                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-2034
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                            Richard Harris Bear Runner

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                      Appeal from United States District Court
                    for the District of South Dakota - Rapid City
                                    ____________

                           Submitted: November 14, 2014
                              Filed: January 15, 2015
                                  [Unpublished]
                                  ____________

Before MURPHY, MELLOY, and BENTON, Circuit Judges.
                          ____________

PER CURIAM.

       A jury convicted Richard Harris Bear Runner of assault with a dangerous
weapon and assault resulting in serious bodily injury, in violation of 18 U.S.C. §§
113(a)(3) and 113(a)(6). At the trial, there was substantial evidence that Bear Runner
beat the victim using a long object with some sharp thing on the end (like a nail). Six
months after trial—the morning of the original sentencing—Bear Runner’s father
gave the court a letter claiming Bear Runner was innocent. The letter was signed by
A.H. (a minor), who claimed that the victim was not assaulted, but actually fell into
a barbed-wire fence. She also claimed that defense counsel refused to call her to
testify at trial. The district court1 continued the sentencing hearing, relieved Bear
Runner’s counsel due to a possible conflict of interest, and later appointed new
counsel. Bear Runner moved for a new trial based on newly discovered evidence.
After two evidentiary hearings, the district court denied a new trial. Bear Runner
appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

        “We review for clear abuse of discretion the district court’s denial of
[defendant’s] motion for a new trial based on newly discovered evidence.” United
States v. Bell, 761 F.3d 900, 911 (8th Cir. 2014). “Upon the defendant’s motion, the
court may vacate any judgment and grant a new trial if the interest of justice so
requires.” Fed. R. Crim. P. 33(a). “To prevail on such a motion, the defendant must
prove that (1) the evidence was unknown or unavailable at the time of trial, (2) the
defendant did not lack diligence in attempting to uncover it, (3) the newly found
evidence is material, and (4) the evidence is likely to produce an acquittal if a new
trial is granted.” United States v. Herbst, 666 F.3d 504, 512 (8th Cir. 2012).

       The district court did not err in denying a new trial. The author of the letter,
A.H., was Bear Runner’s cousin. Her testimony at the hearing, as the district court
found, “differed in a number of material respects from her letter” and the trial
testimony. A.H.’s letter said that both she and F.B. witnessed the incident, but A.H.
later admitted that F.B. was not present (F.B. did not appear in court even though
twice subpoenaed, and the parties stipulated that F.B. would not corroborate A.H.’s
account). Further, Dr. Donald Habbe, a pathologist who testified that the victim’s
injuries were consistent with injuries from barbed wire, “did not refute . . . testimony


      1
       The Honorable Karen E. Schreier, United States District Court for the District
of South Dakota.

                                          -2-
and conclusions that the injuries were also consistent with an object with something
like a nail on the end of it.” The district court found A.H.’s testimony “presented
serious credibility concerns” and “serious reliability issues.” The court concluded
that A.H.’s testimony was unlikely to produce an acquittal at a new trial in light of the
“substantial evidence . . . presented at trial to support the jury’s verdicts of guilty.”
Since “[n]ewly discovered evidence that is not credible is not likely to result in
acquittal in a second trial, . . . lack of credibility is sufficient grounds for denying a
motion for new trial.” United States v. Vasquez-Garcia, 340 F.3d 632, 641 (8th Cir.
2003).

                                      *******

      The judgment is affirmed.
                     ______________________________




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