                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                            _______________________

                            Nos. 00-2659NE, 00-2878NE
                            ________________________

United States of America,                *
                                         *
            Appellee,                    *   On Appeal from the
                                         *   United States District Court
      v.                                 *   for the District of
                                         *   Nebraska.
                                         *
Valentin Morfin-Martinez,                *   [Not To Be Published]
                                         *
            Appellant.                   *

                                   ___________

                             Submitted: February 13, 2001
                                 Filed: February 23, 2001
                                  ___________

Before RICHARD S. ARNOLD, LAY, and HANSEN, Circuit Judges.
                           ___________

PER CURIAM.

      The defendant, Valentin Morfin-Martinez, was charged in a two-count
indictment with conspiring to distribute methamphetamine, and with distributing it.
Defendant waived a jury, and the case was tried to the Court.1 The Court found the


      1
      The Hon. Joseph F. Bataillon, United States District Judge for the District of
Nebraska.
defendant guilty on both counts and imposed a sentence of 78 months (6 years and 6
months) in prison, the bottom of the Guidelines range. Defendant appeals, and we
affirm.

      Mr. Morfin-Martinez makes the following claims: that the District Court erred
in admitting evidence of a conversation between an alleged co-conspirator and a
cooperating informant; that there was insufficient evidence to support a conviction; that
the District Court erred in denying a motion for a new trial; and that the defendant
should have received the benefit of the "safety value" provision, see 18 U.S.C.
§ 3553(f); U.S.S.G. § 2D1.1(b)(6). We have read the briefs and heard the argument.
We hold that none of defendant's points has merit. The case does not have sufficient
precedential value to justify an extended opinion, but we offer the following brief
comments in explanation.

       1. The government's case rested on the testimony of an eyewitness, an alleged
co-conspirator. During the government's case-in-chief, a taped conversation between
this witness and an individual cooperating with the government was received in
evidence. The District Court made the requisite findings to justify admission of the
tape under the co-conspirator exception to the hearsay rule. These findings are not
clearly erroneous, nor has there been any abuse of discretion. We observe, in addition,
that statements of the cooperating individual on the tape were offered not for the truth
of the matter asserted in the statements, but simply to explain the relationship between
the cooperating individual and the government's witness. As to the statements of the
witness himself, they did no more than corroborate the witness's own in-court
testimony.

      2. The government's eyewitness, already mentioned, Juan Gomez-Diaz,
inculpated the defendant directly in his trial testimony. Whether to believe Mr.
Gomez-Diaz was a decision for the District Court, in the first instance. Decisions by


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the trier of fact on matters of credibility are rarely disturbed. Here, we see no clearly
erroneous finding.

       3. Defendant's motion for a new trial asserted newly discovered evidence in
the form of a reduced sentence received by Mr. Gomez-Diaz after his testimony in the
instant case. This reduced sentence, defendant argued, should cause the Court to
disbelieve Mr. Gomez-Diaz's testimony against the defendant. One of the requirements
for the granting of a motion for new trial is that the newly discovered evidence would
probably produce an acquittal if the case were tried again. Here, the very person who
was the finder of fact at the first trial, the District Judge, also passed on the motion for
a new trial. No one is in a better position to determine what the effect of the new
evidence would be. We find no error here.

        4. As to the "safety value," the District Court found as a fact that the defendant
had not cooperated fully with the government. In the Court's view, the defendant did
not fully and completely describe his involvement in the offense. This, again, is a
credibility finding.     The burden of proof is on the defendant to establish the
prerequisites of the safety-value reduction. This he did not do to the satisfaction of the
trier of fact. The District Court's findings on this point are not clearly erroneous.

       Accordingly, the judgment is

       Affirmed.

       A true copy.

              Attest:

                   CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.


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