IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-51208 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARTIN TODD STONE,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. P-97-CR-225-1 -------------------- November 16, 1999

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Martin Todd Stone appeals from a judgment entered after a

jury convicted him of importation of marijuana and possession of

marijuana with intent to distribute. He argues that insufficient

evidence was presented to support either conviction. We have

reviewed the record and find no reversible error. Viewed in the

light most favorable to the verdict, the evidence was sufficient

to support the jury’s determinations. See United States v.

Shabazz,

(5th Cir. 1993). The jury heard

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 98-51208 -2-

evidence that Stone admitted to a law enforcement officer that he

agreed to participate in the drug venture, before it occurred, in

exchange for $1,500. Although Stone testified otherwise at

trial, the jury is solely responsible for determining the weight

and credibility of the evidence. United States v. Martinez,

(5th Cir. 1992). The jury was entitled to credit

the testimony of the law enforcement officer over Stone’s.

Stone argues that the district court committed reversible

error in instructing the jury on deliberate ignorance. The

instruction is proper “‘only when the defendant claims a lack of

guilty knowledge and the proof at trial supports an inference of

deliberate ignorance.’” United States v. Lara-Velasquez,

(5th Cir. 1990) (citation and brackets omitted).

At trial, Stone asserted a lack of guilty knowledge. Having

reviewed the evidence, we conclude that there was evidence of

circumstances “so overwhelmingly suspicious that the defendant’s

failure to question the suspicious circumstances” could have been

used by a reasonable jury to “establish[] the defendant’s

purposeful contrivance to avoid guilty knowledge.”

.

Even if we perceived some error in the district court’s use of

the instruction, which we do not, we would find the error

harmless. See United States v. Cartwright,

(5th

Cir. 1993) (finding “substantial evidence of actual knowledge”

when the defendant had confessed).

Stone argues that the trial court should have granted his

motion for a new trial because of a psychologist’s report, No. 98-51208 -3-

prepared by order of the court after trial, indicating that his

personality allowed him to follow his accomplice unquestioningly.

We review the court’s denial of the motion for abuse of

discretion. United States v. Jaramillo,

(5th

Cir. 1995). “We disfavor these motions and view them with great

caution.”

To obtain a new trial under Fed. R. Crim. P. 33 on the basis

of newly discovered evidence, Stone must show, inter alia, that

his earlier ignorance of the evidence was not the result of a

lack of due diligence and that the evidence “would probably

produce an acquittal” if admitted at a new trial.

Stone can

show neither. Stone knew that his defense would be that he

lacked any knowledge of the drug deal before it occurred.

Nevertheless, he never sought to obtain any expert testimony to

explain how he could have been so easily led into circumstances

that continually became more and more nebulous. If the court

itself had not ordered the posttrial psychological examination,

Stone apparently would not have ever obtained any expert

testimony. This is not due diligence. Furthermore, having

reviewed the evidence, we conclude that Stone has not shown that

the psychologist’s report “would probably produce an acquittal”

at a new trial. At sentencing, the district judge observed that

the psychologist’s opinion was perplexing, because she suggested

that both Stone and his accomplice led each other astray. Stone

has not disputed this characterization. Such an inconsistent

opinion would hardly be likely to sway a new jury. In addition,

the fact that Stone is easily led astray does not mean that he No. 98-51208 -4-

did not agree with his accomplice to participate in the drug

deal, and it does not mean that he did not confess his

participation to the law enforcement officer.

AFFIRMED.