* 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.

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 of supervised release, a fine of $2,000, and a $200 special 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 district
No. 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 the jury would not have relied on the testimony of this witness, had it been

aware of his motivation for testimony, and therefore that he should have

received a new trial. We review the denial of a motion for new trial for abuse of

discretion. United States v. Blackthorne, 378 F.3d 449, 452 (5th Cir. 2004). To

be entitled to a new trial, 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 evidence was not due to his lack of diligence; (3) that the evidence

is not merely cumulative, but is material; and (4) that the evidence would

probably produce an acquittal.” Id. The district court denied Martinez’s motion

for a new trial,finding that his new impeachment evidence was 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.” United States v. Pena, 949 F.2d 751, 758 (5th Cir. 1991).

Martinez does not contend that his new witness 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 of an 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’s
No. 06-51531

3

rulings on the admissibility of evidence for abuse of discretion, United 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 of Martinez’s trial, Borgeson entered

the holding area to speak with a witness. He overheard a conversation between

Martinez and Nestor, both of whom were in holding cells and who were 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.” Id. at 1115-16 (emphasis in

original). The district court did not abuse its discretion in admitting Borgeson’s

testimony.

III.

For the foregoing reasons, the judgment of conviction and the denial ofthe

motion for a new trial are

AFFIRMED.