UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

VEE CHOONG CHIN, a/k/a Eric Veve,
                                                                   No. 96-4826
a/k/a Eric Chin,
Defendant-Appellant.

NATIONAL ASSOCIATION OF CRIMINAL
DEFENSE LAWYERS,
Amicus Curiae.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
Samuel G. Wilson, Chief District Judge.
(CR-93-87)

Argued: March 1, 1999

Decided: May 26, 1999

Before WILKINSON, Chief Judge, and HAMILTON and
WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: John Kenneth Zwerling, ZWERLING & KEMLER, P.C.,
Alexandria, Virginia, for Appellant. Thomas Ernest Booth, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee. ON BRIEF: Joel B. Simberg, ZWERLING & KEMLER,
P.C., Alexandria, Virginia, for Appellant. Robert P. Crouch, Jr.,
United States Attorney, Joseph W. H. Mott, Assistant United States
Attorney, UNITED STATES DEPARTMENT OF JUSTICE, Wash-
ington, D.C., for Appellee. William J. Mertens, Jay T. Blount,
SWIDLER & BERLIN, CHARTERED, Washington, D.C.; Barbara
Bergman, UNIVERSITY OF NEW MEXICO SCHOOL OF LAW,
Albuquerque, New Mexico, for Amicus Curiae.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Vee Choong (Eric) Chin appeals his conviction and sentence for
conspiracy to import and distribute and for importing and distributing
heroin. Chin contends that the district court applied the wrong stan-
dard when reviewing his motion for a retrial pursuant to Rule 33 of
the Federal Rules of Criminal Procedure, and that the court improp-
erly failed to consider polygraph evidence at his sentencing hearing.
Finding no error, we affirm.

I.

According to the government, Chin worked with another Malay-
sian national, Desmond Chong, at a Chinese restaurant in Fredericks-
burg, Virginia in the 1980s. In 1989 Chin moved to New York, and
in 1991 Chong opened his own restaurant in Louisa, Virginia. While
on a visit to assist with the renovation of the new restaurant, Chin
allegedly suggested that Chong could make money by receiving drugs
shipped to this country from Malaysia.

The government further alleges that Chong joined this smuggling
scheme and that he facilitated two heroin shipments from Malaysia

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through Virginia to New York. In December 1991 Chong received a
package by mail and, on Chin's instructions, sent the package by cou-
rier to Chin in New York. In January 1992 Chong received two pack-
ages at a newly-rented post office box and, again on Chin's
instructions, brought them to a hotel room in Fredericksburg and
delivered them to two co-conspirators.

In February 1992 federal agents intercepted a package of heroin
that was addressed to the Virginia post office box. The agents shipped
the package on to its destination, and an accomplice of Chong's
picked up the package and delivered it to Chong. Federal agents then
executed a search warrant at Chong's residence, seized the package,
and arrested Chong.

After further investigation the government obtained an indictment
in May 1993 against Chin and six other defendants. The indictment
charged Chin with conspiracy to import heroin, 21 U.S.C. § 963, con-
spiracy to distribute heroin, id. § 846, importation of heroin, id.
§ 952(a), and distribution of heroin, id. § 841(a)(1).

Chin was arrested in September 1995 and, after an initial mistrial,
was convicted of eight of the ten counts charged. The district court
sentenced him to 151 months in prison. This appeal ensued.

II.

Chin first contends that the district court erred in denying his
motion for a new trial pursuant to Rule 33 of the Federal Rules of
Criminal Procedure. Under Rule 33, a district court has the discretion
to grant a new trial "if the interests of justice so require." Fed. R.
Crim. P. 33. We hold that the district court articulated the proper stan-
dard in considering Chin's Rule 33 motion and that its denial of that
motion was not an abuse of discretion.

A new trial is a drastic remedy intended for the rare case. Indeed,
"[w]e have held that a district court should exercise its discretion to
grant a new trial `sparingly' and that the district court should grant a
new trial based on the weight of the evidence `only when the evidence
weighs heavily against the verdict.'" United States v. Wilson, 118

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F.3d 228, 237 (4th Cir. 1997) (quoting United States v. Arrington, 757
F.2d 1484, 1486 (4th Cir. 1985)). The district court should examine
all the evidence introduced at trial and -- unlike when ruling on a
motion for acquittal -- the court may evaluate for itself the credibility
of witnesses. Arrington, 757 F.2d at 1485. But a court should not
lightly substitute its judgment for that of the jury. Only "[w]hen the
evidence weighs so heavily against the verdict that it would be unjust
to enter judgment" should the court grant a motion for a new trial. Id.

Chin claims that his is such a case. In presenting its case against
Chin, the government relied primarily on the testimony of Desmond
Chong -- testimony that cast Chin's role in this conspiracy in the
worst possible light and that minimized the role played by Chong. For
example, Chong testified that Chin recruited him into the heroin ring
by asking him to receive heroin from overseas. He further testified
that he made arrangements at Chin's direction for the shipping and
delivery of this heroin to other co-conspirators. As Chin himself
notes, this testimony -- if believed by the jury-- was sufficient to
convict Chin of all counts charged.

Chin contends that Chong perjured himself in order to secure
favorable treatment from the government. And in ruling on Chin's
Rule 33 motion the district court expressly stated that it did not find
Chong entirely credible. Since the court noted that it "did not believe
all of what Desmond Chong said," Chin argues that this lack of credi-
bility fatally undermines the government's case. Without Chong's tes-
timony, Chin asserts, his conviction rests only on a smattering of
circumstantial evidence. Chin contends that only a new trial can
ensure that a jury convicts him solely on credible evidence.

In denying Chin's motion, the district court stated that it did not
"have an abiding conviction . . . that a miscarriage of justice would
occur" if Chin were denied a new trial. Chin argues that this was an
improperly strict standard for the grant of a new trial under Rule 33.
We disagree.

It is clear from the record of the post-trial hearing that the district
court properly considered Chin's motion for a new trial under the
standard of Arrington. After considering the evidence in the record
and the arguments of the parties the district court declared:

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          I can state and do state for the record that based upon the
          evidence presented I would not have found the defendant
          guilty beyond a reasonable doubt because I had some prob-
          lems with the credibility of the witness. The jury didn't have
          those same problems. And as [the prosecutor] has pointed
          out, there was circumstantial evidence that if believed by the
          jury would corroborate the witness on essential elements of
          the offense pertaining to his guilt, the defendant's guilt. I
          cannot therefore state that I have an abiding conviction that
          the defendant is -- that a miscarriage of justice would
          occur. I can only state that I would not have reached the
          same result as the jury. And that's essentially where I find
          myself. I would not have reached the same decision as the
          jury, but I cannot say that the jury's verdict would work an
          injustice.

It is apparent that the district court did not agree with the verdict
in this case. But "[a] judge's disagreement with the jury's verdict does
not mandate a new trial." Arrington, 757 F.2d at 1486. The question
under Rule 33 is whether the court's evaluation of the evidence
adduced at trial "weighs so heavily against the verdict that it would
be unjust to enter judgment." Id. at 1485; see also United States v.
Robertson, 110 F.3d 1113, 1118 (5th Cir. 1997); United States v.
Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992); United States v.
Morales, 902 F.2d 604, 605-06 (7th Cir.), amended, 910 F.2d 467
(7th Cir. 1990). "[T]he trial judge's rejection of all or part of the testi-
mony of a witness or witnesses does not automatically entitle a defen-
dant to a new trial. The test is whether it would be a manifest injustice
to let the guilty verdict stand." Sanchez, 969 F.2d at 1414 (internal
quotation marks omitted). The district court correctly articulated this
standard, and concluded explicitly that the jury's verdict would not
work an injustice.

Furthermore, the district court did not abuse its discretion in apply-
ing the Arrington standard. Although troubled by some of Chong's
testimony, the district court did not discount it entirely. In fact, the
court qualified its concern by stating: "[h]aving said that I didn't
believe all of what [Chong] said doesn't mean that I didn't believe
substantial parts of some of his testimony." At sentencing, the court
clarified that it believed that Chin played a "substantial," but not a

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"managing or supervising" role in the conspiracy. Moreover, the pros-
ecution pointed to and the court acknowledged telephone and hotel
records supporting elements of its case. In sum,"the district court
conducted a hearing, reviewed all the evidence, and considered the
arguments from both parties before concluding that the interests of
justice do not require a new trial." Arrington, 757 F.2d at 1486 (inter-
nal quotation marks omitted). This was not an abuse of discretion.

III.

Chin also contends that the district court improperly declined at
sentencing to consider evidence of a polygraph examination that he
had taken. The district court declined to consider this evidence on two
grounds. First, this circuit has generally found polygraph evidence to
be inadmissible. United States v. Sanchez, 118 F.3d 192, 197 (4th Cir.
1997); see also United States v. Scheffer, 118 S. Ct. 1261, 1265-66 &
n.7 (1998) (recognizing the continued validity of such per se exclu-
sionary rules and citing Sanchez). Second, the district court found this
specific polygraph evidence particularly unreliable because there had
been no opportunity for joint observation by the prosecution.

Chin argues that even evidence inadmissible at trial may be consid-
ered in sentencing proceedings. This is true so far as it goes, but that
evidence must still bear some indicia of reliability. See U.S.S.G.
§ 6A1.3; United States v. Uwaeme, 975 F.2d 1016, 1021 (4th Cir.
1992). We hold that the district court did not abuse its discretion in
declining to consider the polygraph evidence at sentencing.

IV.

For the foregoing reasons the judgment of the district court is

AFFIRMED.

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