     Case: 09-50947     Document: 00511184752          Page: 1    Date Filed: 07/26/2010




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

                                                 FILED
                                                                            July 26, 2010
                                     No. 09-50947
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOHNNY GARCIA-ESPARZA, also known as Gira,

                                                   Defendant-Appellant


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


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
        Johnny Garcia-Esparza seeks authorization to proceed in forma pauperis
(IFP) to appeal the district court’s denial of his motion for a new trial. Garcia-
Esparza was convicted by a jury following a trial on a number of charges
stemming from his participation in a Texas Mexican Mafia organization. United
States v. Valles, 484 F.3d 745, 747-52 (5th Cir. 2007).                 The district court
sentenced him to 660 months of imprisonment on one count, to run concurrently
with 240 months of imprisonment on each of several other counts, and to run

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50947    Document: 00511184752 Page: 2       Date Filed: 07/26/2010
                                 No. 09-50947

consecutively to a 60-month term of imprisonment on one final count. Garcia-
Esparza filed a motion for a new trial, arguing that he had newly discovered
evidence that would impeach the testimony of a witness at trial. The district
court denied the motion and denied Garcia-Esparza leave to proceed IFP after
certifying that the appeal was not taken in good faith.           See 28 U.S.C.
§ 1915(a)(3).
      Garcia-Esparza now moves this court for leave to proceed IFP on appeal.
By doing so, Garcia-Esparza is challenging the district court’s certification. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Garcia-Esparza has also
filed a motion to supplement. We grant the motion to supplement and consider
Garcia-Esparza’s supplemental motion.
      Our inquiry into whether an appeal is taken in good faith “is limited to
whether the appeal involves legal points arguable on their merits (and therefore
not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal
quotation marks and citations omitted). Motions for new trial based on newly
discovered evidence are disfavored. United States v. Wall, 389 F.3d 457, 467 (5th
Cir. 2004). To justify a new trial on the ground of newly discovered evidence, the
movant must show that
      (1) the evidence is newly discovered and was unknown to the
      defendant at the time of trial; (2) the 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 if introduced at a new trial would probably
      produce an acquittal.

Id. at 470 (citations omitted). “Failure to satisfy one part of this test requires
denial of the motion for new trial.” United States v. Pena, 949 F.2d 751, 758 (5th
Cir. 1991).
      To the extent that Garcia-Esparza argues that the evidence he has
discovered shows that Government witness George Autobee lied extensively on
the witness stand and was, therefore, not a credible witness, the evidence is


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                                No. 09-50947

impeaching and not a basis for a new trial. See Wall, 389 F3.d at 470. The
evidence of later criminal charges against Autobee does not exonerate Garcia-
Esparza and only discredits Autobee’s testimony generally. See Pena, 949 F.2d
at 758. To the extent that Garcia-Esparza argues that a careful examination of
the trial transcripts reveals inconsistencies, such as conflicting reports as to
drug quantities or conflicting dates, his evidence is not newly discovered. See
United States v. Severns, 559 F.3d 274, 280 (5th Cir. 2009).
      Garcia-Esparza has not shown that his appeal will raise nonfrivolous
issues. The instant appeal is without arguable merit and is thus frivolous.
Accordingly, Garcia-Esparza’s IFP motion is DENIED. See Howard, 707 F.2d
at 219-20. His appeal is DISMISSED as frivolous. See 5 TH C IR. R. 42.2; Baugh,
117 F.3d at 202 n.24.




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