Unpublished Disposition, 925 F.2d 1471 (9th Cir. 1983)

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US Court of Appeals for the Ninth Circuit - 925 F.2d 1471 (9th Cir. 1983)

UNITED STATES of America, Plaintiff-Appellant,v.John F. HAYDEN, Defendant-Appellee.

No. 89-50258.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 8, 1991.Decided Feb. 15, 1991.

Before GOODWIN, HUG and FARRIS, Circuit Judges.

MEMORANDUM* 

After an eleven-week jury trial, defendant-appellee John F. Hayden ("Hayden") was convicted of twenty-seven counts of wire fraud, pursuant to 18 U.S.C. § 1343 (1988). The jury also acquitted Hayden on one count of interstate transportation of stolen property, pursuant to 18 U.S.C. § 2314 (1988), and was unable to reach a verdict on a conspiracy count, under 18 U.S.C. § 371 (1988). Hayden filed a Fed. R. Crim. P. 29 motion for judgment of acquittal and a Fed. R. Crim. P. 33 motion for a new trial. The Rule 29 motion was denied; the Rule 33 motion was granted because the district court concluded "the verdict is against the weight of the evidence and that a miscarriage of justice has occurred." The Government appeals the granting of Hayden's Rule 33 motion. We affirm.


Hayden was president and majority owner of Glacier General Assurance Company ("Glacier") of Missoula, Montana. In 1981, Glacier initiated a financial guarantee bond ("FGB") program, which was designed to provide bonds to guarantee real estate loans. The Government's theory was the FGB program was a classic Ponzi scheme used to deceive lenders. The Government alleged that Hayden made several misrepresentations concerning the financial condition of Glacier and the FGB program. In particular, the Government argued, inter alia: Hayden instructed that fraudulent accounting practices be adopted to list certain FGB-related payments to lenders as "other invested assets" instead of expenses on the 1982-84 Glacier annual statements; Hayden made misrepresentations in a March 28, 1983 letter to the A.M. Best Company, a recognized private company rating insurance companies, concerning Glacier's 1982 annual statement listing $11 million in a single California residence; on the Shadowhawk condominium project, Hayden deceived the lender Chicago Corporation concerning the financial status of Glacier and the FGB program; and Hayden made similar misrepresentations to the Chatsworth property lenders.

Rule 33 permits the granting of a new trial "in the interest of justice." We have noted that a motion for a new trial "should be granted 'only in exceptional cases in which the evidence preponderates heavily against the verdict.' " United States v. Pimentel, 654 F.2d 538, 545 (9th Cir. 1981) (quoting 2 Wright, Federal Practice & Procedure, Criminal, Sec. 553, at 487 (1969)).

In this lender fraud action, we conclude the Government has not met its "significant burden" to establish the district court abused its discretion. United States v. Steel, 759 F.2d 706, 713 (9th Cir. 1985). The district court concluded that the evidence did not adequately establish Hayden's specific intent to defraud for purposes of the Rule 33 motion. See, e.g., Schreiber Distrib. v. Serv-Well Furniture Co., Inc., 806 F.2d 1393, 1400 (9th Cir. 1986) (specific intent element of section 1343). The parties devote most of their contentions to arguing how much weight should be afforded specific evidence or how certain evidence should be construed. Of course, in considering a Rule 33 motion, a district court may weigh the evidence and evaluate the credibility of witnesses. See, e.g., Tibbs v. Florida, 457 U.S. 31, 38 n. 11 (1982) (citing United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980)). The district court's ruling indicates that it is predicated in significant part on an evaluation of the credibility of witnesses and on an assessment of the weight of particular evidence. Because of the unique vantage of the trial court, especially, as here, during a lengthy trial, we afford deference to the trial court's determinations based on such matters. See, e.g., United States v. Shaffer, 789 F.2d 682, 689 (9th Cir. 1986). The trial judge's order indicates that it thoroughly and carefully considered its ruling. In fact, the trial judge noted that this was the first time he had granted a motion for a new trial in a criminal case in seventeen years as a trial judge on the federal and state bench.

Based upon our review of the record, we are unable to conclude, as the Government urges, that the district court committed an abuse of discretion in concluding the evidence preponderated heavily against the verdict.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

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