dissenting.
In determining whether to grant a new trial under Rule 33 of the Federal Rules of Criminal Procedure, the district court must determine: (1) whether the evidence came to light after trial; (2) whether the evidence could not have been discovered sooner with due diligence; (3) whether the evidence is material and not merely impeaching or cumulative; and (4) whether the evidence would probably lead to an acquittal. United States v. Austin, 103 F.3d 606, 608-09 (7th Cir.1997). My colleagues and I agree that the first two criteria are not problematic in this case. The evidence at issue came to light after trial and could not have been discovered with due diligence. We disagree, however, on the third and fourth criteria. In my view, the district court misapprehended the record and, because of that misapprehension, failed to appreciate the nature of the newly discovered testimony and its potential for producing a different result at trial.
The district court’s disposition of the motion for new trial reveals a crucial misapprehension of the testimony. The district court first summarized, in pertinent part, the evidence from the trial:
Deputy John Leahy followed the defendant into the lounge, and observed the defendant take something out of his waistband and throw it into a trash barrel near the rear of the bar. After the defendant was detained, a search of the barrel revealed a handgun and a small amount of trash.
United States v. Woolfolk, No. 98-CR-30115, slip op. at 1 (S.D.Ill. Feb. 17, 1999). Several pages later, the district court again referred to the marshal’s actions: “Leahy apprehended the defendant at the énd of the bar after seeing him toss an object — later determined to be the gun— into a trash can.” Id. at 4. The evidence produced at trial, however, did not establish that the marshal saw a gun being thrown but rather that he saw a throwing motion, heard a noise, and then discovered a gun. Although the inference can be made that a gun was thrown, the evidence is not that the marshal saw the gun being thrown.
Notably, the parties are in agreement about the state of the record. Mr. Wool-folk highlights, in his brief, the fact that the marshal did not see Mr. Woolfolk with *907the gun.1 Also, the Government agrees that the marshal saw a throwing motion and not an object being thrown.2
This misapprehension of the marshal’s testimony becomes important when analyzing the testimony of Fannie King that was given in the evidentiary hearing for the motion for new trial. At the hearing, King testified that she found a gun outside the bar, picked it up in a paper towel, brought it into the bar to find the owner, heard the police, became scared, and dropped the gun into the trash barrel. In evaluating whether King’s evidence was material or merely impeaching or cumulative, the district court stated that, at best, her testimony “would be impeaching of the testimony of Deputy Leahy that he saw the defendant remove an object from his waist and throw it into a trash barrel, resulting in a loud ‘thunk.’” Woolfolk, No. 98-CR-30115, slip op. at 6. The district court’s misapprehension of the facts no doubt contributed significantly to its erroneous determination that King’s testimony was simply impeaching of the marshal’s testimony. King’s testimony does a great deal more than contradict or impeach Deputy Leahy; it presents, by direct testimony, an explanation for what occurred that is different from the inference adduced on the sole basis of the marshal’s testimony. Indeed, the testimony of the two witnesses is compatible. My colleagues, in accepting uncritically the district court’s evaluation of King’s testimony, similarly fail to assess adequately the significance of her testimony. The panel does not explain why the testimony would be merely impeaching.
With respect to the fourth prong of the test governing the disposition of a motion for new trial, the district court found the testimony of King to be incredible and thus held that Mr. Woolfolk had little probability of acquittal after a new trial. Although the court recites several reasons for its conclusions,3 at bottom, its assessment of her testimony is grounded in the unwarranted assumption that her testimony contradicts, rather than complements, that of the marshal.
In determining whether to grant a motion for a new trial under Rule 33, a district court certainly must judge the credibility of the witnesses.4 See United States *908v. Griffin, 84 F.3d 912, 930 (7th Cir.), cert. denied, 519 U.S. 999, 117 S.Ct. 495, 136 L.Ed.2d 387, and cert. denied by, 519 U.S. 1020, 117 S.Ct. 536, 136 L.Ed.2d 421 (1996). Indeed, the court’s credibility determination is entitled to substantial deference and it will not be overturned unless clearly erroneous. See id. However, when that estimation is based on an erroneous assumption of the state of the record, it is incumbent on this court to require that the district court revisit the matter and make a new assessment free of the misapprehension that necessarily clouded its denial of a new trial.
. Mr. Woolfolk’s brief states in pertinent part:
There is a partition in the lounge that Wool-folk had to go around to get to the back area, and Leahy said that right before Woolfolk turned to go around the partition Woolfolk looked back at him. As Woolfolk did this, he made a motion to go for the waistband of his pants. Leahy testified that he saw Woolfolk take something out of his waistband and make a throwing motion, after which he heard something land.
... Both Deputy Marshals testified that they never saw a gun in Woolfolk's hand, that they never saw a gun in his waistband, and that they never saw Woolfolk throw the gun.
Woolfolk's fingerprints were not found on the gun or the bullets taken from the gun.
Appellant’s Opening Brief at 6-7 (Transcript citations omitted).
. The Government’s brief states in pertinent part:
As defendant was beginning to run past a partition at the back of the lounge, he turned and looked back at Deputy Leahy. Defendant reached into his waistband and made a throwing motion with his right hand. Deputy Leahy [sic] something hit with a loud distinctive sound, a loud thump.
Government's Brief at 6 (Transcript citations omitted).
. The court noted that from "the reasons given for her presence in the area, through her description of the Deputy United States Marshals' uniforms, her confession of involvement was of 'diminished reliability.’ " Wool-folk, No. 98-CR-30115, slip op. at 6. The district court considered her testimony to be of low reliability because she had talked to Mr. Woolfolk’s grandmother a few times and she had nothing to lose for accepting full responsibility for the gun. See id. Without explanation, the court characterized as "nonsensical” the testimony of King that she kicked the gun, picked it up with a paper towel, hid it under her shirt, and then walked past the defendant into the bar. See id.
. Cf. Daniels v. Pipefitters' Ass'n Local Union No. 597, 983 F.2d 800, 803 (7th Cir. 1993). In the context of a Rule 60(b)(2) motion for new trial, under the Federal Rules of Civil Proce*908dure, the district court may consider the credibility of the evidence. As this court states in Daniels, "it is only logical that a district court weigh the credibility of evidence before granting or denying a Rule 60(b)(2) motion.” Id. The court explains that new trial motions are decided by judges, not juries and credibility determinations are necessary for the court’s decision. If the court could not make a credibility determination, then it would have to order a new trial no matter how incredible the evidence. See id.