                                                                     F I L E D
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                                    PU BL ISH
                                                                 September 26, 2006
                   UNITED STATES CO URT O F APPEALS              Elisabeth A. Shumaker
                                                                     Clerk of Court
                                TENTH CIRCUIT



 U N ITED STA TES O F A M ER ICA,

       Plaintiff - Appellee,

 v.                                                    No. 05-2165

 C HA RLES ELLWO O D G WA THNEY,

       Defendant - Appellant.



                 Appeal from the United States District Court
                       for the District of New M exico
                         (D.C. No. CR-04-1553 W PJ)


Laura Fashing, Assistant United States Attorney (David C. Iglesias, United States
Attorney, on the briefs), Albuquerque, New M exico, for Plaintiff - Appellee.

James P. Baiamonte, A lbuquerque, New M exico, for D efendant - Appellant.




Before O ’BR IEN , M cW ILL IAM S and M cCO NNELL, Circuit Judges.


O ’Brien, Circuit Judge.




      During an inspection of Charles Ellwood Gwathney’s comm ercial truck,

Officer James Smid of the New M exico M otor Transportation Division discovered

152.5 kilograms of marijuana. Gwathney was convicted by a jury of possession
of 100 kilograms or more of marijuana, in violation of 21 U.S.C. §

841(b)(1)(b)(vii). He challenges the district court’s denial of his motion to

suppress evidence obtained from the search, the admission of certain government

evidence, the giving of a “permissive inference” jury instruction, and the district

court’s denial of his motion for a new trial based on newly discovered evidence.

W e affirm.

Background:

      On M ay 23, 2004, Gwathney, a commercial truck driver, stopped at the

Gallup, New M exico Port of Entry along Interstate 40 near the Arizona-New

M exico state line to obtain a trip permit through New M exico for his load of

potatoes. 1 The truck was owned by Solomon Shaw. Officer Smid asked

Gwathney for his driver’s license, medical card, tractor and trailer registration,

log book and bill of lading, all of which were provided. The bill of lading listed

the truck as carrying 833 boxes of red potato creamers, required the truck to be

maintained at forty-two degrees and was signed by Gwathney. The log book




      1
        “New M exico law requires all comm ercial carriers entering or leaving
New M exico to stop at all ports of entry.” United States v. Vasquez-C astillo, 258
F.3d 1207, 1209 (10th Cir. 2001) (citing N.M . Stat. Ann. § 65-5-1(A)). “The
state authorizes personnel assigned to the ports of entry to inspect comm ercial
vehicles and their documentation to determine whether the vehicles, drivers, and
cargo are in compliance with state laws regarding public safety, health, and
welfare.” Id. (citing N.M . Stat. Ann. § 65-5-1). “New M exico has also
authorized its employees to enforce federal laws relating to comm ercial motor
vehicle carriers.” Id. at 1211 (citing N.M . Stat. Ann. § 65-1-9).

                                         -2-
indicated potatoes had been loaded on the truck in Phoenix on M ay 21, but that

Gwathney did not leave Phoenix until M ay 23. Although the truck was

refrigerated, Officer Smid thought it unusual Gwathney would load the potatoes

prior to having his truck repaired because potatoes are perishable goods. 2 Officer

Smid asked Gwathney why he had taken over a day to leave Phoenix after his

truck was loaded. Gwathney explained the delay was caused by repairs he had

made to his truck. Gwathney provided Officer Smid an invoice for the repair

work. The invoice showed the repair work to have been completed on M ay 21. It

also indicated G wathney paid almost $14,000 in cash for the repairs.

      Officer Smid instructed Gwathney to pull the truck into a bay where he

would conduct a level 2 inspection. 3 After checking the outside of the truck,

Officer Smid instructed Gwathney to unlock the doors to the trailer. Upon

opening the doors, Officer Smid discovered one of the pallets had tipped against

the wall of the truck during transit. Officer Smid used a ladder to climb over the

potatoes to make sure the rest of the pallets w ere secure and in place. W hile

climbing over the leaning pallet, Officer Smid detected shoe prints and crushed

boxes indicating someone had walked on the pallets after they were loaded on the

truck. Officer Smid followed the footprints and smashed boxes until he reached


      2
       Officer Smid also testified the refrigeration unit on Gwathney’s trailer
was leaking and “in bad shape.” (R. Supp. Vol. I at 75.)
      3
        “Inspectors conduct three levels of inspections at the inspection bays. O f
these, Level 1 is the most thorough.” Vasquez-C astillo, 258 F.3d at 1209.

                                         -3-
an open area in the truck. There, he discovered several large non-conforming

brow n boxes that had numbers spray-painted on them and were wrapped in brow n

packing tape. They did not have the word “Potato” on them, and Officer Smid

believed them to contain contraband. 4 At that point, Officer Smid crawled out of

the truck and handcuffed Gwathney for the officer’s protection while he

continued his search. Upon returning to the boxes, Officer Smid cut them open

and discovered what eventually was determined to be 152.2 kilograms of

marijuana. 5 Officer Smid then arrested Gwathney.

      On August 11, 2004, Gwathney was indicted for possession with intent to

distribute 100 kilograms or more of marijuana in violation of 21 U.S.C. §§

841(a)(1) and (b)(1)(B). On August 30, 2004, Gwathney filed a motion to

suppress the evidence found in the commercial trailer. H e argued Officer Smid

lacked probable cause to conduct a special safety search. After an evidentiary

hearing, the district court denied Gwathney’s motion.

      Beginning December 15, 2004, Gwathney was tried before a jury. At trial,

Gwathney claimed he had no knowledge of the drugs on his truck. He explained

the payment of $14,000 in cash for the truck repairs came from money wired to



      4
       The potatoes were loaded on pallets, packed in white boxes, marked as
“Potato,” and had handles allowing the contents to be visible. (R. Vol. III at 44.)
      5
       The value of the drugs in Phoenix, the source of the load, was estimated at
$168,000 to $252,000. The value of the drugs in New York, the destination of the
load, was estimated at $336,000 to $672,000.

                                        -4-
him by Solomon Shaw, who sent the money via W estern Union. In rebuttal, the

government introduced Exhibit 55 - an administrative subpoena directed toward

W estern Union requiring the provision of any wire transfer records for Gwathney,

or Solomon Shaw from M ay 13, 2004 through M ay 23, 2004, coupled with

W estern Union’s response that it could find no such records. Gwathney objected

to the admission of the evidence based on the lack of an adequate foundation.

The district court allowed admission of W estern Union’s response based on the

business record exception of Rule 803(6) of the Federal Rules of Evidence.

      At the close of the case, the district court gave the jury a permissive

inference instruction pertaining to Gwathney’s knowledge of the marijuana in his

truck. Jury Instruction 13 provided:

      W ith respect to the question of whether or not a defendant knew that the
      controlled substance was present, you may - but are not required to -
      infer that the driver and sole occupant of the tractor-trailer rig has
      knowledge of the controlled substance within it. This inference does
      not relieve the government of its obligation to prove all of the elements
      of the offense beyond a reasonable doubt.

(R. Supp. Vol. II at 355-56.) On December 16, 2004, the jury convicted

Gwathney.

      On M ay 11, 2005, Gwathney filed a motion for a new trial based on newly

discovered evidence. The new evidence was a W estern Union wire transfer

receipt showing a transfer of $921.00 from Solomon Shaw to Gwathney on M ay

14, 2004, w hich contradicted Western Union’s report attached to Exhibit 55. O n



                                         -5-
M ay 25, 2005, the district court denied the motion. On M ay 27, 2005, Gwathney

was sentenced to 137 months’ imprisonment. He filed a timely notice of appeal

on June 1, 2005.

Discussion:

      Gwathney challenges the district court’s denial of his motion to suppress,

the admission of Exhibit 55 into evidence, jury instruction number 13 and the

district court’s denial of his motion for a new trial. W e consider each in turn.

I. M otion to Suppress

      W e review warrantless searches under the Fourth Amendment for

reasonableness. Reasonableness is a question of law we review de novo. United

States v. Long, 176 F.3d 1304, 1307 (10th Cir. 1999). W e accept the district

court’s factual findings unless clearly erroneous and view the evidence in the

light most favorable to the district court’s determination. Id.

      W hen w arrantless searches of closely regulated industries are at issue, we

apply the test articulated by the Supreme Court in New York v. Burger, 482 U.S.

691 (1987). See United States v. Johnson, 408 F.3d 1313, 1320 (10th Cir.), cert.

denied, 126 S.Ct. 458 (2005); Vasquez-C astillo, 258 F.3d at 1210. Commercial

trucking is a closely regulated industry. United States v. Burch, 153 F.3d 1140,

1141-43 (10th Cir. 1998). Thus, under Burger, a warrantless search of a

comm ercial truck satisfies the Fourth Amendment where: (1) there is a substantial

government interest underlying a regulatory scheme authorizing the search, (2)

                                         -6-
the warrantless search is necessary to further the regulatory scheme, and (3) the

inspection program provides a constitutionally adequate substitute for a warrant.

Burger, 482 U.S. at 701-03; Vasquez-C astillo, 258 F.3d at 1210.

      The search at issue in this case is almost identical to the one we confronted

in Vasquez-C astillo. There we examined the level 1 inspection of a commercial

truck by the New M exico M otor Transportation Division at its port of entry along

Interstate 40 on the opposite side of the state near San Jon, New M exico.

Vasquez-C astillo, 258 F.3d at 1208-09. That inspection revealed 800 pounds of

marijuana concealed in a hidden compartment in the trailer. Id. at 1210. W e

applied the Burger test to analyze whether the inspection officer’s warrantless

entry into the truck was justified. Relying on our previous decision in V-1 Oil

Co. v. M eans, we noted that “‘[t]he state clearly has a substantial interest in

regulating commercial carriers to protect public safety on the highways.’”

Vasquez-C astillo, 258 F.3d at 1211 (quoting M eans, 94 F.3d 1420, 1426 (10th

Cir. 1996)). Thus, we held New M exico’s “safety inspections of commercial

carriers satisfy the first prong of the Burger test.” Id. W e also held New

M exico’s “routine safety inspections [w ere] necessary to further the regulatory

scheme governing commercial carriers,” thus satisfying the second prong of the

Burger test. Id. Finally, we examined New M exico’s requirement that “all

comm ercial motor vehicle carriers stop at every point of entry” and the




                                          -7-
authorization to inspect blocking and bracing inside the trailer, 6 and held the

regulations provided adequate notice to owners of commercial property it would

be subject to periodic inspections for specific purposes, limited in time, place and

scope. Id. at 1211, 1212 (discussing N.M . Stat. Ann. § 65-5-1). Thus, New

M exico’s commercial inspection system satisfied the third Berger prong.

Consequently, we upheld the warrantless search of the trailer at issue in Vasquez-

Castillo.

      The analysis in Vasquez-C astillo largely controls the outcome in this case.

As we observed there, New M exico’s regulatory scheme clearly contemplates

entrance into the trailer to inspect blocking and bracing, and also allows

inspection of the contents of the vehicle. See N.M . Stat. Ann. §65-5-1(F). 7 W hile

in Vasquez-C astillo we held New M exico’s scheme as to the inspection of

blocking and bracing satisfied the Burger test for warrantless searches, we



      6
        “Along with numerous other requirements, both federal and New M exico
regulations require proper blocking and bracing.” Vasquez-C astillo, 258 F.3d at
1211 (citing 49 C.F.R. § 393.104 & N.M . Admin. Code § 18.2.3.13). “Proper
blocking and bracing ensures that the cargo is secured so that, when the vehicle
decelerates . . ., the cargo is protected against shifting sideways in transit.”
Burch, 153 F.3d at 1142 n.2 (quotation omitted). “‘To check blocking and
bracing, an officer must inspect the interior of a trailer.’” Vasquez-C astillo, 258
F.3d at 1211 (quoting Burch, 153 F.3d at 1142 n.2).
      7
        “To determine whether the vehicle is safe, those in charge of the port of
entry are permitted to ‘inspect the vehicle and its contents to determine whether
all laws and all rules and regulations of the departments of [New M exico] w ith
respect to public safety, health, welfare and comfort have been fully complied
with.’” Vasquez-C astillo, 258 F.3d at 1211 (quoting N.M . Stat. Ann. § 65-5-1(F)).

                                          -8-
specifically reserved the question of whether the regulatory authorization to

inspect the cargo inside the trailer w ould also have justified entry. 258 F.3d at

1212 n.3. W e see no reason, and Gwathney fails to provide a convincing one, to

analyze the entry into the trailer to inspect blocking and bracing differently than

the inspection of the cargo when the statutory scheme authorizing both was

generally approved of in Vasquez-C astillo. “The Burger criteria apply to a

regulatory scheme generally, not to the particular search at issue.” United States

v. M aldonado, 356 F.3d 130, 136 (1st Cir. 2004). “In other words, the Burger

criteria are applied generally to a statutory scheme, not to a given set of facts

arising under that scheme.” Id. Thus, Officer Smid was justified in entering the

trailer to inspect the cargo pursuant to his regulatory duty to inspect the contents

of the trailer. See N.M . Stat. Ann. § 65-5-1(F); Johnson, 408 F.3d at 1322

(general state administrative search scheme covering salvage yards satisfied

Burger and allowed agents to inspect a locked toolbox even though not

specifically authorized to do so). W e need not decide if N ew M exico’s regulatory

scheme authorized the actual opening of boxes, because we agree with the district

court that on the facts in this record, Officer Smid had probable cause to inspect

the non-conforming packages for contraband after permissibly entering the trailer

to inspect the cargo, blocking and bracing.

II. Adm ission of Evidence

      W e review the district court’s admission of evidence for an abuse of

                                          -9-
discretion. United States v. Resendiz-Patino, 420 F.3d 1177, 1181 (10th Cir.

2005), cert. denied, 126 S.Ct. 1098 (2006); United States v. Jones, 44 F.3d 860,

873 (10th Cir. 1995). If the trial court erroneously admitted evidence, we need

not reverse a conviction if the error w as harmless. Resendiz-Patino, 420 F.3d at

1181; F ED . R. C RIM . P. 52(a). To determine whether the erroneous admission of

evidence was harmless, we review the record de novo to determine whether the

evidence had a “‘substantial influence’ on the outcome or leaves one in ‘grave

doubt’ as to whether it had such an effect.” United States v. Wacker, 72 F.3d

1453, 1473 (10th Cir. 1995) (quoting Kotteakos v. United States, 328 U.S. 750,

765 (1946)).

      Rule 803(6) of the Federal Rules of Evidence provides an exception to the

hearsay rule for business records if they are “kept in the course of a regularly

conducted business activity, and if it was the regular practice of that business

activity to make the memorandum [record].” 8 “The rationale behind the business



      8
          Rule 803provides in relevant part:

      The following are not excluded by the hearsay rule . . . :

      (6) Records of Regularly Conducted Activity. - A memorandum,
      report, record, or data compilation, in any form, of acts, events,
      conditions, opinions, or diagnoses, made at or near the time by, or from
      information transmitted by, a person with knowledge, if kept in the
      course of a regularly conducted business activity, and if it was the
      regular practice of that business activity to make the memorandum,
      report, record, or data compilation, all as shown by the testimony of the
      custodian or other qualified witness, unless the source of the

                                         -10-
records exception is that such documents have a high degree of reliability because

businesses have incentives to keep accurate records.” Timberlake Const. Co. v.

U.S. Fidelity & Guar. Co., 71 F.3d 335, 341 (10th Cir. 1995). 9 To satisfy Rule

803(6), “a document must (1) have been prepared in the normal course of

business; (2) have been made at or near the time of the events it records; . . . (3)

be based on the personal knowledge of the entrant or of an informant who had a

business duty to transmit the information to the entrant;” and (4) not have

involved sources, methods, or circumstances indicating a lack of trustw orthiness.

Hertz v. Luzenac Am erica, Inc., 370 F.3d 1014, 1017 (10th Cir. 2004) (quotation

omitted). Of course, the proponent of the document must lay a proper foundation

for its admission. See United States v. Samaniego, 187 F.3d 1222, 1224 (10th

Cir. 1999).

      “Not every item of business correspondence constitutes a business record.”

Echo Acceptance Corp. v. Household Retail Svcs., Inc., 267 F.3d 1068, 1091

(10th Cir. 2001) (citing Breeden v. ABF Freight System, Inc., 115 F.3d 749, 754


      information or the method or circumstances of preparation indicate a
      lack of trustworthiness. The term “business” as used in this paragraph
      includes business, institution, association, profession, occupation, and
      calling of every kind, whether or not conducted for profit.
      9
        See also United States v. Snyder, 787 F.2d 1429, 1433-34 (10th Cir. 1986)
(“The business records exception is based on a presumption of accuracy, accorded
because the information is part of a regularly conducted activity, kept by those
trained in the habits of precision, and customarily checked for correctness, and
because of the accuracy demanded in the conduct of the nation’s business.”).


                                         -11-
(10th Cir. 1997)). “It is well-established that one who prepares a document in

anticipation of litigation is not acting in the regular course of business.”

Timberlake Const. Co., 71 F.3d at 342. M oreover, business records are

potentially fraught with double hearsay. See, e.g., TK-7 Corp. v. Estate of

Barbouti, 993 F.2d 722, 729 (10th Cir. 1993). “Double hearsay in the context of

a business record exists w hen the record is prepared by an employee with

information supplied by another person.” Wilson v. Zapata Off-Shore Co., 939

F.2d 260, 271 (10th Cir. 1991). Any information provided by another person, if

an outsider to the business preparing the record, must itself fall within a hearsay

exception to be admissible. Id.

      In this case, Exhibit 55 contained two documents: a subpoena issued by

Special Agent Ivar H ella of the D rug Enforcement Agency, and W estern Union’s

Response to the subpoena. The district court admitted Exhibit 55 during Special

Agent Hella’s testimony, reasoning:

      as the case agent and the one who conducted the investigation, he can
      testify as to the contents of the results of his investigation in terms of
      issuing the subpoena. If there’s a foundation laid under 803(6) on
      these subpoenas that they are treated as business records of the DEA,
      then I’m going to allow - it’s not a business record of W estern Union
      because he can’t lay that foundation. But the agent can lay a
      foundation about the way DEA records and keeps its documents, and
      since it’s a response to a DEA subpoena and part of the investigation,
      I think it would be a business record of DEA.

(R. Supp. Vol. II at 339-40 (emphasis added).) Gwathney does not challenge the

district court’s determination as to the DEA subpoena, but rather argues Exhibit

                                          -12-
55 as a whole was inadmissible on this record because it contained hearsay

statements of W estern Union. W e agree.

       W estern Union’s response to the DEA’s subpoena is a separate document from

the subpoena itself and constitutes hearsay. See F ED . R. E VID . 801(c) (“‘Hearsay’ is a

statement, other than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter asserted.”); United States

v. Kim, 595 F.2d 755, 762 (D.C. Cir. 1979) (bank’s response to a subpoena was

inadmissible hearsay). As such, the response must fall within its own exception to

the hearsay rule to be admissible. See F ED . R. E VID . 802; Wilson, 939 F.2d at 271.

Contrary to the district court’s reasoning, the D EA cannot claim W estern Union’s

response as one of its own business records for the simple reason the DEA did not

prepare the document. The fact W estern Union’s response is likely trustworthy given

that it was “required to comply with the terms of the subpoena” does not change this

basic fact. (Appellee’s B r. at 35); accord United States v. M cIntyre, 997 F.2d 687,

700 (10th Cir. 1993) (holding hearsay imbedded in a business record may be

admissible only where information is trustworthy, such as where the preparer of the

document checked the accuracy of the information). If the government wanted to

pursue such an argument, it could have tried under the residual exception in Rule

807, 10 but it w as not raised.



       10
            Rule 807 provides in part:


                                           -13-
      If the W estern Union document was to be admitted as a business record under

Rule 803(6), it would have to be admitted as a business record of W estern Union. 11

As the district court correctly noted, Special Agent Hella could not lay a foundation

for the W estern Union’s response. Absent a proper foundation and applicable hearsay

exception, it was error to admit W estern Union’s response to the DEA subpoena.

      The error, however, was harmless. The premise of Gwathney’s defense was

that he w as unaw are of the presence of the marijuana in his trailer. Had the jury

believed him, he w ould have been acquitted. The evidence regarding the w ire

transfer (later determined to be $921) went to at least part of the source of the

$14,000 in cash, not its existence. Nor did it directly address Gwathney’s knowledge

of the drugs contained in his trailer. Assuming the information contained in W estern



      A statement not specifically covered by R ule 803 or 804 but having
      equivalent circumstantial guarantees of trustworthiness, is not excluded
      by the hearsay rule, if the court determines that (A ) the statement is
      offered as evidence of a material fact; (B) the statement is more
      probative on the point for which it is offered than any other evidence
      which the proponent can procure through reasonable efforts; and (C) the
      general purposes of these rules and the interests of justice will best be
      served by admission of the statement into evidence.

See United States v. Lawrence, 405 F.3d 888, 902-03 (10th Cir.) (applying Rule
807), cert. denied, 126 S.Ct. 4687 (2005).
      11
        W e note, however, the difficulty of establishing W estern Union’s
response to the subpoena as a business record even if a proper foundation were
laid. From all appearances, the document was prepared in advance of litigation
and was not regularly produced by W estern Union. See Kim, 595 F.2d at 761-62
(holding bank record was inadmissible under Rule 803(6) because, inter alia, it
was generated in response to a government subpoena).

                                          -14-
Union’s wire transfer receipt would not have been presented to the jury otherwise, the

jury could have either believed Gwathney’s testimony that Shaw wired him the money

for his repairs, or rejected his explanation. Assuming Gwathney received money from

Shaw, the owner of the truck, the jury could have inferred the money was unrelated to

the criminal activity or that Gwathney and Shaw were working in concert to smuggle

drugs. In any event, neither alternative eliminates the possibility that Gwathney knew

the drugs were in the back of his truck. See Resendiz-Patino, 420 F.3d at 1181-82

(discussing inferences possibly drawn from improperly admitted evidence and holding

it harmless where no inference eliminated the possibility of guilt). Error that

undermines the defendant’s credibility as to a tangential issue is harmless and in this

case harmless beyond doubt. Gwathney’s credibility may have been eroded by the

improper evidence, but barely. The evidence fairly screams of his knowledge of the

drugs secreted in his trailer. By comparison, his denials seem bankrupt.

III. Jury Instructions

      W e review a district court’s decision to give a particular jury instruction for an

abuse of discretion and consider the instructions as a whole de novo to determine

whether they accurately informed the jury of the governing law. United States v.

Soussi, 316 F.3d 1095, 1106 (10th Cir. 2002).

      The jury instruction at issue, Instruction 13, is a permissive instruction because

it tells the jury it may, but is not required to, draw an inference about Gwathney’s

knowledge of the marijuana stored in his truck based on his operation of the vehicle.

                                           -15-
See County Court of Ulster County, N.Y. v. Allen, 442 U.S. 140, 159 (1979); United

States v. Cota-M eza, 367 F.3d 1218, 1221 (10th Cir.), cert. denied, 543 U.S. 876

(2004). A permissive inference instruction does not violate a defendant’s Sixth

Amendment rights provided there is a rational connection between the facts proved by

the prosecution and the ultimate fact presumed, and the inferred fact is more likely

than not to flow from the proven facts. Cota-M eza, 367 F.3d at 1221-22. W e

evaluate the likelihood in the context of the specific case in which the instruction was

given. Id. at 1222.

      In this case, Gwathney was the sole operator of the trailer containing the drugs.

Although he did not load the trailer, the load was not sealed by the packers, and

Gwathney signed the bill of lading. The shoe prints and crushed boxes leading to

contraband may have suggested that someone placed the boxes containing 335 pounds

of marijuana in the truck after the potato pallets had been loaded and while it was

under Gwathney’s control. Based on the evidence, that someone might well have

been Gwathney, the operator and custodian of the vehicle and the load, or someone

acting at his behest or with his knowledge. On the other hand, it is possible, in flight

of fancy, to think someone at the loading site, or persons unknown, surreptitiously

laced the spuds with marijuana hoping it would somehow find its way to the right

destination 2000 miles away without the knowledge or complicity of the driver. But

the jury was not required to infer from Gwathney’s unique position that he had

knowledge of the 335 pounds of marijuana in his trailer. It was simply permitted to

                                           -16-
draw the most likely inferences from available evidence. The high value of the

marijuana might also, and legitimately, lead a jury to consider it less likely the drugs

would be transported without the driver’s knowledge. See Cota-M eza, 367 F.3d at

1222. Our precedent allows a jury to infer the driver of the vehicle has knowledge of

drugs contained within it. See United States v. Badilla, 383 F.3d 1137 (10th Cir.

2004), overruled on other grounds by Badilla v. United States, 543 U.S. 1098 (2005)

(applying United States v. Booker, 543 U.S. 220 (2005)), cert. denied, 126 S.Ct. 1344

(2005); Cota-M eza, 367 F.3d at 1222; United States v. Levario, 877 F.2d 1483, 1485-

86 (10th Cir. 1989), overruled on other grounds by Gozlon-Peretz v. United States,

498 U.S. 395 (1991). On these facts, Gwathney’s custody and control of the truck

and trailer fully justifies the permissive instruction given by the court. Certainly, the

court did not abuse its discretion by giving Jury Instruction 13.

IV. M otion for a New Trial

      Gwathney filed a motion for a new trial based on his post-trial discovery of a

W estern Union record showing he had received $921 by wire transfer from Solomon

Shaw on M ay 14, 2004. The district court denied the motion. Gwathney challenges

its ruling on appeal.

      Rule 33 of the Federal Rules of Criminal Procedure authorizes district courts to

grant new trials “if required in the interest of justice.” A motion for a new trial based

on newly discovered evidence is generally disfavored and “should be granted only

with great caution.” United States v. Combs, 267 F.3d 1167, 1176 (10th Cir. 2001)

                                           -17-
(quotation omitted). To procure a new trial based on newly discovered evidence not

involving a Brady violation, 12 the defendant must show:

      (1) the evidence was discovered after trial; (2) the failure to learn of the
      evidence was not caused by his own lack of diligence; (3) the new
      evidence is not merely impeaching; (4) the new evidence is material to
      the principal issues involved; and (5) the new evidence is of such a
      nature that in a new trial it would probably produce an acquittal.

United States v. Sinclair, 109 F.3d 1527, 1531 (10th Cir. 1997) (quotation omitted).

W e review the denial of a motion for a new trial under the abuse of discretion

standard. United States v. Quintanilla, 193 F.3d 1139, 1146 (10th Cir. 1999). “A

decision is an abuse of discretion only if it is arbitrary, capricious, whimsical, or

manifestly unreasonable.” Combs, 267 F.3d at 1176 (quotation omitted).

      There is no dispute in this case that the evidence at issue was discovered after

trial thus meeting Sinclair’s first factor. In our judgment, however, Gwathney failed

to meet the second factor. It is likely Gwathney’s failure to learn of the existence of

a wire transfer receipt from Solomon Shaw was caused by a lack of diligence.

Gwathney, as the recipient of the wire transfer, was certainly in the best position to

know of the document’s existence and to request it prior to trial. He claims he “had

no reason to know that discovery of W estern Union records of the wire transfer w ould




      12
        See Brady v. M aryland, 373 U.S. 83, 87 (1963). The five part test to
procure a new trial based on newly discovered evidence is not applicable when a
Brady violation has occurred. United States v. Robinson, 39 F.3d 1115, 1119
(10th Cir. 1994); see also United States v. Lopez, 372 F.3d 1207, 1210 (10th Cir.
2004) (conducting new trial analysis for Brady violations).

                                           -18-
be required” until the government produced its “surprise” rebuttal testimony.

(Appellant’s Br. at 24.) Yet Gwathney was aware prior to trial of the irregular

$14,000 cash payment. He could have anticipated the source of the cash would be

relevant at trial and sought to obtain supporting documents he knew existed. Nor

should the introduction of supporting documents in rebuttal have surprised Gwathney.

It was Gwathney who offered Shaw as the source of the cash at trial, without any

documentation in support of his contention. See Sinclair, 109 F.3d at 1531 (holding

the defendant could have reasonably anticipated the relevance of certain documents,

which remained constant throughout the trial, and sought to obtain them before trial).

      The district court also found the new evidence to be of an impeaching nature

thus failing Sinclair’s third factor. W e agree. Impeachment evidence is evidence that

underm ines the credibility of a witness. Gwathney concedes he presented the new -

found W estern Union receipt “in the form of impeachment evidence,” but argues its

effect “was to rehabilitate Defendant’s credibility.” (Reply Br. at 12.) W e are not

persuaded by this distinction. Impeachment evidence offered by a defendant will

almost always have the effect of rehabilitating his credibility, or at least bolstering his

theory of the case.

      Even if we were to accept Gwathney’s characterization of the evidence,

however, we agree with the district court that it was not “material to the principal

issues involved” in the case. Sinclair, 109 F.3d at 1531. At best, the wire receipt

may support Gwathney’s credibility as to a tangential issue — i.e., the source of some

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of the money used for the repairs — but we are hard pressed to see how it effectively

does so. He received a $921 wire transfer, but paid $14,000 in cash for the repairs.

In any event that evidence is silent as to the principal issue of the case — Gwathney’s

knowledge of the presence of drugs in his truck. See United States v. Toro-Pelaez,

107 F.3d 819 (10th Cir. 1997) (“Although [the wire transfer record] would be relevant

to whether a person named Jorge wired [the defendant] funds, it does not speak to the

question central to the trial: whether [the defendant] knew that he was transporting

200 kilograms of cocaine.”). A bstract bolstering of credibility does not bear directly

on the principal issue of the case — knowledge of the drugs. Gwathney’s argument

that he had no reason to anticipate the necessity of discovering the wire transfer

receipt in advance of trial only confirms this conclusion. W e therefore cannot say the

jury would have reached a different verdict had it heard the new evidence.

Consequently, the district court did not err in denying Gwathney’s motion for a new

trial.

AFFIRM ED.




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