                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 01-1770
                                ________________

United States of America,                 *
                                          *
             Appellant,                   *
                                          *      Appeal from the United States
      v.                                  *      District Court for the
                                          *      Northern District of Iowa.
Erick Arias Campos,                       *
                                          *
             Appellee.                    *

                                ________________

                                Submitted: September 11, 2001
                                    Filed: October 4, 2002
                                ________________

Before McMILLIAN, BEAM, and HANSEN, Circuit Judges.
                         ________________

HANSEN, Circuit Judge.

       A jury found Erick Arias Campos guilty of possession with intent to distribute
50 grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B)(viii) (1994). The district court granted Campos's motion for a new trial on
the basis that the jury's verdict preponderated against the evidence such that a
miscarriage of justice may have occurred. We reverse.
                                          I.

      Campos and several other individuals shared a residence in Sioux City, Iowa.
A neighbor alerted police to marijuana growing in a bucket located outside Campos's
residence. When police arrived, Campos initially denied, but later admitted, that the
marijuana was his. Campos gave written and verbal authorization to the police to
search the residence. Once inside the residence, police found a box in Campos's
bedroom next to his bed containing 50.6 grams of methamphetamine, a .38-caliber
Lorcin firearm, a loaded ammunition clip adjacent to the firearm, and a box of
approximately 30 rounds of .38-caliber bullets. Police also found false identification
documents and social security cards in the same box as the drugs, firearm, and
ammunition. Several of the documents used Campos's name and contained Campos's
picture. Police did not find any drug user paraphernalia in the residence except for
a butane lighter found near the methamphetamine in Campos's bedroom and an empty
pen casing located in a glass hutch in the dining room. Subsequent testing revealed
methamphetamine residue on the tip of the pen casing.

       Police arrested Campos and charged him with possession with intent to
distribute methamphetamine and possession of a firearm and ammunition by an illegal
alien. He pleaded guilty to the firearm charge, and after a jury trial, he was found
guilty on the drug charge. Campos filed a posttrial motion for judgment of acquittal
pursuant to Federal Rule of Criminal Procedure 29 and alternatively for a new trial
pursuant to Rule 33. The district court denied Campos's motion for judgment of
acquittal, finding the evidence sufficient to support the jury's verdict, but concluded
that the evidence weighed "heavily enough against the verdict that a miscarriage of
justice may have occurred." (D. Ct. Order at 20.) Therefore, the district court granted
Campos's motion for a new trial. The government now appeals.




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                                          II.

       Rule 33 states that "the court may grant a new trial to [a] defendant if the
interests of justice so require." The decision to grant or deny a motion for a new trial
based upon the weight of the evidence is within the sound discretion of the trial court.
While the district court's discretion is quite broad--"it can weigh the evidence,
disbelieve witnesses, and grant a new trial even where there is substantial evidence
to sustain the verdict," White v. Pence, 961 F.2d 776, 780 (8th Cir. 1992) (quoted
source and internal marks omitted))--there are limits to it. Unless the district court
ultimately determines that a miscarriage of justice will occur, the jury's verdict must
be allowed to stand. See United States v. Lacey, 219 F.3d 779, 783 (8th Cir. 2000).

       Motions for new trials based on the weight of the evidence are generally
disfavored. That being said, the district court has broader discretion to grant a new
trial under Rule 33 than to grant a motion for acquittal under Rule 29, but it
nonetheless must exercise the Rule 33 authority "sparingly and with caution." See
United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980); see also 3 Charles
Alan Wright, Federal Practice and Procedure § 553, at 248 (2d ed. 1982) (granting
new trial under Rule 33 is unusual remedy that is reserved for "exceptional cases in
which the evidence preponderates heavily against the verdict"). The district court
properly cited these standards in its Rule 33 analysis, but we conclude, abused its
discretion by setting aside the jury's verdict after finding a lack of circumstantial
evidence to support the distribution charge. See Dominium Mgmt. Servs., Inc. v.
Nationwide Hous. Group, 195 F.3d 358, 366 (8th Cir. 1999) (standard of review).

      The government argues that the district court abused its discretion by granting
a new trial when the quantity of methamphetamine seized and its location adjacent
to the firearm, ammunition, and false identification documents established that
Campos intended to distribute the methamphetamine. After a careful review of the
evidence, we agree. "An abuse of discretion occurs when a relevant factor that should

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have been given significant weight is not considered, when an irrelevant or improper
factor is considered and given significant weight, or when all proper and no improper
factors are considered, but the court in weighing the factors commits a clear error of
judgment." United States v. Butler, 296 F.3d 721, 723 (8th Cir. 2002) (quoted source
and internal marks omitted). In our view, the district court failed to give due weight
to the evidence tending to show Campos's intent to distribute the methamphetamine,
and the court committed clear error by giving unduly greater weight to the evidence
suggesting that Campos was merely a drug user.

        In favor of his motion for new trial, Campos argued that the evidence was
insufficient to support the jury's verdict to such a degree that a miscarriage of justice
occurred. To establish the offense of possession with intent to distribute
methamphetamine in violation of 21 U.S.C. § 841(a)(1), the government was required
to establish that Campos knowingly possessed methamphetamine with the intent to
distribute it. See United States v. Boyd, 180 F.3d 967, 979 (8th Cir. 1999). Campos
admitted that he possessed the methamphetamine but contended that it was for his
personal use only and that the government did not adequately prove he intended to
distribute the drugs. The government offered no direct evidence of distribution; that
is, it had no evidence of a hand-to-hand delivery. However, the government set forth
circumstantial evidence that established Campos's intent to distribute, including the
quantity of methamphetamine seized, the presence of a firearm and ammunition, and
Campos's use of false identification documents. See id. at 980.

       Campos possessed 50.6 grams of methamphetamine. A large quantity of
narcotics is indicative of an intent to distribute, and we have previously held that
possession of approximately 50 grams of methamphetamine is consistent with an
intent to distribute. See United States v. Schubel, 912 F.2d 952, 956 (8th Cir. 1990).
It was not implausible for the jury to infer that his intent to distribute was sufficiently
established by the other evidence in addition to that of drug quantity. See United
States v. Alvarez, 254 F.3d 725, 727 (8th Cir. 2001) (affirming jury verdict on charge

                                            4
of possession with intent to distribute when defendant was found to possess only 2.4
grams of methamphetamine at time of arrest).

       The government introduced additional evidence that we have previously held
supports a finding of possession with intent to distribute: the presence of a firearm
and attendant ammunition. "Because a gun is 'generally considered a tool of the trade
for drug dealers, [it] is also evidence of intent to distribute.'" United States v. White,
969 F.2d 681, 684 (8th Cir. 1992) (quoting Schubel, 912 F.2d at 956); see also Boyd,
180 F.3d at 980-81 (concluding that firearm located next to bag of approximately
33.72 grams of cocaine indicated intent to distribute); United States v. Bryson, 110
F.3d 575, 585 (8th Cir. 1997) (stating that firearm found near drug-related items
suggests intent to distribute); United States v. Brett, 872 F.2d 1365, 1370 (8th Cir.)
(considering presence of firearm evidence of intent to distribute), cert. denied, 493
U.S. 932 (1989).

       Campos also possessed numerous false identification cards. Campos stated
that he used the false documents to conceal his illegal alien status from his employer;
however, we have previously held that false identification documents and the use of
aliases is consistent with involvement in the drug trade. See Boyd, 180 F.3d at 981;
United States v. Walcott, 61 F.3d 635, 638 (8th Cir. 1995), cert. denied, 516 U.S.
1132 (1996). This is particularly relevant here because law enforcement found the
documents, the gun, and the ammunition in the same container that stored Campos's
methamphetamine beside his bed. Cf. United States v. Rogers, 939 F.2d 591, 595
(8th Cir.) (holding that close personal connection to location that contains drug-
related items is probative of intent to distribute), cert. denied, 502 U.S. 991 (1991).
It was the jury's role to determine what weight to give to this relevant evidence.

      Campos testified that he regularly used methamphetamine and ordinarily
purchased an "8-ball" (3.5 grams) for his personal use for $70. When he was arrested,
however, he possessed roughly fourteen times the amount of methamphetamine he

                                            5
claimed to ordinarily possess for his personal use. The government introduced law
enforcement testimony that this quantity of methamphetamine was worth between
$1000 and $1500 in the Sioux City market, but according to Campos's testimony, he
paid a person, whose name he did not know and whom he had met for the first time
at a bar the night before, a mere $200 for the drugs. The district court found this
portion of Campos's testimony incredible but still found Campos's assertion that he
was merely a user credible.

        We understand that the district court was free to believe some, all, or none of
Campos's testimony. Campos claimed to be an addicted user of methamphetamine,
but the evidence presented at trial does not support his assertion. Campos's roommate
testified that he had seen Campos with methamphetamine in his possession arranged
in lines and ready to use, but admitted on cross-examination that he never witnessed
Campos actually ingest the drug. The arresting officer stated that Campos did not
exhibit any indication that he was under the influence of methamphetamine nor did
Campos have any user paraphernalia on his person at the time of arrest. Law
enforcement found only a butane lighter (which could be used to smoke
methamphetamine) in close proximity to the methamphetamine, and a pen casing with
methamphetamine residue elsewhere in the residence.

       While the standard of review certainly favors the district court's decision, we
cannot say in this case that the evidence "preponderate[s] heavily against the verdict,
such that it would be a miscarriage of justice to let the verdict stand." See United
States v. Martinez, 763 F.2d 1297, 1313 (11th Cir. 1985). Although the government
did not set forth any evidence that Campos possessed razor blades, cutting agents,
packaging material, or a scale, for example, we believe that the other undisputed
evidence presented strongly correlates his intent to distribute and is more than strong
enough to defeat Campos's motion for a new trial. At this juncture, the question is not
what evidence the government did not have; rather, the test is how strong the



                                          6
evidence the government did introduce was. We respectfully disagree with the
district court's assessment that the government's case was "razor thin."

       Even if Campos was a methamphetamine user, the jury was faced with deciding
his intent in possessing 50.6 grams of methamphetamine worth between $1000 and
$1500 for which he said he paid only $200, particularly given his testimony that he
was working as a day laborer tearing off roofs for cash payments. The district court
made much of the pen casing with methamphetamine residue found in the common
dining room in reaching its conclusion "that the government did not meet its burden
in this case" to prove that Campos held the methamphetamine for distribution. (D.
Ct. Order at 19.) Just because one is a drug user, however, does not preclude one
from also intending to distribute drugs: it is common knowledge, we believe, that
drug users often turn to dealing drugs to finance their habits.

       After twice reading the entire transcript of the trial and the district court's well-
written posttrial order, we are satisfied that the evidence was more than legally
sufficient for the jury to find that Campos intended to distribute the
methamphetamine, and we conclude that it is highly unlikely that a miscarriage of
justice occurred when the jury found Campos guilty as charged.

                                            III.

       For the foregoing reasons, we reverse the district court's grant of a new trial,
reinstate the jury's verdict, and remand for sentencing.

       A true copy.

              Attest:

                      CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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