USA v. Eric Vasquez

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USA v. Eric Vasquez

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Case: 09-20827

Document: 00511174593

Page: 1

Date Filed: 07/15/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-20827 S u m m a r y Calendar July 15, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. E R I C VASQUEZ, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:06-CR-89-5

B e fo r e JONES, Chief Judge, and DAVIS and PRADO, Circuit Judges. P E R CURIAM:* E r ic Vasquez, federal prisoner # 39435-179, appeals the district court's d e n ia l of his post-trial, post-appeal FED. R. CIv. P. 33 motion for a new trial. We r e v ie w the district court's denial for an abuse of discretion. United States v. S ip e , 388 F.3d 471, 492-93 (5th Cir. 2004). Vasquez based his motion for a new trial upon newly discovered evidence in the form of a sworn statement from a nontestifying codefendant, Bonifacio H e r n a n d e z , to the effect that Vasquez did not participate in the conspiracy to
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
*

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Case: 09-20827

Document: 00511174593 Page: 2 No. 09-20827

Date Filed: 07/15/2010

p o s s e s s with the intent to distribute cocaine and in fact had no knowledge of the c o c a in e . A defendant moving for a new trial must show that: (1) the evidence is n e w ly discovered and was unknown to him at the time of trial; (2) the d e fe n d a n t 's failure to discover the evidence was not due to a lack of diligence; (3 ) the evidence is material, not merely cumulative or impeaching; and (4) the e v id e n c e would probably produce acquittal at a new trial. United States v. F r e e m a n , 77 F.3d 812, 817 (5th Cir. 1996). First, because defense counsel was aware of Hernandez's proposed t e s t im o n y prior to trial, the evidence was not newly discovered. See United S ta te s v. Desir, 273 F.3d 39, 44 (5th Cir. 2001). Second, there is no indication in th e record that Vasquez exercised diligence in obtaining Hernandez's statement. Third, Hernandez's proffered testimony would not probably result in an a c q u it t a l. Accordingly, the district court did not abuse its discretion in denying t h e motion for a new trial. See Freeman, 77 F.3d at 817. A F F IR M E D .

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