     Case: 09-20752     Document: 00511150389          Page: 1    Date Filed: 06/22/2010




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

                                                 FILED
                                                                            June 22, 2010
                                     No. 09-20752
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

SUGENTINO PERCEL,

                                                   Defendant-Appellant


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


Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
        Sugentino Percel, federal prisoner # 39433-179, was convicted of
conspiring to possess with the intent to distribute and aiding and abetting the
possession with the intent to distribute, five kilograms or more of cocaine. His
conviction was affirmed on appeal. United States v. Percel, 553 F.3d 903, 906
(5th Cir. 2008), cert. denied, Vasquez v. United States, 129 S. Ct. 2065 (2009).
He now appeals the district court’s denial as untimely of his post-appeal motion
for a new trial. He alleged that his motion was based on newly discovered

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-20752    Document: 00511150389 Page: 2         Date Filed: 06/22/2010
                                 No. 09-20752

evidence consisting of a statement from a non-testifying codefendant, Bonifacio
Hernandez, indicating that Percel did not participate in the offenses of which he
was convicted and had no knowledge of the cocaine.
      Even if this court assumes that the motion was based on newly discovered
evidence and was timely filed, Percel cannot show that he is entitled to a new
trial. A defendant moving for a new trial must establish 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); United States v. Simmons, 714 F.2d
29, 31 (5th Cir. 1983).    Percel has not shown that his failure to discover
Hernandez’s potential favorable testimony was not due to his own lack of
diligence. Nor has he shown, in light of the other evidence against him, that
inclusion of Hernandez’s proffered testimony would probably result in his
acquittal at a new trial. Two of Percel’s co-defendants offered detailed testimony
at trial implicating him in the offense. That testimony was corroborated to a
large extent by testimony from DEA agents who conducted surveillance of the
defendants on the day of their arrest; by video tapes made during that
surveillance; and by items found during searches of the residences involved.
      The district court did not abuse its discretion in denying the motion for a
new trial. See Freeman, 77 F.3d at 817. The judgment of the district court is
AFFIRMED.




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