United States v. Dante Glinn, 965 F.3d 940

On August 25, 2015 a Kimber .45 pistol was stolen from Sports Outfitters, a federally licensed firearms dealer in Cedar Rapids, Iowa.
At trial the government presented surveillance video, four witnesses who knew Glinn identifying the thief, August 27 photographs of Glinn in similar clothing with a bandaged arm, officer testimony of an inculpatory remark, and evidence that Glinn used a false identity for treatment of an arm injury hours after the theft.
Glinn argued at trial there was no fingerprint/DNA, a nearby businessowner failed to ID him, he was at a courthouse ~30 minutes after the theft, and the thief’s tattoos were not visible on video; the jury convicted him.
At sentencing the court relied on evidence (shell casings and a witness) from an August 27, 2015 shooting to grant an upward departure.
In a pro se Rule 33 motion (filed Dec. 2017) Glinn alleged a person named R.L. Tate—who allegedly resembled Glinn and had no arm tattoos—was later found in possession of the stolen Kimber, and requested a hearing and ballistics testing; he submitted only court records with a headshot and no corroborating proof.
The district court denied the motion without a hearing as presenting unproven hypotheses unlikely to produce an acquittal; the Eighth Circuit affirmed.

Issue	Glinn's Argument	Government's Argument	Held
Whether the district court abused its discretion by denying a Rule 33 new-trial motion without an evidentiary hearing based on Glinn’s allegation that R.L. Tate possessed the stolen gun	Glinn: his new evidence (Tate’s possession and resemblance) would likely produce acquittal and warrants a hearing	Gov: Glinn offered no factual support for his claims; allegations are unsupported hypotheses and would not change the verdict	Court: No abuse of discretion; defendant failed to proffer new, admissible evidence likely to produce acquittal, so denial without hearing was appropriate
Whether Glinn’s pro se, incarcerated status required the court to hold a hearing despite the sparse proffer	Glinn: incarceration made gathering evidence difficult; court should allow hearing to develop proof	Gov: procedural posture doesn’t relieve requirement to proffer evidence showing hearing likely to produce material proof	Court: While courts may be flexible with pro se incarcerated movants, no exceptional circumstances existed to require a hearing where the motion lacked a basis to produce evidence supporting a new trial

United States v. Dogskin, 265 F.3d 682 (8th Cir. 2001) (establishes standards for newly discovered-evidence motions under Rule 33)
United States v. LaFuente, 991 F.2d 1406 (8th Cir. 1993) (district court has broad discretion to decide whether to hold evidentiary hearings)
United States v. Massa, 804 F.2d 1020 (8th Cir. 1986) (court may resolve factual disputes on affidavits without a hearing)
United States v. Baker, 479 F.3d 574 (8th Cir. 2007) (need for a hearing is lessened when the trial judge decides the motion)
United States v. Menard, 939 F.2d 599 (8th Cir. 1991) (new trial requires new, admissible evidence likely to produce acquittal)
United States v. Burns, 495 F.3d 873 (8th Cir. 2007) (no hearing required when movant fails to show a hearing is likely to produce evidence entitling movant to a new trial)