Joe G. Martinez, Appellant, v. United States of America, Appellee, 302 F.2d 279 (5th Cir. 1962)

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US Court of Appeals for the Fifth Circuit - 302 F.2d 279 (5th Cir. 1962) April 25, 1962
Rehearing Denied June 19, 1962

Joe G. Martinez, in Pro. Per.

K. Key Hoffman, Asst. U. S. Atty., Ernest Morgan, U. S. Atty., San Antonio, Tex., for appellee.

Before HUTCHESON, RIVES and BELL, Circuit Judges.


This appeal is from an order of the United States District Court for the Western District of Texas, denying a motion for new trial on the ground of newly discovered evidence.

Appellant was convicted in October of 1959 on a nine-count indictment charging violations of the narcotics laws and sentenced to imprisonment for twenty-five years. The conviction was affirmed by this court, Martinez v. United States, 277 F.2d 161 (5th Cir. 1960), as was that of a codefendant, Rodriguez v. United States, 284 F.2d 863 (5th Cir. 1960).

At a formal hearing on the motion for new trial, appellant was allowed to fully develop his contention that his conviction was tainted by the perjured testimony of a government informer, one Gonzales. Appellant's attorney and other witnesses testified that Gonzales had told them that his testimony concerning appellant was perjured, and several witnesses testified that federal narcotics agents had attempted to induce them to entrap or testify falsely against appellant. Most of appellant's witnesses were convicts or former convicts. The United States introduced evidence that no attempt had ever been made to entrap appellant or to suborn Gonzales or any other person. Gonzales himself testified that his testimony at appellant's trial was the truth, and explained the reason for his admitted statement to appellant's attorney.

Having observed the demeanor of the witnesses and the manner in which they testified, the trial court concluded that there was no evidence of probative force in support of the motion, and denied it. This finding is conclusive in the absence of an abuse of discretion. Tomley v. United States, 260 F.2d 468 (5th Cir. 1958), and cases there cited.

Finding no abuse of discretion, and agreeing with the trial judge, we affirm the judgment.