UNITED STATES of America, Plaintiff-Appellee, v. Robert GREEN, Defendant-Appellant, 245 F. App'x 604

MEMORANDUM We affirm Robert Green’s conviction on Count XXI under 18 U.S.C. § 924. There was sufficient evidence upon which a reasonable jury could conclude that Green’s co-conspirator Edwin Santiago possessed a firearm, and that Santiago’s possession was foreseeable, within the scope of the unlawful project and committed in furtherance of the conspiracy. See United States v. Fonsecar-Caro, 114 F.3d 906, 908 (9th Cir.1997) (per curiam). We affirm the district court’s denial of Green’s motion for a new trial based on newly discovered evidence of Green’s below average intelligence.

Even assuming this evidence could not have been discovered earlier, the examining psychologist’s conclusion that Green was unable to foresee the actions of his coconspirators was expressly predicated on the incorrect assumption that “the legal definition of being able to foresee aspects of a conspiracy requires that the individual possess average intelligence.” Green’s below average intelligence notwithstanding, there is no evidence that makes it probable that a jury would reach a different verdict were we to order a new trial. See United States v. Kulczyk, 931 F.2d 542, 548 (9th Cir.1991). AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.