                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 08-1553
                                    ___________

United States of America,             *
                                      *
           Plaintiff – Appellee,      *
                                      * Appeal from the United States
     v.                               * District Court for the
                                      * District of Nebraska.
Solomon L. Coffey,                    *
                                      * [UNPUBLISHED]
           Defendant – Appellant.     *
                                 ___________

                              Submitted: December 8, 2008
                                 Filed: December 15, 2008
                                  ___________

Before WOLLMAN, BYE, and RILEY, Circuit Judges.
                           ___________

PER CURIAM.

        Solomon Coffey challenges the district court's1 denial of his motions for a new
trial, for an evidentiary hearing on this motion, and to suspend ruling on this motion
pending submission of an additional supporting affidavit. We affirm.




      1
       The Honorable Laurie S. Camp, United States District Judge for the District
of Nebraska.
                                           I

       On February 20, 2003, Coffey was charged with conspiracy to distribute and
possess with intent to distribute cocaine base, i.e., crack cocaine, in violation of 21
U.S.C. § 846. During trial, the government presented its case through the testimony
of one police officer and five co-conspirators. The co-conspirators, including Roderick
Jennings, all testified pursuant to cooperating plea agreements. The jury found Coffey
guilty. The district court sentenced Coffey to 324 months imprisonment, a five-year
term of supervised release, and a $100 special assessment. Coffey appealed his
conviction and sentence. We affirmed. United States v. Coffey, 415 F.3d 882 (8th
Cir. 2005) (en banc).

       On December 11, 2006, Coffey filed motions for a new trial, for an evidentiary
hearing on this motion, and to suspend ruling on this motion pending submission of
an additional supporting affidavit. As grounds for the motion for a new trial, Coffey
argues Jennings recanted his trial testimony. As support, he submitted an affidavit by
an inmate, referred to herein for anonymity purposes as "C." C was told by Tony
Alexander, another inmate, that Jennings told him he had fabricated his testimony at
Coffey's trial. Coffey also asked the court to suspend ruling on the motion for a new
trial until an additional affidavit could be provided from another witness "who can
provide additional evidence in favor" of the motion for a new trial.

      On February 22, 2008, the district court denied Coffey's motions. The court
found, even assuming Jennings recanted his testimony, substantial evidence existed
to support the guilty verdict. This appeal followed.

                                          II

     The district court did not abuse its discretion by denying Coffey's motion for
a new trial. To the extent C's affidavit would be offered to impeach Jennings's


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testimony, such impeachment is insufficient to warrant a new trial. In addition,
Jennings's recantation is not likely to produce an acquittal because of the strength of
the evidence against Coffey.

         In order to prevail on his motion for a new trial based on newly discovered
evidence, Coffey must demonstrate: "(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. Grover, 511 F.3d 779, 783 (8th
Cir. 2007). "[I]n order to meet the materiality requirement, newly discovered
evidence must be 'more than merely . . . impeaching.'" United States v. Baker, 479
F.3d 574, 577 (8th Cir. 2007) (ellipses in original) (quoting United States v. Dogskin,
265 F.3d 682, 685 (8th Cir. 2001)). We review the denial of a motion for a new trial
for abuse of discretion. United States v. Rojas, 520 F.3d 876, 884 (8th Cir. 2008).

       Assuming it could avoid the hearsay problem, C's affidavit would be offered
merely to impeach Jennings's testimony, which is insufficient to warrant a new trial.
See Baker, 479 F.3d at 577 (collecting cases). Moreover, Jennings's alleged post-trial
admission to Alexander constitutes recanted testimony, so "we view it and its potential
evidentiary value at a new trial with suspicion." United States v. Holmes, 421 F.3d
683, 688 (8th Cir.2005); see also United States v. Rouse, 410 F.3d 1005, 1009 (8th
Cir. 2005) ("The stability and finality of verdicts would be greatly disturbed if courts
were too ready to entertain testimony from witnesses who have changed their minds,
or who claim to have lied at the trial."). Although "recanted testimony that bears . .
. directly on the defendant's guilt will warrant a new trial if it would probably produce
an acquittal upon retrial," Dogskin, 265 F.3d at 685, Jennings's recantation is not
likely to do so, given the substantial evidence demonstrating Coffey's guilt. The other
co-conspirators' testimony sufficiently demonstrated Coffey bought and sold large
quantities of crack cocaine. See United States v. Coffey, 395 F.3d 856, 860 (8th Cir.
2005) (vacated on other grounds) (relying on testimony by co-conspirators other than


                                          -3-
Jennings to conclude the "the government's evidence showed that Coffey was deeply
involved in a conspiracy to distribute crack").

      Coffey has thus failed to demonstrate the district court abused its discretion in
denying his motion for a new trial.

                                           III

      Because the judge who ruled on the motion for a new trial also presided over
Coffey's trial and Coffey has not demonstrated exceptional circumstances warranting
an evidentiary hearing, the district court did not abuse its discretion by denying
Coffey's request for an evidentiary hearing.

        We review the denial of a motion for an evidentiary hearing on a motion for a
new trial for abuse of discretion. United States v. Rojas, 520 F.3d 876, 884 (8th Cir.
2008). "Absent exceptional circumstances, a motion for new trial based on newly
discovered evidence may be decided on affidavits without a hearing." Baker, 479 F.3d
at 579 (quoting Dogskin, 265 F.3d at 687). Furthermore, "[t]he necessity for a
hearing is lessened in cases involving challenged testimony where the trial judge has
had the opportunity to observe the demeanor and weigh the credibility of the witness
at trial." Id.

       Having conducted Coffey's trial, the district court knew the facts of the case and
had observed the witnesses and evidence. Therefore, the district court was able to
determine the impact of the newly discovered evidence on Jennings's testimony and
the strength of the government's case against Coffey. Because Coffey does not
present exceptional circumstances, the district court did not abuse its discretion in
denying his motion for an evidentiary hearing on the motion for a new trial.




                                          -4-
                                           IV

       The district court did not abuse its discretion when it denied Coffey's motion
to suspend ruling on his motion for new trial. Coffey asserts he has a witness who
could provide evidence in favor of his new trial motion; however, he needs additional
time to secure the person's affidavit. He provided no other details to the district court
(or this Court). In addition, although his motion to suspend ruling was ultimately
denied, Coffey had over six months to provide the district court with the affidavit of
the alleged additional witness, and did not so do. Accordingly, the district court did
not abuse its discretion.

                                           V

      We affirm.
                        ______________________________




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