2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-14-2008

USA v. Kelly

Precedential or Non-Precedential: Precedential

Docket No. 06-4080

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Kelly" (2008). 2008 Decisions. Paper 589.

http://digitalcommons.law.villanova.edu/thirdcircuit_2008/589
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.
2

(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
3

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 onecount 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.
 Open inspections of “nuisance bars” (App. 80) are conducted 1

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

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” of Café Breezes, a row house bar located at 1

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. 
 Corporal Drummond testified that there was a total of 8 to 10 2

people in the bar when the officers and inspectors entered.

5

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. A man, later determined to be Kelly, was seated on 2

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
6

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.
7

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
 Before the trial began, Kelly alleged that, at some point after 3

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. 

 Though Kelly requested (by pro se letter) and received a 4

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

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. Leave to 4

supplement was granted, and Kelly filed his counseled
 The District Court appointed counsel to represent Jones at 5

(continued...)

9

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
 (...continued) 5

the hearing and to advise him of his Fifth Amendment right

against self-incrimination. 

10

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
 Gant testified on direct examination that she waited so long 6

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

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. Cephas asked Gant to speak 6

with Kelly’s attorney, but Gant initially refused. Sometime in
12

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
 Cephas indicated that, although Kelly and Jones would speak 7

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

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. (App. 7

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
14

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.
 When asked on cross-examination, “How long have you 8

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

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 Cephas (App. 8

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
16

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
17

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-
18

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
19

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. 
20

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.)
21

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
 Kelly had also based his new trial motion on arguments that 9

(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

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. The Government filed a timely notice of appeal. 9
23

We have jurisdiction to review this matter pursuant to

18 U.S.C. § 3731. 
24

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
25

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.
26

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
27

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
28

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
29

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
30

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
 Cf. United States v. Schaffer, 214 F.3d 1359, 1362 (D.C. 10

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

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
 (...continued) 10

from the court. Such a standard would seriously impair the

important goal of finality that the diligence requirement

serves.”)

The Government cites several cases from our sister circuits 11

in support of its position on appeal. As none are necessary to

our disposition, we do not discuss them here. 

32

Unable to cite any precedent from this Circuit, or from

any of our sister circuits, in support of his position, Kelly relies 11

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
 We assume, as is implied throughout the district court’s 12

opinion, that the defendant had pretrial access to Harvey’s grand

jury testimony. 

33

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.” Id. at 597. 

12

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. 
34

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
35

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

pers pect i ve) cannot be consi d ere d — b y 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. 
36

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
37

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.
38

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. 
 See also Appellee’s Br. at 22 (“Clearly, if a district court 13

finds newly discovered testimonial evidence not credible, then

it would not be an abuse of discretion to deny a new trial.”).

39

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,” this does not 13

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
40

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
41

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
42

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
43

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-ofacquittal 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
 The Eighth Circuit recognized, as do we, that this standard 14

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

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
 Although the District Court in this case purported to apply 15

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. 

 For example, Jones testified that just before the uniformed 16

police officers entered Café Breezes, all of the bar seats were

(continued...)

45

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. Thus, it appears that the District 15

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, the Court 16
 (...continued) 16

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

was required to take them into consideration. We cannot tell

whether it did so; and, at the very least, the credibility
47

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.

____________