factors when deciding whether a motion for a new trial should be granted based on the really discovered evidence really in this case only through those factors are already issued the first factor is whether  the evidence was truly newly discovered now there's no dispute that the lho the defense counsel found and discovered the letter long after the mr  leave discovered evidence based on the district court's initial position regarding these exculpatory statements that were offered before trial and what i mean by that is before trial  inculpatory to a level that i'm comfortable allowing this evidence in ultimately that evidence was not presented at trial the letter change that calculus because in the letter the floor is explicitly addresses the concerns that the district court ha had regarding his own responsibility for the offenses the court in in the letter mr diaz floors repeatedly says i'm guilty of these crimes i should be the one on trial  diaz flora's was making the initial statements he he elaborated about the drug trafficking organization being really being responsible for his actions and if the evidence would have been offered the i'm the one the blame it wasn't the drug trafficking organization it wasn't these third parties he still didn't mention in the letter that he was being forced but it's a far cry that he was being force which clearly  one who put the packages in but it was through a drug trafficking organization that i was acting on behalf whereas in the letter following he basically said look it was my responsibility so are you arguing that his taking the letter in and of itself the initial statements could not a bit of could not have been admitted as the court is suggesting without this finding having been made the substance changed only in regards to  terms of the general due process argument i think the issue here is the government suggests that the letter would not have been invisible that trial when clearly mr cover your believes the letter would have been in this will the trial and the court only needs to look at  the facts of the case and this was a very close case if there were only basically three witnesses the witnesses basically said nothing other than this man drove up to the border he appeared to be  district court before trial meaning the defense proffered evidence that somebody could have put these packages in the car in a very short amount of time furthermore the letter was consistent with statements mr collier that he had left his first person asked him to carry drugs and he said that somebody approached him with an offer at a different point in time aside from the day in the dentist he said that somebody in a place in mexico alley approached him and told him we're offering may please the court daniels up on behalf of the united states you're on of the letters from the letter from mr diaz florence did not constitute newly discovered evidence mr cabrera was fully aware of the substance of that letter prior to his trial he obtained a writ from mr diaz flores to be present at trial and testify and mr diaz flores exercised his fifth amendment rights and declined to testify the fact that he then after conviction put some of what he was going to testify to in written form  constitutes only newly available evidence not newly discovered evidence which this court has held as a matter of law does not provide a basis for a rule thirty three motion for a new source so what would it take for it to be newly discovered would it had been an entirely new witness in other words if you have a witness who who just didn't appear before or would it be enough that there's a new aspect to the story that comes up afterward that could be the case if there was someone that offense counsel was diligent and simply was not aware of and someone came and said it was me i was responsible for it that could constitute a newly discovered evidence but when the defense counsels fully aware of the substance of what's in this letter prior to trial and chooses not doesn't even attempt to introduce it at trial the fact that it comes back in a different form that might make it available for a have a different strategy of getting it into evidence that's a trial strategy not newly discovered evidence that would require an entirely new trial  on that basis alone the district court was with it in its discretion in denying the rule thirty three motion and this court doesn't even really need to move on to the addition of other factors it's our position as well that the defense has also failed to show that the letter would have probably resulted in his acquittal first of all mr diaz flores indicated at the motion for a new trial that he was not willing to testify even at a second trial so the only way that this letter would have any effect on the second trial would be if it was admitted under some sort of hearsay exception and for the reasons we've outlined it was not supported by corroborating circumstances and did not have a clear enough truly inculpatory statement that the court would have the court was immediately after that he said i was forced to do so viewing viewing a letter under all the circumstances that statement with the media following the duress claim was not sufficiently atory even if it was support corroborating circumstances which it was not for all the reasons your honor outlined earlier so for both of those grounds or the district court was well within its discretion and denying the rule thirty three motion i think answer any other only briefly on note that this court's cases regarding this newly discovered evidence kind of case law regarding dig says lockett that authority a lot of those cases the court expressed concern what was going on there were co defendants were and if the court looks closely a lot of these cases the were co defendants who later on after they face no criminal responsibility or  possible potential for punishment later came on and said i'll help you all i'll testify for you and then presented affidavits in that regard that was clearly not the issue here mr four is not been charged with drug crime and he did face  responsibility if he became involved in this case which goes to the corroborating circumstances because he had no reason and the government presented no reason below for mr diaz floors to even get involved in this mess that he apparently  had had nothing to do with according to the government so i'll point to that in terms of that