Denial of New Trial Motion Affirmed

US v. Carlos Lopez, No. 09-3148 (10th Cir. June 10, 2010) (unpublished): A very lengthy opinion for an unpublished decision. The Tenth Circuit affirms the district court's denial of drug defendant's motion for new trial. Defendant, arrested with methamphetamine in a cooler in his vehicle, moved for new trial based on newly discovered evidence that government witness had set him up, based on a federal prisoner's affidavit who allegedly overheard the witness telling another inmate about concocting the story so as to avoid disclosing the real courier.

The Tenth Circuit rejected defendant's belated argument that the district court used the wrong standard by applying the 5-part test of US v. Higgins, 282 F.3d 1261 (10th Cir. 2002), specifically the requirement that the new evidence would probably produce an acquittal. In the trial court, all the parties agreed Higgins applied; on appeal, defendant sought application of a lesser standard that the new evidence "might possibly result in an acquittal", based on an old Seventh Circuit case. The argument had not been raised before the district court so the Tenth wouldn't consider it, the 7th Cir. case had been overruled, and in any event, the Tenth said, more than enough evidence (including the surveillance by the agents who saw the defendant receive the methamphetamine) was presented that the new evidence did not meet even the lesser standard.