 2008). Thus,
“[t]he evidence is sufficient to support the instruction if a jury could find beyond a
reasonable doubt the defendants had either actual knowledge of the illegal activity or
deliberately failed to inquire about it before taking action to support the activity.” 

Cain contend that they did inquire as to the source of Wright’s
money before going into business with him and so a jury could not reasonably find
that they deliberately failed to inquire or investigate. In particular, Delgrosso argues
that his eleven-page letter to the IRS and his trial testimony showed that he “actually
inquired into where Wright obtained the cash he gave to Missouri Auto Group to
purchase the vehicles.”




                                           -10-
       However, Delgrosso and Cain ignore the fact that the jury was entitled to
disbelieve their version of this conversation with Wright. See United States v.
Trotter, 

, 868 (8th Cir. 2016) (“Assessing the credibility of witnesses is
a task for the jury.”). Indeed, as previously noted, the Government provided
sufficient evidence for the jury to infer that Delgrosso and Cain not only “deliberately
failed to inquire” about the source of funds but that they had “actual knowledge of the
illegal activity.” See 

.

       Moreover, even if the jury credited their version of this conversation,
Delgrosso admitted that he never conducted a background check, confirmed Wright’s
ownership of the vehicles he claimed to own, or checked with any references or with
Wright’s probation officer. Delgrosso further indicated that he did not make such
inquiries only because he was not hiring Wright to be in the “full-time employment
of Missouri Auto Group,” suggesting that he could have made such inquiries.
Because Delgrosso admitted that he could have made further inquiries, the jury could
have inferred that he and Cain “intentionally failed to investigate” once they were put
on notice of criminal activity. See 

was not plain error for the district
court to instruct the jury on willful blindness.

                        D. Motion for judgment of acquittal

      Delgrosso next argues that the district court erred in denying his motion for
judgment of acquittal because the verdict was against the weight of the evidence. He
claims that the evidence shows that he was not a knowing participant in the
conspiracy and that he did not know the source of Wright’s funds.4 We review de
novo the district court’s denial of a motion for judgment of acquittal, viewing the

      4
      Although Delgrosso argued in his motion that there was no testimony that he
knew he must file an IRS Form 8300, he does not mention this argument on appeal.
Therefore, we consider his argument on this count waived. See United States v.
Reinholz, 

, 775 n.4 (8th Cir. 2001).

                                          -11-
evidence in the light most favorable to the verdict. United States v. Paris, 

, 1038-39 (8th Cir. 2016). We will reverse the denial only if no reasonable jury
could have found Delgrosso guilty. See 

       Here, as previously noted, sufficient evidence supported the jury’s verdict. The
jury reasonably could have inferred from the evidence presented that Delgrosso either
knew or willfully blinded himself to the fact that Wright bought vehicles with
proceeds from methamphetamine sales. Therefore, the district court did not err in
denying Delgrosso’s motion for acquittal.

                               E. Safety-valve relief

       Delgrosso next argues that the district court erred in denying him relief under
the safety-valve provisions of 18 U.S.C. § 3553(f) and United States Sentencing
Guideline (“U.S.S.G.”) § 5C1.2(a). These provisions allow a district court to impose
a sentence below the statutory minimum sentence if the defendant satisfies each of
five requirements. United States v. Brooks, 

, 1108 (8th Cir. 2013).
Delgrosso contends that he has satisfied all five of the requirements. Because the
Government concedes that Delgrosso satisfied the first four requirements, the only
remaining question is whether Delgrosso satisfied the fifth requirement: “not later
than the time of the sentencing hearing, the defendant has truthfully provided to the
Government all information and evidence the defendant has concerning the offense
or offenses.” 18 U.S.C. § 3553(f)(5); U.S.S.G. § 5C1.2(a)(5). The district court
found that Delgrosso did not satisfy this requirement because his testimony “most
certainly was not forthright and most certainly was not designed to come clean.” We
review for clear error a district court’s findings regarding the completeness and
truthfulness of information provided by a defendant. United States v. Hinojosa, 

, 790 (8th Cir. 2013).




                                         -12-
       Here, Delgrosso did not make a formal safety-valve proffer before sentencing.
Nevertheless, he contends that his trial testimony and letter to the IRS “truthfully
provided all information and evidence he had regarding the offenses.” Delgrosso
relies on our decision in United States v. Honea, in which a defendant received
safety-valve relief even though he maintained that he never suspected that his
codefendants were doing anything illegal. 

, 326-27 (8th Cir. 2011).

       However, this case clearly differs from Honea. First, in Honea, the district
court granted safety-valve relief, and so we reviewed for clear error its conclusion
that the defendant’s statements were complete and truthful. See 

Here,
the district court denied safety-valve relief, and so Delgrosso must show that the court
clearly erred in concluding that his statements were not complete and truthful.
Second, in Honea, we concluded that the defendant “admitted that he failed to
investigate facts that put him on notice that criminal activity was likely occurring.”

Here, Delgrosso never admitted that any facts put him on notice that
criminal activity was likely occurring or that he failed to investigate them. Rather,
he continued to press his innocence at sentencing. Thus, the district court was
entitled to conclude from his statements that he did not truthfully provide to the
Government all information and evidence he had concerning the offenses and that he
therefore was not eligible for safety-valve relief. We find no clear error in this regard.

                                    III. Conclusion

      For the foregoing reasons, we affirm the judgment of the district court.
                      ______________________________




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