                    United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-3779
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of North Dakota.
Nathan Benedict Dogskin, Jr.,            *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: May 15, 2001

                                   Filed: September 10, 2001
                                    ___________

Before LOKEN, JOHN R. GIBSON, and MURPHY, Circuit Judges.
                           ___________

LOKEN, Circuit Judge.

      Nathan Benedict Dogskin, Jr. was convicted of aggravated sexual abuse and
aiding and abetting aggravated sexual abuse in violation of 18 U.S.C. §§ 2, 1153, and
2241(a)(1). Dogskin appeals the district court’s1 denial of his motion for a new trial
based on newly discovered evidence and alleged government misconduct and his
request for an evidentiary hearing. We affirm.



      1
       THE HONORABLE PATRICK A. CONMY, United States District Judge for
the District of North Dakota.
                                          I.

       We summarize the trial evidence in the light most favorable to the jury’s
verdict. After midnight during an all-day New Year’s Eve party at the home of
Dogskin’s father, Harriet Ramsey went into the basement with her brother Claude and
Edgar Fasthorse. Dogskin and co-defendant Gerald Lovejoy went into the basement
and began beating Fasthorse, the aftermath of an earlier altercation. Claude Ramsey
left the basement during the struggle. Ramsey tried to stop the fight, but Dogskin
pushed her to the floor. With Fasthorse rendered unconscious, the defendants began
hitting and kicking Ramsey. Lovejoy pulled off Ramsey’s pants and raped her while
Dogskin restrained her, then Dogskin raped her while Lovejoy held her down by
putting his boot on her forehead. Ramsey eventually broke free and ran upstairs,
awakened several of the party-goers, and told them she had been raped. When
Dogskin came upstairs, Ramsey hit him with a baseball bat. Later that morning,
Ramsey went to a neighbor’s house and had the neighbor notify police of the rape.
Dogskin and Lovejoy slept until the police arrested them.

        FBI Special Agent Drew Helms testified that, when interviewed, Dogskin
initially denied any involvement. When told Lovejoy had implicated him in the rape,
Dogskin admitted he had helped beat Fasthorse, had restrained Ramsey while
Lovejoy raped her, and then had “got[ten] on top” of Ramsey, all because Lovejoy
had threatened to beat Dogskin if he did not participate. Dogskin also told Helms that
he thought he had penetrated Ramsey.

      There was no physical evidence linking Dogskin to the rape, and there was
evidence of other sources of semen from Ramsey’s underwear. The marks on her
forehead did not match the soles of defendants’ shoes, and blood found on the
basement floor did not match that of Ramsey or the defendants. Despite this lack of
physical evidence, the jury convicted Dogskin of aggravated sexual abuse and aiding



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and abetting aggravated sexual abuse. In October 1998, Dogskin waived his right to
appeal in exchange for a sentence reduced from 151 to 70 months.

       In October 2000, some time after Ramsey was killed in a traffic accident,
Dogskin filed a motion for a new trial based on newly discovered evidence and
alleged government misconduct. To support these claims, Dogskin submitted
affidavits from five witnesses as well as his own affidavit protesting his innocence
of the rape charges. The district court denied the motion without an evidentiary
hearing and then denied Dogskin’s motion to vacate its initial order. Noting its
familiarity with the facts as the result of presiding at trial, the court concluded that
none of the affidavits warranted a new trial or an evidentiary hearing. Dogskin
appeals. We review the district court’s denial of a motion for a new trial for abuse
of discretion. United States v. Worley, 88 F.3d 644, 646 (8th Cir. 1996).

                                          II.

       Motions for a new trial based on newly discovered evidence are disfavored.
United States v. Jones, 34 F.3d 596, 600 (8th Cir. 1994), cert. denied, 514 U.S. 1067
(1995). In general, a new trial will be granted only if the evidence was not discovered
until after the trial; there was no lack of diligence by the movant; and the new
evidence is material, more than merely cumulative or impeaching, and likely to
produce an acquittal if a new trial is granted. See United States v. L’Donna, 179 F.3d
626, 629 (8th Cir. 1999). With those standards in mind, we review the allegedly
newly discovered evidence Dogskin submitted to support his motion for a new trial.

       1. An affidavit from Verna Laura Cypher, Ramsey’s cousin, avers that Ramsey
called Cypher while drunk and said, “I did something wrong to Nathan and I want to
talk to you.” Cypher told Ramsey to call back after she was sober, but Ramsey was
killed two days later in an auto accident. Dogskin argues that Cypher’s affidavit



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warrants a new trial because Ramsey’s statement that she did something wrong to
Dogskin was a recantation of her trial testimony. We disagree.

         Like most courts, we “look upon recantation with suspicion.” United States v.
Provost, 969 F.2d 617, 619 (8th Cir. 1992), cert. denied, 506 U.S. 1056 (1993); see
United States v. Papajohn, 212 F.3d 1112, 1117 (8th Cir. 2000); United States v.
Chambers, 944 F.2d 1253, 1264 (6th Cir. 1991). However, recanted testimony that
bears on a victim’s credibility or directly on the defendant’s guilt will warrant a new
trial if it would probably produce an acquittal on retrial. Lewis v. Erickson, 946 F.2d
1361, 1362 (8th Cir. 1991). We conclude that Cypher’s affidavit falls well short of
this rigorous new trial standard. Harriet Ramsey, the rape victim, has died. She could
not testify at a retrial, except perhaps through the introduction of her testimony at the
first trial. See United States v. Brooks, 966 F.2d 1500, 1501, 1505 (D.C. Cir. 1992).
Thus, a retrial would necessarily be a less reliable adjudication of the charged
offenses. In this situation, the deceased victim’s recantation must be powerful and
unambiguous evidence of the defendant’s innocence to justify overturning a
conviction that has become final. Here, assuming the truth of Cypher’s affidavit,
Ramsey’s inebriated telephone statement to Cypher was neither powerful nor
unambiguous. We do not know -- and now have no way of learning -- what Ramsey
meant, or even whether the “something wrong” was a reference to Dogskin’s trial and
conviction. Thus, Dogskin’s characterization of the statement as a recantation is little
more than speculation. Finally, at a retrial, Cypher’s testimony relating Ramsey’s
statement would likely be inadmissible hearsay, see Worley, 88 F.3d at 646, and in
any event would not be likely to produce an acquittal given Ramsey’s prior trial
testimony and Dogskin’s admission that he participated in the rape.2

      2
        Dogskin also argues that he is entitled to a new trial because Cypher’s
affidavit establishes that the government negligently introduced Ramsey’s false
testimony at the first trial. This contention is without merit. As we have explained,
the affidavit does not prove that Ramsey testified falsely. And there is no evidence
the government knew or should have known her testimony was false.

                                          -4-
       2. An affidavit from Delsie Standing Bear, who did not testify at trial, avers
that she saw Ramsey and Fasthorse in bed together on the morning of January 1 after
the rape. Prior to trial, Ramsey admitted to the government that on the morning of
January 1, after the rape, she was about to engage in sexual intercourse with Fasthorse
when they were interrupted by Standing Bear. This evidence was provided to the
defense before trial and then was excluded prior to trial under Rule 412 of the Federal
Rules of Evidence. Thus, Standing Bear’s evidence does not warrant a new trial
because it is neither newly discovered nor admissible.

       Standing Bear’s affidavit further avers that Agent Helms intimidated her into
not testifying at trial, which is the basis for Dogskin’s assertion that government
misconduct warrants a new trial. When Standing Bear told Helms she had seen
Ramsey and Fasthorse in bed together on the morning of January 1, Helms said he did
not believe her. Standing Bear then changed her story, but the government later
learned from Ramsey that Standing Bear’s initial statement was true. That all came
out at trial during the defense’s cross examination of Helms, except for Standing
Bear’s statement, which was excluded under Rule 412. What is new in Standing
Bear’s affidavit is the accusation that Helms, after telling Standing Bear he did not
believe her story, warned that her child might be taken from her if she did not tell the
truth, and that this threat caused her to avoid Dogskin’s attempt to subpoena her to
testify at trial. If it is true that Helms in effect threatened to challenge Standing
Bear’s child custody if she adhered to a statement he did not believe, that was a
reprehensible investigative tactic, whether or not Standing Bear’s initial statement
turned out to be truthful. See United States v. Risken, 788 F.2d 1361, 1370-71 (8th
Cir.), cert. denied, 479 U.S. 923 (1986). But the fact remains the testimony Helms
allegedly intimidated Standing Bear into not offering was inadmissible under Rule
412. Thus, there is no “reasonable likelihood that the new evidence could have
affected the judgment of the jury,” and Helms’s alleged misconduct does not warrant
a new trial. Ray v. United States, 588 F.2d 601, 603 (8th Cir. 1978) (quotation



                                          -5-
omitted); see Peeler v. Wyrick, 734 F.2d 378, 381 (8th Cir.) (harmless error rule
applies), cert. denied, 469 U.S. 1020 (1984) .

       3. Melvin Joseph Flying Horse’s affidavit asserts that he was with Dogskin
beginning at 6:00 a.m. “on or about the date of the alleged rape,” that he saw Edgar
Fasthorse quickly leaving the Dogskin residence later that morning, and that “there
is no doubt in my mind that Edger Fasthorse is the man that raped Harriet Ramsey.”
Dogskin argues this is newly discovered alibi evidence, but it does not provide an
alibi because the rape occurred around 1:30 a.m. Evidence of Dogskin’s whereabouts
after the rape, even if true, is not material and is not likely to produce an acquittal.
See United States v. Deavault, 190 F.3d 926, 929 (8th Cir. 1999). We agree with the
district court that Flying Horse’s affidavit “is short on specifics, full of speculation
and less than convincing.”

       4. According to Regina Beatrice Grant’s affidavit, she “heard” that Fasthorse
was sleeping with Ramsey, that Fasthorse was the one involved in the rape, and that
Ramsey might have AIDS. She told Fasthorse that Ramsey might have AIDS, and
Fasthorse later told Grant that he had been checked out at a clinic. These statements
are inadmissible hearsay and in any event would not be likely to produce an acquittal
at a new trial. See Worley, 88 F.3d at 646.

      5. The affidavits of Cypher, Standing Bear, Grant, and Claudia Ramsey
Charger all aver that Ramsey was a chronic liar. This is the type of third party
impeachment testimony that rarely, if ever, justifies a new trial on newly discovered
evidence grounds. See Jones, 34 F.3d at 600; United States v. Ward, 544 F.2d 975,
978 (8th Cir. 1976). Moreover, the evidence is cumulative. Two defense witnesses,
including Ramsey’s grandfather, testified at trial that Ramsey was a chronic liar. This
evidence does not warrant a new trial based on newly discovered evidence.




                                          -6-
       Finally, Dogskin argues the district court abused its discretion in failing to
conduct an evidentiary hearing. Absent exceptional circumstances, a motion for new
trial based on newly discovered evidence may be decided on affidavits without a
hearing. See Provost, 969 F.2d at 619; United States v. Bendar, 776 F.2d 236, 239
(8th Cir. 1985), Ward, 544 F.2d at 976. In this case, Ramsey’s ambiguous statement
to Cypher, which Dogskin construes as a recantation, created the only factual
uncertainty that is even arguably an exceptional circumstance, and a hearing on that
uncertainty would be meaningless because Ramsey is dead. We have assumed the
truth of the other fact assertions in Dogskin’s supporting affidavits and concluded that
they do not constitute newly discovered evidence warranting a new trial. Thus, the
district court did not abuse its discretion in denying an evidentiary hearing.

     The judgment of the district court is affirmed. Appellant’s motion to stay and
remand is denied.

      A true copy.

             Attest:

                CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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