
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 96-2280                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                              MANUEL GONZALEZ-GONZALEZ,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                 Lynch, Circuit Judge,                                        _____________                        Coffin and Cyr, Senior Circuit Judges.                                        _____________________                                 ____________________            Laura H. Parsky, Trial Attorney, with whom John C. Keeney, Acting            _______________                            ______________        Assistant Attorney General, and Theresa M.B. Van Vliet, Chief of the                                        ______________________        Narcotics and Dangerous Drugs Section, Department of Justice, were on        brief, for appellee.            Lawrence E. Besser for appellant.            __________________            Manuel Gonzalez-Gonzalez on brief pro se.            ________________________                                 ____________________                                   February 5, 1998                                 ____________________                      LYNCH, Circuit Judge.  Manuel Gonzalez-Gonzalez was                      LYNCH, Circuit Judge                             _____________            convicted  of  a major  drug  smuggling and  money laundering            conspiracy based in Puerto Rico.   Gonzalez' defense at trial            was that  such a conspiracy  did exist,  but that he  was not            part of  it.   Gonzalez now  argues through  counsel that  an            admittedly  improper definition of reasonable doubt argued by            the prosecutor  in closing  requires a new  trial, as  does a            jury  instruction on  the effect of  a guilty  plea by  a co-            defendant.  Gonzalez also filed a brief pro se, arguing  that            the district court  erred for  other reasons  in denying  his            motion for a new trial.  We affirm.                                          I.                      Gonzalez  was charged  on  November  2,  1994  with            conspiracy to possess  with intent to distribute  cocaine and            marijuana, possession  with intent  to distribute  marijuana,            possession with intent to  distribute cocaine, importation of            marijuana  and  cocaine,  and  aiding  and  abetting  in  the            laundering of  monetary  instruments.   After a  nineteen-day            trial, the jury found  Gonzalez guilty as charged.   Gonzalez            was  sentenced on September 20, 1996 to life imprisonment and            was fined.                      Because  this appeal  involves  admittedly improper            remarks by the prosecutor, and because the verdict could have            been tainted by  these remarks, we do not  consider the facts            in  the light  most favorable  to  the jury's  verdict.   Our            description of the facts is  "designed to provide a  balanced            picture of  the evidence appropriate for  determining whether            the remarks were harmless or  prejudicial."  United States v.                                                         _____________            Hardy,  37 F.3d  753,  755  (1st Cir.  1994).   See  Arrieta-            _____                                           ___  ________            Agressot v. United States, 3 F.3d 525, 528 (1st Cir. 1993).            ________    _____________                      Several witnesses  testified that they  belonged to            Gonzalez'  drug  smuggling  and  money laundering  operation.            This extensive testimonial evidence  was corroborated by tape            recorded  conversations,  surveillance  photographs, passport            entries,  travel  records, and  telephone  records.   Ricardo            Rivero  ("Rivero") testified that  Gonzalez recruited  him to            retrieve  and repackage 900 pounds of marijuana imported from            Colombia  in 1991.   Rivero  testified  that Gonzalez  stored            cocaine and marijuana at a house belonging to Manuel Garrido,            which  other  witnesses,  a co-defendant  and  an  FBI agent,            subsequently confirmed.                      Gonzalez transported 125  kilograms of cocaine from            Puerto  Rico to  New  York for  distribution  with help  from            Rivero.   Gonzalez  also  hired Roberto  Garraton-Rivera  and            Alberto  Maysonet to  transport cocaine.   Garraton testified            that  Gonzalez  came  to  his house  to  deliver  cocaine  to            Maysonet.   Garraton and  Maysonet  traveled to  New York  in            August of 1991 to deliver cocaine to  Gonzalez.  While in New            York,  Gonzalez instructed Ricardo  on how to  distribute the            cocaine and resolved  a dispute over  payment for the  drugs.                                         -3-                                          3            After  the success of  this deal, Gonzalez  purchased several            cars before returning to Puerto Rico.                      Witnesses  described  other  drug  transactions  in            1992.   Co-defendant  Luz  Marina-Giraldo testified  that she            helped  Gonzalez import 6,500 pounds of marijuana into Puerto            Rico.   Gonzalez stored  the marijuana at  a stash  house and            sold it  in Puerto  Rico.  Rivero  also testified  about that            marijuana shipment.  According to Rivero, Gonzalez supervised            the unloading and transportation of the marijuana.                      Both  Rivero  and   Marina-Giraldo  testified  that            Gonzalez  was  involved  in  transporting  300  kilograms  of            cocaine  from St.  Martin  to  Puerto Rico  in  1992.   These            witnesses  also testified about  a major shipment  of cocaine            and marijuana Gonzalez  had imported from Colombia  to Puerto            Rico  in September of 1992.  Part of this shipment was seized            by the police.                      Several  witnesses   testified  that   they  helped            Gonzalez' cousin,  Augustin Rivero  ("Augustin"), import  625            kilograms of  cocaine in  November of 1992.   Ricardo  Rivero            testified that Gonzalez  supplied a motor for a  boat to help            bring  in  the  shipment.    Roberto  Sierra-Rivera,  a  paid            informant, testified that  Gonzalez provided surveillance for            this shipment,  which was later  sold in Puerto Rico  and New            York.   Sierra-Rivera  testified that  Gonzalez and  Augustin            agreed that  each  time one  of  them brought  in a  load  of                                         -4-                                          4            cocaine, the other would be  given 10 kilograms of cocaine or            $100,000.    There  was also  testimony  about  later cocaine            smuggling operations conducted by Gonzalez' cousin Augustin.                      Angel  Santiago-Mora,  a cooperating  witness,  and            Martin Suarez, an FBI agent, testified that Gonzalez  and his            associates often delivered money to them to be laundered.  On            several  separate occasions  Gonzalez  delivered hundreds  of            thousands of dollars to them.  Other people closely connected            to Gonzalez also  delivered substantial sums  of money to  be            laundered.                      The government  also presented  tape recordings  of            conversations  between Gonzalez  and his associates  in which            Gonzalez  admitted his  involvement  in  drug  smuggling  and            distribution.   This evidence  was supplemented  by tapes  of            Gonzalez' associates  referring to  Gonzalez' involvement  in            drug trafficking.                        Gonzalez testified and denied it all.                                         II.                      Gonzalez argues that  he was deprived of  his Sixth            Amendment right to  a jury trial because  in the prosecutor's            closing argument the prosecutor said:                    [Y]ou heard [defense counsel]  say at the end                    of his  argument, that  there was  reasonable                    doubt as to  whether he was or was  not and I                    am  going  to  tell you  something,  you will                    listen to the instructions from the  judge as                    to  what   reasonable  doubt  is  --   it  is                    something very simple.   If in your  mind you                    think   that  he   was   a   member  of   the                                         -5-                                          5                    organization,  and in  your  heart, you  feel                    that he  was a  member  of the  organization,                    then he was a member of the organization, and                    you  say so  with your  verdict.   Don't  let                    yourselves be confused  by the definition  of                    reasonable doubt.            The government  appropriately concedes that  the prosecutor's            remarks incorrectly  defined reasonable doubt.  Because there            was  no objection  to  these  remarks  (which  the  defendant            concedes), we  apply a plain  error standard of review.   See                                                                      ___            United  States  v. Crochiere,  129  F.3d 233,  237  (1st Cir.            ______________     _________            1997); United States v. Taylor, 54 F.3d 967, 972-73 (1st Cir.                  ______________    ______            1995).   The "decision  to correct  the forfeited  error [is]            within the sound discretion of  the court of appeals, and the            court  should not exercise  that discretion unless  the error            'seriously  affect[s]  the  fairness,  integrity  or   public            reputation of the  judicial proceedings.'"  United  States v.                                                        ______________            Olano,  507 U.S. 725,  732 (1993)  (quoting United  States v.            _____                                       ______________            Young, 470 U.S. 1, 15 (1985)).            _____                      Gonzalez relies on  a series of cases  holding that            jury  instructions   which  misstate  the   reasonable  doubt            standard  require   a  new  trial.     He  argues   that  the            prosecutor's comments on reasonable doubt are the "functional            equivalent"  of  jury   instructions,  especially  since  the            prosecutor followed his incorrect definition with a statement            that the  jury should  not be confused  by the  definition of            reasonable  doubt.    Gonzalez  argues  that  the  prosecutor                                         -6-                                          6            essentially  told the jury to ignore the judge's instructions            on reasonable doubt  and to follow his "mind  and heart" test            instead.  We start with the latter contention.                      The remark,  "Don't let yourselves  be confused  by            the definition of  reasonable doubt" is ambiguous,  and could            have  at least  three  meanings.   It  could  mean "Don't  be            confused by the definition that I, the  prosecutor, have just            told  you."    It  could  mean, "Don't  be  confused  by  the            definition you hear from either  lawyer."  And it could mean,            "Don't  be  confused by  the  definition  you  hear from  the            judge," with the implication that the prosecutor's definition            governs.                      In context, the  third meaning is by  far the least            likely of the three.1  The prosecutor prefaced his remarks by            telling  the jury to listen  to the judge's instructions, and            his statement  that the  jury should not  be confused  by the            definition   of  reasonable  doubt   is  subject   to  benign            interpretation.   Furthermore, the  prosecutor concluded  his            argument  by stating, "You will listen to the instructions of                                        ____________________               1   We note  but need  not resort to  the rule  that when  a          prosecutor's   comments  are   ambiguous,   and   there   is   no          contemporaneous objection, the ambiguity is construed in favor of          a proper meaning.  See Taylor, 54 F.3d at 979 ("[W]hen the target                             ___ ______          of  the  comments  does  not  interrupt  and  register  a  timely          objection,  it seems especially  appropriate to 'give  the arguer          the benefit of every plausible  interpretation of her words.' . .          . Given the absence of  a contemporaneous objection, we must cede          to   the  government  the  benefit  of  a  legitimate,  plausible          interpretation  of  the  prosecutor's  words.")  (quoting  United                                                                     ______          States v. Sepulveda, 15 F.3d 1161, 1187 (1st Cir. 1993)).          ______    _________                                         -7-                                          7            the Honorable  Judge, as  he explains them  to you,  you will            decide what the facts  in this case were [and] you will apply            the  law . . . ."   The prosecutor's own comments went a long            way  toward curing  any understanding  of the  comment as  an            admonition to ignore the court's instruction.                      The  problem  with   the  prosecutor's  error   was            obviated  by the  court's instructions  on reasonable  doubt,            which Gonzalez  concedes were correct, as well as the court's            admonition to the  jurors that instructions  on the law  come            only from the court, and not from counsel.                        We  flatly   reject  Gonzalez'   argument  that   a            misstatement of the law by a prosecutor should be treated the            same  way as a  misstatement of law  by the judge.   No juror            would mistake a prosecutor for a judge.  Our law assumes that            the  jurors follow  jury  instructions  and  thus  that  they            followed the judge's, not counsel's, definition of reasonable            doubt.  See  United States v. Rivera-Gomez, 67  F.3d 993, 999                    ___  _____________    ____________            (1st Cir. 1995)  ("[O]ur system of trial by  jury is premised            on  the assumption that  jurors will scrupulously  follow the            court's  instructions.");  Refuse  &  Envtl.  Sys.,  Inc.  v.                                       ______________________________            Industrial  Serv. of  Am., Inc.,  932 F.2d  37, 40  (1st Cir.            _______________________________            1991) ("A basic premise  of our jury system is that  the jury            follows  the  court's instructions.").    That  assumption is            especially  so here, since the  prosecutor also told the jury            to listen to the judge.                                         -8-                                          8                      Whether  the prosecutor's  remarks amount  to plain            error warranting a  new trial depends on  analysis of several            factors: "(1) the  extent to which  the conduct is  recurrent            and/or deliberate; (2) the extent  to which the trial judge's            instructions  insulated the  jury against, or  palliated, the            possibility of unfair prejudice; and (3) the overall strength            of  the prosecution's  case, with  particular  regard to  the            likelihood  that any prejudice might have affected the jury's            judgment." Taylor, 54 F.3d at 977.                         ______                      We make no determination on the first of the Taylor                                                                   ______            factors.  We do note a long history of improper statements in            closing argument  from federal  prosecutors  in Puerto  Rico.            See,  e.g., United States v. Rodriguez-Carmona, 111 F.3d 122,            __________  _____________    _________________            1997  WL 157738,  at *4  (1st  Cir. 1997);  United States  v.                                                        _____________            Fernandez,  94 F.3d  640, 1996  WL 469009,  at *17  (1st Cir.            _________            1996); United States v. Cartagena-Carrasquillo,  70 F.3d 706,                   _____________    ______________________            713 (1st Cir. 1995);  United States v. Levy-Cordero, 67  F.3d                                  _____________    ____________            1002, 1009 (1st Cir. 1995);   Arrieta-Agressot, 3 F.3d at 527                                          ________________            (citing  cases); United  States v. Ortiz-Arrigoita,  996 F.2d                             ______________    _______________            436, 441 (1st Cir. 1993) ("We do not understand, however, why            after  numerous warnings  from  this  court, the  prosecuting            attorneys in the  District of Puerto Rico  persist in spiking            their arguments with comments that put their cases at risk.")            (collecting cases).  In light of this history, the government            gains no advantage under the first factor.                                          -9-                                          9                      As to the second factor, we are persuaded the  jury            was  not  led  astray.    That  is  because  of  the  court's            concededly correct jury instructions on reasonable  doubt and            the  direction to  disregard statements  about  the law  from            counsel.  As  to the third factor, the government  had a very            strong case against Gonzalez.  Given these considerations, we            do not think the jury's judgment was affected and a new trial            is not warranted.  Cf. Levy-Cordero, 67 F.3d at 1008 (holding                               ___ ____________            that several "obviously improper"  prosecutorial comments did            not warrant a new trial).                                         III.                      In  his  counselled   appeal,  Gonzalez  says   the            district  court committed  error  in  its  jury  instructions            regarding  the  guilty  plea   of  co-defendant  Luz  Marina-            Giraldo.2   Specifically,  Gonzalez argues  that the  court's                                        ____________________               2   Before Marina-Giraldo testified as a  witness, the court          instructed the jury:                      [T]he government  must establish  each case                    against each defendant separately.   Now, the                    fact  that  this  co-defendant  is  going  to                    testify,  you are going to hear from her that                    she did enter a plea of guilty and now she is                    testifying for the government.   Now the fact                    that  a co-defendant  has entered  a  plea of                    guilty  to  the  offense  charged, that  fact                    also, the entering of a plea of guilty in and                    of itself is not evidence of any guilt of any                    other of  the co-defendants.  I  repeat that.                    The  fact that  a co-defendant has  entered a                    plea  of guilty to the offense charged is not                    evidence in and of itself of the guilt of any                    other  co-defendant  and I  cannot  emphasize                    that enough.                                         -10-                                          10            statement  that his co-defendant's guilty plea is not "in and            of itself"  proof of  Gonzalez' guilt  implies that  the plea            could be considered as evidence of guilt in conjunction  with            other  evidence in the case.  There was no objection to these            instructions, so we apply the plain error standard  of review            (which  Gonzalez  concedes).   See  Taylor, 54  F.3d  at 976;                                           ___  ______            United States v. Colon-Pagan, 1 F.3d 80, 81 (1st Cir. 1993).            _____________    ___________                      The  phrase "in and of itself," in isolation, could            be understood to  mean what Gonzalez  posits:  that  standing            alone, the  guilty  plea  of  a  co-defendant  could  not  be            evidence of guilt of the  defendant, but, in combination with            such other evidence,  the plea could be taken  as evidence of            the defendant's guilt.  That is, of course, not the law, nor,            we are sure, was that the trial judge's intended meaning when            he gave the instructions.                                        ____________________                      The guilty  plea of Luz  Marina-Giraldo may                    not  be   regarded  by  you   as  substantive                    evidence of the  other defendant's guilt  nor                    may you draw any inference of guilt as to the                    remaining co-defendants.   The fact  that she                    pled  is what I am talking about, that cannot                    be  used   as  evidence  against   the  other                    defendants  nor may  you  draw any  inference                    from the fact that she pled guilty. . . .                       [W]hat you cannot consider is the fact that                    she has entered  a plea of guilty,  that fact                    cannot  be considered.   It  is not  evidence                    against the  other defendants and  affords no                    inference or suggestion  of guilt  as to  the                    other defendants.                                         -11-                                          11                      The trial judge may have relied on dicta in  United                                                                   ______            States  v. Rivera-Santiago, 872  F.2d 1073, 1083  (1st Cir.),            ______     _______________            cert. denied, 492 U.S. 910 (1989), and cert. denied, 493 U.S.            ____________                       ________________            832  (1989).   In describing  the events  at the  trial, this            court's opinion referred  to the following language  given by            the  trial judge as a "standard accomplice" instruction: "the            fact that an accomplice has  entered a plea of guilty  to the            offense charged is not evidence in and of itself of the guilt            of any other person."  The language of the instruction itself            was not at  issue in Rivera-Santiago3 and this  Court has not                                 _______________            ruled  on the  propriety of  such language  in an  accomplice            instruction.  We do so now and discourage the use of such "in            and of itself" language.  There is no need for such language,            as  the pattern  jury instructions  from other  jurisdictions            make evident.4                                        ____________________               3   The  Fifth Circuit also  described a similar  "in and of          itself"  accomplice instruction in United States v. Abravaya, 616                                             _____________    ________          F.2d 250  (5th Cir. 1980).   The new District Court  Criminal Law          Pattern Jury Instructions for this  circuit do not address guilty          pleas by accomplices or co-defendants.               4   The  pattern instructions  of  other circuits  are  more          straightforward  and do not contain  "in and of itself" language.          For example, Sixth Circuit pattern jury instruction 7.08 reads as          follows:                    (3)    The  fact  that  ________ has  pleaded                    guilty  to a crime  is not evidence  that the                    defendant is guilty,  and you cannot consider                                          _______________________                    this against the defendant in any way.                    _____________________________________          The Seventh Circuit's pattern jury instruction 3.23 reads:                    The witness, ________,  has pleaded guilty to                    a crime  arising out  of the same  occurrence                    for which the defendant is now on trial.  You                    may  give his  testimony such  weight as  you                                         -12-                                          12                      Despite  the potentially  misleading nature  of the            "in and  of itself"  language, a new  trial is  not warranted            here.   The  district court instructions,  taken as  a whole,            repeatedly  and unequivocally told  the jury not  to consider            the co-defendant's guilty plea as evidence of the defendant's            guilt.5                                        ____________________                    feel  it deserves,  keeping in  mind that  it                    must  be considered  with  caution and  great                    care.  Moreover, his guilty plea is not to be                           ______________________________________                    considered as evidence against the defendant.                    ____________________________________________          Pattern jury instruction 2.19 from the Eighth Circuit states:                    You have  heard evidence that  witness (name)                    has pleaded guilty to a crime which arose out                    of the same events for which the defendant is                    on  trial here.   You must not  consider that                                      ___________________________                    guilty   plea   as  any   evidence   of  this                    _____________________________________________                    defendant's  guilt.   You  may consider  that                    __________________                    witness' guilty plea only for  the purpose of                    determining how much, if at all, to rely upon                    that witness' testimony.          Finally, Ninth Circuit pattern instruction 4.12 reads:                    The witness, _________, has pleaded guilty to                    a  crime arising out  of the same  events for                    which the defendant is on trial.  This guilty                                                      ___________                    plea is  not evidence  against the  defendant                    _____________________________________________                    and you may consider  it only in  determining                    _____________________________________________                    this  witness'  believability.    You  should                    _____________________________________________                    consider this  witness' testimony  with great                    _____________________________________________                    caution,  giving it  the  weight you  feel it                    _____________________________________________                    deserves.                    ________               5  The court also instructed the jury:                      Now,  the case  against  Luz Marina-Giraldo                    has  been disposed of  and will no  longer be                    before  you.  It  is very important  that you                    realize  that  you  cannot  guess or  concern                    yourselves  or speculate as to the reason for                    the disposition of her case.  The disposition                    cannot and should not  influence your verdict                    with  reference to  the remaining  defendants                    that are on trial here.                                         -13-                                          13                      We  examine jury instructions in the context of the            charge   as  a  whole   to  determine  whether   the  court's                                        ____________________                      If you recall, I think I advised you on the                    first day that each defendant, although being                    tried  together, has a right to have the jury                    consider  his case  separately  of the  other                    defendants and considering  the evidence that                    applies  or  that  is  admitted  as  to  that                    defendant specifically. . . . [A]lthough [the                    defendants]  are  being tried  together,  you                    must  give  separate  consideration  to  each                    defendant. . . . I repeat that you cannot and                    you  must  not  consider the  fact  that  Luz                    Marina-Giraldo  is  not  here  again  and  it                    should not enter into your deliberations. . .                    . [The  disposition of  her case] should  not                    enter whatsoever in your  deliberations as to                    the other two defendants.                      In  its final instructions  to the jury,  the court            said:                    [D]uring   the  course   of   the  trial,   I                    instructed  you  that  the  case against  Luz                    Marina-Giraldo . . . [had] been  disposed of,                    and  was no  longer  before  you.    And  the                    disposition  of the case[]  . . .  should not                    influence your verdict with  reference to . .                    . Gonzalez  and you  must  base your  verdict                    solely on the evidence  against Mr. Gonzalez-                    Gonzalez.   In  other  words, the  government                    must establish its  case against Mr. Gonzalez                    separately of  the disposition  of the  cases                    against the other two defendants.                      And I  also instructed  you, the  fact that                    co-defendant  Luz  Marina-Giraldo  entered  a                    plea  of guilty to the offense charged is not                    evidence in and of itself of the guilt of the                    defendant  here   on  trial   and  I   cannot                    emphasize this  enough.   The guilty  plea of                    Luz Marina-Giraldo may not be regarded by you                    as substantive evidence of the guilt [of] Mr.                    Gonzalez-Gonzalez.  Nonetheless, you may give                    her  testimony  such weight  as you  think it                    deserves,  keeping in  mind that  it  must be                    considered with caution and great care.                                         -14-                                          14            instructions require a new trial.  See United States v. Rose,                                               ___ _____________    ____            104  F.3d 1408,  1416 (1st  Cir. 1997).   When  we  take this            context  into  account,  it  is  apparent  that  the  court's            instructions in  this case do  not warrant a  new trial.   We            also  reject Gonzalez' claim  that the synergistic  effect of            two errors requires a new trial.                                         IV.                      In  his  pro  se brief,  Gonzalez  argues  that the            district court erred in denying  his motion for a new trial.6            The motion based the request for a new trial on claimed newly            discovered  evidence  and claimed  prosecutorial  misconduct,            including presentation of false testimony.7                      We review a trial judge's  ruling on a motion for a            new  trial for  manifest  abuse of  discretion.   See  United                                                              ___  ______            States v.  Brimage, 115 F.3d  73, 79 (1st  Cir. 1997).   "The            ______     _______            remedy of a  new trial is rarely used; it  is warranted 'only            where there would be a  miscarriage of justice' or 'where the            evidence preponderates heavily against  the verdict.'" United                                                                   ______            States v.  Andrade, 94  F.3d 9, 14  (1st Cir.  1996) (quoting            ______     _______                                        ____________________               6  After oral argument in this case, Gonzalez filed a letter          with this  court,  which we  accepted  as a  supplemental  brief,          raising issues in  addition to those raised by  his able counsel.          We requested the government to  file a responsive brief, which it          has done.  We reach the merits of Gonzalez' pro se appeal.               7   Gonzalez also complains  of a  factual error  concerning          whether the name "Lin" appeared on any of the drug  packages from          Loiza  beach, an  error contained  in  the transcript.   At  oral          argument before us,  the government conceded this  factual error,          saying the name did not appear.                                         -15-                                          15            United  States v.  Indelicato, 611  F.2d  376, 386  (1st Cir.            ______________     __________            1979)).  See United States  v. Montilla-Rivera, 115 F.3d 1060                     ___ _____________     _______________            (1st Cir. 1997).   In  a motion  for a new  trial based  upon            newly discovered evidence, the defendant must establish  that            "the evidence was: (i) unknown  or unavailable at the time of            trial, (ii) despite  due diligence, (iii) material,  and (iv)            likely to  result  in an  acquittal  upon retrial."    United                                                                   ______            States v.  Tibolt, 72  F.3d 965,  971 (1st  Cir. 1995).   But            ______     ______            Gonzalez' complaints are largely about what happened at trial            and were not newly discovered.                      The district  court gave a  careful explanation  of            its denial of Gonzalez' motion, and we affirm for the reasons            stated in the court's Memorandum  and Order dated December 3,            1996.  We add only  that the "new evidence" Gonzalez presents            does not  come close  to "so  undermin[ing] the  government's            case  as  to  give  rise  to  a 'reasonable'  probability  of            acquittal  on retrial."    Tibolt, 72  F.3d  at 972  (quoting                                       ______            Sepulveda, 15 F.3d at 1220)).            _________                      The judgment is affirmed.                                      _________                                         -16-                                          16
