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, 

, 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. 

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, 

, 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.

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.” 

He further testified he “would

expect to be able to exclude all but one in 2.3 million” Hispanic, Caucasian, and African-

American individuals. 

       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.’” 

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.” 

¶ 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.” 

¶ 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, 

, 1167

(10th Cir. 2006), which occurs when the district court’s decision is “arbitrary, capricious,

whimsical, or manifestly unreasonable.” 

       “Abuse-of-discretion review ordinarily includes review of any legal conclusions

de novo and any factual findings for clear error.” United States v. Ray, 

,

1315 (10th Cir. 2013); see United States v. Hicks, 

, 1170 (10th Cir. 2015);

United States v. Kieffer, 

, 1164 (10th Cir. 2012). We will not disturb

factual findings “unless they have no basis in the record.” United States v. Martin, 

, 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, 

, 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, 

, 575 (1985). We therefore “especially defer”

to a district court’s findings on “witness[] credibility.” United States v. Ortiz, 

, 935 (10th Cir. 1994); see United States v. Clark, 

, 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.” 

(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.

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.” 

see also United States v. Quintanilla, 

, 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, 

, 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, 

, 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, 

, 81 (2004) (citing

Kotteakos v. United States, 

(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 

. 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.”

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, 

, 1272 (10th Cir. 2015) (quoting 

). “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, 

, 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 -