UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 95-6476

TIMOTHY JAY BLACKWELL,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
Charles E. Simons, Jr., Senior District Judge.
(CR-90-319)

Submitted: December 5, 1995

Decided: January 30, 1996

Before WILKINS, LUTTIG, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

C. Douglas Fisher, FISHER LAW FIRM, P.A., Hillsborough, North
Carolina, Robert A. Hassell, Hillsborough, North Carolina, for Appel-
lant. J. Preston Strom, Jr., United States Attorney, Mark C. Moore,
Assistant United States Attorney, Shane R. Page, Third Year Law
Student, Columbia, South Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Timothy Jay Blackwell was convicted by a jury for money launder-
ing and conspiracy to possess with intent to distribute cocaine. On
appeal, this Court reversed the money laundering conviction and
upheld the conspiracy conviction. See United States v. Baker, 985
F.2d 1248 (4th Cir. 1993), cert. denied, ___ U.S. ___, 62 U.S.L.W.
3451 (U.S. Nov. 11, 1994) (No. 93-51).*

In upholding Blackwell's conspiracy conviction we found the fol-
lowing: a conspiracy to distribute cocaine located in the Rock Hill,
South Carolina/Charlotte, North Carolina area existed; the conspiracy
was known as the Purser-Arrendell conspiracy; Odas White was a
participant in the Purser-Arrendell conspiracy; Blackwell sold one
kilogram of cocaine to government informant Terry Norman; pursu-
ant to that drug transaction, White delivered one-half a kilogram of
cocaine to Norman, supporting the inference that he acted as Black-
well's partner; that the large number of calls logged between tele-
phone numbers controlled by White and Blackwell supported the
allegation that they were partners in a drug conspiracy; that the evi-
dence allowed the jury to conclude that White's participation as
Blackwell's partner meant that Blackwell was part of the Purser-
Arrendell conspiracy.

Thereafter, Blackwell filed a motion for a new trial in the district
court, under Fed. R. Crim. P. 33, based upon "newly discovered" evi-
dence. Blackwell offered the affidavit of co-defendant White, who
stated that Norman's testimony was false; that he and Blackwell did
not conspire to sell drugs; and that the government never requested
he testify against Blackwell. In opposition, the government contends
_________________________________________________________________
*Blackwell's appeal was consolidated with another appeal in this
Court.

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that White refused to testify against Blackwell because he feared
reprisals from the Hell's Angels organization, and he therefore pled
guilty rather than testify against Blackwell pursuant to a plea agree-
ment. Blackwell asserts that the district court erred by failing to grant
his motion for a new trial.

A district court's denial of a motion for a new trial will not be set
aside absent an abuse of discretion. United States v. Campbell, 977
F.2d 854, 860 (4th Cir. 1992), cert. denied, ___ U.S. ___, 61
U.S.L.W. 3583 (U.S. Feb. 22, 1993) (No. 92-7048). A new trial may
be granted on the basis of newly discovered evidence if: (1) the evi-
dence is, in fact, newly discovered; (2) the movant has exercised due
diligence; (3) the evidence is not merely cumulative or impeaching;
(4) the evidence is material; and (5) the evidence would probably
result in an acquittal at the new trial. All five requirements must be
met. United States v. Custis, 988 F.2d 1355, 1359 (4th Cir.), aff'd,
___ U.S. ___, 62 U.S.L.W. 4346 (U.S. May 23, 1994) (No. 93-5209).
The trial court should only grant a new trial when the evidence
weighs so heavily against the verdict that it would be unjust to enter
judgment. United States v. Arrington, 757 F.2d 1484, 1485-86 (4th
Cir. 1985) (citations omitted).

We find that the district court did not abuse its discretion when it
determined that Blackwell failed to show he met all five requirements
under Custis, 988 F.2d at 1359. In particular, we find that Blackwell
failed to exercise due diligence in obtaining White's testimony and
that White's testimony is not "newly discovered." The record is
undisputed that Blackwell and White knew each other well. Blackwell
has failed to indicate why he did not know White could exculpate him
until after trial and appeal or why White was not called as a witness
after he decided to pled guilty. Courts are understandably suspicious
of persons who forego testifying and after trial attempt to exculpate
a criminal defendant. See United States v. Miliet, 804 F.2d 853, 859
(5th Cir. 1986) (district court could properly conclude that defendant
failed to show due diligence in discovering evidence where defendant
failed to call any witnesses at trial who could corroborate his story or
adequately explain his failure to do so); United States v. Diggs, 649
F.2d 731, 740 (9th Cir.) (when a defendant has chosen not to testify
subsequently comes forward to offer testimony exculpating a co-
defendant, the evidence is not "newly discovered"), cert. denied, 454

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U.S. 970 (1981), overruled on other grounds, United States v. Ibarra-
Alcarez, 830 F.2d 968 (9th Cir. 1987).

Accordingly, we affirm the district court's denial of Blackwell's
motion for a new trial. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the Court and argument would not aid in the decisional pro-
cess.

AFFIRMED

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