                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-14-2008

USA v. Kelly
Precedential or Non-Precedential: Precedential

Docket No. 06-4080




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                                         PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                    ________

                       No. 06-4080
                       _________

            UNITED STATES OF AMERICA,
                                    Appellant
                        v.

                      JAKE KELLY
                       _________

      On Appeal from the United States District Court
         for the Eastern District of Pennsylvania
            (D.C. Criminal No. 04-cr-00605)
         District Judge: Honorable Jan E. Dubois
                       __________

                 Argued January 28, 2008

         Before: SCIRICA, Chief Judge, and
      RENDELL and RODRIGUEZ,* Circuit Judges

________________

  *   Honorable Joseph H. Rodriguez, Senior Judge of the
      United States District Court for the District of New
      Jersey, sitting by designation.
                   (Filed: August 14, 2008)


Leo R. Tsao, Esquire [ARGUED]
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Plaintiff-Appellant
  United States of America

Mark E. Cedrone, Esq. [ARGUED]
Cedrone & Janove
Public Ledger Building
150 South Independence Mall West, Suite 940
Philadelphia, PA 19106
Counsel for Defendant-Appellee
  Jake Kelly


                         __________

                 OPINION OF THE COURT
                       __________


RENDELL, Circuit Judge.

      In July 2005, a jury found Jake Kelly (“Kelly”) guilty of
possession of a firearm by a convicted felon in violation of

                              2
18 U.S.C. § 922(g)(1) and § 924(e). Soon after the jury verdict,
Kelly moved for a new trial, arguing, inter alia, that he had
recently discovered new evidence of his innocence—the hearsay
statement of Victor Jones, who purportedly admitted to
possessing the gun for which Kelly was arrested. After an
evidentiary hearing at which Jones testified, the District Court
granted Kelly’s motion in part and ordered a new trial. The
Government appeals the District Court’s order, arguing that the
Court abused its discretion in granting Kelly’s motion.
Specifically, the Government contends that the District Court
erred in concluding that (1) Kelly had exercised sufficient
diligence in regard to the discovery of the new evidence and
(2) the newly discovered evidence would “probably produce an
acquittal” at a new trial. For the reasons stated below, we will
reverse the order of the District Court granting Kelly’s motion
for a new trial and remand for the entry of a judgment of
conviction and sentence.

                      BACKGROUND

I.     The Record at Trial

       On September 28, 2004, Kelly was charged in a one-
count indictment with possession of a firearm by a convicted
felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). On
July 19, 2005, the matter proceeded to trial in the United States
District Court for the Eastern District of Pennsylvania.


                               3
       At trial, the jury heard testimony that, on May 1, 2004,
approximately nineteen officers and inspectors from the
Philadelphia Police Department’s Vice Enforcement Unit and
Narcotics Strike Force, the Philadelphia Department of Licenses
and Inspections, and the Pennsylvania State Police conducted an
“open inspection” 1 of Café Breezes, a row house bar located at
5131 Columbia Avenue. (App. 81-82.) At about 1:00 a.m. that
morning, two plainclothes “decoy” officers entered the bar to
determine whether any illegal activity was taking place. (App.
81.) After being inside for approximately fifteen to twenty
minutes, the decoy officers contacted Corporal Raymond
Drummond of the Vice Enforcement Unit, who then led the rest
of the officers into the bar, announced their presence, and
explained that they were there to conduct an open inspection.
The Government called three of the officers present that
morning, including Corporal Drummond, to recount the
morning’s events.



 1
   Open inspections of “nuisance bars” (App. 80) are conducted
by a task force of state and local officials “to see if any illegal
activity [is] being conducted such as underage drinking[ and/or]
narcotics sales” (App. 81) and to check for fire code, electrical
code, and liquor enforcement violations. An open inspection is
not performed pursuant to a search warrant and, accordingly, bar
patrons are generally not searched as part of the exercise unless
illegal activity (such as drug or gun possession) is witnessed out
in the open.

                                4
        The officers testified that the bar within Café Breezes
was in the shape of a backward “L,” with the short side of the
bar positioned closest to the establishment’s front door. Officer
Donna Stewart, a member of the Narcotics Strike Force, stated
that once she entered Café Breezes, she placed herself between
the bar and the front door and monitored the patrons closest to
her, while other officers monitored the patrons at the other end
of the bar. According to Officer Stewart, there were six people
sitting toward the front of the bar, two of which were the decoy
officers.2 A man, later determined to be Kelly, was seated on
the far right of the short section of the bar; two unidentified
women sat to his left; and an unidentified man sat around the
corner of the bar to Kelly’s right. The unidentified man sat at
the first barstool on the long section of the bar, and the decoy
cops sat directly to his right.

       Officer Stewart testified that, almost immediately, she
took note of Kelly, as “he was looking around, kept looking over
his shoulder, he looked in my direction, he looked in the
direction of the door. He . . . appeared to be following the other
officers as they walked into the bar with his eyes. He started to
sweat, he was fidgeting on his barstool, he couldn’t stay still.”
(App. 125.) Officer Stewart eventually left the front of the bar
to speak with her partner, Officer Brant Miles, another of the



  2
  Corporal Drummond testified that there was a total of 8 to 10
people in the bar when the officers and inspectors entered.

                                5
officers the Government called at trial. According to Officer
Stewart, she returned to her post at the front of the bar—along
the wall between Kelly and the female seated to his left—within
“maybe ten seconds.” (App. 125.) At that point, Officer
Stewart observed that Kelly “was leaned over, crunched over in
his seat with his hands below the bar where I couldn’t see them
and he stopped fidgeting. He kept moving his head around, he
kept looking around but he had stopped moving his body.”
(App. 126.) Officer Stewart next described the following
events:

       When I returned to the front of the bar I stood
       there for maybe another minute or two, just
       keeping an eye on everyone, keeping an eye on
       the defendant. A Vice Officer asked someone for
       their ID much further down the bar. It was at that
       point that the defendant reached quickly towards
       his back. At that point I stopped him, I put my
       hands on him, I had him put his hands on the bar.
       I walked around behind the defendant so I was
       standing between the defendant and the female to
       his left and at that point I had him stand up. As
       he stood up[,] the gun fell from his lap, it was
       about mid-thigh. It fell down along his left leg, it
       hit the brass chair rail at the base of the bar with
       a loud metal clang and then it landed on the floor.




                                6
       I yelled “Gun.” Other officers rushed up towards
       me, they placed handcuffs on the defendant and I
       recovered the weapon from the floor.

(App. 127-28.) Both Corporal Drummond and Officer Miles
testified that they heard Officer Stewart yell “gun” (App. 83,
177); Officer Miles testified that he heard a preceding “thud”
(App. 177). Neither Corporal Drummond nor Officer Miles
testified that he saw the gun fall from Kelly’s lap, as both men
were positioned at different locations along the bar. After
recovering the gun, Officer Stewart gave it to Officer Miles,
who removed the magazine and a bullet from the chamber.

        The Government’s final witness at trial, Officer Ernest
Bottomer of the Philadelphia Police Department’s Firearms
Identification Unit, testified that the weapon in question was
indeed a “firearm” as defined by federal law and that he could
not retrieve a serial number from the firearm. The parties
ultimately stipulated that (1) the gun qualified as a firearm for
the purpose of the statute under which Kelly was charged;
(2) the firearm had been manufactured outside of Pennsylvania;
and (3) prior to May 1, 2004, Kelly had been convicted of a
crime punishable by imprisonment for more than one year
within the meaning of 18 U.S.C. § 922(g). United States v.
Kelly (“Dist. Ct. Op.”), Crim. A. No. 04-605, 2006
WL 2506353, at *2 (E.D. Pa. Aug. 29, 2006). Kelly offered




                               7
several photographs of Café Breezes into evidence, but called no
witnesses on his behalf.3

      On July 21, 2005, the jury found Kelly guilty of
possession of a firearm by a convicted felon in violation of
18 U.S.C. § 922(g)(1) and § 924(e).

II.       Post-Trial Proceedings

      Not long after the trial ended, Kelly retained new
counsel, who, on August 1, 2005, filed a Motion for New Trial
and Leave to Supplement pursuant to Federal Rule of Criminal
Procedure 33 (“Rule 33”) on Kelly’s behalf.4 Leave to
supplement was granted, and Kelly filed his counseled


  3
   Before the trial began, Kelly alleged that, at some point after
he was arrested, he stated, “Someone threw the gun at me.”
Dist. Ct. Op. at *1. The Government filed a motion in limine to
exclude the statement, and the District Court preliminarily ruled
that it would be excluded unless defense counsel could lay
foundation for admitting it as an excited utterance or present
sense impression. At trial, defense counsel made no attempt to
lay such a foundation, and thus, the statement was never heard
by the jury.
      4
     Though Kelly requested (by pro se letter) and received a
sixty-day extension to file a motion for judgment of acquittal
pursuant to Federal Rule of Criminal Procedure 29, he never
filed such a motion.

                                8
supplemental motion on October 6, 2005. In that motion, Kelly
argued, inter alia, that he had recently discovered evidence of
his innocence that justified the granting of a new trial. Kelly
attached to the motion a statement from Kemahsiah Gant
(“Gant”), a friend of Kelly’s, that described a conversation
between Gant and a mutual acquaintance, Victor Jones
(“Jones”), who was at Café Breezes the night of Kelly’s arrest.
According to Gant’s statement, sometime in the summer of
2005, she was talking to Jones about Kelly’s gun charge, and
Jones told her “that the gun was not Jake’s gun the police
found. . . . [Jones] said he had the gun. When the police came
in[,] he got nervous and threw it down on the floor.” (App.
424.) When Gant asked Jones why he had not come forward
earlier, Jones did not answer. A few weeks later, after
struggling with the decision, Gant recounted the conversation to
Kelly’s girlfriend, Jackie Cephas (“Cephas”), who encouraged
Gant to speak with Kelly’s lawyer. About a month and a half
later, Gant did so. Gant’s statement was given just two days
before Kelly filed his supplemental motion for a new trial.

       On June 8, 2006, after briefing on the motion was
complete, the District Court held an evidentiary hearing to
address Kelly’s newly discovered evidence claim. At the
hearing, Kelly called three witnesses: Gant, Cephas, and Jones.5



  5
      The District Court appointed counsel to represent Jones at
                                                  (continued...)

                                9
       A.     Gant

       As the first witness to take the stand, Gant testified that
she had known Cephas, Kelly, and Jones each for approximately
eight years as of the date of the hearing. In the past, Gant,
Cephas, and Jones had all worked at the same company and
lived on the same block (the 800 block of Wynnewood Road) in
Philadelphia, about eleven blocks from Café Breezes. Though
Gant eventually moved to another neighborhood within the city,
Cephas and Jones—who Gant described as “good friends” (App.
287)—remained. When asked by defense counsel how Kelly fit
into the “circle of friends,” Gant testified that she had known
Kelly “as long as [she’d] known Jackie [Cephas].” (App. 288.)
Kelly and Cephas had been dating “[a]bout on and off for eight
years.” (App. 288.)

       According to Gant’s testimony, the “circle of friends”
would “all hang out at” Café Breezes, “a neighborhood bar”
where Gant considered herself a “regular patron” and where
Jones, Kelly, and Cephas would frequent “[e]very week.” (App.
289.) Though Gant was not at Café Breezes the morning of
Kelly’s arrest, “people at the bar” told her that Kelly had been




  5
   (...continued)
the hearing and to advise him of his Fifth Amendment right
against self-incrimination.

                               10
arrested “‘[f]or a gun’” when she arrived there later that day.
(App. 311.)

        On July 21, 2005, as “support for Jackie and also Jake,”
Gant accompanied Cephas to court for the reading of Kelly’s
verdict. (App. 292.) About a week or so later, after an
unsuccessful attempt at visiting Cephas, Gant stopped by to see
Jones, who lived only a “half a block” away from Cephas.
(App. 296.) Gant explained that she and Jones were having a
general conversation about who amongst their friends would be
the next to get married. Gant surmised that it would have been
Cephas and Kelly were it not for Kelly being in prison. At that
point in the conversation, Gant testified that Jones paused and
said, “I have something to tell you.” (App. 297.) When Gant
asked what it was, Jones stated, “It wasn’t Jake’s gun.” (App.
297.) Jones then revealed that it was he who had the gun and
threw it on the floor. Gant asked, “Well, why didn’t you say
anything[?]” (App. 299.) Jones never responded.

      A few weeks after this conversation, Gant approached
Cephas with what she had learned.6 Cephas asked Gant to speak
with Kelly’s attorney, but Gant initially refused. Sometime in


  6
   Gant testified on direct examination that she waited so long
to tell Cephas because she did not want to “rat Victor out”
(referring to Jones) and “really didn’t want to get involved,
period, with the case” due to a prior experience as a witness to
a crime. (App. 301-03.)

                              11
September 2005, however, Gant changed her mind, and on
October 4, 2005, she met with Willard Brown (“Brown”), an
investigator for Kelly’s attorney. According to Gant, during her
conversation with Brown, he drafted a statement, which she
reviewed and signed. It was this statement that served as the
basis for Kelly’s supplemental motion for a new trial. Gant
never returned the telephone calls of the Government’s
investigator, Chris Lee.

       When asked if she had any discussions about the
substance of Kelly’s case with either Jones, Cephas, or Kelly
between the date of Kelly’s arrest and his subsequent
conviction, Gant testified that she had not. According to Gant,
she never asked any questions about Kelly’s case because she
“did not want to get involved at all” and because she “had [her]
own issues at the time.” (App. 333-34.)

       B.     Cephas

       The second witness to testify at the evidentiary hearing
was Cephas, Kelly’s girlfriend of over eight years. At the
beginning of her testimony, Cephas was asked several questions
about her relationships with Kelly, Gant, and Jones. She
confirmed that she had been romantically involved with Kelly
for “going on nine” years as of the date of the hearing. (App.
338.) As to her relationship with Gant, Cephas described her as
a “good friend[]” (App. 339), who she met initially through
work and who, in the past, lived “three, four doors down” from

                              12
Cephas on Wynnewood Road. (App. 338.) Cephas met Jones
through work as well, and the two “[f]riends” (App. 339; see
also App. 340) “ended up living on the same block,” i.e., the
800 block of Wynnewood Road (App. 339). Though Gant had
moved from the neighborhood, Cephas and Jones continued to
live on the same block. Cephas explained that Kelly knew Gant
and Jones through her and that the group would socialize
together at Café Breezes. Cephas was not at Café Breezes the
night of Kelly’s arrest.

        When asked about her contact with Jones between
Kelly’s May 1, 2004 arrest and his July 21, 2005 conviction,
Cephas testified that she certainly would have seen Jones during
that time period because, “We live on the same block and we’re
friends.” (App. 345.) The two did not, however, discuss
Kelly’s case other than Cephas mentioning that Kelly was going
to court. Cephas further testified that both she and Kelly got
together with Jones at Café Breezes “[m]aybe about” twenty
times after Kelly’s arrest and before his conviction.7 (App.
355.) According to Cephas, when she, Kelly, Jones, and Gant
were together before Kelly’s conviction, the group did not speak
about Kelly’s case. And when asked by the Court, “Were there
any discussions before the verdict between you and Kelly and

 7
   Cephas indicated that, although Kelly and Jones would speak
at Café Breezes, the conversations were not extensive, as they
“had nothing to talk about” outside of their common connection
to Cephas. (App. 354.)

                              13
Ms. Gant and Mr. Jones . . . either together or separately about
the gun?,” Cephas responded, “About the gun, no. No.” (App.
358.)

        As to her post-trial conversation with Gant, Cephas
explained that, a couple of weeks after the verdict, Gant came to
her and told her, “you know, [Jones] told me he was there the
night when Jake got arrested and he threw the gun and Jake was
apprehended for it.” (App. 346.) After learning this, Cephas
contacted Kelly’s attorney (without first contacting Kelly), who
expressed interest in having one of his investigators speak to
Gant and Jones. For a few weeks, Gant refused to speak with
anyone, but eventually she agreed. In the meantime, Cephas
testified that she “confronted” Jones about what Gant had told
her, asking him, “Why didn’t you tell me? You could have told
me before you told her.” (App. 349-50.) According to Cephas,
Jones said nothing in response, “he just looked dazed and
straight. . . . As if he knew he was wrong.” (App. 350.)

       Cephas testified that, although she and Kelly did not
frequently speak about his case, when they did discuss the case,
Kelly “just kept on saying it wasn’t his gun.” (App. 351, see also
App. 352.) Kelly did not explain anything more about the
circumstances surrounding his arrest. In fact, Kelly never told
Cephas that Jones was at Café Breezes the night of the arrest,
and Cephas did not find out that Jones was at the bar until her
conversation with Gant.


                               14
       C.     Jones

        The last of the defense witnesses to take the stand was
Jones. Jones confirmed that he lived on the 800 block of
Wynnewood Road, the same block as Cephas, and described
Cephas as “one of my best friends.” (App. 365; see also App.
385 (“Me and Jackie’s work lives conflicted but because she is
a good friend of mine, I mean I would go to her house any time
of the night or any time of the day, it didn’t really matter.”) He
testified that he was “friends” with Kelly through Cephas8 (App.
385, see also App. 366) and that, although he and Kelly would
not go out together without her, the two men would talk and
hang out when they were together.

       As to Café Breezes, Jones described it as a “hang-out
spot” where, “[a]t some point,” Jones, Cephas, Kelly, and Gant
would go “every Tuesday, Thursday, Friday” and also
Saturdays. (App. 367, 386.) Jones and Kelly were both at Café


   8
     When asked on cross-examination, “How long have you
known Jake Kelly?,” Jones readily volunteered, “I think Jackie’s
been dating [Kelly] for a couple of years. I mean, at this point
it’s been a few years, yeah.” (App. 385.) But when Jones was
asked on direct examination, “[W]hat is your understanding of
Mr. Kelly’s relationship with Ms. Cephas?,” he responded,
“I mean I know they know each other. I mean I don’t know how
well of friends they are but I know they know each other.”
(App. 366.)

                               15
Breezes on May 1, 2004, the morning of Kelly’s arrest. (App.
386.) When first asked if he had been drinking that night, Jones
responded, “Not a lot.” (App. 369.) Later in his testimony,
however, Jones volunteered that he was so “drunk” that “the
room was spinning.” (App. 392.)

        Jones painted a picture of a very crowded bar with no
empty seats and people standing all around him. (App. 370, 372
(“I mean, there was people were bumping into me all night, it
was pretty tight.”), App. 389 (“There was people . . . standing
next to me, there were people standing behind me, there was
people . . . on both sides, there were people standing all around
me.”).) He testified that when the police entered Café Breezes,
he was sitting on the long side of the inverted L-shaped bar in
the first seat closest to the front door, and Kelly was sitting
around the corner to his left, on the short side of the L shape.
(See App. 370 ([W]e were kind of next to each other.”).) When
asked to describe, in his own words, what happened when he
first realized that the police were present, Jones set the
following scene:

       I was sitting at the bar. I had pretty much done
       drinking, I didn’t want to drink any more, I was
       ready to go. There was a little bit of pushing,
       somebody pushed my shoulder, kind of like my
       back but people were brushing into me all night.
       Somebody brushed into me and somebody put



                               16
       something in my lap and it was a gun. And I
       pushed it off of my lap onto the floor.

(App. 372.) Jones at first could not remember from which
direction the gun came and in which direction he pushed it off
his lap, but when pressed on cross examination, Jones provided
several additional details. Jones deduced that the gun “came
from probably the right side of me, more so than the left side of
me” (App. 389), and fell in front of him, slightly to his left,
because he brushed it with his left hand. As the gun fell, it first
hit the base of the bar, which was wood, and then dropped to the
tile floor, making a “clackety sound” (App. 388); it did not hit
the metal bar at Jones’s feet. Jones turned around to see who
dropped the gun in his lap, but could not tell who did it.
According to Jones, there were no words—spoken or
unspoken—between him and Kelly after the gun dropped to the
floor. Jones did not provide any details about Kelly’s actual
arrest; he did testify that at some point after the gun fell to the
floor, the police “swarmed the corner” of the bar and recovered
the gun. (App. 373.)

       Jones testified that he was “pretty sure” that the gun he
pushed from his lap was the same gun for which Kelly was
arrested. (App. 374.) Though Jones “thought that [Kelly] was
wrongly arrested,” he did not say anything because he “didn’t
want to have anything to do with it.” (App. 376.) Between
Kelly’s arrest and his conviction, Jones did not speak to anyone
about what happened that night. After Jones admitted on cross-

                                17
examination to seeing Kelly anywhere from one to three times
after Kelly’s arrest, the following exchange occurred between
Jones and the Government:

      Q:     Did he [Kelly] ever - - did he ever talk to
             you about his criminal case?




      A:     No.

      Q:     Did he ever ask you what happened?

      A:     No.

      Q:     He never said to you: hey, Victor, you
             were sitting right next to me, did you see
             who threw the gun?

      A:     No.

      Q:     He never mentioned his criminal case at all
             to you, at all?

      A:     We didn’t discuss the case. Actually,
             when I was, at the time I was seeing him
             I really thought it was over. I didn’t know
             that he still had a case. When I saw him


                             18
              after that incident [his arrest] I assumed
              that it was over.

(App. 395.)

       Toward the end of his direct testimony, Jones was asked
to describe the conversation he had with Gant after Kelly’s
conviction. According to Jones, Gant stopped by his apartment,
where the two were “just hanging out for a minute,” and Gant
asked him if he had heard what happened to Kelly. (App. 380.)
Gant told Jones that Kelly was in jail on the gun charge, and
Jones responded that that was “fucked up because it [the gun]
wasn’t his.” (App. 380.) Gant asked Jones how he knew that
the gun was not Kelly’s, and Jones “told her what happened.”
(App. 380.) On cross examination, Jones explained:

       I told her that I was sitting at the bar pretty much
       next to Jake and when the cops came in, which I
       didn’t really see when the cops came in. I didn’t
       realize that the cops were actually in there behind
       me until somebody dropped that [gun] in my lap.
       And once it got dropped in my lap[,] I pushed it
       off and I mean and that’s what, and that’s in fact
       how I knew it wasn’t his. I knew that he didn’t do
       it. And that’s pretty much what I told [Gant].

(App. 387.) Jones testified that he never told Gant that he threw
the gun because he was nervous when the police walked in.



                               19
         At some point after this conversation, Cephas came to
Jones and “asked [him] why [he] didn’t tell her what happened”
(App. 381); she did not ask him for his version of what
happened, but did ask him to speak to a defense investigator. At
first, Jones refused, but then eventually agreed. Jones told the
investigator that if anyone were to serve a subpoena on him or
ask him to testify, he “wouldn’t give a comment” and “would
plead the Fifth” because he “didn’t want to discuss it.” (App.
382.) After that conversation, Kelly’s counsel contacted Jones
to explain that the Court wanted to appoint counsel for him; they
did not discuss the facts of the case or the substance of Jones’s
potential testimony. Jones never met with the Government’s
investigator, despite the investigator’s offer to “speak with [him]
any time and anywhere.” (App. 400.)

         When questioned about his decision not to invoke his
Fifth Amendment rights, Jones first explained, “I had a change
of heart only because come thinking about it, I felt that I could
get myself into trouble by really not saying what happened if
you’re asking me questions and I only say I plead the Fifth[.] . . .
I don’t know, it just didn’t feel right. I’ve never . . . heard of
anybody actually doing it. I know that it’s the Fifth Amendment
but I’ve never actually heard of anybody going to Court and
saying they plead the Fifth.” (App. 397.) Before his testimony
ended, Jones clarified, “I don’t feel that I did anything wrong.
I felt that it would be better for me to say exactly what happened
rather than to just say no comment.” (App. 399.)


                                20
       D.     Officer Clark

       After the testimony of Kelly’s witnesses, the Government
called Philadelphia Police Officer Clarence Clark of the City’s
Vice Squad. Officer Clark was one of the two decoy officers
sent into Café Breezes the morning of Kelly’s arrest. While
there, their responsibilities were to “look for any underage
drinkers, any illegal drugs or any illegal activity going on within
the bar.” (App. 408.)

        According to his testimony, Officer Clark and the other
undercover officer, Officer Fairbanks, entered Café Breezes at
“approximately 12:00, 1:00 o’clock in the morning” on May 1,
2004. (App. 407.) The officers walked to the bar and sat in two
seats close to the door; Officer Clark took the seat immediately
to the right of Jones, and Officer Fairbanks sat immediately to
the right of Officer Clark. Officer Clark confirmed that Kelly
was seated in “[t]he first seat on the other side of the L of the
bar” next to two females. (App. 409.) After ordering a beer and
engaging in conversation with Officer Fairbanks, Officer Clark
got up from his seat and went to the bathroom area to call his
supervisor, Corporal Drummond, to the scene. After Officer
Clark returned to his seat, Corporal Drummond arrived and
announced that he and members of the Vice Squad and L&I
Unit were there to do an open inspection of the bar. Officer
Clark did not hear a gun drop to the floor when the police
entered the bar, nor—from where he was sitting at the bar—did
Officer Clark remember hearing “a loud metal clang” around the

                                21
time of Kelly’s arrest. (App. 413-14.) According to Officer
Clark, “all I remember hearing is a yell, someone yelling ‘gun.’”
(App. 413.) At that point in time, Officer Stewart was closer in
proximity to Kelly than was Officer Clark.

         When asked directly whether there was anyone sitting
behind him when Corporal Drummond and the others arrived,
Officer Clark responded, “No.” (App. 411.) He also testified
that there was no one standing behind the person seated to his
left, i.e., Jones.

III.   Post-Hearing Proceedings

       After supplemental briefing, the District Court denied
Kelly’s motion in part, granted it in part, and ultimately
concluded that Kelly’s newly discovered evidence warranted a
new trial.9 The Government filed a timely notice of appeal.



  9
   Kelly had also based his new trial motion on arguments that
(1) trial counsel was ineffective; (2) the guilty verdict was
against the weight of the evidence; and (3) the Court erred by
excluding Kelly’s statement that “someone threw the gun at
[him].” The District Court ultimately rejected these arguments,
dismissing Kelly’s ineffective assistance of counsel claim
without prejudice and the remaining claims on their merits.
Because Kelly has not appealed these aspects of the District
Court’s ruling, we do not discuss them in detail here.

                               22
      We have jurisdiction to review this matter pursuant to
18 U.S.C. § 3731.




                            23
                 STANDARD OF REVIEW

       As a motion for a new trial under Rule 33 is directed to
the district court’s discretion, “our function on appeal is to
decide whether the trial judge abused that discretion or failed to
exercise it.” United States v. Iannelli, 528 F.2d 1290, 1292
(3d Cir. 1976). “By definition, a district court ‘abuses its
discretion when it makes an error of law.’” United States v.
Askari, 140 F.3d 536, 539 (3d Cir. 1998) (en banc) (quoting
Koon v. United States, 518 U.S. 81, 100 (1996)), vacated on
other grounds, 159 F.3d 774 (3d Cir. 1998). Thus, “‘[t]he abuse
of discretion standard includes review to determine that the
discretion was not guided by erroneous legal conclusions.’” Id.

                        DISCUSSION

       As this Court has consistently held, a defendant must
meet five requirements before he may be granted a new trial on
the basis of newly discovered evidence:

       (a) the evidence must be in fact, newly
       discovered, i.e., discovered since the trial;
       (b) facts must be alleged from which the court
       may infer diligence on the part of the [defendant];
       (c) the evidence relied on, must not be merely
       cumulative or impeaching; (d) it must be material
       to the issues involved; and (e) it must be such, and
       of such nature, as that, on a new trial, the newly

                               24
       discovered evidence would probably produce an
       acquittal.

Iannelli, 528 F.2d at 1292. “Although the decision to grant or
deny a motion for a new trial lies within the discretion of the
district court, the movant has a ‘heavy burden’ of proving each
of these requirements.” United States v. Cimera, 459 F.3d 452,
458 (3d Cir. 2006). If just one of the requirements is not
satisfied, a defendant’s Rule 33 motion must fail. United States
v. Jasin, 280 F.3d 355, 365 (3d Cir. 2002). Courts should
“exercise great caution in setting aside a verdict reached after
fully-conducted proceedings,” and particularly so where “the
action has been tried before a jury.” United States v. Kamel, 965
F.2d 484, 493 (7th Cir. 1992) (internal quotation marks
omitted).

       In this case, the District Court concluded that Kelly had
met his burden of establishing each of the Iannelli requirements.
On appeal, the Government challenges the District Court’s
disposition as to two of the requirements: diligence and
probability of acquittal. We address each of the challenged
requirements in turn.

I.     Diligence

        The Government contends that the District Court applied
the incorrect legal standard in concluding that Kelly had
satisfied the diligence prong of the Iannelli analysis.

                               25
Specifically, the Government argues that the District Court erred
in focusing its diligence inquiry on Kelly’s post-trial efforts to
bring Jones’s testimony to the attention of the Court once the
potential testimony was discovered, as opposed to focusing on
Kelly’s pre-trial efforts to discover Jones’s testimony in the first
place. We agree.

         As recognized above, the second prong of the Iannelli
analysis requires a defendant to allege facts “from which the
court may infer diligence.” Iannelli, 528 F.2d at 1292. In
applying this prong, we have consistently focused our inquiry on
whether the evidence at issue could have been discovered before
or at the time of trial with the exercise of reasonable diligence
on behalf of the defendant and/or his counsel. Id. at 1293;
Cimera, 459 F.3d at 462-63. In Iannelli itself, we affirmed the
district court’s denial of the defendants’ new trial motion, as the
newly discovered evidence “could have been discovered at the
time of trial” and the defendants “d[id] not allege any facts from
which the court c[ould] excuse their lack of diligence . . . prior
to trial.” Iannelli, 528 F.2d at 1293. More recently, in United
States v. Cimera, we reversed the district court’s decision to a
grant a new trial on the basis of newly discovered evidence
where the defendant “failed to establish . . . that [the supporting
evidence] could not have been discovered with the exercise of
reasonable diligence before or at the time of the trial.” 459 F.3d
at 462-63; see also Government of the Virgin Islands v. Lima,
774 F.2d 1245, 1250 (3d Cir. 1985) (affirming district court’s
denial of defendant’s motion for new trial based on newly

                                26
discovered evidence, finding, inter alia, that witnesses whose
testimony formed the basis of defendant’s new trial motion
“could easily have been found in time for trial by the exercise of
diligence” (emphasis added)); United States v. DeRewal,
10 F.3d 100, 104 (3d Cir. 1993) (stating that “newly discovered
evidence must be evidence that trial counsel could not have
discovered with due diligence before trial” (second emphasis
added)).

        In this case, the District Court concluded that Kelly had
“met his burden of establishing that he was diligent with respect
to the newly discovered evidence,” Dist. Ct. Op. at *11, as
“Kelly was diligent in bringing Jones’s testimony to the Court’s
attention,” id. at *12. In reaching this conclusion, the District
Court laid out the sequence of events leading up to Jones’s
prospective testimony, beginning with the date of Kelly’s
conviction and highlighting only post-trial events. Although the
District Court found that “[a]t [the] time[ of his conviction],
Kelly did not know about Jones’s contact with the gun,” the
Court never addressed whether either Kelly or his counsel could
have discovered the information before trial with the exercise of
reasonable diligence.

        A review of the pre-trial record reveals absolutely no
evidence—nor allegation—of pretrial diligence on Kelly’s
behalf. The record could not be more clear that Kelly made no
effort to speak with Jones—despite seeing him anywhere from
one to twenty times after the arrest—about what he might have

                               27
witnessed the morning of May 1, 2004. As we held in
Government of the Virgin Islands v. Lima, 774 F.2d 1245
(3d Cir. 1985), such inaction simply does not qualify as
reasonable diligence.

       In Lima, after the defendant was convicted and sentenced
for burglary, assault, and possession of a firearm, he filed a
motion for new trial based on the affidavits of three newly
discovered witnesses. Two of the witnesses, Rivera and
Sanchez, stated in their affidavits that, although they were out
on Rivera’s porch the night of the alleged incident, neither
person saw the defendant enter or exit the victim’s house.
According to her affidavit, Rivera lived directly across the street
from the victim.

        In addressing the diligence prong of the Iannelli test and
ultimately finding that it had not been met, the district court
stated:

       With even a moderate amount of diligence these
       witnesses and their testimony could have been
       discoverable prior to trial. [The] witnesses are
       persons well known to defendant (Jose) and who
       know him well. The location of Hipolita Rivera’s
       residence could not possibly be a secret to
       defendant.     Common prudence would have
       dictated that she be interviewed as a neighbor
       likely to throw light on the matter. This could and


                                28
       should have been done immediately after the
       arrest of defendant.

Id. at 1249 (quoting the district court).

       On appeal, Judge Becker agreed with the district court,
concluding easily that the defendant had not met his burden of
establishing reasonable pretrial diligence as to the testimony of
Rivera and Sanchez:

       The proffered testimony also runs afoul of the
       “diligence” prong of Iannelli because Sanchez
       and Rivera were friends of [the defendant], one of
       whom resided directly across the street from the
       location of the incident. It would seem that they
       could easily have been found in time for trial by
       the exercise of diligence.

Id. at 1250.

       The facts of Lima are analogous to the facts of this case.
First, whether we label Kelly and Jones as “friends” or
“acquaintances,” it is undisputed that (1) the two men knew each
other; (2) they were sitting next to each other the night of
Kelly’s arrest; and (3) they saw each other at least once after
Kelly’s arrest and before his conviction. We can also infer that
Jones’s home address was no secret to Kelly, as Jones lived on
the very same block as Kelly’s girlfriend of eight years (with
whom Jones was “best friends”). In light of these facts, we see

                                29
no reason why Jones could not and should not have been
“interviewed as a [witness] likely to throw light on the matter,”
Lima, at 1249, prior to Kelly’s trial, or at the very latest, before
his conviction; and Kelly provides us with none. Kelly makes
no effort to distinguish Lima and does not even acknowledge the
case as precedent in his brief on appeal.

        Faced with Jones’s undisputed testimony that Kelly never
once spoke to him about what happened at Café Breezes on
May 1, 2004, Kelly does not argue that he in fact exercised
pretrial diligence in relation to Jones’s potential testimony, nor
does he contend that he could not have interviewed Jones before
his trial began. Instead, Kelly seeks to excuse his lack of
pretrial diligence by arguing—as he did before the District
Court—that, prior to trial, he had no reason to believe (1) that it
was Jones who possessed and threw the gun, and/or (2) that
Jones would have acknowledged possessing the gun.
(Appellee’s Br. 14-15; 20.) Essentially, Kelly argues that,
because he did not know what Jones would say in response to
being questioned, Kelly had no duty to question him. Though
the District Court appears to have accepted this narrow
formulation of a defendant’s duty to exercise pretrial diligence,
we cannot.

      Kelly’s claim that he “had no reason to know that it was
Jones who threw the gun and . . . that Jones was willing to
acknowledge this fact” (Appellee’s Br. 20) misses the point.
Though Kelly may have had no reason to know the exact

                                30
substance of Jones’s potential testimony, he had every reason to
question Jones about the gun—which Kelly claimed was not
his—and about what he may have witnessed the morning of
Kelly’s arrest. As the Government points out in its brief, Jones
may have been able to provide Kelly with evidence to
corroborate his theory that “someone threw the gun at [him].”
See supra note 3. Kelly could have asked Jones if he saw who
threw the gun at him or from what direction it was thrown; he
could have asked Jones if he saw someone with a gun earlier
that night or heard people talking about the incident after his
arrest. And while there is always the possibility that Jones
would have been unable—or unwilling—to provide Kelly with
the answers to these questions, we will never know because
Kelly never asked them. Any potential or anticipated futility in
doing so—without more—does not excuse Kelly from his duty
to exercise reasonable diligence before trial.10


   10
      Cf. United States v. Schaffer, 214 F.3d 1359, 1362 (D.C.
Cir. 2000), vacated as moot, 240 F.3d 35 (D.C. Cir. 2001) (“[A]
belief in the futility of [subpoenaing a potential witness or
seeking a continuance to procure his testimony] will not satisfy
the need for a concrete attempt either to compel the production
of relevant evidence or to seek some accommodation from the
trial court that would preserve the defendant’s right to present
evidence that was critical to his case. Whatever the minimum
requirement of diligence, it cannot be a purely private evaluation
of the availability of the testimony or the likelihood of relief
                                                    (continued...)

                               31
       Unable to cite any precedent from this Circuit, or from
any of our sister circuits, in support of his position,11 Kelly relies
heavily on two cases from district courts in our circuit—United
States v. Carmichael, 269 F. Supp. 2d 588 (D.N.J. 2003), and
United States v. Morales, No. 90-441-2, 1991 WL 276022
(E.D. Pa. Dec. 18, 1991)—“only to demonstrate that when
confronted with similar circumstances, other courts have
reasonably employed the same approach as did the district court
here.” (Appellee’s Br. 15 n 8.) While we express no opinion as
to the propriety of the district courts’ decisions in these cases,
we discuss them here, as they are distinguishable on their facts
and thus ultimately unavailing.

       In Carmichael, after a trial for gun possession, the
defendant presented the affidavit of a witness who admitted that
the gun in question belonged to him. Upon receiving this
affidavit and hearing live testimony, the district court granted
defendant’s motion for a new trial, finding that “the defendant
had no way of knowing at the time of trial that Mr. Harvey[, the


  10
    (...continued)
from the court. Such a standard would seriously impair the
important goal of finality that the diligence requirement
serves.”)
  11
    The Government cites several cases from our sister circuits
in support of its position on appeal. As none are necessary to
our disposition, we do not discuss them here.

                                 32
witness,] was the owner of the gun, or at least that he would
admit to being the owner.” Id. at 597. In reaching this
conclusion, the district court relied on the fact that Harvey had
testified before a federal grand jury prior to the defendant’s trial.
During his sworn testimony, Harvey claimed that he did not
know to whom the gun belonged and denied being on the porch
where the gun was found. Id. at 592. The district court thus
concluded that “[n]othing in Mr. Harvey’s grand jury testimony
could have alerted the defendant to the prospect that Mr. Harvey
could be a helpful witness if called at trial.” 12 Id. at 597.

        Here, unlike in Carmichael, Kelly had no reason to
believe that Jones would not have been a helpful witness if
called at trial. Jones was never questioned before trial about the
gun or about what he witnessed the night of Kelly’s arrest, he
never affirmatively denied knowledge of the circumstances
surrounding that night; and he certainly did not provide sworn
testimony to any court until after Kelly’s conviction. Had Jones
been questioned pretrial and had he denied knowledge of the
gun, we would be presented with a different scenario. It is
undisputed that Jones was not questioned, and thus Carmichael
is clearly distinguishable.




   12
      We assume, as is implied throughout the district court’s
opinion, that the defendant had pretrial access to Harvey’s grand
jury testimony.

                                 33
        United States v. Morales, No. 90-441-2, 1991
WL 276022 (E.D. Pa. Dec. 18, 1991)—the only case cited by
the District Court in support of its conclusion—is also
distinguishable on this issue. In Morales, the defendant was
convicted by a jury for conspiracy to possess cocaine with intent
to distribute and possession of cocaine with intent to distribute.

        At trial, a government witness testified to seeing the
defendant enter the home of a co-defendant while carrying a red
and black bag that was later found to contain cocaine. After the
defendant was convicted, he moved for a new trial based on a
newly discovered witness, who testified at a post-trial
evidentiary hearing that she had observed the defendant carrying
only his child and not a bag as he entered the co-defendant’s
home on the day in question. In addressing the diligence prong
of the Iannelli analysis, the district court specifically found that
“there was no evidence presented at the evidentiary hearing that
defendant . . . had any reason to know Ms. Gonzalez[, the newly
discovered witness,] had witnessed defendant entering the
co-defendant’s home.” Id. at *1 (emphasis in original). Thus,
the district court concluded that “the delay in Ms. Gonzalez
coming forward cannot be attributed to a lack of diligence on
behalf of the defendant.” Id.

        In this case, as recognized above, Kelly had every reason
to know that Jones was a potential witness in his case. Again,
it is undisputed that, not only was Jones present at Café Breezes
the night of Kelly’s arrest, but he was sitting next to Kelly when

                                34
the arrest occurred. Kelly criticizes the Government for
“ignor[ing] the fact that Jones stated that he intentionally kept
his involvement secret because he did not want to become
involved,” apparently believing that consideration of this fact
would weigh in his favor. (Appellant’s Br. at 17.) See also
Dist. Ct. Op. at *11. It does not. What Kelly himself ignores in
making such a statement is that the duty to conduct reasonable
diligence before or at the time of trial lies with the defendant
and his counsel. The fact that Jones did not volunteer his
testimony to Kelly has no bearing on the question of whether
Kelly took affirmative steps to discover that testimony in the
first instance. Sitting on one’s hands and waiting for a known
eyewitness to come forward with potentially exculpatory
information (or potentially inculpatory information from Jones’s
perspective) cannot be considered— by any
definition—reasonable diligence. Were we to sanction the
granting of a new trial under such circumstances, Iannelli’s
diligence requirement would quickly be rendered meaningless.

       Considering all of the circumstances surrounding this
case, the fact that Kelly did not even attempt to question
Jones—or have Jones questioned—prior to his trial is both
shocking and inexcusable. It is thus with little hesitation that we
conclude that he has failed to satisfy the second prong of the
Iannelli analysis. Because it is undisputed that Kelly made no
attempt to procure Jones’s testimony prior to his conviction, his
motion for a new trial should have been denied.


                                35
       Accordingly, we will reverse the District Court’s order
granting his motion.

II.    Probability of Acquittal

        The Government also challenges the District Court’s
resolution of the fifth prong of the Iannelli analysis: the
requirement that, “on a new trial, the newly discovered evidence
would probably produce an acquittal.” Iannelli, 528 F.2d at
1292. Because we have already determined that Kelly did not
meet his “heavy burden” of establishing Iannelli’s diligence
requirement, we need not reach this second issue as a means of
justifying our reversal of the District Court’s order. See Jasin,
280 F.3d at 365. However, as it appears that Iannelli’s fifth
prong has caused some confusion in our district courts, we will
discuss its application here, so as to provide clarity to this area
of the law.

       Before the District Court, the Government argued that
Kelly’s new evidence would not “probably produce an
acquittal,” as Jones’s testimony was “simply too fantastic to be
accorded much evidentiary weight.” Dist. Ct. Op. at *12
(internal quotation marks omitted). The Government urged the
District Court to conclude that the testimony was not credible
and that, accordingly, Kelly could not satisfy the fifth prong of
Iannelli. In support of its argument, the Government identified
several inconsistencies in the testimony of Jones, Gant, and
Cephas; criticized Jones’s testimony for conveniently absolving

                                36
both Kelly and Jones of any criminal liability; and argued that
Jones’s relationship with both Kelly and Cephas gave him a
strong motive to lie on behalf of his friends. The Government
also reminded the Court that Jones admitted to being very
intoxicated the night of Kelly’s arrest and asserted that, at a new
trial, Jones’s testimony would be contradicted by the testimony
of Officers Stewart, Miles, and Clark.

       In its August 29, 2006 Memorandum Opinion, the
District Court rejected the Government’s position and
“decline[d] to make . . . a credibility determination at this
juncture.” Dist. Ct. Op. at *12. The Court declared, at the
outset of its discussion, that “Jones’s prospective testimony, if
believed, would probably produce an acquittal, and the jury is
the appropriate fact-finder.” Dist. Ct. Op. at *12.

         In explaining why it would refrain from making a
credibility determination, the District Court distinguished
several cases cited by the Government and ultimately chose to
adopt the reasoning employed in United States v. Morales, No.
90-441-2, 1991 WL 276022 (E.D. Pa. Dec. 18, 1991). In that
case, although the district court admitted to finding “many
inconsistencies” in the proposed testimony of a newly
discovered witness, it nonetheless concluded that the “defendant
is entitled to have a jury evaluate the credibility of [the witness].
If a jury finds her testimony to be credible, the jury may well
have a reasonable doubt [as to the defendant’s guilt].” Id. at *2.


                                 37
       After announcing that it would adopt “the Morales
approach,” Dist. Ct. Op. at *14, the District Court underwent the
following analysis:

       Although the Court has some reservations about
       Jones’s proposed testimony—notably, it nicely
       absolves both Kelly and Jones of criminal liability
       and it surfaced at a convenient time—the Court,
       out of an abundance of caution, concludes that
       Kelly is entitled to have a jury evaluate the
       credibility of Jones. The Court further concludes
       that a jury is likely to find Jones’s prospective
       testimony credible for, inter alia, the following
       reasons: First it is not logical for Jones to perjure
       himself for the boyfriend (Kelly) of one of his
       friends (Cephas). Second, Jones had a strong
       motive not to come forward and to avoid
       discussing the incident until Gant reported that
       Kelly had been convicted. Third, Jones cannot
       benefit by falsely helping Kelly. Fourth, some
       time after the arrest but while still at the bar,
       Kelly stated “someone threw the gun at [him],”
       which corroborates Jones’s prospective testimony.

Id. (emphasis added; second alteration in original) (internal
footnote omitted). Thus, although the Court explicitly declined
to make a “credibility determination,” it nonetheless appears
from this passage that it did undergo a type of credibility
assessment.


                                38
        In light of the foregoing, the Court concluded: “If a jury
finds Jones’s testimony to be credible . . . the jury is likely to
have a reasonable doubt as to whether Kelly possessed the gun
at issue during the early hours of May 1, 2004 at Café Breezes.
Thus, Kelly has established that the newly discovered evidence
is likely to produce an acquittal.” Id. (internal citation omitted).

        On appeal, the Government argues that the District Court
erred as a matter of law in refusing to make a credibility
determination in regard to Jones’s testimony, leaving such a
determination to the jury at a new trial. (Appellant’s Br. 30.)
According to the Government, “[h]ad the district court made a
credibility finding, the district court should have found that the
Jones testimony was entitled to little, if any, probative weight.”
(Id. at 30-31.)

       Kelly responds that, although he agrees “in the context of
newly discovery [sic] evidence motions, it is for the district
court to assess the credibility of the evidence,” 13 this does not
mean that a district court must find the evidence to be “in fact
credible.” (Appellee’s Br. 23.) In his view, “unless the district
court discredits the new testimony, the standard itself and
common sense suggest that the district court should do nothing



   13
     See also Appellee’s Br. at 22 (“Clearly, if a district court
finds newly discovered testimonial evidence not credible, then
it would not be an abuse of discretion to deny a new trial.”).

                                39
more than assess whether a jury probably would reach a
different result upon hearing the testimony.” (Id. at 22.) To this
end, Kelly asserts that the District Court “did in fact make a
credibility determination with respect to Jones’ [sic] testimony”
(id.), as it specifically found that “‘a jury is likely to find Jones’s
prospective testimony credible’” (id. (quoting Dist. Ct. Op. at
*14)). According to Kelly, although the Government “goes to
great lengths to argue that the district court abused its discretion
for not discrediting Jones’ [sic] testimony[, t]he district court’s
factual findings cannot be disturbed.” (Id. 23.)

       In light of the District Court’s opinion and the parties’
arguments, two issues require our attention, both of which arise
in the context of a district court’s inquiry into whether a
defendant’s newly discovered evidence would “probably
produce an acquittal” at a new trial: (1) whether a district court
is required to make a determination as to the credibility of the
proffered evidence; and (2) if so, how is such a determination to
be made? We address each of these issues in turn.

        First, to be clear, “[i]t is the job of the district court,
either on affidavits or after an evidentiary hearing . . . to decide
whether the newly discovered evidence is credible, and, if so,
whether it would probably produce an acquittal if a new trial
were held.” United States v. Grey Bear, 116 F.3d 349, 350 (8th
Cir. 1997) (internal citation omitted); see also United States v.
Woolfolk, 197 F.3d 900, 905 (7th Cir. 1999) (“The purpose of
the evidentiary hearing was for the district court to assess the

                                  40
credibility of the new witness and to determine the materiality
of her testimony.”). While it appears that all of the circuits to
address this issue are in agreement, we find the Tenth Circuit’s
opinion in United States v. McCullough, 457 F.3d 1150
(10th Cir. 2006), to be particularly instructive.

       In McCullough, four months after the defendant was
convicted by a jury on various drug- and weapons-related
charges, he sent a letter to the district court stating that he had
discovered evidence that five of the Government’s cooperating
witnesses had conspired to provide false testimony against him
and his co-defendant at trial. Id. at 1165-66. The defendant
attached to his letter the written statements of nine inmates from
his correctional facility. Id. at 1166. These statements
indicated, inter alia, that the inmates had overheard the five
cooperating witnesses, who were also inmates, conspiring to
provide false testimony at trial in order to receive downward
departures in their sentences. The statements also alleged that
the cooperating witnesses had offered to sell information about
the defendant’s case to other inmates, so that they too could
become government cooperators eligible for downward
departures. Id. The defendant later filed a formal Rule 33
motion through counsel based on the inmates’ written
statements. Id.

       After a multi-day evidentiary hearing, during which six
of the nine inmates and all five of the cooperating witnesses
provided live testimony, the district court denied the defendant’s

                                41
motion. Id. In doing so, the district court noted that it did not
find the inmates’ testimony to be worthy of belief and set forth
several reasons why the testimony was not credible. The district
court ultimately found that, although the defendant had satisfied
the first four prongs of the Tenth Circuit’s Iannelli equivalent,
he could not satisfy the fifth prong of the test. Though the
district court agreed that the new evidence, “if believed, would
probably produce an acquittal,” it expressly found that the new
evidence was not credible and denied the defendant’s motion.
Id. (internal quotation marks omitted). On appeal, the defendant
argued that the district court erred in making a credibility
determination. According to the defendant, a jury should have
made the credibility judgment, not the judge. Id. at 1167.

      The Tenth Circuit soundly rejected the defendant’s
argument, stating:

       [The defendant] effectively argues, without any
       citation to supporting authority, that the district
       court was required to accept his proffered
       evidence as true, order a new trial, and allow a
       new jury to determine whether the proffered
       evidence was credible. Neither the case law from
       this circuit, nor for that matter the case law from
       any other circuit, supports such a position. To the
       contrary, our five-pronged test . . . clearly implies
       that the district court is to serve as a gatekeeper to
       a new trial, deciding in the first instance whether


                                42
       the defendant’s proffered “new evidence” is
       credible.

Id. The court added that the defendant’s position was “patently
absurd,” as “it would allow a defendant to automatically obtain
a new trial, and thereby undermine the time and resources
devoted to the initial trial, simply by manufacturing some type
of ‘newly discovered evidence,’ no matter how incredible such
new evidence might be.” Id. at 1167-68.

       The defendant’s position in McCollough appears to be
similar to the position taken by the District Court in this case
and by the district court in Morales. Both courts refused to
make a finding of fact as to the credibility of the evidence before
them, each believing that a defendant is entitled to have a jury
evaluate the credibility of his newly discovered evidence. But,
as McCollough makes clear, “the district court is to serve as a
gatekeeper to a new trial, deciding in the first instance whether
the defendant’s proffered ‘new evidence’ is credible.” Id. at
1167. A district court that fails to exercise its discretion in this
regard, abuses that discretion and is thus subject to reversal on
appeal.

       Having established that a district court is required to
make a credibility determination as part of its probability-of-
acquittal inquiry, we next address the proper standard for
making such a determination. Kelly suggests that a district
court’s focus should be on whether a jury probably would reach

                                43
a different result upon hearing the new evidence. We agree. As
the Eighth Circuit stated in United States v. Grey Bear, “[t]he
real question we suppose, is not whether the district judge
believed [the proffered testimony], but how likely the district
judge thought a jury at a second trial would be to believe it.” 14
116 F.3d at 350. To make a determination under this standard,
the district court cannot view the proffered testimony in a
vacuum; it must weigh the testimony against all of the other
evidence in the record, including the evidence already weighed
and considered by the jury in the defendant’s first trial. See
United States v. Woolfolk, 197 F.3d 900 (7th Cir. 1999) (“The
judge[,] in determining credibility, . . . must look to all aspects
of the witness including not only her testimony but the evidence
presented at trial.”).

       In this case, even though the District Court explicitly
declined to “make . . . a credibility determination,” believing


  14
    The Eighth Circuit recognized, as do we, that this standard
most likely establishes a distinction without a difference, in that
“if a district court does not believe a witness, it seems most
unlikely that the same court would find the witness sufficiently
persuasive to enable the court to say that the witness’s testimony
would probably produce an acquittal at a new trial.” Grey Bear,
116 F.3d at 351. Accordingly, a district court’s statement that
newly discovered evidence “is not credible,” for example, is
perfectly acceptable as long as the court sets forth its reasoning.


                                44
that “the jury is the appropriate fact-finder,” Dist. Ct. Op. at *12,
the Court nonetheless concluded that “a jury is likely to find
Jones’s prospective testimony credible” and set forth four
reasons it thought this was so.15 Thus, it appears that the District
Court may have made a credibility determination after all.
Though we assume that this determination took into account, at
the very least, the other testimony presented at the Court’s
June 8, 2006 evidentiary hearing, we cannot be certain that the
District Court weighed Jones’s testimony against the testimony
presented at Kelly’s first trial. As the Government points out,
Jones’s testimony is contradicted at various points by the
testimony of, among others, Officer Stewart. For instance, it
would seem that one could not believe Jones’s testimony that he
threw the gun to the floor without also disbelieving Officer
Stewart’s testimony that she saw the gun fall from Kelly’s lap.
While the District Court does not address this seeming
inconsistency, or others that appear in the record, 16 the Court


  15
    Although the District Court in this case purported to apply
the “Morales approach,” it appears to us that, in actuality, the
Court followed the approach taken by the Eight Circuit in Grey
Bear. In Morales, the district court did not set forth any reasons
why a jury would likely find the defendant’s newly discovered
evidence to be credible.
  16
    For example, Jones testified that just before the uniformed
police officers entered Café Breezes, all of the bar seats were
                                                   (continued...)

                                 45
was required to take them into consideration. We cannot tell
whether it did so; and, at the very least, the credibility



  16
     (...continued)
filled (there were 15), “there were people standing in between
the seats,” and “there were people standing behind [him]” (App.
370). According to Jones, “people were bumping into me all
night, it was pretty tight.” (App. 372.) But Corporal
Drummond testified that there was a total of 8 to 10 people in
the bar when the officers and inspectors entered, and Officer
Clark, who was seated to Jones’s immediate left, testified that
there was no one standing behind either him or Jones at the time.
Jones also testified that when he brushed the gun off his lap, it
fell in front of him, slightly to his left. This would mean that the
gun fell around the corner of the bar from where Kelly was
sitting, to Kelly’s right. However, Officer Stewart specifically
testified that she saw the gun fall to the floor along Kelly’s left
leg.

       We also note the inconsistency between Gant’s post-trial
affidavit, which Kelly submitted to the Court in support of his
motion for a new trial, and Jones’s hearing testimony.
According to Gant’s affidavit, Jones told Gant that, when the
police entered Café Breezes the morning of May 1, 2004, “he
got nervous and threw [the gun] down on the floor.” (App.
424.) At the evidentiary hearing, however, Jones explicitly
denied ever telling Gant that he threw the gun because he was
nervous when the police appeared. These are only a few
examples of inconsistencies that appear in the record.

                                46
assessment that the Court did make seems incomplete. Had
Kelly met his burden of establishing the first four prongs of
Iannelli, we would remand to the District Court for further
clarification. However, because he has not satisfied Iannelli’s
diligence requirement, we need not do so. We merely note that
a credibility assessment is required as part of Iannelli’s
probability-of-acquittal analysis, and it should take into account
all of the evidence that a jury would be likely to hear and
consider were the defendant granted a new trial.

                        CONCLUSION

       For the foregoing reasons, we will REVERSE the order
of the District Court granting Kelly’s motion for a new trial and
REMAND for the entry of a judgment of conviction and for
sentencing.

____________




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