United States v. Blackthorne

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 6, 2002
• Docket: 00-51256
• Status: Unpublished

Opinion

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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.

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.

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.

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.

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).

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.

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).

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.

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).

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.

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.

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.

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.