                  United States Court of Appeals
                              For the Eighth Circuit
                         ___________________________

                                 No. 19-3021
                         ___________________________

                              United States of America

                          lllllllllllllllllllllPlaintiff - Appellee

                                             v.

                                  Dante Jamal Glinn

                        lllllllllllllllllllllDefendant - Appellant
                                        ____________

                      Appeal from United States District Court
                  for the Northern District of Iowa - Cedar Rapids
                                   ____________

                              Submitted: April 17, 2020
                                Filed: July 27, 2020
                                   ____________

Before KELLY, WOLLMAN, and STRAS, Circuit Judges.
                           ____________

KELLY, Circuit Judge.

      A jury convicted Dante Glinn of theft of a firearm from a federally licensed
firearms dealer in violation of 18 U.S.C. §§ 922(u) and 924(m). We affirmed his
conviction and sentence on direct appeal. United States v. Glinn, 863 F.3d 985
(8th Cir. 2017). Glinn subsequently filed a motion for a new trial, alleging that new
evidence showed another person who looked like him had been found in possession
of the stolen firearm and that a jury would likely acquit him if it was shown this new
evidence. The district court1 denied the motion without a hearing. We affirm.

                                    I. Background

        This case stems from the August 25, 2015 theft of a Kimber .45 pistol from
Sports Outfitters, a federally licensed firearms dealer in Cedar Rapids, Iowa. At trial,
the government introduced the following evidence to prove that Glinn had stolen the
firearm: (1) a surveillance video of the theft, which allowed the jury to compare the
thief’s appearance in the video to Glinn’s appearance at trial; (2) four witnesses
familiar with Glinn who testified that he was the person in the video stealing the
handgun; (3) photographs from an August 27, 2015 traffic stop that showed Glinn
wearing the same type of shirt and pants as the person in the surveillance video, and
with a bandage on the same arm; (4) an officer who testified that, during the August
27 traffic stop, he told Glinn “he had matched the description of somebody that was
[at Sports Outfitters], acting kind of hinky,” and Glinn responded that “stealing wasn’t
in his category”; and (5) evidence showing that, a few hours after the theft, Glinn used
a false identity when getting treatment for an injury to the same arm that the individual
in the surveillance video had bandaged.

       Glinn argued that he did not steal the firearm, highlighting that: (1) no
fingerprint or DNA evidence connected him to the theft; (2) the owner of a nearby
business, who had seen and spoken to the thief, failed to identify Glinn’s photograph
in a photo array; (3) Glinn was present for a court hearing at the county courthouse,
which is about a nine-minute drive from Sports Outfitters, approximately 30 minutes



      1
        The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.

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after the firearm was stolen; and (4) Glinn has sleeve tattoos on his arms, but sleeve
tattoos are not readily visible on the thief’s arms in the video.

      The jury returned a guilty verdict. At sentencing, the government introduced
evidence that, on August 27, 2015, officers recovered shell casings from a .45 caliber
pistol outside of an apartment complex in Cedar Rapids. A witness testified that Glinn
had fired the shots. The district court granted the government’s motion for an upward
departure based on this evidence. See United States Sentencing Guidelines §§ 5K2.0,
5K2.21 (2015).

       Nearly two years later, Glinn filed a pro se motion for a new trial under Federal
Rule of Criminal Procedure 33(a). He alleged that, in December 2017, a person named
R.L. Tate was found in possession of a Kimber .45 caliber pistol with the same serial
number as the firearm stolen from Sports Outfitters. Glinn also alleged that Tate was
living in the Cedar Rapids area at the time the gun was stolen and bears a “striking
physical resemblance” to Glinn but has no tattoos on his arms. Glinn did not say how
he knew this information. He supported his motion with court records relating to Tate.
These records included a headshot photograph, but they did not indicate whether Tate
was found in possession of a firearm with a certain serial number, whether he has
tattoos on his arms, or whether he was living near Cedar Rapids on August 25, 2015.
Glinn requested an evidentiary hearing on the motion, arguing that ballistics tests
would show the stolen firearm was not related to the shell casings from the August 27,
2015 shooting.

      The government opposed Glinn’s motion, arguing that he had “not provided any
actual evidence supporting his hypotheses regarding Mr. Tate” and that, even if he had,
the evidence would not warrant a new trial. The district court denied Glinn’s motion
without a hearing, finding that Glinn had only offered “unproven hypotheses” and had
not “demonstrated that any new evidence exists.” The court further found that “even
if such evidence were available, it would not undermine the evidence linking [Glinn]

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to the August 25, 2015 theft of the .45 caliber Kimber handgun from Sports Outfit-
ters.” Therefore, the court concluded, Glinn had not “met his burden of establishing
the existence of any new evidence which is likely to produce an acquittal if a new trial
is granted.” This appeal followed.

                               II. Standard of Review

        The district court may grant a new trial based on newly discovered evidence “if
the interest of justice so requires.” See Fed. R. Crim. P. 33(a). “Motions for a new
trial based on newly discovered evidence are disfavored” and will generally 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.”
United States v. Dogskin, 265 F.3d 682, 685 (8th Cir. 2001). The district court has
“broad discretion in deciding whether to hold an evidentiary hearing on a motion for
a new trial based on newly discovered evidence.” United States v. LaFuente, 991 F.2d
1406, 1409 (8th Cir. 1993). We will reverse the court’s ruling “only if we find a clear
abuse of discretion.” Id. at 1408.

                                     III. Analysis

      Glinn argues that the district court abused its discretion by characterizing his
factual allegations as “unproven hypotheses” rather than assuming they were true or
giving him the opportunity to prove them at an evidentiary hearing. He contends that
a jury would most likely acquit him if his allegations were proven at a new trial, and
he asks us to remand so that he can attempt to prove them at an evidentiary hearing.

      We conclude that the district court did not clearly abuse its discretion by denying
Glinn’s motion without a hearing. In this context, the district court may ordinarily
decide factual issues based on affidavits without an evidentiary hearing. See United

                                           -4-
States v. Massa, 804 F.2d 1020, 1023 (8th Cir. 1986). The court is required to hold
a hearing only in “exceptional circumstances,” and we have recognized that the need
for an evidentiary hearing is lessened where, as here, the motion is decided by the
district judge who presided at trial. See United States v. Baker, 479 F.3d 574, 579 (8th
Cir. 2007) (quoting Dogskin, 265 F.3d at 687). A defendant is not entitled to a new
trial in the absence of new, admissible evidence that would probably produce an
acquittal. See United States v. Menard, 939 F.2d 599, 600 (8th Cir. 1991). And the
district court is not required to hold a hearing when the defendant fails to show that a
hearing would be “at all likely to produce the type of evidence that would entitle [the
defendant] to a new trial.” See United States v. Burns, 495 F.3d 873, 876 (8th Cir.
2007).

        Here, Glinn did not identify any evidentiary support for his allegations that Tate
lived in Cedar Rapids at the time of the theft, was later found in possession of the
firearm stolen from Sports Outfitters, and looked like him but has no tattoos on his
arms. His motion neither describes the underlying basis for these allegations nor
suggests that any evidence to support them would become available if the court held
a hearing. The only new evidence that Glinn suggested might become available were
ballistics tests related to the August 27, 2015 shooting. But no evidence related to
August 27 shooting was introduced at trial, and there is no reason to believe new
evidence related to that shooting would change the jury’s verdict.

       Glinn argues that it is unfair to require him to provide evidence in support of his
allegations because he “filed the motion pro se from behind bars.” We acknowledge
the difficulty of gathering evidence while a person is incarcerated, and district courts
have broad discretion to uncover the truth of a defendant’s allegations by holding
evidentiary hearings. But here, the district judge who presided at trial evaluated the
motion and concluded that Glinn failed to show a hearing was likely to produce the
type of evidence that would warrant a new trial. See Burns, 495 F.3d at 876. We find
no “exceptional circumstances” that would render this a clear abuse of discretion. See

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Baker, 479 F.3d at 579. And we conclude that the district court did not clearly abuse
its discretion by deciding Glinn’s unsupported allegations were insufficient to warrant
a new trial. See Menard, 939 F.2d at 600.

      The district court’s judgment is affirmed.
                        ______________________________




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