     Case: 09-50925     Document: 00511180635          Page: 1    Date Filed: 07/21/2010




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

                                                 FILED
                                                                            July 21, 2010
                                     No. 09-50925
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

SAMMY GARCIA, also known as Spiderman,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 5:04-CR-425-17


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Sammy Garcia moves for leave to proceed in forma pauperis (IFP)
following the district court’s certification that his appeal was not taken in good
faith. Garcia appeals from the denial of his motion for a new trial pursuant to
F ED. R. C RIM. P. 33(b)(1), which was based on the drug conviction, more than
three years after Garcia’s trial, of a deputy sheriff who testified at his trial.
        Garcia contends that the district court erred by denying his motion for a
new trial because he had no opportunity to impeach the deputy with information

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50925    Document: 00511180635 Page: 2        Date Filed: 07/21/2010
                                 No. 09-50925

about the deputy’s purchase of drugs from a confidential informant (CI); because
the deputy’s arrest cast doubt on his conviction by somehow proving that the
deputy perjured himself at Garcia’s trial when he testified as to seized weapons;
and because the deputy’s arrest somehow proved that he planted drugs in order
to prosecute Garcia and other drug defendants. Garcia states that he is actually
innocent on one count of conviction, and he suggests that the Government
engaged in misconduct by using the deputy as a witness.
      “This court reviews a denial of a motion for a new trial for abuse of
discretion.” United States v. Franklin, 561 F.3d 398, 405 (5th Cir.), cert. denied,
129 S. Ct. 2848, and cert. denied, 129 S. Ct. 2882 (2009).
      In order to receive a new trial on the basis of newly discovered
      evidence, the defendant must demonstrate that: (1) the evidence is
      newly discovered and was unknown to the defendant at the time of
      trial; (2) failure to detect the evidence was not due to a lack of
      diligence by the defendant; (3) the evidence is not merely cumulative
      or impeaching; (4) the evidence is material; and (5) the evidence
      introduced at a new trial would probably produce an acquittal.

Id. (footnote, internal quotation marks, and citations omitted).
      The record in the deputy’s case indicates that the deputy engaged in
criminal activity with one CI in early 2008. That is, however, all that the record
in that case demonstrates. Garcia was convicted in 2005 of criminal conduct
occurring between August 1, 1999, and August 1, 2004. See United States v.
Valles, 484 F.3d 745, 750-51 (5th Cir. 2007). Garcia does not direct this court’s
attention to any evidence indicating that the deputy was engaged in criminal
conduct or any noncriminal misconduct before his trial or at the time of his trial.
To the extent evidence of the deputy’s conviction could be considered to be
“newly discovered evidence” at all, that conviction, without more, is not relevant
to the issue whether the deputy committed perjury or testified inaccurately at
Garcia’s trial. To the extent that evidence of the deputy’s conviction could be
used to impeach his credibility in any new proceeding, impeachment evidence


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   Case: 09-50925     Document: 00511180635 Page: 3       Date Filed: 07/21/2010
                                  No. 09-50925

does not serve as a basis for obtaining a new trial. See Franklin, 561 F.3d at
405. The denial of Garcia’s new trial motion therefore was not an abuse of
discretion. See id.
      Garcia has failed to raise a legally nonfrivolous issue for appeal. His
motion for leave to proceed IFP is denied. See United States v. Boutwell, 896
F.2d 884, 889-90 (5th Cir. 1990); Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983). Because the appeal is frivolous, it is dismissed. See 5 TH C IR. R. 42.2.
Finally, Garcia’s motion for leave to file a supplemental brief is denied. See 5 TH
C IR. R. 28.4.
      IFP DENIED. APPEAL DISMISSED. MOTION FOR LEAVE TO FILE
SUPPLEMENTAL BRIEF DENIED.




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