     Case: 09-20827     Document: 00511174593          Page: 1    Date Filed: 07/15/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            July 15, 2010
                                     No. 09-20827
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ERIC VASQUEZ,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:06-CR-89-5


Before JONES, Chief Judge, and DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
        Eric Vasquez, federal prisoner # 39435-179, appeals the district court’s
denial of his post-trial, post-appeal F ED. R. C Iv. P. 33 motion for a new trial. We
review the district court’s denial for an abuse of discretion. United States v.
Sipe, 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
Hernandez, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-20827    Document: 00511174593 Page: 2        Date Filed: 07/15/2010
                                 No. 09-20827

possess with the intent to distribute cocaine and in fact had no knowledge of the
cocaine. A defendant moving for a new trial must show that: (1) the evidence is
newly discovered and was unknown to him at the time of trial; (2) the
defendant’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
evidence would probably produce acquittal at a new trial. United States v.
Freeman, 77 F.3d 812, 817 (5th Cir. 1996).
      First, because defense counsel was aware of Hernandez’s proposed
testimony prior to trial, the evidence was not newly discovered. See United
States v. Desir, 273 F.3d 39, 44 (5th Cir. 2001). Second, there is no indication in
the record that Vasquez exercised diligence in obtaining Hernandez’s statement.
Third, Hernandez’s proffered testimony would not probably result in an
acquittal. Accordingly, the district court did not abuse its discretion in denying
the motion for a new trial. See Freeman, 77 F.3d at 817.
      AFFIRMED.




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