United States v. Jordan , 806 F.3d 1244 ( 2015 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS November 20, 2015
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-1046
MARK JORDAN,
Defendant - Appellant.
_________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 1:04-CR-00229-LTB-1)
_________________________________
Sean Connelly, Reilly Pozner, LLP (Dru Nielsen and Michael Kotlarczyk, Reilly Pozner
LLP; and Laura Rovner, University of Denver Sturm College of Law, with him on the
briefs), Denver, Colorado, appearing for Defendant-Appellant.
J. Bishop Grewell, Assistant United States Attorney (John F. Walsh, United States
Attorney, with him on the brief), Office of the United States Attorney for the District of
Colorado, Denver, Colorado, appearing for Plaintiff-Appellee.
_________________________________
Before LUCERO, HOLMES, and MATHESON, Circuit Judges.
_________________________________
MATHESON, Circuit Judge.
_________________________________
On June 3, 1999, inmate David Stone died after he was stabbed three times
with a shank—a makeshift knife—while located in the recreation yard at the United
States Penitentiary in Florence, Colorado (“USP Florence”). A federal grand jury
indicted inmate Mark Jordan for the murder of Mr. Stone and three related assaults.
In 2005, a jury found him guilty on all counts.
In 2012, Sean Riker, another inmate who was present in the prison recreation
yard on June 3, 1999, confessed to stabbing Mr. Stone and agreed to provide Mr.
Jordan’s counsel a DNA sample. Mr. Jordan’s DNA expert then linked Mr. Riker’s
DNA to DNA found on the murder weapon. Based on Mr. Riker’s confession and the
new DNA analysis, Mr. Jordan moved for a new trial under Federal Rule of Criminal
Procedure 33 due to newly discovered evidence.
The same district court judge who had presided over the trial held a Rule 33
evidentiary hearing. The defense first presented its newly discovered evidence,
calling Mr. Riker and its DNA expert to testify. The Government then called six
witnesses, none of whom testified at trial. The first four testified about Mr. Stone’s
alleged dying declarations, which identified Mr. Jordan as the killer. A fifth witness
testified he saw Mr. Jordan stab Mr. Stone. A sixth witness testified he heard Mr.
Jordan make incriminating statements before the stabbing. In rebuttal, the defense
offered the testimony of one Bureau of Prisons (“BOP”) official and Mr. Jordan
himself. After the conclusion of the Rule 33 hearing, the district court denied Mr.
Jordan’s motion for a new trial.
Mr. Jordan appeals on two grounds. First, he argues the district court should
not have admitted and considered new government evidence. He argues that Rule 33
permits consideration only of (1) evidence admitted at trial and (2) newly discovered
evidence offered by the defendant. Based on these two types of evidence alone, he
-2-
contends that he satisfied his burden under Rule 33 to warrant a new trial. Second,
he argues that, even if Rule 33 permits new government evidence, the Federal Rules
of Evidence and the Confrontation Clause each should have barred admission of Mr.
Stone’s dying declarations.
Exercising jurisdiction under 18 U.S.C. § 1291, we affirm.
I. BACKGROUND
A. Trial and Conviction
The following undisputed facts are taken from our opinion affirming Mr. Jordan’s
convictions and sentence on direct appeal:
Mark Jordan was accused of murdering a fellow prisoner at the United
States Penitentiary in Florence, Colorado. The crime occurred on the
afternoon of June 3, 1999 in the maximum-security prison’s recreational
yard.
The victim, inmate David Stone, sat at a picnic table in the prison yard
wearing only shorts and tennis shoes. Numerous other prisoners were
exercising, congregating, and playing games in the outdoor sun. Near Stone
were three other inmates, including Mark Jordan and Sean Riker. Both
Jordan and Riker were observed walking away from the table. Minutes
later, someone stabbed Stone three times. Two of the wounds were
superficial, while the third was fatal. Stone was able to run across the yard
before collapsing. Later that night he died.
Two inmates saw the stabbing. Gary Collins was in the recreational yard at
the time of the stabbing. He observed Jordan, oddly dressed considering the
heat in a khaki shirt and pants, in the vicinity of Stone. Collins saw Jordan
walk behind Stone and stab him in the back. Collins described Jordan’s
action as “swinging a bat” in Stone’s lower back. After Collins watched
Jordan make other stabbing motions, Stone “[t]ook off running.” He also
witnessed Jordan start running after Stone, but Stone was far ahead.
Another inmate, Tyrone Davis, was also in the yard and observed the
stabbing. He saw Jordan standing by Stone, then watched as Jordan pushed
or punched Stone in the back side in an underhanded manner. According to
-3-
Davis, Stone then started running and Jordan gave chase. He then saw
Stone on the ground near a crowd of people, but lost sight of Jordan.
Overlooking the recreational yard is the lieutenant’s patio. There, Norvel
Meadors, an assistant warden at the prison was taking a cigarette break.
While he was smoking, he saw “two inmates sprinting across the yard out
on the sidewalk.” From his vantage point, Meadors could not identify the
inmates, but he noticed one was wearing only shorts and no shirt and the
other was in the standard prison attire of a khaki shirt and pants. Meadors
immediately recognized that the two inmates were involved in a chase, with
the shirtless inmate ahead of the fully clothed one. Over the radio, he
ordered a compound officer to direct the inmates to cease their action.
Meadors then observed the pursuing inmate stop, while the other one
continued running and eventually collapsed to the ground. Meadors saw the
inmate in the khaki shirt and pants throw “an object” on top of a housing
unit and then sit down at a picnic table. Meadors watched as a compound
officer approached this inmate at the picnic table, patted him down, and
then took him into custody.
The officer who responded to Meadors’s radio call was Benjamin Valle.
After Meadors’s call, he observed two inmates running, with one about
fifteen yards behind the other. Valle watched the trailing inmate stop and
then start walking back to a housing unit, throw something up on the roof
of the housing unit, and walk over to a bench table and sit down. Valle
searched the inmate and then escorted him off the yard. That inmate was
Mark Jordan.
Another corrections officer, Fares Finn, Jr., observed the same incidents in
nearly identical detail to Valle. A video surveillance camera also captured
some of the events that afternoon, among other things (1) four inmates,
including Jordan and Stone, sitting at a concrete bench approximately
eleven minutes before the stabbing, (2) Jordan approaching where Stone sat
immediately before the stabbing, and (3) the subsequent chase between
Stone and Jordan. Because of the camera angle, it did not capture the fatal
encounter.
After the stabbing, a prison official noticed a spot of blood on Jordan’s left
arm. Asked about the blood, Jordan claimed it originated from when “[t]hat
guy [Stone] ran into me, that’s how I got blood on me. I was trying to help
him.” Later, authorities recovered a bloody, homemade knife or shank
about eleven or twelve inches long from the roof of the housing unit. DNA
from the shank was determined to belong to Stone. Additional DNA
-4-
evidence was found on the handle of the knife, but its origin could not be
determined. No fingerprints were found on the knife because its handle had
been wrapped in cloth.
....
Five years after the stabbing, Jordan was charged with the murder of Stone
and three related offenses. Count One alleged second degree murder, in
violation of 18 U.S.C. § 111(a). Count Two charged assault with intent to
commit murder, in violation of 18 U.S.C. § 113(a)(1). Count Three accused
Jordan of assault with a dangerous weapon, in violation of 18 U.S.C.
§ 113(a)(1). Count Four asserted assault resulting in serious bodily injury,
in violation of 18 U.S.C. § 113(a)(6). On August 9, 2005, a jury found
Jordan guilty of all four counts.
....
At trial, Jordan did not dispute that (1) he handled the shank that caused the
fatal stab wounds to Stone, (2) he was the man Meadors and Valle saw
running across the yard, and (3) he threw the murder weapon on the roof.
Jordan contended that he did not kill Stone, who had been his cellmate for
two months at the United States Penitentiary in Atlanta. Instead, he claimed
Sean Riker, who was also at the scene of the stabbing, was the actual
assailant.
United States v. Jordan, 485 F.3d 1214, 1216-17, 1219-20 (10th Cir. 2007) (internal
record citations and footnote omitted).1
1
Our opinion additionally noted the following facts in two footnotes:
While receiving medical attention in the prison medical facility, Jordan was
observed making the “V” sign with his hands to another inmate and saying,
“Guy, I get him out of your way.”
The prosecution presented evidence that Jordan accumulated several debts
owing to other prisoners. The prosecution’s theory was that Jordan wanted
to get out from under the debts by being placed in a segregated cell or being
transferred to another prison. Jordan’s case manager testified that Jordan
told him that he wanted “to get off this mountain,” and stated that he would
have to “hurt someone” to get into another institution. The prosecution also
Continued . . .
-5-
B. Appeals and Post-Conviction Motions
We affirmed Mr. Jordan’s conviction and sentence on direct appeal. Id. at 1216.
He then filed a motion for additional DNA testing under the Innocence Protection Act of
2005 (“IPA”), 18 U.S.C. § 3600, and a related motion to require the Government to
preserve his trial evidence. The district court denied the first motion and dismissed the
second as moot. We affirmed its decision as to both. See United States v. Jordan, 594
F.3d 1265, 1266 (10th Cir. 2010). Mr. Jordan also moved for relief under 28 U.S.C.
§ 2255 based in part on ineffective assistance of counsel and the results he anticipated
from additional DNA testing. The district court denied that motion, United States v.
Jordan, No. 04-cr-00229-LTB, at 123-24 (D. Colo. Jan. 21, 2011) (unpublished), ECF
No. 639, and we denied a certificate of appealability for Mr. Jordan to appeal that denial,
United States v. Jordan, 461 F. App’x 771, 773 (10th Cir. 2012) (unpublished).2
After obtaining Mr. Riker’s confession and the new DNA analysis, Mr. Jordan
moved for a new trial under Rule 33 based on newly discovered evidence. He also
moved for authorization to file a second or successive § 2255 motion, which we granted.
See In re Mark Jordan, No. 13-1436, at 1 (10th Cir. Nov. 14, 2013) (unpublished).
introduced into the record a letter Jordan wrote to his mother discussing his
desire to be placed in segregation.
Id. at 1223 nn.5-6 (internal record citations omitted).
2
Mr. Jordan filed numerous other post-conviction motions. We have limited our
background section to those most relevant to this appeal.
-6-
Although he filed his § 2255 motion, he elected to dismiss it and rely solely on his Rule
33 motion for relief.
C. Rule 33 Hearing
The parties presented the following evidence at the Rule 33 hearing.
1. Mr. Jordan’s Newly Discovered Evidence
Mr. Jordan introduced the new DNA analysis and Mr. Riker’s statements.
a. New DNA Evidence
Mr. Jordan called Dr. Roger Vincent Miller, a DNA expert, to testify during the
Rule 33 hearing. Consistent with other DNA experts who had testified at the trial, Dr.
Miller testified that the DNA on the shank came from more than one person and the
“major source” contributor was Mr. Stone. ROA, Vol. 4 at 228. The experts at trial, who
had lacked a DNA sample from Mr. Riker, had been unable to identify the minor source
contributor. Using the new DNA samples from Mr. Riker, Dr. Miller conducted
additional analysis. He testified that, based on his analysis, Mr. Riker “could not be
excluded as a contributor to the shank handle.” Id. at 212. He further testified he “would
expect to be able to exclude all but one in 2.3 million” Hispanic, Caucasian, and African-
American individuals. Id. at 222.
b. Mr. Riker’s Letters, Declaration, and Testimony
In April and September 2012, Mr. Riker wrote two letters to Mr. Jordan’s counsel.
The first letter stated Mr. Jordan was innocent. The second reversed course, asserting
Mr. Jordan killed Mr. Stone. One month after sending the second letter, Mr. Riker sent a
third letter to Mr. Jordan’s trial prosecutor, confessing to the murder of Mr. Stone. The
-7-
letter said Mr. Riker stabbed Mr. Stone in the back and then passed the shank to Mr.
Jordan.
In November 2012, Mr. Riker sent another letter to Mr. Jordan’s counsel, again
confessing to the crime. In yet another letter to the same attorney, he reiterated Mr.
Jordan’s innocence, stating, “I am trying to set him free and trade places w[ith] him. I
want to go to the feds.” Aplee. Suppl. App. at 26.
Mr. Riker wrote these letters while serving a sentence of over 200 years in
Wisconsin state prison for abusing his ex-wife and sexually abusing her children, along
with various other crimes.
In April 2013, Mr. Riker signed a sworn and notarized declaration, prepared by
Mr. Jordan’s attorneys and hand-edited by himself, confessing to the crime and stating
the following: On the morning of the murder, Mr. Jordan asked Mr. Riker to make him a
knife, explaining that an inmate had threatened to attack him. Mr. Riker responded by
making him a shank. Later that day, while Mr. Stone, Mr. Riker, and Mr. Jordan were
gathered together in the recreation yard, an argument began. Mr. Riker and Mr. Jordan
walked away together, at which point Mr. Riker took the shank back from Mr. Jordan and
stabbed Mr. Stone. During the resulting commotion, Mr. Riker “forced Jordan to take the
knife and told him to run.” Aplt. Suppl. App., Vol. 1 at 5, ¶ 10.
Mr. Riker subsequently wrote another letter to Mr. Jordan’s counsel, revoking his
confession and stating he would assert his Fifth Amendment right to remain silent if
called to the stand.
-8-
On June 26, 2014, the defense called Mr. Riker to testify at the Rule 33 hearing.
Mr. Riker repeatedly testified that his previous confessions were lies and that Mr. Jordan
had stabbed Mr. Stone. He also testified he touched the weapon the day of the stabbing.
While he was in a cell with a friend, the friend “whip[ped] out the knife and [went] to
stab [him] in [his] stomach, playfully.” ROA, Vol. 4 at 125. Mr. Riker “grabbed ahold
of it and . . . said, ‘Quit [messing] around.’” Id. He also stated he had lied when he
confessed to the murder because he thought he would be better off a murderer in a federal
prison than a child molester in a state prison. During the course of Mr. Riker’s
testimony, the aforementioned letters and declaration were presented to the district court.
2. The Government’s New Evidence
The prosecution then called six witnesses. None had testified at trial. The first
four testified about Mr. Stone’s alleged dying declarations, which identified Mr. Jordan
as the killer. The fifth government witness, Larry Rasnick, testified he was a USP
Florence inmate on the day of the incident, was present in the recreation yard, and saw
Mr. Jordan stab Mr. Stone. The sixth witness, BOP official Walter Clark, testified that,
about one month before the stabbing, Mr. Jordan requested single-cell housing, and his
request was denied. Mr. Clark testified that Mr. Jordan asked if he needed to kill
someone to get a single cell.
3. Mr. Jordan’s Rebuttal
The defense then called Mr. Jordan as a rebuttal witness. He testified as follows:
Before the stabbing, Mr. Riker and Mr. Stone had argued. Mr. Jordan did not see Mr.
Riker stab Mr. Stone, but, upon hearing the commotion, he turned and saw Mr. Stone
-9-
start running. Mr. Riker handed Mr. Jordan the murder weapon and told him to go.
Panicked and disoriented, Mr. Jordan started running behind Mr. Stone with the shank in
hand. Mr. Jordan then ran in a different direction and threw the shank on top of a
housing unit.3
D. The District Court’s Rule 33 Ruling
In deciding Mr. Jordan’s motion for a new trial, the district court evaluated “all of
the evidence that a jury would be likely to hear and consider were the defendant granted a
new trial,” reasoning “it would be a waste of judicial resources to grant Defendant’s
motion without considering evidence that will have a significant impact on whether
Defendant is likely to be acquitted at a new trial.” ROA, Vol. 1 at 1915 (quotations
omitted).
Beginning with the new DNA analysis, the district court found that Dr. Miller’s
conclusions proved nothing more than the undisputed fact from the trial evidence that Mr.
Riker touched the shank. As to Mr. Riker, the court concluded he was “simply not
credible in any respect.” ROA, Vol. 1 at 3101, ¶ 13. The court stated Mr. Riker had
“serious credibility problems such that neither his statements admitting to stabbing Stone
[n]or his statements denying that he did so are credible.” Id. at 3090, ¶ 26.
Turning to the Government’s case, the district court found the witness testimony
credible. Lastly, it found that Mr. Jordan’s rebuttal testimony lacked credibility, as it
3
The defense also called a BOP official to impeach a government witness’s
testimony about Mr. Stone’s dying declarations.
- 10 -
contradicted his own statements in his § 2255 motion, the eyewitness accounts, and Mr.
Stone’s dying declarations. The court also found his credibility was “significantly
undermined by the tremendous benefit to him if his murder sentence was vacated at a
new trial.” Id. at 3097, ¶ 62.
Viewing this evidence as a whole, the district court concluded a jury would
probably not acquit Mr. Jordan. It therefore denied his motion for a new trial.
II. DISCUSSION
Mr. Jordan appeals on two grounds. First, he argues the district court erroneously
relied on new government evidence. He contends that Rule 33 permits a court to
consider only evidence admitted at trial and newly discovered evidence offered by the
defendant, not new government evidence. Second, he contends that, even if Rule 33
permits consideration of new government evidence, the court should have excluded the
Government’s new evidence of Mr. Stone’s dying declarations under Federal Rule of
Evidence 804(b)(2) and the Confrontation Clause.
We affirm the district court’s denial of Mr. Jordan’s motion for a new trial. Mr.
Jordan failed to carry his burden under Rule 33 based on adding his newly discovered
evidence to the trial evidence. Any error the district court may have made in considering
new government evidence was therefore harmless.4 In resolving Mr. Jordan’s appeal on
4
We express no opinion on whether it is proper for a district court to consider new
evidence from the prosecution when a defendant moves for a new trial under Rule 33(a)
because we need not do so to decide this appeal.
- 11 -
this ground, we decline to address his additional argument that the dying declarations
were inadmissible.
A. Standard of Review and Rule 33(a)
We review the denial of a motion for new trial based on newly discovered
evidence for an abuse of discretion, United States v. McCullough, 457 F.3d 1150, 1167
(10th Cir. 2006), which occurs when the district court’s decision is “arbitrary, capricious,
whimsical, or manifestly unreasonable.” Id. (quotations omitted).
“Abuse-of-discretion review ordinarily includes review of any legal conclusions
de novo and any factual findings for clear error.” United States v. Ray, 704 F.3d 1307,
1315 (10th Cir. 2013); see United States v. Hicks, 779 F.3d 1163, 1170 (10th Cir. 2015);
United States v. Kieffer, 681 F.3d 1143, 1164 (10th Cir. 2012). We will not disturb
factual findings “unless they have no basis in the record.” United States v. Martin, 163
F.3d 1212, 1217 (10th Cir. 1998).
“We defer to a district court’s credibility determinations when reviewing a district
court’s findings of fact under a clearly erroneous standard.” United States v. Minjares-
Alvarez, 264 F.3d 980, 988 (10th Cir. 2001). A credibility determination commands
“even greater deference to the trial court’s findings” than do other findings of fact.
Anderson v. City of Bessemer, 470 U.S. 564, 575 (1985). We therefore “especially defer”
to a district court’s findings on “witness[] credibility.” United States v. Ortiz, 25 F.3d
934, 935 (10th Cir. 1994); see United States v. Clark, 57 F.3d 973, 977 (10th Cir. 1995).
Federal Rule of Criminal Procedure 33(a) provides that “[u]pon the defendant’s
motion, the court may vacate any judgment and grant a new trial if the interest of justice
- 12 -
so requires.” A Rule 33(a) motion may be based on “newly discovered evidence.” Fed.
R. Crim. P. 33(b)(1). “A motion for a new trial based on newly discovered evidence is
not favorably regarded and should be granted only with great caution.” McCullough, 457
F.3d at 1167 (quotations omitted). To prevail, a defendant must prove:
(1) the evidence was discovered after trial, (2) the failure to learn of the
evidence was not caused by [his] own lack of diligence, (3) the new
evidence is not merely impeaching, (4) the new evidence is material to the
principal issues involved, and (5) the new evidence is of such a nature that
in a new trial it would probably produce an acquittal.
Id. (quotations omitted). The parties dispute only whether Mr. Jordan met his burden to
satisfy the final requirement.
A district court serves as a “gatekeeper to a new trial, deciding in the first instance
whether the defendant’s proffered new evidence is credible.” Id. (quotations omitted);
see also United States v. Quintanilla, 193 F.3d 1139, 1146 (10th Cir. 1999) (“[A] trial
court is afforded discretion in ruling on such a motion, and is free to weigh the evidence
and assess witness credibility . . . .”). We afford a district court broad discretion because
“its vantage point as to the determinative factor—whether newly discovered evidence
would have influenced the jury—has been informed by the trial over which it presided.”
United States v. Stewart, 433 F.3d 273, 296 (2d Cir. 2006). “[H]aving presided over the
trial, it is in a better position to decide what effect the newly discovered materials might
have had on the jury.” United States v. Gambino, 59 F.3d 353, 364 (2d Cir. 1995).
Under Federal Rule of Criminal Procedure 52(a), “[a]ny error, defect, irregularity,
or variance that does not affect substantial rights must be disregarded.” An error that
affects substantial rights is one with a “prejudicial effect on the outcome of a judicial
- 13 -
proceeding.” United States v. Dominguez Benitez, 542 U.S. 74, 81 (2004) (citing
Kotteakos v. United States, 328 U.S. 750 (1946)).
B. Analysis
We affirm the district court’s denial of Mr. Jordan’s motion for a new trial because
he failed to meet his burden to show a jury would probably acquit him, as he must under
Rule 33. We need not decide whether the Government should not have been allowed to
present new evidence in general or new dying declaration evidence in particular because
Mr. Jordan’s new evidence did not warrant a new trial in the first place.
1. New DNA Evidence
We begin with Dr. Miller’s DNA analysis.5 When Mr. Jordan first moved for new
DNA testing under the IPA, he contended further analysis might reveal the shank
contained Mr. Riker’s DNA, which would suggest Mr. Jordan did not stab Mr. Stone.
See Jordan, 594 F.3d at 1268. We affirmed the district court’s denial of Mr. Jordan’s
motion. We reasoned that “[s]uch evidence would only show that Mr. Riker handled
those items at some point, which is not at all inconsistent with the government’s theory of
5
At oral argument, Mr. Jordan’s counsel conceded Dr. Miller’s analysis could
have been conducted at the time of trial. He explained that the parties and the district
court nevertheless agreed the analysis was “newly discovered evidence” for purposes of
the Rule 33 hearing due to ineffective assistance of trial counsel. In a post-trial affidavit,
Mr. Jordan’s trial counsel asserted he provided ineffective assistance in arguing to the
jury that Mr. Riker was the killer without attempting to test whether his DNA matched
the unknown DNA on the murder weapon. We assume without deciding that Dr. Miller’s
DNA analysis was new evidence under these circumstances.
- 14 -
the case such that it calls into question the strength of the evidence against Mr. Jordan.”
Id.
The same is true now. Mr. Riker stated repeatedly—both when confessing and
withdrawing his confessions—that he touched the shank. The Government has never
disputed this fact—neither at trial nor now. As a result, the new DNA analysis proves
only old news; it in no way makes an acquittal more likely because it proves nothing
more than an undisputed fact.
2. Mr. Riker’s Letters, Declaration, and Testimony
As for Mr. Riker, his letters and testimony reveal multiple inconsistencies. Pre-
trial, he asserted Mr. Jordan was the killer. Post-trial, he confessed to Mr. Jordan’s
counsel, recanted his confession, and then confessed again to Mr. Jordan’s prosecutor.
He then continued confessing to Mr. Jordan’s counsel and signed a sworn declaration to
that end. Next, he revoked his confession and announced he would plead the Fifth if
called to testify at Mr. Jordan’s Rule 33 hearing. He again reversed course, agreeing to
testify at that hearing, during which he repeatedly stated that his previous confessions
were lies and that Mr. Jordan stabbed Mr. Stone. In one instance, he testified his
statement to Mr. Jordan’s prosecutor that “I lied to you for obvious reasons,” Aplt. Suppl.
App., Vol. 1 at 1, was a “complete lie,” adding, “I’m a liar,” ROA, Vol. 4 at 110-11. He
also explained that he falsely confessed in the first place because he thought he would be
better off serving time as a murderer in federal prison than a child molester in state
prison.
- 15 -
These inconsistencies and Mr. Riker’s incentive to confess falsely led the district
court to conclude Mr. Riker was “simply not credible in any respect.” ROA, Vol. 1 at
3101, ¶ 13. We accept a district court’s credibility determination unless it is clearly
erroneous, for “‘[o]nly the trial judge can be aware of the variations in demeanor and tone
of voice that bear so heavily on the listener’s understanding of and belief in what is
said.’” Cannon v. Trammell, 796 F.3d 1256, 1272 (10th Cir. 2015) (quoting Anderson,
470 U.S. at 575). “To be clearly erroneous, a finding must be more than possibly or even
probably wrong; the error must be pellucid to any objective observer.” United States v.
Quaintance, 608 F.3d 717, 721 (10th Cir. 2010) (quotations omitted).
In light of the foregoing, we not only cannot conclude the court’s credibility
determination was clear error, we agree that Mr. Riker had “serious credibility problems
such that neither his statements admitting to stabbing Stone [n]or his statements denying
that he did so are credible.” ROA Vol. 1 at 3090, ¶ 26. We conclude that the evidence
regarding his confessions does not make Mr. Jordan’s acquittal at a new trial probable.
3. Trial Evidence
Having examined Mr. Jordan’s newly discovered evidence, we return to the
evidence admitted at trial. Two inmates testified they saw Mr. Jordan stab Mr. Stone,
after which Mr. Stone started running, and Mr. Jordan ran after him. A surveillance
video and testimony from an assistant warden and two correction officers were consistent
with the inmates’ accounts. None of the newly discovered evidence undermines the
jury’s determination that the trial evidence proved Mr. Jordan’s guilt beyond a reasonable
doubt.
- 16 -
4. No Abuse of Discretion
In short, Mr. Jordan failed to show a jury would probably acquit him based on the
new DNA analysis and Mr. Riker’s statements, viewed alongside the trial evidence. The
district court found the new DNA evidence to be cumulative—the evidence confirmed
the undisputed fact established at trial that Mr. Riker had touched the shank. The court
also found Mr. Riker incredible.
We see no clear error or abuse of discretion in the district court’s making these
findings or concluding no new trial is warranted. Its reference to the Government’s
evidence of Mr. Stone’s dying declarations to reinforce this conclusion does not alter that
Mr. Jordan could not show with his new evidence that he was entitled to a new trial.
The district court did not detect any support for a new trial in the Government’s
evidence. Any error the district court may have committed under Rule 33 in considering
new government evidence was harmless because eliminating the Government’s new
evidence would not cure Mr. Jordan’s failure to meet his burden with his own.6
We therefore affirm and decline Mr. Jordan’s request to remand to the district
court for further consideration of the new evidence.
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s denial of Mr. Jordan’s
motion for a new trial.
6
We are not convinced a harmless error analysis is needed to affirm because Mr.
Jordan did not meet his burden based on his new evidence.
- 17 -