FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                     UNITED STATES COURT OF APPEALS                June 10, 2010
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT
                                                                    Clerk of Court
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 09-3148
 v.                                          (D.Ct. No. 2:06-CR-20183-JWL-01)
                                                          (D. Kan.)
 CARLOS LOPEZ,

          Defendant-Appellant.
                       ______________________________

                                ORDER AND JUDGMENT *


Before O'BRIEN, BRORBY, and GORSUCH, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.



      A jury convicted Defendant-Appellant Carlos Lopez of one count of

conspiracy to distribute and possess with intent to distribute methamphetamine, in

      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
violation of 21 U.S.C. § 846 1, and one count of possession with intent to

distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1). 2 Mr. Lopez

appeals the district court’s denial of his motion for a new trial based on new

evidence which he alleges establishes a cooperating witness provided false

testimony against him. We exercise our jurisdiction under 28 U.S.C. § 1291 and

affirm.



                              I. Factual Background

      The underlying, undisputed facts surrounding Mr. Lopez’s conviction are

set forth in the district court’s memorandum and order denying Mr. Lopez’s

motion for a new trial and will not be discussed in their entirety here. Instead, for

the purpose of this appeal, we summarize only the relevant facts, as follows.



      On December 11, 2006, at approximately 9:20 a.m., Dana Suchma, a

special agent with the Drug Enforcement Agency (DEA) who was performing

drug interdiction surveillance at a hotel in Kansas City, Kansas, ran a check on a

red truck parked in the hotel parking lot with its engine running. The occupant

was Mr. Lopez, of Pharr, Texas. At that time, Special Agent Suchma requested

      1
        The related penalty statutes on this count included 21 U.S.C. §§ 812,
841(a)(1) and (b)(1)(A).
      2
        The related penalty statutes on this count included 18 U.S.C. § 2 and 21
U.S.C. §§ 812 and 841(b)(1)(A).

                                         -2-
assistance, after which DEA Task Force Officers Jim Morgan and Mike Stephens

arrived in separate vehicles at the hotel parking lot and also set up surveillance on

the red truck. Almost an hour after Special Agent Suchma spotted the red truck

with the engine running, the three officers witnessed the same red truck leave the

hotel parking lot and enter the parking lot of a Sonic drive-in located next to the

hotel. At that time, they also observed a green truck follow the red truck into the

Sonic parking lot and pull into the space directly next to the red truck. Based on

their various vantage points and radio contact with each other, together they

witnessed Mr. Lopez exit the red truck and walk to the front of it while a

passenger of the green truck, later identified as Alfonso Urena-Bonilla, exited

carrying a white Styrofoam cooler with red handles. Mr. Urena-Bonilla walked to

the rear of the two trucks and placed the cooler in the bed of Mr. Lopez’s red

truck. During this time, another individual, Hugo Nunez-Ayala, exited the green

truck, leaned against it on the passenger’s side, and seemed to be scanning the

area.



        Subsequently, Mr. Lopez reentered the red truck and backed out of the stall

where Mr. Urena-Bonilla approached Mr. Lopez and engaged in a brief

conversation with him through the driver’s side window area. Mr. Lopez then

exited the parking lot and proceeded south on I-35. Agent Suchma, Officer

Stephens, and another DEA Task Force officer, Sara Eberhard, who had arrived at

                                          -3-
the Sonic, followed him and continued surveillance until Kansas Highway Patrol

Troopers Charles Lovewell and Tom Catania took over following him and made a

traffic stop. Meanwhile, Officer Morgan stayed with the green truck and followed

it to its next destination.



       After stopping the red truck, Trooper Lovewell questioned Mr. Lopez, who

said he was traveling from Miami and Dallas to Kansas City to buy a house and

sign the necessary papers in person. Thereafter, Mr. Lopez agreed to let them

search his vehicle, where they found the Styrofoam cooler with red handles

containing several oranges covering seven bundles of methamphetamine. After

receiving advisement of his Miranda rights, Mr. Lopez told Trooper Lovewell two

guys approached him in the parking lot, put the cooler in the back of his truck,

asked him to watch it, and said they would be back in an hour to collect it, but

Mr. Lopez forgot to wait and drove off before they came back.



       At the time of his arrest, authorities discovered $500 in Mr. Lopez’s

pocket. After Mr. Lopez was taken into custody, Agent Suchma and Officer

Eberhard interviewed him. This time, he explained he came to Kansas to

purchase a three-acre lot and meet an individual named Avelino at the Sonic to

sign some paperwork. He identified Avelino as the nephew of the man selling the

property, but he did not know their full names or telephone numbers and said he

                                         -4-
did not have the papers because Avelino took them to be notarized. He also

stated that while he was waiting in his vehicle for Avelino to call him, three men

approached him and asked him to watch their cooler for them. He said he waited

twenty-five minutes after they placed the cooler in his truck before he drove to

the Sonic to meet Avelino and his uncle, where he signed the papers. When

questioned why anyone would leave a large amount of narcotics worth a great

deal of money with a stranger, he explained he thought the three men had become

scared by sirens.



      Immediately thereafter, a Spanish-speaking DEA Task Force officer, Tim

Ditter, joined the other agents in interviewing Mr. Lopez in Spanish, at which

time Mr. Lopez recounted the same general story. Mr. Lopez was then informed

he had been under surveillance, the cooler was seen placed in his truck at the

Sonic rather than the hotel parking lot, and he was seen having a conversation

with the person who put it in his truck. In response, Mr. Lopez stated, “if you

were watching me, then you know that I never touched the cooler and that my

prints are not on it.” The interview then terminated.



      Meanwhile, Officer Morgan, who continued surveillance of the green truck,

followed the truck to an auto shop, watched three individuals, including Mr.

Urena-Bonilla, who handled the cooler, exit the truck and enter the parking lot of

                                         -5-
the shop to look at vehicles. At that time, Officer Morgan, together with two

other DEA Task Force officers, arrested all three individuals. After Mr. Urena-

Bonilla received advisement of his Miranda rights, he stated he came to Kansas

City to buy used cars. When asked about the contents of the Styrofoam cooler, he

said it contained oranges; when asked about narcotics, he implicated Mr. Nunez-

Ayala, saying he was involved with narcotics and told him to put the cooler in the

red truck when they arrived at the Sonic. While Mr. Urena-Bonilla also stated the

cooler had been in Mr. Nunez-Ayala’s green truck before he arrived from Texas, a

search of Mr. Urena-Bonilla’s truck revealed a receipt from a gas station in

Oklahoma for a Styrofoam cooler exactly like the one removed from the green

truck and placed in Mr. Lopez’s red truck.



      Mr. Urena-Bonilla later agreed to talk to DEA officials on advice of

counsel. In an interview in February 2007, Mr. Urena-Bonilla admitted to his,

Mr. Nunez-Ayala’s, and Mr. Lopez’s involvement in trafficking the seven

packages of methamphetamine but denied his family’s involvement in drug

trafficking. However, in a second interview in April 2007, he admitted to his

family’s involvement.



      At trial, Mr. Urena-Bonilla testified he first met Mr. Lopez in May 2006 in

Texas by happenstance when Mr. Urena-Bonilla had car trouble; they met again

                                        -6-
in October 2006 in Dallas when Mr. Urena-Bonilla was looking for someone to

transport methamphetamine for him. Although Mr. Urena-Bonilla had been using

family members, including his wife and sister-in-law, to help smuggle drugs, he

said he decided to use Mr. Lopez to transport drugs because he did not want to

risk using his family any longer. Mr. Urena-Bonilla also testified he delivered

five kilograms of cocaine to Mr. Lopez in Pharr, Texas, on December 8, 2006,

and then met with him again on December 10, after which they traveled

separately to Kansas City. Mr. Urena-Bonilla also stated he drove through

Oklahoma and purchased the Styrofoam cooler from a gas station for the purpose

of storing the methamphetamine he planned to pick up from Mr. Nunez-Ayala and

give to Mr. Lopez to transport. He also said Mr. Nunez-Ayala drove him to

another house to pick up the methamphetamine, after which they met Mr. Lopez

at the Sonic. He described putting the cooler in Mr. Lopez’s truck and then

briefly speaking with him through the driver’s side window area when Mr. Lopez

asked him for $500 for payment toward transporting the methamphetamine.



      Not only did the government present the testimony of the law enforcement

officers involved in the surveillance, arrests, and interviews, but Special Agent

Suchma also testified at trial as to the telephone records recovered concerning the

cell phones taken from Mr. Lopez and Mr. Urena-Bonilla at the time of their

arrests on December 11, 2006. The pattern of phone calls between them

                                         -7-
established that in ten days they talked twenty-two times. 3 In addition, a forensic

chemist with the DEA testified the seven bundles in the cooler tested positive for

methamphetamine.



      At the trial Mr. Lopez testified in his own defense, stating he first met Mr.

Urena-Bonilla on a highway in Texas when Mr. Urena-Bonilla’s car broke down

and he helped fix it; at that time, they exchanged phone numbers. Mr. Lopez also

testified that after they met, Mr. Urena-Bonilla hired him on one occasion to

transport cars and still owed him $500 for that job. He further explained he left

Florida in December 2006, went to Texas to sell a trailer, and then headed to

Kansas City, where he planned to look at mobile homes and attend three car

auctions. According to him, he met Avelino at the hotel parking lot and then

waited to hear from Mr. Urena-Bonilla. After he and Mr. Urena-Bonilla talked on

the phone, they agreed to meet at the Sonic, where Mr. Lopez got out of his truck

and met with Mr. Urena-Bonilla to get his money. He denied seeing Mr. Urena-

Bonilla put the cooler into his truck, that the methamphetamine was his, or that he

knew about Mr. Urena-Bonilla’s involvement in drug trafficking. Following the

presentation of both parties’ evidence at trial, a jury convicted Mr. Lopez on both

drug counts.

      3
      These phone calls included one call on December 2, 2006; six calls on
December 4; three calls on December 7; two calls on December 9; six calls on
December 10; and four calls on December 11 – the day of their arrests.

                                         -8-
           II. Procedural Background Concerning Motion for New Trial

      Prior to sentencing, Mr. Lopez filed a motion for a new trial, claiming new

evidence established Mr. Urena-Bonilla provided false testimony against him.

The new evidence at issue regarded a written affidavit of a federal prisoner,

Geovani San Pedro Lopez. In that affidavit, Mr. San Pedro Lopez claimed he

overheard Mr. Urena-Bonilla tell another unidentified inmate he received a lower

sentence by giving the “feds” a “scapegoat,” who was a “stupid Cuban” to whom

he owed $500, and that his lawyers had helped him concoct his story to protect

him because he was afraid to identify the actual drug “chauffeur,” who belonged

to the same Tijuana cartel as he and his brother and knew where their family

lived. When Mr. San Pedro Lopez asked Mr. Urena-Bonilla who the “stupid

Cuban” was, Mr. Urena-Bonilla allegedly identified him as “Carlos Lopez.” In

seeking the motion for a new trial, Mr. Lopez’s counsel relied on our decision in

United States v. Redcorn, 

(10th Cir. 2008), in explicitly stating that

for a new trial to occur, “the evidence must be of such a nature that it would

probably produce a different outcome in the case.” (Emphasis added.)



      The district court held an evidentiary hearing on the motion, where Mr. San

Pedro Lopez testified consistent with his sworn affidavit. Mr. Urena-Bonilla also

testified, denying he made any such statements and insisting he told the truth at

trial when he identified Mr. Lopez as the driver hired to transport the

                                         -9-
methamphetamine. He also testified his attorneys told him the best way to help

himself was to cooperate and tell the truth. The government also admitted into

evidence the sworn affidavits of Mr. Urena-Bonilla’s attorneys, who both denied

working with him to concoct a story to reduce his sentence and, instead, stated

they instructed him that he would best benefit by telling the truth.



      Following the hearing, the district court issued a thorough and well-

reasoned thirty-eight-page memorandum and order, exhaustively outlining the

evidence offered at trial, discussing the newly discovered evidence regarding Mr.

San Pedro Lopez, and applying the five criteria we applied in United States v.

Higgins, 

, 1278 (10th Cir. 2002), in determining whether to grant

Mr. Lopez’s motion for a new trial based on new evidence. As the district court

explained, the criteria applied in Higgins required Mr. Lopez to show:

      (1) the evidence was discovered after trial, (2) the failure to learn of
      the evidence was not caused by [his] own lack of diligence, (3) the
      new evidence is not merely impeaching, (4) the new evidence is
      material to the principal issues involved, and (5) the new evidence is
      of such a nature that in a new trial it would probably produce an
      acquittal.

The parties agreed this five-part criteria applied, including

the fifth criterion that the new evidence must be of such a nature a new trial

would probably produce an acquittal.




                                         -10-
      In applying these criteria, the district court found Mr. Lopez met at least

four of the five criteria because Mr. San Pedro Lopez’s affidavit and testimony

concerning the conversation he allegedly heard occurred after the trial; Mr.

Lopez’s failure to learn of this evidence was not caused by his lack of diligence;

and the evidence was more than merely impeaching and material to the principal

issues involved because if the conversation alleged was true, it not only called

into question Mr. Urena-Bonilla’s credibility but would support Mr. Lopez’s

testimony he did not know the cooler contained drugs. However, with respect to

the fifth criterion, the district court found that even though Mr. San Pedro

Lopez’s story did substantiate some of Mr. Lopez’s claims at trial, it “would not

probably produce an acquittal in the face of the other evidence the government

presented at trial.” (Emphasis added.)



      In making this determination, the district court first explained the sworn

affidavits of Mr. Urena-Bonilla’s attorneys, which were not challenged by Mr.

Lopez, contradicted Mr. San Pedro Lopez’s claim Mr. Urena-Bonilla said his

attorneys helped him concoct a story and, instead, corroborated Mr. Urena-

Bonilla’s testimony his attorneys told him the best way to help himself was to

cooperate with the government and tell the truth. It next pointed out Mr. Urena-

Bonilla’s testimony at trial about his and his family’s involvement in drug

trafficking enhanced his credibility, and, while he lied during his first interview

                                         -11-
about his family’s involvement, he subsequently admitted to his brother’s, wife’s,

and sister-in-law’s drug trafficking activities in his second interview and at trial.

It also explained Mr. Urena-Bonilla’s testimony was consistent with the other

evidence admitted at trial, including what transpired at the Sonic and hotel, as

corroborated by law enforcement officers, while Mr. Lopez’s versions of what

transpired were directly contradicted by the same officers who witnessed the

events as they transpired at the hotel and Sonic.



      Not only were Mr. Lopez’s versions of events not corroborated by the

evidence presented at trial, but the district court also pointed out the jury had an

opportunity to consider the credibility of the witnesses and clearly rejected Mr.

Lopez’s version of events as inconsistent and incredible. It also pointed out that

in order to believe Mr. Lopez and disbelieve Mr. Urena-Bonilla, the jury would

have to disbelieve the testimony of the federal agents who saw the drug

transaction. 4 Finally, it determined:

      Even if the jury found Mr. San Pedro Lopez’s demeanor to be
      credible and that he had no motive to falsify, the addition of this
      evidence would not overcome the weight of the other evidence
      admitted at trial and the stark contrasts between Mr. Lopez’s story
      and the surveillance evidence, and consequently, the fifth Higgins
      factor – whether the new evidence is of such a nature that a new trial
      would probably produce an acquittal – is not satisfied.


      4
          This observation by the district court occurred at the hearing for a new
trial rather than in its memorandum and order following the hearing.

                                          -12-
Based on this fifth factor, the district court denied Mr. Lopez’s motion for a new

trial and, thereafter, sentenced him to 360 months imprisonment on each count, to

run concurrently.



                                   III. Discussion

      On appeal, Mr. Lopez contends the district court erred in denying his

motion for a new trial based on the newly discovered evidence consisting of Mr.

San Pedro Lopez’s affidavit and testimony showing Mr. Urena-Bonilla perjured

himself. Rather than applying the fifth criterion outlined in our Higgins decision,

he suggests the district court should have applied the Seventh Circuit Court’s

decision, Larrison v. United States, 

(7th Cir. 1928), which he claims

requires only that the newly discovered evidence “might have caused the jury to

reach a different conclusion.” He suggests this “is the better approach because

the alternative is to insulate perjury.”



      In response, the government points out Mr. Lopez agreed during the district

court proceedings that the Higgins five-part test applied, and only now asserts on

appeal that the district court applied the wrong legal standard to his motion for a

new trial. It also points out this circuit has repeatedly and consistently applied

the five-pronged test applied by the district court, and that the fifth prong, at issue

here, requires the district court “to determine whether the newly discovered

                                           -13-
evidence is of such a nature that a new trial would probably have produced an

acquittal.” It contends this circuit has only discussed applying a less stringent

standard than the probability standard in instances where the government

knowingly, recklessly, or negligently used the perjured testimony. In seeking to

apply Larrison instead, the government argues, Mr. Lopez is asking us to overrule

our own precedent and apply a less stringent standard of “whether the newly

discovered evidence ‘possibly’ or ‘might’ have caused the jury to acquit” him.

Finally, it points out the Seventh Circuit has overruled Larrison, holding a

probability standard should be applied instead of the less stringent possibility

standard.



      We begin with the applicable standard of review and legal principles. We

review the district court’s denial of a motion for a new trial based on newly

discovered evidence for an abuse of discretion. See 

.

Denial of a new trial “is an abuse of discretion only if it is arbitrary, capricious,

whimsical, or manifestly unreasonable.” United States v. Gwathney, 

, 1144 (10th Cir. 2006) (internal quotation marks and citation omitted). “‘A

motion for a new trial based on newly discovered evidence is generally disfavored

and should be granted only with great caution.’” 

(quoting 

).




                                         -14-
      A district court is authorized to grant a new trial if the interests of justice

require. See Fed. R. Crim. P. 33(a). When the motion for a new trial is based on

newly discovered evidence, the five-pronged test described in Higgins applies.

. Specifically, the defendant must show:

      (1) the evidence was discovered after trial, (2) the failure to learn of
      the evidence was not caused by [his] own lack of diligence, (3) the
      new evidence is not merely impeaching, (4) the new evidence is
      material to the principal issues involved, and (5) the new evidence is
      of such a nature that in a new trial it would probably produce an
      acquittal.

the fifth prong is at issue in this case, we decline to address the

others.



      With respect to the fifth prong, the government correctly submits this

circuit has consistently and repeatedly applied the “probability standard” to

motions for a new trial based on newly discovered evidence. See United States v.

Torres, 

, 1280-81 & n.1 (10th Cir. 2009); 

; 

; United States v. Perea, 

, 536 (10th

Cir. 1972); Evans v. United States, 

, 468-69 (10th Cir. 1941). The

government also correctly points out this court has only considered applying a

less stringent standard, such as the one in Larrison, when “the government has

knowingly, recklessly, or negligently offered false testimony.” United States v.

LaVallee, 

, 701 (10th Cir. 2006); see also United States v. Sinclair,


                                          -15-


, 1532 (10th Cir. 1997). In Sinclair, we discussed the less stringent

standard applied by the Seventh Circuit’s Larrison decision but failed to apply it,

recognizing instead that we apply the “stricter probability standard” in cases

dealing with post-trial discovery of perjury. 

.



      Concerning the evidence presented at trial, we leave credibility

determinations to the province of the jury, accepting “at face value the jury’s

credibility determinations and its balancing of conflicting evidence.” United

States v. Cardinas Garcia, 

, 794 (10th Cir. 2010), cert. denied, ___

S. Ct. ___, 

(May 17, 2010) (No. 09-10057). “[W]e will

overturn a jury’s credibility determination and disregard a witness’s testimony

only if the testimony is inherently incredible – that is, only if the events

recounted by the witness were impossible ‘under the laws of nature’ or the

witness ‘physically could not have possibly observed’ the events at issue.” 

States v. Oliver, 

, 1043 (10th Cir. 2001)).



      Applying our standard of review and the applicable principles, we hold the

district court did not abuse its discretion in denying Mr. Lopez’s motion for a new

trial based on newly discovered evidence. Instead, it is clear from the record the

government presented such overwhelming inculpatory evidence at trial against

Mr. Lopez that Mr. San Pedro Lopez’s testimony would not result in an acquittal

                                         -16-
under either the “probability standard” or a lesser standard.



      First, in applying this circuit’s probability standard, we agree with the

district court that Mr. Lopez’s different versions of what transpired at the hotel

and Sonic parking lots were contradicted, not only by the testimony of Mr. Urena-

Bonilla, but by at least three federal agents who witnessed the drug transaction as

it unfolded. This includes evidence contradicting Mr. Lopez’s incredible initial

story total strangers gave him the cooler to hold for them and that after he waited

some time for them to return and claim it, he left. Instead, the government’s

evidence showed Mr. Lopez and Mr. Urena-Bonilla knew each other,

communicated on numerous occasions just before the drug transaction occurred,

followed each other into the Sonic parking lot, parked beside each other, and

talked to each other after Mr. Urena-Bonilla transferred the drugs to Mr. Lopez’s

vehicle, resulting in Mr. Lopez leaving the parking lot without any further delay.

Similarly, Mr. Lopez’s contention he only transported trucks once for Mr. Urena-

Bonilla, for which he was owed the $500, and had nothing to do with the

methamphetamine was contradicted, not only by Mr. Urena-Bonilla’s testimony,

but by the government agents who saw Mr. Lopez receive the methamphetamine

from Mr. Urena-Bonilla, as apparently arranged between them by telephone over

the course of several days.




                                         -17-
      Most important, as the district court indicated, the jury had an opportunity

to view the witnesses and assess their credibility, and, in rendering its verdict

against Mr. Lopez, it is evident it credited the testimony of the government’s

witnesses over him, including Mr. Urena-Bonilla’s testimony which fully and

completely corroborated what the other government witnesses testified they saw.

In so doing, the jury balanced any conflicting evidence in favor of the

government. Nothing about the government witnesses’ testimony was so

inherently incredible that we would consider overturning the jury’s credibility

determinations or its verdict. See Cardinas 

.



      Not only did the government offer overwhelming credible evidence

incriminating Mr. Lopez, but that same evidence contradicts the newly discovered

evidence consisting of Mr. San Pedro Lopez’s affidavit and testimony. While Mr.

San Pedro Lopez contended Mr. Urena-Bonilla said he used Mr. Lopez merely as

a “scapegoat” to get a lower sentence, considerable credible evidence established

Mr. Lopez was, in fact, a courier for Mr. Urena-Bonilla and in that capacity was

caught in the act of receiving the cooler full of methamphetamine from him. In

addition, while Mr. San Pedro Lopez claims Mr. Urena-Bonilla said his attorneys

helped him concoct a story to implicate Mr. Lopez, those same attorneys

submitted contradictory affidavits, which Mr. Lopez failed to contest with any

further evidence. Under these circumstances, Mr. Lopez has not carried his

                                         -18-
burden of establishing the fifth criterion, which requires a showing Mr. San Pedro

Lopez’s testimony would “probably” produce an acquittal. For these reasons, the

district court did not abuse its discretion in denying the motion for a new trial.

Stated another way, nothing indicates the district court’s denial of the instant

motion was arbitrary, capricious, whimsical, or manifestly unreasonable. See

.



      Turning to Mr. Lopez’s assertion we apply a less stringent standard than

the “probability of acquittal” standard, he raises the issue for the first time on

appeal. “We have repeatedly declined to allow parties to assert for the first time

on appeal legal theories not raised before the district court, even when they fall

under the same general rubric as an argument presented to the district court.”

United States v. A.B., 

, 1279 n.4 (10th Cir.), cert. denied, 

(2008). Even if we considered the issue, nothing in the record or arguments

on appeal indicates the government in this case knowingly, recklessly, or

negligently offered false testimony, as discussed in this circuit, for application of

a less stringent standard than the probability standard. See 

; 

. As to the Larrison decision Mr. Lopez asks us to

follow, we are not bound by another circuit’s precedent, and, in any event, as the

government indicates, the Seventh Circuit has overruled Larrison and its

application of a less stringent standard, opting instead to apply the same

                                          -19-
probability standard we apply. See United States v. Mitrione, 

, 718

(7th Cir. 2004) (stating “[t]oday, we overrule Larrison and adopt the reasonable

probability test”), vacated on other grounds, 

(2005).



      Finally, even if we applied a less stringent standard and considered whether

the newly discovered evidence might “possibly” result in an acquittal, Mr. San

Pedro Lopez’s testimony would not meet that lesser standard. Instead, as

previously noted, his testimony he overheard Mr. Urena-Bonilla say Mr. Lopez

was merely a “scapegoat” was overwhelmingly contradicted by evidence at the

trial showing Mr. Lopez in fact acted as a courier, receiving the

methamphetamine from Mr. Urena-Bonilla for transport. This was established not

only by Mr. Urena-Bonilla’s testimony, but by no less than three law enforcement

officers who witnessed, by sight and radio communication with each other, Mr.

Lopez receive the methamphetamine from Mr. Urena-Bonilla. Based on this

corroborating evidence, we are not persuaded by Mr. Lopez’s contention on

appeal that Mr. Urena-Bonilla perjured himself at trial when he said Mr. Lopez

was a courier hired to transport methamphetamine. Similarly, as previously

discussed, Mr. San Pedro Lopez’s statement concerning Mr. Urena-Bonilla’s

attorneys concocting a story was also contradicted, leaving little probability, or

even possibility, the newly discovered evidence would result in an acquittal.




                                         -20-
                               IV. Conclusion

     For these reasons, we AFFIRM the district court’s denial of Mr. Lopez’s

motion for a new trial and AFFIRM Mr. Lopez’s conviction.



                                   Entered by the Court:

                                   WADE BRORBY
                                   United States Circuit Judge




                                     -21-