                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                                                                 F I L E D
           IN THE UNITED STATES COURT OF APPEALS
                                               August 14, 2007
                    FOR THE FIFTH CIRCUIT
                                                                              Charles R. Fulbruge III
                                                                                      Clerk

                                     No. 06-51531
                                   Summary Calendar


UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

CESAR RESHAWN MARTINEZ, also known as Cesar Martinez

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:05-CR-75-5


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Cesar Reshawn Martinez was convicted by jury trial of conspiracy to
distribute and possession with intent to distribute at least five grams of
methamphetamine. He was sentenced to 180 months of imprisonment with five
years of supervised release, a fine of $2,000, and a $200 special assessment. On
appeal, Martinez contends that the district court erred in failing to grant his
motion for a new trial on the basis of newly discovered evidence and the district


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-51531

court erred in admitting testimony of a conversation overheard between
Martinez and another inmate. We disagree and AFFIRM.
                                         I.
      Martinez claims that after his trial, a fellow inmate came forward with
information indicating that one of the witnesses at Martinez’s trial had lied in
order to receive a downward departure on his own sentence. Martinez argues
that the jury would not have relied on the testimony of this witness, had it been
aware of his motivation for testimony, and therefore that he should have
received a new trial. We review the denial of a motion for new trial for abuse of
discretion. United States v. Blackthorne, 378 F.3d 449, 452 (5th Cir. 2004). To
be entitled to a new trial, a defendant must show “(1) that the evidence is newly
discovered and was unknown to him at the time of the trial; (2) that the failure
to discover the evidence was not due to his lack of diligence; (3) that the evidence
is not merely cumulative, but is material; and (4) that the evidence would
probably produce an acquittal.” Id. The district court denied Martinez’s motion
for a new trial, finding that his new impeachment evidence was not material and
that the new evidence would not produce an acquittal. Under our precedent,
“[e]vidence which merely discredits or impeaches a witness’ testimony does not
justify a new trial.” United States v. Pena, 949 F.2d 751, 758 (5th Cir. 1991).
Martinez does not contend that his new witness would offer anything more than
impeachment evidence. The district court therefore did not abuse its discretion
in denying Martinez a new trial.
                                        II.
      Martinez also argues that the district court erred by admitting into
evidence Drug Enforcement Agent Chuck Borgeson’s testimony of an overheard
conversation between Martinez and a second inmate, Nestor Martinez
(“Nestor”).   He claims that under Rule 403, this evidence should have been
excluded as more prejudicial than probative. We review the district court’s

                                         2
                                  No. 06-51531

rulings on the admissibility of evidence for abuse of discretion, United States v.
Pace, 10 F.3d 1106, 1115 (5th Cir. 1993), recognizing that the exclusion of
evidence under Rule 403 should occur only sparingly. Id.
      On September 11, 2006, the first day of Martinez’s trial, Borgeson entered
the holding area to speak with a witness. He overheard a conversation between
Martinez and Nestor, both of whom were in holding cells and who were shouting
so that they could hear each other. Martinez said, “My lawyer tells me that
Daniel is going to testify against me.” Nestor responded, “He says he aint’ going
to do it, Cuz.” Martinez repeated himself and Nestor responded, “Don’t worry
about it. I got your back.” Martinez then shouted something like, “You tell him
to keep his mouth shut,” referring to Daniel Cruz. On the following day, Nestor
took the stand as a witness for Martinez’s defense and testified in contradiction
to Cruz’s prior testimony that Nestor had never sold drugs to or bought drugs
from Martinez. Later that day, Borgeson was called to the stand for rebuttal to
impeach the credibility of Nestor’s testimony. Martinez claims that he was
prejudiced by the introduction of this evidence because it showed him to be
“threatening and intimidating.” It is clear from the record, however, that any
limited prejudice suffered by Martinez was clearly outweighed by the probative
value of showing Nestor’s expressed intention to assist Martinez. As we have
previously noted, “[r]elevant evidence is inherently prejudicial; but it is only
unfair prejudice, substantially outweighing probative value, which permits
exclusion of relevant matter under Rule 403.” Id. at 1115-16 (emphasis in
original). The district court did not abuse its discretion in admitting Borgeson’s
testimony.
                                       III.
      For the foregoing reasons, the judgment of conviction and the denial of the
motion for a new trial are
                                                                    AFFIRMED.

                                        3
