USA v. Sammy Garcia

Filing

USA v. Sammy Garcia

Doc. 0

Case: 09-50925

Document: 00511180635

Page: 1

Date Filed: 07/21/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-50925 S u m m a r y Calendar July 21, 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. S A M M Y GARCIA, also known as Spiderman, 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 Western District of Texas U S D C No. 5:04-CR-425-17

B e fo r e GARZA, CLEMENT, and OWEN, Circuit Judges. P E R CURIAM:* S a m m y Garcia moves for leave to proceed in forma pauperis (IFP) fo llo w in g the district court's certification that his appeal was not taken in good fa it h . Garcia appeals from the denial of his motion for a new trial pursuant to F ED. R. CRIM. P. 33(b)(1), which was based on the drug conviction, more than t h r e e years after Garcia's trial, of a deputy sheriff who testified at his trial. G a r c ia contends that the district court erred by denying his motion for a n e w trial because he had no opportunity to impeach the deputy with information
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
*

Dockets.Justia.com

Case: 09-50925

Document: 00511180635 Page: 2 No. 09-50925

Date Filed: 07/21/2010

a b o u t the deputy's purchase of drugs from a confidential informant (CI); because t h e deputy's arrest cast doubt on his conviction by somehow proving that the d e p u t y perjured himself at Garcia's trial when he testified as to seized weapons; a n d because the deputy's arrest somehow proved that he planted drugs in order t o prosecute Garcia and other drug defendants. Garcia states that he is actually in n o c e n t on one count of conviction, and he suggests that the Government e n g a g e d in misconduct by using the deputy as a witness. " T h is court reviews a denial of a motion for a new trial for abuse of d is c r e t io n ." United States v. Franklin, 561 F.3d 398, 405 (5th Cir.), cert. denied, 1 2 9 S. Ct. 2848, and cert. denied, 129 S. Ct. 2882 (2009). I n order to receive a new trial on the basis of newly discovered e v id e n c e , the defendant must demonstrate that: (1) the evidence is n e w ly discovered and was unknown to the defendant at the time of t r ia l; (2) failure to detect the evidence was not due to a lack of d ilig e n c e by the defendant; (3) the evidence is not merely cumulative o r impeaching; (4) the evidence is material; and (5) the evidence in t r o d u c e d at a new trial would probably produce an acquittal. I d . (footnote, internal quotation marks, and citations omitted). T h e record in the deputy's case indicates that the deputy engaged in c r im in a l activity with one CI in early 2008. That is, however, all that the record i n that case demonstrates. Garcia was convicted in 2005 of criminal conduct o c c u r r in g between August 1, 1999, and August 1, 2004. See United States v. V a lle s , 484 F.3d 745, 750-51 (5th Cir. 2007). Garcia does not direct this court's a t t e n tio n to any evidence indicating that the deputy was engaged in criminal c o n d u c t or any noncriminal misconduct before his trial or at the time of his trial. To the extent evidence of the deputy's conviction could be considered to be " n e w ly discovered evidence" at all, that conviction, without more, is not relevant t o the issue whether the deputy committed perjury or testified inaccurately at G a r c ia 's trial. To the extent that evidence of the deputy's conviction could be u s e d to impeach his credibility in any new proceeding, impeachment evidence

2

Case: 09-50925

Document: 00511180635 Page: 3 No. 09-50925

Date Filed: 07/21/2010

d o e s not serve as a basis for obtaining a new trial. See Franklin, 561 F.3d at 4 0 5 . The denial of Garcia's new trial motion therefore was not an abuse of d is c r e t io n . See id. G a r c ia has failed to raise a legally nonfrivolous issue for appeal. His m o t io n for leave to proceed IFP is denied. See United States v. Boutwell, 896 F .2 d 884, 889-90 (5th Cir. 1990); Howard v. King, 707 F.2d 215, 220 (5th Cir. 1 9 8 3 ). Because the appeal is frivolous, it is dismissed. See 5TH CIR. R. 42.2. Finally, Garcia's motion for leave to file a supplemental brief is denied. See 5TH C IR. R. 28.4. I F P DENIED. APPEAL DISMISSED. MOTION FOR LEAVE TO FILE S U P P L E M E N T A L BRIEF DENIED.

3