* Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED August 14, 2007 Charles R. Fulbruge III Clerk 

### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-51531 Summary Calendar

UNITED STATES OF AMERICA Plaintiff - Appellee v. CESAR RESHAWN MARTINEZ, also known as Cesar Martinez Defendant - Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 6:05-CR-75-5
Before JOLLY, DENNIS, and PRADO, Circuit Judges. PER CURIAM: * Cesar Reshawn Martinez was convicted by jury trial of conspiracy to distribute and possession with intent to distribute at least five grams of methamphetamine. He was sentenced to 180 months of imprisonment with five years ofsupervised release, a fine of$2,000, and a $200special assessment. On appeal, Martinez contends that the district court erred in failing to grant his motion for a new trial on the basis of newly discovered evidence and the districtNo. 06-51531

2 court erred in admitting testimony of a conversation overheard between Martinez and another inmate. We disagree and AFFIRM. I. Martinez claims that after his trial, a fellow inmate came forward with information indicating that one of the witnesses at Martinez’s trial had lied in order to receive a downward departure on his own sentence. Martinez argues that thejury would not have relied on the testimony ofthis witness, had it been
aware of his motivation for testimony, and therefore that he should have received a newtrial. We review the denial of a motion for new trial for abuse of discretion. U nited States v. Blackthorne , 378 F.3d 449, 452 (5th Cir. 2004). To be entitled to a newtrial, a defendant must show “(1) that the evidence is newly discovered and was unknown to him at the time of the trial; (2) that the failure to discover the evidencewas not due to his lack ofdiligence; (3) that the evidence is not merely cumulative, but is material; and (4) that the evidence would probably produce an acquittal.” I d. The district court denied Martinez’s motion for a newtrial, finding that his newimpeachment evidencewas not material and that the new evidence would not produce an acquittal. Under our precedent, “[e]vidence which merely discredits or impeaches a witness’ testimony does not justify a new trial.” U nited States v. Pena, 949 F.2d 751, 758 (5th Cir. 1991). Martinez does not contend that his newwitness would offer anything more than impeachment evidence. The district court therefore did not abuse its discretion in denying Martinez a new trial. II. Martinez also argues that the district court erred by admitting into evidence Drug Enforcement Agent Chuck Borgeson’s testimony ofan overheard conversation between Martinez and a second inmate, Nestor Martinez (“Nestor”). He claims that under Rule 403, this evidence should have been excluded as more prejudicial than probative. We review the district court’sNo. 06-51531

3 rulings on the admissibility ofevidence for abuse ofdiscretion, U nited States v. Pace , 10 F.3d 1106, 1115 (5th Cir. 1993), recognizing that the exclusion of evidence under Rule 403 should occur only sparingly. Id. On September 11, 2006, the first day ofMartinez’s trial, Borgeson entered the holding area tospeak with a witness. He overheard a conversation between Martinez and Nestor, both ofwhom were in holding cells and whowere shouting
so that they could hear each other. Martinez said, “My lawyer tells me that Daniel is going to testify against me.” Nestor responded, “He says he aint’ going to do it, Cuz.” Martinez repeated himself and Nestor responded, “Don’t worry about it. I got your back.” Martinez then shouted something like, “You tell him to keep his mouth shut,” referring to Daniel Cruz. On the following day, Nestor took the stand as a witness for Martinez’s defense and testified in contradiction to Cruz’s prior testimony that Nestor had never sold drugs to or bought drugs from Martinez. Later that day, Borgeson was called to the stand for rebuttal to impeach the credibility of Nestor’s testimony. Martinez claims that he was prejudiced by the introduction of this evidence because it showed him to be “threatening and intimidating.” It is clear from the record, however, that any limited prejudice suffered by Martinez was clearly outweighed by the probative value of showing Nestor’s expressed intention to assist Martinez. As we have previously noted, “[r]elevant evidence is inherently prejudicial; but it is only
unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter under Rule 403.” I d. at 1115-16 (emphasis in original). The district court did not abuse its discretion in admitting Borgeson’s testimony. III. For the foregoing reasons, thejudgment ofconviction and the denial ofthe motion for a new trial are AFFIRMED.