United States v. Loren Michael Grey Bear & Jesse Dean Cavanaugh, 116 F.3d 349 (8th Cir. 1997). · Go Syfert
United States v. Loren Michael Grey Bear & Jesse Dean Cavanaugh, 116 F.3d 349 (8th Cir. 1997). Cases Citing This Book View Copy Cite
“it is the job of the district court, either on affidavits or after an evidentiary hearing (as was the case here), 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.”
88 citation events (48 in the last 25 years) across 14 distinct courts.
Strongest positive: United States v. Lighty (ca4, 2010-08-11)
Treatment trajectory · 1997 → 2026 · click a year to view as-of
1997 2011 2026
Top citers, strongest first. 39 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) United States v. Lighty
4th Cir. · 2010 · signal: see also · quote attribution · 1 verbatim quote · confidence high
it is the job of the district court, either on affidavits or after an evidentiary hearing (as was the case here), 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.
examined Cited as authority (verbatim quote) United States v. Earles (10×) also: Cited as authority (rule), Cited "see", Cited "see, e.g."
N.D. Iowa · 1997 · signal: see · quote attribution · 1 verbatim quote · confidence high
it is the job of the district court, either on affidavits or after an evidentiary hearing ..., to decide whether the newly discovered evidence is credible.
discussed Cited as authority (rule) Perdomo-Paz v. Buckner
W.D. Mo. · 2022 · confidence medium
“In this regard, ‘the real question . . . is not whether the district judge believed the recantation, but how likely the district judge thought a jury at a second trial would be to believe it.’” Id. (quoting United States v. Grey Bear, 116 F.3d 349, 350 (8th Cir. 1997)).
cited Cited as authority (rule) Woodson v. State of Ohio
N.D. Ohio · 2022 · confidence medium
The one exception, United States v. Grey Bear, 116 F.3d 349, 351 (8th Cir. June 25, 1997), does not support Woodson’s arguments.
discussed Cited as authority (rule) United States v. Robert Lewis
8th Cir. · 2020 · confidence medium
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.” United States v. Grey Bear, 116 F.3d 349, 351 (8th Cir. 1997) (holding newly discovered evidence was not likely to result in acquittal at a new trial because district court explained why witness was not credible).
discussed Cited as authority (rule) United States v. Terrell Lillybridge
8th Cir. · 2019 · confidence medium
As Judge Richard Arnold wrote in United States v. Grey Bear, recantation “is undeniably material,” but when the district court concludes that a recantation is not believable, “[it] is almost impossible for an appellate court to hold that a district judge’s rejection, on credibility grounds, of the testimony of a live witness is clearly erroneous, and we have no disposition to do so here.” 116 F.3d 349, 351 (8th Cir. 1997).
cited Cited as authority (rule) Rouse v. United States
D.S.D. · 2019 · confidence medium
The trial court “must first determine whether the newly discovered evidence is credible,” United States v. Grey Bear, 116 F.3d 349, 350 (8th Cir. 1997).
cited Cited as authority (rule) Feather v. United States
D.S.D. · 2019 · confidence medium
The trial court “must first determine whether the newly discovered evidence is credible,” United States v. Grey Bear, 116 F.3d 349, 350 (8th Cir. 1997).
cited Cited as authority (rule) Hubbeling v. United States
D.S.D. · 2019 · confidence medium
The trial court “‘must first determine whether the newly discovered evidence is credible,” United States v. Grey Bear, 116 F.3d 349, 350 (8th Cir. 1997).
discussed Cited as authority (rule) United States v. Clark
D.D.C. · 2019 · confidence medium
The “stability and finality of verdicts would be greatly disturbed if courts were too ready to entertain testimony from witnesses who have changed their minds, or who claim to have lied at the trial.” § at 1248 (quoting United States v. Grcv `Bear, 116 F.3d 349, 350 (8th Cir. 1997)). ln fact, a motion for a new trial based on this kind of evidence often may be decided on the record alone, without an evidentiary hearing. §§ United States v. Kearnev, 682 F.2d at 219 (quoting United States v. _W§d, 544 F.2d 975 (8th Cir. 1976) (“[T]he necessity for a hearing is diminished in cases invol…
cited Cited as authority (rule) United States v. Michael Seibel
8th Cir. · 2013 · confidence medium
We must affirm unless there has been an abuse of discretion.” United States v. Grey Bear, 116 F.3d 349, 350 (8th Cir.1997).
cited Cited as authority (rule) Case v. Hatch
D.N.M. · 2011 · confidence medium
United States v. Grey Bear, 116 F.3d 349, 350 (8th Cir.1997).
discussed Cited as authority (rule) United States v. Carter (2×) also: Cited "see"
D.S.D. · 2009 · confidence medium
The Eighth Circuit “view[s] with suspicion motions for new trial based on the recantation of a material witness because ‘[t]he stability and finality of verdicts would be greatly disturbed if courts were too ready to entertain testimony from witnesses who have changed their minds, or who claim to have lied at the trial.’ ” United States v. Rouse, 410 F.3d 1005 , 1009 (8th Cir.2005) (quoting United States v. Grey Bear, 116 F.3d 349, 350 (8th Cir.1997)).
discussed Cited as authority (rule) United States v. Kelly
3rd Cir. · 2008 · confidence medium
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 credibility of the new witness and to determine the materiality of her testimony.”).
discussed Cited as authority (rule) United States v. Kelly
3rd Cir. · 2008 · confidence medium
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.�…
discussed Cited as authority (rule) United States v. Desmond Rouse, United States of America v. Garfield Feather, United States of America v. Russell Hubbeling, United States of America v. Jesse Rouse (2×) also: Cited "see"
8th Cir. · 2005 · confidence medium
Defendants' attempt at the hearing to explain away the injuries of T.R., J.R., and L.R. as the result of previously unreported sexual abuse by a twelve-year-old male cousin was equally unpersuasive. 6 We view with suspicion motions for new trial based on the recantation of a material witness because "[t]he stability and finality of verdicts would be greatly disturbed if courts were too ready to entertain testimony from witnesses who have changed their minds, or who claim to have lied at the trial." United States v. Grey Bear, 116 F.3d 349, 350 (8th Cir.1997).
discussed Cited as authority (rule) United States v. Desmond Rouse (2×) also: Cited "see"
8th Cir. · 2005 · confidence medium
We view with suspicion motions for new trial based on the recantation of a material witness because “[t]he stability and finality of verdicts would be greatly disturbed if courts were too ready to entertain testimony from witnesses who have changed their minds, or who claim to have lied at the trial.” United States v. Grey Bear, 116 F.3d 349, 350 (8th Cir.1997).
discussed Cited as authority (rule) United States v. Rouse (2×) also: Cited "see"
D.S.D. · 2004 · confidence medium
Grey Bear, 116 F.3d at 350 (emphasis added).
discussed Cited as authority (rule) United States v. James Leroy Gary
8th Cir. · 2003 · confidence medium
It is the responsibility “of the district court . . . 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).
discussed Cited as authority (rule) United States v. James Leroy Gary
8th Cir. · 2003 · confidence medium
It is the responsibility “of the district court ... 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).
discussed Cited as authority (rule) United States v. Hayes
S.D. Iowa · 2002 · confidence medium
“Motions for new trial ... are difficult to win” and are to be “‘viewed with disfavor.’ ” United States v. Grey Bear, 116 F.3d 349, 350 (8th Cir.1997) (quoting United States v. Coleman, 460 F.2d 1038, 1040 (8th Cir.1972) (per curiam)).
discussed Cited as authority (rule) United States v. Loudner
D.S.D. · 2002 · confidence medium
United States v. Grey Bear, 116 F.3d 349, 350-51 (8th Cir.1997); see also, United States v. Provost, 969 F.2d 617, 620 (8th Cir.1992) (probability that a recantation would lead to acquittal “rests in large part on the credibility of the recantation”), cert. denied, 506 U.S. 1056 , 113 S.Ct. 986 , 122 L.Ed.2d 139 (1993). ' [¶ 46] Simply put, neither R.A. nor her testimony was credible. 10 It is therefore very unlikely that her recantations would have been believed and would have resulted in Loudner being acquitted on all counts.
discussed Cited as authority (rule) United States v. Steve Block (2×) also: Cited "see"
8th Cir. · 2000 · confidence medium
When faced with a motion for a new trial involving a recantation of testimony, the district court must "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) (citation omitted).
discussed Cited as authority (rule) Robert L. v. Danzig (In Re Howard J.)
8th Cir. BAP · 1999 · confidence medium
Corp. v. Daiflon, Inc., 449 U.S. 33, 36 , 101 S.Ct. 188, 190 , 66 L.Ed.2d 193 (1980) (“The authority to grant a new trial ... is confided almost entirely to the exercise of discretion on the part of the trial court.”); United States v. Aldrich, 169 F.3d 526, 528 (8th Cir.1999) (applying abuse of discretion standard of review to trial court’s denial of motion for new trial); United States v. Grey Bear, 116 F.3d 349, 350 (8th Cir.1997) (same); Perkins v. U.S. West Communications, 138 F.3d 336, 340 (8th Cir.1998) (applying abuse of discretion standard of review to trial court’s denial of …
cited Cited "see" United States v. Joseph Dodd
8th Cir. · 2008 · signal: see · confidence high
See United States v. Grey Bear, 116 F.3d 349, 350 (8th Cir.1997) (it is district court’s job to decide whether newly discovered evidence is credible).
cited Cited "see" United States v. Eloy Vazquez-Garcia, United States of America v. Juan Carlos Sosa-Alvarado
8th Cir. · 2003 · signal: see · confidence high
See United States v. Grey Bear, 116 F.3d 349, 350-51 (8th Cir.1997).
cited Cited "see" United States v. Eloy Vazquez-Garcia
8th Cir. · 2003 · signal: see · confidence high
See United States v. Grey Bear, 116 F.3d 349, 350-51 (8th Cir. 1997).
cited Cited "see" United States v. Narin Vong
8th Cir. · 2002 · signal: see · confidence high
See United States v. Grey Bear, 116 F.3d 349, 350-51 (8th Cir.1997).
cited Cited "see" United States v. Devin T. Green
8th Cir. · 2002 · signal: see · confidence high
See United States v. Grey Bear, 116 F.3d 349, 350-51 (8th Cir.1997).
discussed Cited "see" United States v. Catherine Papajohn (2×)
8th Cir. · 2000 · signal: see · confidence high
See United States v. Grey Bear, 116 F.3d 349, 350 (8th Cir.1997).
discussed Cited "see" United States v. Catherine Papajohn (2×)
8th Cir. · 2000 · signal: see · confidence high
See United States v. Grey Bear, 116 F.3d 349, 350 (8th Cir. 1997).
cited Cited "see" United States v. Kim Eugene Aldrich, United States of America v. Kim Eugene Aldrich
8th Cir. · 1999 · signal: see · confidence high
See United States v. Grey Bear, 116 F.3d 349, 350 (8th Cir.1997).
cited Cited "see" United States v. Kim Aldrich
8th Cir. · 1999 · signal: see · confidence high
See United States v. Grey Bear, 116 F.3d 349, 350 (8th Cir. 1997).
cited Cited "see" United States v. Clyde M. Shinall
8th Cir. · 1998 · signal: see · confidence high
See United States v. Grey Bear, 116 F.3d 349, 350-51 (8th Cir. 1997).
discussed Cited "see" Webster v. State
Ind. · 1998 · signal: accord · confidence high
Schuster v. State, 406 N.E.2d 288, 290 (Ind.Ct.App.1980); accord United States v. Grey Bear, 116 F.3d 349, 350 (8th Cir.1997) (in a motion for new trial based on newly discovered evidence it is for the trial court to decide whether the new evidence is credible).
discussed Cited "see, e.g." United States v. Lighty
4th Cir. · 2010 · signal: see also · confidence medium
With regard to the fifth prong, the “district court is required to make a credibility determination as part of its probability-of-acquittal inquiry.” United States v. Kelly, 539 F.3d 172, 189 (3d Cir.2008); see also United States v. Grey Bear, 116 F.3d 349, 350 (8th Cir.1997) (“It is the job of the district court, either on affidavits or after an evidentiary hearing (as was the case here), 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. Gantt, 298 F.2d 21, 23 (4th C…
cited Cited "see, e.g." Dwayne Anthony Etheridge v. United States
8th Cir. · 2001 · signal: see also · confidence medium
See Fields v. United States, 201 F.3d 1025 , 1026 n. 2 (8th Cir.2000); Mulvaney v. Rush, 487 F.2d 684, 687 (3d Cir.1973); see also United States v. Grey Bear, 116 F.3d 349, 350 (8th Cir.1997).
cited Cited "see, e.g." Dwayne A. Etheridge v. United States
8th Cir. · 2001 · signal: see also · confidence medium
See Fields v. United States, 201 F.3d 1025 , 1026 n.2 (8th Cir. 2000); Mulvaney v. Rush, 487 F.2d 684, 687 (3d Cir. 1973); see also United States. v. Grey Bear, 116 F.3d 349, 350 (8th Cir. 1997).
discussed Cited "see, e.g." People v. Schneider (2×)
Colo. Ct. App. · 2000 · signal: see also · confidence low
See United States v. Earles, supra, 983 F.Supp. at 1250 ; see also United States v. Grey Bear, 116 F.3d 349 (8th Cir. 1997).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Loren Michael GREY BEAR and Jesse Dean Cavanaugh, Appellants
96-4230.
Court of Appeals for the Eighth Circuit.
Jun 25, 1997.
116 F.3d 349
Thomas Lee Zimney, Grand Forks, ND, argued (David C. Thompson, on the brief, for Loren Michael Grey Bear), for appellants., Lynn Crooks, Fargo, ND, argued (Norman G. Anderson, John Schneider, United States Attorney, on the brief), for appellee.
Arnold, Bowman.
Cited by 41 opinions  |  Published
RICHARD S. ARNOLD, Chief Judge.

This is an appeal by two defendants in a criminal case from an order of the District Court denying their motion for a new trial. [1]

This case arises out of events surrounding the murder of Jerome Edward Peltier in 1983. The two appellants in the present case, Loren Michael Grey Bear and Jesse Dean Cavanaugh, were tried along with nine other defendants. The history of the case is recounted in United States v. LaFuente, 991 F.2d 1406 (8th Cir.1993), and in our subsequent opinion, filed after remand to the District Court for findings of fact, in the same ease, 54 F.3d 457 (8th Cir.1995). For present purposes, we limit our statement of facts to those most pertinent to the issues now presented by the appellants Grey Bear and Cavanaugh.

Grey Bear and Cavanaugh were convicted of witness tampering in violation of 18 U.S.C. § 1512. The gist of the charge was that they had threatened one Fred Peltier, the brother of the victim, with death if he should go to the authorities and implicate them in the crime. Grey Bear has also been convicted of perjury, in violation of 18 U.S.C. § 1623. In support of their request for a new trial, defendants urge principally the fact that Fred Peltier has recanted his trial testimony, and now states that Grey Bear and Cava-naugh did not threaten or intimidate him.

Motions for new trial, especially when a recantation is involved, are difficult to win. “Motions for new trial based upon the alleged recantation of a material witness should be viewed with disfavor....” United States v. Coleman, 460 F.2d 1038, 1040 (8th Cir.1972) (per curiam). It is easy to understand why this should be so. The trial is the main event in the criminal process. The witnesses are there, they are sworn, they are subject to cross-examination, and the jury determines whether to believe them. The stability and finality of verdicts would be greatly disturbed if courts were too ready to entertain testimony from witnesses who have changed their minds, or who claim to have lied at the trial.

The requirements that a motion for new trial based on newly discovered evidence must meet are stringent in other ways, as well. Most important for present purposes is the requirement that the newly discovered evidence “must be of such a nature that, on a new trial, [it] ... would probably produce an acquittal.” LaFuente, supra, 991 F.2d at 1408. It is the job of the district court, either on affidavits or after an evidentiary hearing (as was the case here), to decide whether the newly discovered evidence is credible, see Coleman, supra, 460 F.2d at 1040, and, if so, whether it would probably produce an acquittal if a new trial were held. Finally, in reviewing decisions by district courts on motions for new trial, our scope of review is narrow. We must affirm unless there has been an abuse of discretion. Sometimes, as in Coleman, supra, this formulation is strengthened: “A denial by the trial court will not be reversed absent a clear abuse of discretion.” 460 F.2d at 1040 (emphasis added).

In the instant case, after an evidentiary hearing at which it had the opportunity to observe the demeanor of the witnesses, including Fred Peltier, the District Court specifically found that “the supposed recantation of Fred Peltier was not credible.” United States v. Grey Bear, No. C2-85-069, slip op. 1 (D.N.D. Nov. 18, 1996). The real question, we suppose, is not whether the district judge believed the recantation, but how likely the district judge thought a jury at a second trial would be to believe it. The finding that the[*351] witness is not credible, however, at least in the context of this case, appears to us to cover both these bases. Indeed, 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. Furthermore, in the present case, the District Court did not simply announce its disbelief of Mr. Peltier in a conclusory fashion. It referred back to its earlier opinion in the LaFuente case, in which it had given specific reasons for disbelieving Mr. Peltier, reasons which appear to us to make sense.

It is true, as appellants stress, that Fred Peltier’s testimony at trial was the only direct evidence of their guilt of witness tampering. His recantation, accordingly, is undeniably material and important. Still, if the recantation is not believable, it can hardly be said that it would probably produce a verdict of acquittal at a new trial. It is almost impossible for an appellate court to hold that a district judge’s rejection, on credibility grounds, of the testimony of a five witness is clearly erroneous, and we have no disposition to do so here. Indeed, our second opinion in LaFuente, 54 F.3d at 460, which specifically states that the District Court’s finding that no credible evidence existed to support the motion for a new trial was not clearly erroneous, is virtually controlling here. Grey Bear and Cavanaugh do not suggest that they have any more evidence to produce, in support of their motion for a new trial, than LaFuente produced.

Appellants also point to certain alleged misconduct on the part of the prosecution, but each of these items was fully discussed in LaFuente, and we need not address the issue further here. On the whole, we are unable to say that the District Court’s denial of Grey Bear’s and Cavanaugh’s motion for a new trial was an abuse of discretion, or that any of the District Court’s findings in connection with the motion was clearly erroneous. Accordingly, the order of the District Court is

Affirmed.

1

. The Hon. Patrick A. Conmy, United States District Judge for the District of North Dakota.