                                                                              FILED
                             NOT FOR PUBLICATION                               APR 19 2012

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                          No. 10-50595

               Plaintiff - Appellant,              D.C. No. 3:09-cr-04427-H-1

  v.
                                                   MEMORANDUM *
LUIS FERNANDO SALAS-RIVERA,

               Defendant - Appellee.



                     Appeal from the United States District Court
                       for the Southern District of California
                      Marilyn L. Huff, District Judge, Presiding

                        Argued and Submitted April 11, 2012
                               Pasadena, California

Before: FERNANDEZ and SILVERMAN, Circuit Judges, and BLOCK, Senior
District Judge.**

       The government appeals the district court’s grant of a new trial in this case.

Fed. R. Crim. P. 33(a) allows the district court to grant a new trial “if the interest of

justice so requires.” We review the district court’s grant of new trial for an abuse


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Frederic Block, Senior United States District Judge for
the Eastern New York, sitting by designation.
of discretion. United States v. Kellington, 217 F.3d 1084, 1094-95 (9th Cir. 2000).

We affirm the grant of a new trial because the district court acted within its

discretion in concluding that the expert testimony was unduly prejudicial under

Fed. R. Evid. 403 and likely resulted in a miscarriage of justice.

      AFFIRMED.




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