                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                  F I L E D
               IN THE UNITED STATES COURT OF APPEALS               April 28, 2003
                       FOR THE FIFTH CIRCUIT
                                                               Charles R. Fulbruge III
                                                                       Clerk

                             No. 02-30689
                           Summary Calendar



                     UNITED STATES OF AMERICA,

                                       Plaintiff-Appellee,

                                versus

                            GARION MCCOY,

                                       Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                for the Eastern District of Louisiana
                        USDC No. 98-CR-207-6-N
                         --------------------

Before JONES, STEWART and DENNIS, Circuit Judges.

PER CURIAM:*

     Garion McCoy appeals the district court’s denial of his motion

for new trial, filed approximately 19 months after entry of the

judgment of conviction and sentence.       He based the motion on the

affidavit of Jammy Adams, which discredited the testimony of David

Mitchell Leboeuf, the Government’s witness against him at trial.

LeBoeuf’s   statements   contained   in   Adams’   affidavit    constitute

impeachment evidence, thus making the statements an unsound basis


     *
      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this opinion should not be published and is not precedent except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. 02-30689
                                 -2-

for a motion for new trial.     See United States v. Freeman, 77 F.3d

812, 817 (5th Cir. 1996); United States v. Pena, 949 F.2d 751, 758

(5th Cir. 1991).    Affidavits do not constitute “newly discovered

evidence” under FED. R. CRIM. P. 33.      United States v. Lopez, 979

F.2d 1024, 1036 (5th Cir. 1992).          Moreover, as noted by the

district   court,   LeBoeuf’s   letters   to   the   Government   seeking

transfer to another prison to be separated from McCoy support the

inference that he did not lie at trial about McCoy’s involvement in

the offenses at issue.      The district court did not abuse its

discretion in denying McCoy’s motion for a new trial. See Freeman,

77 F.3d at 817.

     AFFIRMED.
