                                  ____________

                                   No. 96-1322
                                  ____________


United States of America,              *
                                       *
                 Appellee,             *
                                       * Appeal from the United States
     v.                                * District Court for the
                                       * Southern District of Iowa
Melissa Jean Luna,                     *
                                       *
                 Appellant.            *

                                  ____________

                     Submitted:    May 14, 1996

                        Filed:      August 29, 1996
                                  ____________

Before McMILLIAN, FAGG and LOKEN, Circuit Judges.
                              ____________


McMILLIAN, Circuit Judge.


     Melissa Jean Luna appeals from a final judgment entered in the
District Court1 for the Southern District of Iowa, upon a jury
verdict, finding her guilty of possession with intent to distribute
methamphetamine and possession of cocaine in violation of 21 U.S.C.
§ 841(a)(1), 18 U.S.C. § 2.         The district court sentenced Luna to
41 months imprisonment, 3 years supervised release and a special
assessment of $50.00.    For reversal, Luna argues the district court
abused its discretion in denying her motion for new trial on the
basis of newly discovered evidence because false evidence was
introduced to establish a motive for her participation in an armed
robbery.   For the reasons discussed below, we affirm the judgment
of the district court.



     1
     The Honorable Harold D. Vietor, United States District Judge
for the Southern District of Iowa.
      According to the government’s theory of the case, in December
1993, Luna, her father John Kime, with whom she had only recently
become acquainted, Clifford Brown, Randy Groves, and Bobby McGee
decided to rob Kenny Eaton and his mother Sandra Eaton.                     Kime was
the “mastermind” of the robbery.                 At the time Luna was Kenny
Eaton’s girlfriend and she lived with the Eatons.                  The Eatons were
drug dealers.         Kime was also a drug dealer.                   Luna provided
background information about the Eatons’ house -- the layout, the
location of drugs, guns and money, and the presence of a guard dog.
Brown,   Groves      and    McGee      carried   out     the    armed    robbery    on
December 5, 1993.      Luna was present in the house at the time of the
robbery and controlled the guard dog during the robbery; the
robbers treated her as a robbery victim in order to conceal her
role in the robbery.         The robbers took money, jewelry, guns, and
about 1.5 ounces of methamphetamine and 10 grams of cocaine.                       The
robbers gave Luna the cocaine and split the methamphetamine among
themselves and sold it.             The Eatons had a total of 4 ounces of
methamphetamine and the government speculated that Luna probably
sold the “missing” 2.5 ounces of methamphetamine.


      A federal grand jury indicted Luna and charged her with
conspiracy      to   attempt      to   possess    with    intent    to    distribute
methamphetamine and cocaine in violation of 21 U.S.C. § 846 (count
1),   possession     with    intent     to    distribute       methamphetamine     and
cocaine or aiding and abetting that possession in violation of 21
U.S.C. § 841(a)(1), 18 U.S.C. § 2 (count 2), and causing or aiding
and abetting the use or carrying of a firearm in connection with a
drug trafficking offense in violation of 18 U.S.C. §§ 924(c)(1), 2
(count 3).      All three counts arose out of the December 5, 1993
armed robbery of the Eatons.            The government dismissed count 1 at
trial.     At    trial      the   three      robbers   testified        about   Luna’s
assistance before and during the robbery and her receiving the
cocaine for her assistance.             Groves also testified, on re-direct

                                          -2-
over a defense objection, about a debt Luna allegedly owed Kime
because of a check which Kime had cashed for her.   The government




                               -3-
argued that the check incident explained why Luna participated in
the robbery, that is, in order to “pay back” Kime for the cashed
check.    Counts 2 and 3 were submitted to the jury.                The jury found
Luna     guilty    of   possession     of    methamphetamine       with   intent   to
distribute, possession of cocaine and aiding and abetting the use
or carrying of a firearm in connection with a drug trafficking
offense.


       Luna filed a motion for new trial and a motion for judgment
of acquittal on count 3 (the firearms count).                 The district court
granted the motion for judgment of acquittal on count 3 and denied
the    motion     for   new   trial.        United   States   v.   Luna,   Criminal
No. 95-79 (S.D. Iowa Jan. 11, 1996) (memorandum opinion, ruling and
order).    Luna argued that the evidence about the check incident was
false, irrelevant and prejudicial.             Before Luna’s trial, Groves had
pleaded guilty pursuant to a plea agreement.                  The stipulation of
facts entered into as part of Groves’s plea agreement provided in
part that “[o]n or about December 5, 1993, Clifford Brown, Bobby
McGee, and [Groves,] at the direction of Jack Kime, robbed Sandy
Eaton at her residence . . . regarding a debt she previously owed
to Kime.”         During direct examination of Groves, the following
exchange occurred:


       Government attorney: In the time period leading up to
       the Eaton robbery, had Melissa Luna engaged in some sort
       of a financial transaction with Jack Kime?

       Groves: I know she got-- she had a check and she had
       Jack cash it for her.

       Government attorney: Can you explain the circumstances
       behind that for the jury?

       Defense attorney:        Your Honor, I’ll object on the basis
       of 404(b).



                                        -4-
District court: I’m going to sustain the objection. You
may make an offer out of the presence of the jury. I
don’t know what this is about, I don’t know where we’re
going, and unless and until I know what it’s about and I




                          -5-
     where you’re going, the objection is sustained.      You may
     possibly demonstrate to me that it’s relevant.

     Government attorney:     Yes, and it’s not 404(b).

     District court:   I don’t know at this point.

     Government attorney: Rather than send the jury out at
     this point in time, I prefer to go on and cover that at
     some other point in time.

II Trans. at 172.


     On cross-examination, defense counsel questioned Groves about
the reference in the plea agreement’s stipulation of facts to the
debt Sandy Eaton owed Kime:


     Defense attorney: Were you aware at the time you signed
     this stipulation of some debt between Ms. Eaton
     (referring to Sandy Eaton) and Mr. Kime?

     Groves:    Well, I wasn’t really aware, you know, of
     actually a debt. It seemed like everybody owed Jack,
     even if they didn’t. If you knew him, you’d know what I
     was talking about.

     Defense attorney: Well, did you or did you not know when
     you signed this agreement that there was a debt from Ms.
     Eaton to Mr. Kime?

     Groves:   I didn’t believe that there was actually a debt.

     Defense attorney: So even though you thought that this
     thing in this factual stipulation was not true, you
     signed it and agreed to it anyway?

     Groves:   I didn’t recall it being in there.

Id. at 204-05.



     On re-direct examination, the government attorney questioned
Groves about the reference to the debt in the stipulation of facts:


                                  -6-
Government attorney: Defense counsel asked you to look
at subparagraph B at the top of that page; is that right?




                          -7-
Groves:   That’s right.

Government attorney: And I believe the statement was
relative to the robbery at the Eaton residence, reference
to Sandy Eaton, and then it says, “regarding a debt she’d
previously owed to Kime.”

Groves:   Yes.

Government attorney: Who in fact did you know relative
to the Eaton robbery who owed a debt to Jack Kime at that
point in time?

Groves:   Just Missy, I believe.     That’s about it.

Government attorney:      What was that?

Defense attorney:    I’ll object.   I think this is the same
404(b) problem.

Government attorney: I think counsel has clearly opened
up this area of inquiry.

District court:     The objection is overruled.

Groves:   It was over a check.

Government attorney:      What were the circumstances?

Groves: Missy got a check from the lawyer for $1,800 and
asked her dad if he’d cash it. He cashed it. And then
about three or four days later when he went to deposit
it, they told him the check was no good, stopped payment
on it. He found out she went to the lawyer and told the
lawyer she’d lost the check and the lawyer wrote out
another check and she cashed it.

Government attorney:    So Missy Luna actually cashed both
of the checks?

Groves:   Yes, she did.

Government attorney:      Jack Kime felt he was out $1,800?

Groves:   Yes.   He was upset.

Government attorney: And that was the only person you
know of that was actually involved in the Eaton robbery
that owed Jack Kime at that time?

                              -8-
Groves:   Yes.




                 -9-
     Government attorney:    Did Jack Kime want that money back?

     Groves:   He was pretty pissed off about it.

     Government attorney: After the Eaton robbery, did Jack
     Kime consider that $1,800 taken care of?

     Groves: He never really said. Nobody really pushed the
     issue because it was his daughter.

Id. at 213-15.



     In closing argument, the government attorney referred to the
check incident as follows:


         I think also that it’s clear that Melissa Luna
    suggested the Eaton robbery.     There is absolutely no
    evidence that anyone else came up with the idea of
    robbing Kenny Eaton for drugs. There’s no evidence that
    anyone else really knew what would be there, what the
    circumstances were with the Eatons, and promoted the idea
    originally of robbing the Eatons.

         There is a suggestion by at least one of the
    witnesses     on    redirect    examination     following
    cross-examination that in fact this may have grown out of
    a debt that Melissa Luna owed to her father, Jack Kime.
    If you remember, that was the testimony about the check
    from an attorney for $1,800 that Melissa Luna had Jack
    Kime cash for her, then the check turned out to be no
    good, and then Melissa Luna went back to the attorney and
    got another check that was good and cashed it, and she
    kept both sets of the money.

         Now, that’s the record that’s before you, and that
    happened at or about, approximately right before the time
    of the Eaton robbery.

         Motive is not an element of the crime, but you
    certainly could find a reason why Melissa Luna might be
    suggesting doing the crime, to get that credit back, get
    this paid off.




                                 -10-
Slip op. at 7-8, citing partial transcript of final arguments.




                              -11-
      In closing argument, defense counsel referred to the check
incident as follows:


           By the way, on this matter about the drug debt to
      Sandy Eaton, the prosecution’s theory about this matter,
      in Mr. Groves’ plea agreement was this had to do with a
      debt that Melissa Luna owed to her father, and they tell
      some story about a check being cashed twice. Just read
      Mr. Groves’ stipulation attached to his plea agreement.
      See if you find anything about a check of Missy Luna in
      there. It just says “Rob Sandy Eaton at her residence,”
      gives the address, “regarding a debt she previously owed
      to Kime.” I think that’s pretty clear.


Id. at 8.



      In rebuttal closing argument, the government attorney referred
to the check incident as follows:


           But contrary to what counsel led you to believe,
      Randy Groves specifically said there was no deal. The
      only debt that he could remember that any of these people
      involved in this situation owed, was the debt that
      Melissa Luna owed to Jack Kime. Please, check your notes
      on that.

Id.

      After the verdict but within the time for filing a motion for
new trial, defense counsel investigated the check incident and
presented evidence, which is not disputed by the government, that,
in fact, the check incident between Luna and Kime had occurred in
late January 1994, about two months after the Eaton robbery.   Thus,
the check incident occurred after the robbery and could not have
been a motive for Luna’s participation in the Eaton robbery.      Luna
did not argue that Groves had deliberately lied about the timing of



                                -12-
the check incident or that the government attorney knew Groves’s
testimony about the timing of the check incident was false.




                              -13-
      The district court denied the motion for new trial.                        First,
the district court concluded that the testimony about the check
incident was properly admitted under Fed. R. Evid. 404(b) as
relevant     on    the   issue    of    motive,    that    is,    it   provided     an
explanation why Luna would participate in the Eaton robbery.                      Slip
op. at 9.    The district court noted that if it had been established
at trial that the check incident did not occur until after the
robbery, the check incident could not have been a motive and the
testimony would not have been admissible.                Id.    The district court
also concluded that the evidence about the timing of the check
incident was not in fact newly discovered and that Luna had not
been diligent.       Id. at 10 (noting that, although Luna was an active
party to the check incident and knew about it at the time of trial,
she   did    nothing     until    after        trial).     The     district      court
characterized the new evidence as merely impeaching the credibility
of Groves, id., and concluded that, given the evidence of guilt,
even if the evidence about the check incident had been excluded,
the jury would not have acquitted Luna.              Id.   Finally, the district
court also considered the motion as an ordinary motion for new
trial and concluded that “the interests of justice” did not require
new trial.        Id. at 11 (noting Luna’s failure to respond to the
check incident at trial and that exclusion of the evidence would
most likely not result in acquittal on retrial); see 3 Charles A.
Wright, Federal Practice & Procedure Criminal § 557, at 316 (2d ed.
1982) (motions for new trial on the basis of newly discovered
evidence    made     within   7   days    of    verdict    or    finding    of   guilt
evaluated as ordinary new trial motions and not under stricter test
applied     to    motions   for   new    trial     based   on    newly     discovered
evidence).        This appeal followed.


      For   reversal, Luna argues the district court abused its
discretion in denying her motion for new trial on the basis of
newly discovered evidence because the evidence about the timing of

                                         -14-
the check incident was in fact false.   For this reason, she argues
the check incident evidence was irrelevant and highly prejudicial




                               -15-
because the check incident could not have provided a motive for her
participation    in   the   underlying     armed   robbery.   We   hold   the
district court did not abuse its discretion in denying the motion
for new trial.


          In this circuit, it is well-settled that there are
     five prerequisites which must ordinarily be met to
     justify a new trial on the ground of newly discovered
     evidence:    (1) the evidence must in fact be newly
     discovered, that is, discovered since the trial;
     (2) facts must be alleged from which the court may infer
     diligence on the part of the movant; (3) the evidence
     relied upon must not be merely cumulative or impeaching;
     (4) it must be material to the issues involved; and
     (5) it must be of such nature that, on a new trial, the
     newly discovered evidence would probably produce an
     acquittal. Moreover, “[t]he grant or denial of a motion
     for new trial based on newly discovered evidence is
     within the broad discretion of the trial court, and the
     trial court’s decision will not be reversed absent a
     clear abuse of discretion.”


United States v. Begnaud, 848 F.2d 111, 113 (8th Cir. 1988)
(citations omitted).        We agree with the district court that the
evidence about the timing of the check incident was not newly
discovered evidence.        The evidence about the timing of the check
incident was not discovered since the trial and the facts do not
show that Luna acted with diligence.          Luna was an active party to
the check incident; there was no showing at the time of trial that
she did not recall the check incident or when it occurred.                She
knew about the evidence and could have told defense counsel about
the timing of the check incident at the time of trial but did not
do so.


     Even assuming for purposes of argument that the evidence was
newly discovered, the district court did not abuse its discretion
because the evidence about the actual timing of the check incident


                                    -16-
was not likely to produce an acquittal.    The evidence would have
merely impeached Groves’s testimony and would not have affected the




                               -17-
testimony of the two other robbers implicating Luna in the Eaton
robbery.


       Finally, we reject Luna’s argument that the district court
erred in       admitting       the   evidence         about   the     check    incident    as
evidence       of   other      crimes    under    Fed.    R.    Evid.       404(b).      Luna
correctly argues the check incident was irrelevant as evidence of
motive because the check incident occurred after the Eaton robbery.
She     also    argues      that,       even     if    relevant,       it     was    unfairly
prejudicial.         Fed. R. Evid. 403.           However, the government did not
know at the time of trial that the evidence about the timing of the
check incident was in fact false.                       The present case does not
involve the government’s knowing or reckless or negligent use of
false    testimony;         here,    the    government         innocently       used    false
testimony.          United States v. Tierney, 947 F.2d 854, 860-61 (8th
Cir.    1991)       (if   government       innocently         used     false        testimony,
defendant must show acquittal would probably result on retrial).
The government argues the evidence about the check incident was not
extrinsic evidence and thus not within the scope of Fed. R. Evid.
404(b).       We agree.


       “[W]here evidence of other crimes is ‘so blended or connected,
with    the    one[s]     on    trial     as    that    proof    of    one     incidentally
involve[s] the other[s]; or explains the circumstances; or tends
logically to prove any element of the crime charged,’ it is
admissible as an integral part of the immediate context of the
crime charged.”           United States v. Bass, 794 F.2d 1305, 1312 (8th
Cir.) (citing United States v. Derring, 592 F.2d 1003, 1007 (8th
Cir. 1979)), cert. denied, 479 U.S. 869 (1986).                             “When the other
crimes evidence is so integrated, it is not extrinsic and therefore
is not governed by Rule 404(b).”                  United States v. Bass, 794 F.2d
at 1312; see United States v. Swinton, 75 F.3d 374, 377-78 (8th
Cir. 1996).

                                               -18-
-19-
           When “it is very difficult to draw a line between
     the crime charged and other wrongful circumstances with
     which    it    is    inextricably    intertwined,”    the
     intrinsic-extrinsic dichotomy blurs and loses legal
     significance. . . . “It matters little whether the
     evidence is viewed as lying beyond the scope of Rule 404,
     or as satisfying the test of Rule 404(b).”


United States v. Mills, 704 F.2d 1553, 1559 (11th Cir. 1983)
(citing 2 Jack B. Weinstein & Margaret A. Berger, Weinstein’s
Evidence   ¶   404[10],   at   404-60   to   404-61   (1982)   (Weinstein’s
Evidence)), cert. denied, 467 U.S. 1243 (1984); see United States
v. Tate, 821 F.2d 1328, 1331-32 (8th Cir. 1987) (analysis of other
crimes evidence as both intrinsic and extrinsic evidence), cert.
denied, 484 U.S. 1011 (1988); United States v. White, 645 F.2d 599,
602-03 (8th Cir.) (same), cert. denied, 452 U.S. 943 (1981).


     [T]aking such evidence out of the scope of 404(b)
     analysis does not remove all limits on the admission of
     detailed wrongful acts testimony. The dictates of rule
     403 must still be applied to ensure that the probative
     value of this evidence is not [substantially] outweighed
     by [the danger of unfair prejudice].


United States v. Bass, 794 F.2d at 1312, citing 2 Weinstein’s
Evidence ¶ 404[10], at 404-80 (1985).


     In the present case, the evidence about the check incident
constituted an integral part of the operative facts of the crime
charged and as such was intrinsic evidence.           The government would
have been hard pressed to explain its theory of the case, given the
factual circumstances and the relationship between Luna and Kenny
Eaton, without advancing a reason why Luna would have participated
in the Eaton robbery.     Adequately explaining the circumstances of
the Eaton robbery, which was the basis for the drug crimes with
which Luna was charged, necessarily invited reference to the check


                                   -20-
incident.   Alternatively, the evidence about the check incident was
relevant to an issue other than the defendant’s bad character or




                                -21-
criminal propensity, that is, her possible motive for participating
in the robbery.       The evidence about the check incident was not
unfairly prejudicial; it involved a relatively minor crime or bad
act and constituted only a limited part of the evidence against
Luna.     Moreover, the government had already introduced evidence
that Luna had participated in the robbery of her boyfriend and his
mother.    The check incident lost much of its prejudicial impact
when viewed in light of that more sensational revelation.


     Accordingly, we affirm the judgment of the district court.


     A true copy.

            Attest:

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




                                 -22-
