                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-4711


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JOHN DOUGLAS BIRD, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City.         Martin K.
Reidinger, District Judge. (2:09-cr-00015-MR-DLH-1)


Argued:   October 29, 2015                 Decided:   January 15, 2016


Before TRAXLER, Chief Judge, and AGEE and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Donald
David Gast, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.      ON BRIEF: Ross Richardson,
Executive Director, Douglas E. Roberts, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for
Appellant. Anne M. Tompkins, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       John Douglas Bird, Jr., an enrolled member of the Eastern

Band    of   Cherokee        Indians,    was       convicted    in    federal       district

court of attempted murder and other charges related to a 2008

shooting that took place on the Cherokee reservation.                                   See 18

U.S.C. § 1113 (prohibiting attempts to commit murder “within the

special      maritime     and     territorial        jurisdiction          of     the   United

States”); 18 U.S.C. § 1153(a) (providing that “[a]ny Indian” who

commits certain offenses “within the Indian country, shall be

subject      to   the    same    law    and    penalties       as    all    other       persons

committing        any   of    the    above     offenses,       within       the    exclusive

jurisdiction of the United States”).                        Bird thereafter filed a

motion for a new trial based on newly discovered evidence that

someone else committed the shooting.                    See Fed. R. Crim. P. 33.

The district court denied the motion, and Bird appeals.                                 Finding

no reversible error, we affirm.

                                              I.

                                              A.

       The    evidence          presented       at    Bird’s        trial       showed       the

following.         On Christmas Day, 2008, the victim, Merony George

“Garce” Shell, was walking in the woods at the end of Bunches

Creek   Road,      a    mountainous      area      within    the     boundaries         of   the

Cherokee reservation.               He heard someone behind him, turned and

saw Bird, a former co-worker of Shell’s, standing near a gray

                                               2
truck and holding a rifle at his side.         Shell responded by

cursing Bird and saying, “You might as well kill me.    You’ve got

the gun.”   J.A. 156.       Bird shot Shell, hitting him multiple

times in the face and on the arm.

     After being shot, the next thing Shell recalled was driving

back down Bunches Creek Road and wiping blood off his face; he

could not recall how he got to his car or how long it had been

since he had been shot. 1    Shell wrecked his car while trying to

pull over alongside the creek and tumbled out of his car, down

the bank and into the icy water.      He managed to crawl back up

the bank to the road where a neighbor, Theresa McCoy, found him

and called the police.   When McCoy asked Shell who had shot him,

he responded, “John Bird.” J.A. 158.     McCoy testified that she

had earlier observed Shell’s car going up the road toward the

woods at approximately 11:15 a.m., and that the wreck happened

around 12:15 p.m.

     Shell was taken to the hospital, where he was interviewed

by FBI Special Agent Craig Sidwell.      Although Shell’s injuries

prevented Sidwell from conducting a full interview, Shell again

identified Bird as the man who shot him.      Agent Sidwell passed




     1 It is unclear whether the gaps in Shell’s memory were
attributable to his injuries or the excessive amount of alcohol
he had consumed before the shooting.



                                  3
that information on to Detective Gene Owl of the Cherokee Indian

Police Department.

      Detective Owl learned through his investigation that Shell

had   visited    Chuck   Taylor   on    Christmas      Eve,   and    Owl   went    to

Taylor’s house at approximately 7:45 p.m. on Christmas Day.                        As

Owl walked onto Taylor’s porch, he saw Bird standing in the

living room.      Owl and Bird made eye contact, and Bird ran out

the back door and escaped into the woods.                Bird was arrested on

January 8, 2009, after police found him hiding in the closet of

his father’s home.

      Detective Owl interviewed Bird the next day.                       Before Owl

told Bird any details, Bird volunteered that he had heard that

Shell had a wreck on Bunches Creek.            Bird nonetheless denied any

knowledge of the shooting, and he gave Owl an account of his

whereabouts on Christmas Eve and Christmas Day.                  In an interview

the next day with the State Bureau of Investigation (“SBI”),

however, Bird eventually confessed to shooting Shell. 2                     The SBI

agent then turned Bird back over to Detective Owl for a follow-

up interview.

      In   the    follow-up   interview,        Bird     again      confessed     to

shooting   Shell.        Although      Bird   claimed    that       he   could    not

      2Before confessing to the SBI agent, Bird took a polygraph
examination and was told that he failed.      The jury was not
informed about the polygraph.



                                         4
remember       the   entire    event,   he     provided       some    details      of   the

incident that he would not have otherwise known.                       Bird indicated

that the shooting occurred “somewhere in the mountains,” J.A.

234, and he also remembered that Shell cursed at him, saying

something along the lines of, “Shoot me, bitch.”                              J.A. 235.

Bird       further   stated,    “I   didn’t     want    to    kill    him.     I   made   a

mistake. I ain’t no killer.” 3          J.A. 236.

       As     noted,    the    testimony       of   Theresa      McCoy       placed     the

shooting sometime between 11:00 a.m. and 12:15 p.m. on Christmas

Day.        During Bird’s first interview with Detective Owl, Bird

claimed that he was at Dahne Driver’s house having breakfast

from 8 or 9 a.m. until 12:30 p.m. on Christmas Day.                                He then

returned to his father’s house until his grandmother, Myrtle

Bird, picked him up and took him to her house to cut wood at

around       12:45     p.m.      Bird   stated         that    he     stayed       at   his

grandmother’s house until he went to Chuck Taylor’s house at

around 7 p.m.

       Bird did not testify at trial, nor did he call his father

or   grandmother        as    witnesses.        Instead,       Bird    called       Nellie

       3
       Bird vomited at the beginning of the interview with Owl on
January 9 and several more times the next day, including twice
on the hour-long drive to the SBI office.     Bird told Owl that
his stomach was “messed up” and that he had to “drink [a] couple
[of] beers every day to make him feel better.” J.A. 220. At no
point on either day did Bird ask for medical assistance or seek
a delay of the interviews.



                                           5
Littlejohn, who, at the time of the shooting, was the girlfriend

of   Bird’s    father.     Littlejohn       testified    that   she,    Bird,   and

Bird’s father went to Driver’s house for breakfast but that they

returned home between 11 and 11:30 and that she was with Bird at

his father’s house until Bird’s grandmother picked him up at

about 12:45 p.m.         Littlejohn admitted on cross-examination that

Bird’s father told her that they would have to lie for his son

and say that he was with them when the shooting took place.                     She

denied, however, that she was lying on the stand.

      The jury rejected Bird’s alibi defense and convicted him of

all charges.       The district court sentenced Bird to a total of

330 months’ imprisonment, and we affirmed his conviction and

sentence on appeal.        See United States v. Bird, 409 F. App’x 681

(4th Cir. Jan. 31, 2011).

                                        B.

      On May 29, 2012, Bird filed a motion for a new trial in

which he contended that newly discovered evidence showed that a

man named Justin Denig shot Shell.              The district court ordered

briefing      on   the   motion   and    held    an     extensive      evidentiary

hearing.      As developed through testimony and offers of proof

made by Bird’s attorney, the newly discovered evidence is set

out below.




                                        6
                               1.    Deborah Caro

       On July 11, 2011 – more than two years after the shooting –

Deborah Caro went to the Cherokee Indian Police Department.                          At

that time, Caro spoke to Detective Owl and claimed that her

husband, Justin Denig, was the one who shot Shell in 2008.                          The

government disclosed this statement to the defense, and Owl and

the     Federal      Defender’s       office     conducted           a     follow-up

investigation     into      Caro’s     claims.            Counting        her     first

conversation with Detective Owl, Caro ultimately gave a total of

four    statements     to      Owl   and    James     Allard,        the        defense

investigator.     Caro did not testify at the evidentiary hearing,

as    the   district   court    permitted      her   to    assert        the    marital

testimonial privilege.         The court permitted Bird to proffer the

substance of Caro’s statements.

       In her first conversation with Detective Owl, Caro told Owl

that Denig was physically abusive and that she had not reported

him previously because she was afraid of him.                    She explained,

however, that they had separated “this past Saturday” and that

she had “t[aken] out a protective order on [him].”                         J.A. 523.

Caro stated that on Christmas Eve, 2008, she, Denig, and Shell

were drinking together at Caro’s trailer, which was then located

beside Caro’s mother’s home.            Caro passed out at her mother’s

house, but Denig brought her back and put her to bed.                          She woke

up at around 6 a.m. and found blood in the trailer.                        Caro told

                                        7
Owl that she walked outside and saw Shell lying on the ground,

bloody, with a “bullet mark” on his arm.              J.A. 522.   Denig was

crying and said, “I shot him.”           J.A. 522.    Caro stated that she

told Denig that Shell needed to go to the hospital, but Denig

refused and threatened to kill her unless she helped him put

Shell into his car.       Denig and Shell then left in Shell’s car;

Caro did not see Denig again until late in the day when he

called and asked to be picked up at a place near Bunches Creek.

Denig was muddy and wet, and he told Caro that he had gotten

lost hiking and had fallen in the creek.

     On   August    5,   2011,   defense    investigator   Allard   briefly

interviewed Caro while she was at work, and she again stated

that Denig shot Shell.       Allard gave Caro a copy of Owl’s notes

about the July 11 conversation, and she generally affirmed the

substance of that statement.        When Allard interviewed Caro again

three days later, however, she recanted much of her previous

statement.   She    denied   ever    saying    that    Denig   admitted   to

shooting Shell, or saying that she saw a bullet mark, and she

said that the blood she saw on Shell could have been from a

bloody nose.       Caro also told Allard that Denig, who had been

arrested for assaulting Caro, had been released from custody and

was again living with her.

     On May 30, 2012, Detective Owl interviewed Caro again.               In

this interview, Caro talked about a night in the fall of an

                                     8
unspecified year when she, Denig, and Shell were together at her

trailer and were very drunk.             She passed out and saw blood on

the floor when she woke up.              However, contrary to her July 11

account of the incident, Caro told Owl that she saw Shell and

Denig -- each with a bloody nose -- sitting together inside the

trailer, drunk but apparently content and without animus.                        She

claimed that she and Denig helped Shell out to his car because

he was drunk, but Caro did not claim to see any bullet wound or

any injury other than the bloody nose.                      She said that Denig

later went fishing, which was not unusual, and that he came back

home wet after falling in the creek.                Caro recanted her previous

statement that Denig threatened to kill her if she did not help

to get Shell into the car, and she indicated that her mother

(who did not like Denig) told her to say that.                  See J.A. 665.

       Caro stated that months after the confrontation with Shell,

Denig told her that he shot Shell.                  Caro told Owl that she did

not    believe   him   and    that   she      had    not    seen   evidence     of   a

shooting,    and   she       described       Denig’s       statements   about    the

confrontation as “boasting” and “bragging.”                    J.A. 645-46, 651,

659.     Caro told Owl that she asked Denig about the shooting

multiple times when Denig was sober and that Denig told her he

didn’t know what she was talking about.                     At the conclusion of

the interview, Caro prepared a hand-written statement in which



                                         9
she stated, “I am willing to testify to Justin’s words, that he

said he shot [Shell].”        J.A. 672.

                               2.    Justin Denig

      At the evidentiary hearing, Justin Denig invoked his Fifth

Amendment right against self-incrimination as to most of the

relevant questions.          The district court received as offers of

proof reports of two prior interviews of Denig.

      Defense    investigator       Allard     interviewed        Denig    on   October

20, 2011, while Denig was in state custody because of a Florida

probation violation.         In that interview, Denig claimed that he

was   drinking    with   Shell      on   Christmas        Eve.     Denig   said       that

around 1:30 a.m. Christmas morning, he saw Shell with his hand

in his pants standing over the passed-out Caro.                         Fearing that

Shell   was   going   to     sexually     assault     Caro       and   might    have    a

weapon, Denig hit Shell in the head with a skillet.                        Denig told

Allard that he and Caro dragged Shell outside and that Shell

left in his own car, alone.                 Allard asked Denig if he shot

Shell, perhaps in self-defense, and Denig responded that he had

only “busted his head” with the skillet.                    J.A. 684.      Denig then

asked   Allard,    “If   I   did    shoot      him   in    self-defense,        can   you

guarantee that I would not go to prison one hundred percent?”

J.A. 684.     Allard stated he could not make that guarantee, and

Denig again denied shooting Shell.                   Denig added, “I wouldn’t

shoot him because people would hear the gun go off,” and, “I was

                                          10
probably just running my mouth if I told anyone I shot Garce.”

J.A. 684-85.

     On   November      16,    2011,     Detective      Owl    interviewed   Denig.

Denig told Owl substantially the same story about hitting Shell

in the head with a skillet.              Denig denied shooting Shell, and he

refused to take a polygraph.

                                 3.    Garce Shell

     In   light      of       Caro’s     allegations,         Detective   Owl    re-

interviewed Shell on August 15, 2011.                 Shell stated that he was

with two women on Christmas Eve 2008, not Denig and Caro.                       Shell

said that he knew Denig and drank with him a couple of times,

but he said that he was not around Denig and did not drink with

him at any time around the shooting.                 Shell described the events

of Christmas Day as he previously had, and he again identified

Bird as the shooter.           When asked if he knew why Bird would have

been mad enough to shoot him, Shell explained that there was a

rumor   going   around    that      he    had   given   Bird’s     then-girlfriend

prescription    drugs     in    exchange       for   sex.     Shell   insisted    the

rumor was untrue, but he indicated that Bird was mad about it.

                               4.     Other Evidence

     Bird presented evidence that Denig made statements about

shooting someone to Caro’s nephew and to a woman who bought

Caro’s trailer, neither of whom believed Denig’s story.                          Bird



                                          11
also presented evidence that there were bullet holes in the door

of the trailer and a large, dark stain on the carpet. 4

       Denig’s       state   probation     officer   testified         that,   shortly

after Allard’s interview with Denig, she overheard Denig say on

the telephone, “it happened the way we said it did, right?” J.A.

900.       The probation officer also testified that Denig became

very       nervous    when    he    was    subpoenaed      to     testify      at    the

evidentiary      hearing      and   that    he    told    her    he    thought      about

running away.

                                           C.

       After considering the testimony and the offers of proof

presented by Bird, the district court denied the motion for a

new    trial.         The    district     court   concluded      that,    given       his

assertion of his Fifth Amendment privilege, Justin Denig would

not be permitted to testify at a new trial.                           The court also

concluded that Denig’s statements to law enforcement would be

inadmissible at a new trial.               As to Deborah Caro, the district

court held that she was entitled to invoke the marital testimony

privilege      and    that    she   therefore     could    not    be    compelled     to

testify at a new trial.             The court held that Caro’s statements

       4
       Caro’s nephew testified at the evidentiary hearing                           that
Denig told him he shot someone who was trying to “get at”                           Caro
and dumped the body in a cave near Bunches Creek.      J.A.                         794.
When explaining the bullet holes in the trailer door, Denig                         told
the buyer that “he had shot someone.” J.A. 878.



                                           12
to Owl and Allard were inadmissible hearsay, concluding that

Caro’s statements – which she twice recanted – “simply are not

sufficiently credible to warrant admission under the applicable

rules.”    J.A. 1170.    The district court also concluded that even

if all of the newly discovered evidence were admissible, the

motion should still be denied because a new trial would not

likely result in an acquittal.

                                     II.

     The    Federal     Rules   of   Criminal   Procedure   authorize   a

district court to “vacate any judgment and grant a new trial if

the interest of justice so requires.”           Fed. R. Crim. P. 33(a).

We review the district court’s denial of a Rule 33 motion for

abuse of discretion.        See United States v. Robinson, 627 F.3d

941, 948 (4th Cir. 2010).

     As we explained in Robinson, for newly discovered evidence

to warrant a new trial,

     (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 movant; (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 discovered evidence would probably
     produce an acquittal.

Id. (quoting United States v. Custis, 988 F.2d 1355, 1359 (4th

Cir. 1993).    In addition, “[t]o obtain a new trial on the basis

of after discovered evidence, that evidence must be admissible

                                     13
in a new trial.”         United States v. MacDonald, 779 F.2d 962, 964

(4th Cir. 1985); accord United States v. Hill, 737 F.3d 683, 687

(10th   Cir.     2013)    (“Implicit      in       a   claim       of    newly    discovered

evidence is that there is new evidence — that is, material that

is admissible at trial.”).

     On appeal, Bird contends that the district court erred by

denying his Rule 33 motion.                   Bird argues that because Justin

Denig was not a party to these proceedings, the district court

erred     by    permitting       Caro   to        assert     the        marital   testimony

privilege.       Bird also argues that the district court erred in

concluding       that    Denig’s        out-of-court           statements         would   be

inadmissible in a new trial.                 Bird contends that this evidence

would   “probably       result    in    acquittal       at     a    new    trial,”   United

States v. Chavis, 880 F.2d 788, 793 (4th Cir. 1989), and that

the district court thus abused its discretion by denying his

Rule 33 motion.           The government in response argues that the

district court properly resolved the privilege and admissibility

issues.        The government also argues that even if all of the

evidence       were   considered,       the       evidence     would        not   “probably

result in acquittal.”        Id.

     We need not consider whether the district court properly

applied the marital testimony privilege to Caro, nor do we need

to consider whether the court properly found Denig’s statements



                                             14
to be inadmissible. 5           As we will explain, we agree with the

government that even if we consider the statements of Caro and

Denig, the evidence is insufficient to satisfy the probability-

of-acquittal         requirement.         See   Robinson,       627    F.3d      at    948;

Chavis, 880 F.2d at 793.

     When    considering        Bird’s     motion   to    dismiss,         the   district

court, as it was required to do, evaluated the credibility of

the newly discovered evidence.              See United States v. Wilson, 624

F.3d 640, 663 (4th Cir. 2010) (“[T]he district court is required

to make a credibility determination as part of its probability-

of-acquittal          determination.”           (internal           quotation         marks

omitted));      United    States     v.    McCullough,        457    F.3d    1150,     1167

(10th    Cir.    2006)     (“[T]he    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.”).

As we have explained, “if the district court does not find a

witness credible, it follows that the district court would not

     5 We reject Bird’s argument that Denig’s invocations of his
Fifth Amendment rights would have been admissible at a new
trial. See United States v. Branch, 537 F.3d 328, 342 (4th Cir.
2008) (“[P]lacing Johnson on the stand solely to invoke his
Fifth Amendment privilege would lead to unfair prejudice in the
form of both unwarranted speculation by the jury and the
government’s inability to cross-examine Johnson.        And any
inferences that the jury might have drawn from Johnson’s
privilege assertion would have been only minimally probative —
and likely improper — in any event.” (internal quotation marks
omitted)).



                                           15
find the witness sufficiently persuasive to enable the district

court to conclude that witness testimony would probably produce

an acquittal at a new trial.”           Wilson, 624 F.3d at 663.

     As to Deborah Caro, the district court explicitly found her

statements to be “patent[ly] unreliab[le].”                 J.A. 1170; see also

id. (“Caro’s statements simply are not sufficiently credible to

warrant admission under the applicable rules.”); id. (“Caro has

implicated Denig on numerous occasions only to recant her story

later.    As such, her actions render her statements to be far

from trustworthy.”).            The record fully supports the district

court’s view in this regard:              Caro first alleged that Denig had

shot Shell at a time when she was separated from Denig and had

obtained a protective order against him; there are significant

differences     in     Caro’s    various       descriptions    of    the     incident

between     Shell     and    Denig;    Caro     recanted    some     of    the     most

important     of     her    accusations    against       Denig;    one    of     Bird’s

witnesses    told     Detective   Owl     that    “you    can’t    believe     a   word

[Caro]    says,”       J.A.     871,      and     Caro     herself        effectively

acknowledged her willingness to lie to police in order to make

Denig look bad, see J.A. 665.             In light of these facts, there is

no basis for us to conclude that the district court abused its

discretion in finding Caro’s statements lacking in credibility.

While the district court did not make express findings about the

credibility of Denig’s statements to third parties, the court

                                          16
did recognize the relative weakness of that evidence, describing

it as consisting only of “vague” statements that “do[] not even

specifically identify Shell as the victim of any shooting Denig

may have committed.”    J.A. 1171.

     Weighed against this vague and less-than-credible evidence

of Denig’s guilt is the trial evidence showing Bird’s guilt:

Shell knew Bird and immediately and consistently identified Bird

as the shooter, and Bird confessed to the crime and recounted

details of the crime that he could not otherwise have known.

Additionally,   Bird   fled    from   the   police     on   the   day   of   the

shooting and was found hiding in a closet in his father’s house

when he was arrested.        Given the strength and importance of the

trial evidence, the district court rejected Bird’s claim that

his vague and unpersuasive new evidence would probably result in

acquittal at a new trial.       Under the circumstances of this case,

we   simply   cannot   say    that    the   district    court     abused     its

discretion in its evaluation of the newly discovered evidence or

its weighing of that evidence against the evidence presented at

trial. 6


     6 We reject Bird’s argument that the district court should
have considered the effect of the newly discovered evidence in
light of an improved defense strategy “likely” to be pursued at
a new trial. Brief of Appellant at 27. While the ultimate Rule
33 question is whether the evidence would “probably result in
acquittal at a new trial,” United States v. Chavis, 880 F.2d
788, 793 (4th Cir. 1989) (emphasis added), the new trial
(Continued)
                                      17
     Accordingly,   because   we   find   no   error   in   the   district

court’s determination that Bird’s new evidence would not make an

acquittal probable, we hereby affirm the district court’s denial

of Bird’s Rule 33 motion for a new trial.

                                                                  AFFIRMED




contemplated is not a perfect trial with all holes in the
defense shored up, but a new trial that includes the newly
discovered evidence along with the evidence presented at the
original trial. See United States v. Wilson, 624 F.3d 640, 663
(4th Cir. 2010) (“[A] district court should focus on whether a
jury probably would reach a different result upon hearing the
new evidence.” (emphasis added)); id. (“[T]he district court
cannot view the [newly discovered evidence] in a vacuum; it must
weigh the [evidence] 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.” (emphasis added)).
When analyzing the probability-of-acquittal factor, the district
court thus properly disregarded counsel’s assertion that an
acquittal was even more likely in a new trial because he would
present scholarly articles and expert testimony about false
confessions and problems with eyewitness identifications --
evidence that could have been but was not presented in Bird’s
trial.

     We likewise reject Bird’s argument that the district court
applied the wrong standard when denying Bird’s Rule 33 motion.
The district court’s opinion states the correct probability-of-
acquittal standard, see J.A. 1147, and it is clear enough from
the court’s overall analysis that it did not require Bird to
prove that a new trial would result in an acquittal.



                                   18
