                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-1494
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Southern District of Iowa.
Joseph Dodd, also known as              *
Shakespeare,                            * [UNPUBLISHED]
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: December 3, 2008
                                Filed: December 8, 2008
                                 ___________

Before WOLLMAN, SMITH, and GRUENDER, Circuit Judges.
                           ___________

PER CURIAM.

      Joseph Dodd appeals the district court’s1 denial of his Federal Rule of Criminal
Procedure 33 motion for a new trial based on newly discovered evidence. We affirm.

       Dodd was convicted in May 2006, following a jury trial, of conspiring to
distribute cocaine base. This court affirmed the conviction. See United States v.
Dodd, 473 F.3d 873, 875-76 (8th Cir. 2007). With his new-trial motion, Dodd


      1
       The Honorable Robert W. Pratt, Chief Judge, United States District Court for
the Southern District of Iowa.
submitted a letter and affidavit from his brother, Anthony Dodd (Anthony), in which
Anthony stated that he and Dodd look so much alike that people think they are twins,
although they are not. Anthony further stated that he was the one present during a
controlled drug buy, rather than Dodd, and that witnesses were mistaken when they
testified about events at the location of the controlled buy involving Dodd, as Anthony
was the one involved and Dodd was not present.

       The district court did not abuse its discretion in denying Dodd’s motion. See
United States v. Duke, 255 F.3d 656, 659 (8th Cir. 2001) (standard of review;
requirements to justify new trial under Rule 33). First, the district court gave valid
reasons for finding the assertions in Anthony’s affidavit to be “highly suspect”: he
was serving a life sentence with nothing to lose, and his assertions could help his
brother. See United States v. Grey Bear, 116 F.3d 349, 350 (8th Cir. 1997) (it is
district court’s job to decide whether newly discovered evidence is credible). Second,
the affidavit is essentially impeachment evidence, see United States v. Dogskin, 265
F.3d 682, 687 (8th Cir. 2001) (impeachment testimony rarely justifies new trial based
on newly discovered evidence), and we agree with the district court that there was
evidence of Dodd’s guilt even without the challenged testimony that would make the
possibility of acquittal unlikely, see United States v. Womack, 191 F.3d 879, 886 (8th
Cir. 1999). Finally, we conclude that the district court did not err in declining to
conduct an evidentiary hearing. See United States v. Baker, 479 F.3d 574, 579 (8th
Cir. 2007) (necessity of hearing lessened where trial judge had opportunity to observe
demeanor and weigh credibility of witnesses at trial); Dogskin, 265 F.3d at 687
(absent exceptional circumstances, new trial motion based on new evidence may be
decided on affidavits without hearing).

      Accordingly, we affirm, and we grant counsel’s motion to withdraw.
                     ______________________________




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