                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 06 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50381

               Plaintiff - Appellant,            D.C. No. 5:09-cr-00121-CBM-1

  v.
                                                 MEMORANDUM*
VIRGIL LARONE HILEY,

               Defendant - Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
               Consuelo B. Marshall, Senior District Judge, Presiding

                         Argued and Submitted July 9, 2013
                               Pasadena, California

Before: GRABER, RAWLINSON, and WATFORD, Circuit Judges.

       The United States appeals the district court’s grant of Virgil Larone Hiley’s

motions for a judgment of acquittal and for a conditional new trial. We reverse the

judgment of acquittal, vacate the grant of a new trial, and remand for further

proceedings.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1.     The district court erred in concluding that the evidence was

insufficient to support Hiley’s convictions under 18 U.S.C. §§ 922(g)(1) and

924(c)(1), and 21 U.S.C. §§ 841(a)(1) and (b)(1). Given that Hiley had a key to

the motel room and that his belongings were the only personal effects found inside,

there was sufficient evidence to support the jury’s conclusion that he knew of, and

therefore constructively possessed, the narcotics, ammunition, and firearm found in

room 224. See, e.g., United States v. Tucker, 641 F.3d 1110, 1119 (9th Cir. 2011)

(holding that the defendant had dominion and control over a shotgun found in an

apartment that contained his personal effects, where he was the sole adult occupant

on the day of the search).

      Moreover, the bags of cocaine, methamphetamine, and marijuana, coupled

with the digital scale and money seized by the police, were sufficient evidence of

an intent to distribute narcotics under 21 U.S.C. § 841(a)(1). See United States v.

Johnson, 357 F.3d 980, 984 (9th Cir. 2004) (holding that small, self-sealing bags

of methamphetamine, a scale commonly used to weigh drugs, and a pay-and-owe

sheet constituted sufficient evidence of intent to distribute drugs).

      Finally, the firearm’s proximity to a substantial quantity of narcotics and

drug trafficking paraphernalia supported the jury’s conclusion that Hiley

possessed the firearm in furtherance of a drug trafficking crime in violation of 18


                                     Page 2 of 4
U.S.C. § 924(c)(1). See United States v. Norwood, 603 F.3d 1063, 1072 (9th Cir.

2010), as amended (holding evidence sufficient to support defendant’s conviction

where a firearm was found under a mattress within a few feet of 2 packages of

cocaine). Accordingly, we reverse the district court’s judgment of acquittal.



       2.     The district court also erred in alternatively granting Hiley’s motion

for a new trial. Under Rule 29, a district court that grants a motion for a judgment

of acquittal must also decide whether a new trial is warranted if the judgment is

reversed. See Fed. R. Crim. P. 29(d)(1). “The court must specify the reasons for

that determination.” Id. Here, the court concluded that a new trial was warranted

in the “interest of justice,” but rejected one of the grounds Hiley had asserted in

support of his motion—that the evidence of his parole status prejudiced the jury.

Other than its broad reference to the “interest of justice,” the district court failed to

specify its reasoning for granting a new trial. See United States v. Navarro Viayra,

365 F.3d 790, 795 (9th Cir. 2004) (“[T]he rules permit a judge to order a new trial

only in response to a defendant’s motion.”) (emphasis added); see also Traxler v.

Multnomah County, 596 F.3d 1007, 1016 (9th Cir. 2010) (“[M]eaningful appellate

review . . . is foreclosed when the district court fails to articulate its reasoning.”)

(citation omitted).


                                       Page 3 of 4
       To the extent that the district court granted a new trial because it believed

that the verdict was against the weight of evidence, it failed to set forth any

reasoning to support that conclusion. While the district court could have weighed

the evidence without deference to the jury’s verdict under Federal Rule of Criminal

Procedure 33, see United States v. Kellington, 217 F.3d 1084, 1097 (9th Cir. 2000),

we cannot import the court’s analysis under Rule 29 to uphold its grant of a new

trial. In the absence of other reasoning, we are left without a basis for the district

court’s ruling. Accordingly, we vacate the district court’s order granting a new trial

and remand for reconsideration in light of our reversal of the court’s judgment of

acquittal.



       REVERSED in part ; VACATED and REMANDED in part.




                                      Page 4 of 4
                                                      FILED
                                                       JAN 06 2014
                                                                              Page 1 of 1
                                                  MOLLY C. DWYER, CLERK
United States v. Hiley, No. 12-50381                U.S. COURT OF APPEALS



WATFORD, Circuit Judge, concurring:

      I don’t think the district court needs to reconsider its decision to grant a new

trial; it just needs to explain in more detail its reasons for reaching that decision.

The court presumably decided to grant a new trial “[i]n the interest of justice”

under Rule 33 because it believed the evidence preponderated heavily against the

verdict. See United States v. Kellington, 217 F.3d 1084, 1097 (9th Cir. 2000). The

court’s order did not make that explicit, however, so vacating and remanding the

portion of the order granting a new trial makes sense. While the court’s analysis of

the sufficiency of the evidence does not warrant granting a judgment of acquittal,

that analysis fully supports the court’s decision to grant a new trial. When a

district court concludes that the evidence preponderates heavily against the verdict,

after independently weighing the evidence and evaluating for itself the credibility

of the witnesses (as it’s entitled to do under Rule 33), we owe that determination

the highest level of deference. See id.
