USA v. Johnny Garcia-Esparza

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USA v. Johnny Garcia-Esparza

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Case: 09-50947

Document: 00511184752

Page: 1

Date Filed: 07/26/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-50947 S u m m a r y Calendar July 26, 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. J O H N N Y GARCIA-ESPARZA, also known as Gira, 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-425-5

B e fo r e JOLLY, GARZA, and STEWART, Circuit Judges. P E R CURIAM:* J o h n n y Garcia-Esparza seeks authorization to proceed in forma pauperis (I F P ) to appeal the district court's denial of his motion for a new trial. GarciaE s p a r z a was convicted by a jury following a trial on a number of charges s t e m m in g from his participation in a Texas Mexican Mafia organization. United S ta te s v. Valles, 484 F.3d 745, 747-52 (5th Cir. 2007). The district court

s e n te n c e d him to 660 months of imprisonment on one count, to run concurrently w it h 240 months of imprisonment on each of several other counts, and to run
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Document: 00511184752 Page: 2 No. 09-50947

Date Filed: 07/26/2010

c o n s e c u t iv e ly to a 60-month term of imprisonment on one final count. GarciaE s p a r z a filed a motion for a new trial, arguing that he had newly discovered e v id e n c e that would impeach the testimony of a witness at trial. The district c o u r t denied the motion and denied Garcia-Esparza leave to proceed IFP after c e r t ify in g that the appeal was not taken in good faith. § 1915(a)(3). G a r c ia -E s p a r z a now moves this court for leave to proceed IFP on appeal. By doing so, Garcia-Esparza is challenging the district court's certification. See B a u g h v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Garcia-Esparza has also file d a motion to supplement. We grant the motion to supplement and consider G a r c ia -E s p a r z a 's supplemental motion. O u r inquiry into whether an appeal is taken in good faith "is limited to w h e t h e r the appeal involves legal points arguable on their merits (and therefore n o t frivolous)." Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal q u o t a t io n marks and citations omitted). Motions for new trial based on newly d is c o v e r e d evidence are disfavored. United States v. Wall, 389 F.3d 457, 467 (5th C ir . 2004). To justify a new trial on the ground of newly discovered evidence, the m o v a n t must show that (1) the evidence is newly discovered and was unknown to the d e fe n d a n t at the time of trial; (2) the failure to detect the evidence w a s not due to a lack of diligence by the defendant; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material; a n d (5) the evidence if introduced at a new trial would probably p r o d u c e an acquittal. Id. at 470 (citations omitted). "Failure to satisfy one part of this test requires d e n ia l of the motion for new trial." United States v. Pena, 949 F.2d 751, 758 (5th C ir . 1991). T o the extent that Garcia-Esparza argues that the evidence he has d is c o v e r e d shows that Government witness George Autobee lied extensively on t h e witness stand and was, therefore, not a credible witness, the evidence is 2 See 28 U.S.C.

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im p e a c h in g and not a basis for a new trial. See Wall, 389 F3.d at 470. The e v id e n c e of later criminal charges against Autobee does not exonerate GarciaE s p a r z a and only discredits Autobee's testimony generally. See Pena, 949 F.2d a t 758. To the extent that Garcia-Esparza argues that a careful examination of t h e trial transcripts reveals inconsistencies, such as conflicting reports as to d r u g quantities or conflicting dates, his evidence is not newly discovered. See U n ite d States v. Severns, 559 F.3d 274, 280 (5th Cir. 2009). G a r c i a - E s p a r z a has not shown that his appeal will raise nonfrivolous is s u e s . The instant appeal is without arguable merit and is thus frivolous. Accordingly, Garcia-Esparza's IFP motion is DENIED. See Howard, 707 F.2d a t 219-20. His appeal is DISMISSED as frivolous. See 5TH CIR. R. 42.2; Baugh, 1 1 7 F.3d at 202 n.24.

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