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United States v. Kelly ( 2008 )


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  •                                                                                                                            Opinions of the United
    2008 Decisions                                                                                                             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    Precedential or Non-Precedential: Precedential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
    Recommended Citation
    "USA v. Kelly" (2008). 2008 Decisions. Paper 589.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2008/589
    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
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    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.
    (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
    2
    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 one-
    count 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.
    3
    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” 1 of Café Breezes, a row house bar located at
    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.
    1
    Open inspections of “nuisance bars” (App. 80) are conducted
    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
    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.2 A man, later determined to be Kelly, was seated on
    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
    2
    Corporal Drummond testified that there was a total of 8 to 10
    people in the bar when the officers and inspectors entered.
    5
    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.
    6
    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
    7
    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.4 Leave to
    supplement was granted, and Kelly filed his counseled
    3
    Before the trial began, Kelly alleged that, at some point after
    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.
    4
    Though Kelly requested (by pro se letter) and received a
    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
    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
    5
    The District Court appointed counsel to represent Jones at
    (continued...)
    9
    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
    5
    (...continued)
    the hearing and to advise him of his Fifth Amendment right
    against self-incrimination.
    10
    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.6 Cephas asked Gant to speak
    with Kelly’s attorney, but Gant initially refused. Sometime in
    6
    Gant testified on direct examination that she waited so long
    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
    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
    12
    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.7 (App.
    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
    7
    Cephas indicated that, although Kelly and Jones would speak
    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
    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.
    14
    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 Cephas8 (App.
    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
    8
    When asked on cross-examination, “How long have you
    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
    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
    16
    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-
    17
    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
    18
    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.
    19
    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.)
    20
    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
    21
    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.9 The Government filed a timely notice of appeal.
    9
    Kelly had also based his new trial motion on arguments that
    (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
    We have jurisdiction to review this matter pursuant to
    18 U.S.C. § 3731.
    23
    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
    24
    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.
    25
    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
    26
    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
    27
    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
    28
    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
    29
    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
    30
    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
    10
    Cf. United States v. Schaffer, 
    214 F.3d 1359
    , 1362 (D.C.
    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
    Unable to cite any precedent from this Circuit, or from
    any of our sister circuits, in support of his position,11 Kelly relies
    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
    10
    (...continued)
    from the court. Such a standard would seriously impair the
    important goal of finality that the diligence requirement
    serves.”)
    11
    The Government cites several cases from our sister circuits
    in support of its position on appeal. As none are necessary to
    our disposition, we do not discuss them here.
    32
    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.” 12 
    Id. at 597.
    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.
    12
    We assume, as is implied throughout the district court’s
    opinion, that the defendant had pretrial access to Harvey’s grand
    jury testimony.
    33
    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
    34
    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
    perspective) cannot be considered— by 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.
    35
    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
    36
    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.
    37
    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.
    38
    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,” 13 this does not
    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
    13
    See also Appellee’s Br. at 22 (“Clearly, if a district court
    finds newly discovered testimonial evidence not credible, then
    it would not be an abuse of discretion to deny a new trial.”).
    39
    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
    40
    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
    41
    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
    42
    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-of-
    acquittal 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
    43
    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
    14
    The Eighth Circuit recognized, as do we, that this standard
    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
    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.15 Thus, it appears that the District
    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, 16 the Court
    15
    Although the District Court in this case purported to apply
    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.
    16
    For example, Jones testified that just before the uniformed
    police officers entered Café Breezes, all of the bar seats were
    (continued...)
    45
    was required to take them into consideration. We cannot tell
    whether it did so; and, at the very least, the credibility
    16
    (...continued)
    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
    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.
    ____________
    47