US v. Michael Makalou, No. 12-4504 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4504 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL MAKALOU, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (1:11-cr-00489-JCC-1) Submitted: March 14, 2013 Decided: April 3, 2013 Before DUNCAN, KEENAN, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Barry Coburn, COBURN & GREENBAUM, PLLC, Washington, D.C., for Appellant. Neil H. MacBride, United States Attorney, Rebeca H. Bellows, Assistant United States Attorney, Alexandria, Virginia; Lanny A. Breuer, Assistant Attorney General, Sarah Chang, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Michael Makalou appeals his conviction for assault with a deadly weapon under 18 U.S.C. § 113(a)(3) (2006). On appeal, Makalou argues that the evidence was insufficient to support his conviction and that the district court abused its discretion when it denied his motions for a new trial. We affirm. This court reviews the denial of a Fed. R. Crim. P. 29 motion de novo. Cir. 2012). United States v. Lawing, 703 F.3d 229, 239 (4th When a Rule 29 motion is based on a claim of insufficient evidence, the verdict must be sustained if there is substantial evidence, viewed in the light most favorable to the government, to support it. omitted). We credibility. will not Id. (internal quotation marks weigh evidence or review witness United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997). The government was required to prove that Makalou committed an assault with a deadly weapon with the intent to cause bodily harm. See 18 U.S.C. § 113(a)(3); United States v. Sturgis, 48 F.3d 784, 786 (4th Cir. 1995). The district court found credible the testimony of the victim, an examining doctor, a neighbor, and several federal agents. favorable element of to the the government, offense the beyond a 2 Taking the view most evidence reasonable established each doubt. thus We reject Makalou s challenge to the sufficiency of the evidence. See Lawing, 703 F.3d at 240. A district court may grant a new trial on a defendant s motion if the interest of justice so requires. Fed. R. Crim. P. 33(a). Rule 33 motions are granted sparingly[] and . . . only when the evidence weighs heavily against the verdict. United States v. Chong Lam, 677 F.3d 190, 203 (4th Cir. 2012) (internal quotation marks omitted). review of the discretion. district court s denial United States v. Moore, is Our abuse , F.3d for of , 2013 WL 765746, at *4 (4th Cir. Mar. 1, 2013). After a complete review of the record, we conclude that Makalou did not present sufficient grounds for which the district court could grant him a new trial. See United States v. Custis, 988 F.2d 1355, 1359 (4th Cir. 1993) ( This circuit has emphasized that new evidence going only to the credibility of a witness does not generally warrant the granting of a new trial. ); see also Moore, 2013 WL 765746, at *4 (setting forth five factors that district courts consider when evaluating evidence). motion for new trial based on newly discovered We therefore conclude that the district court did not abuse its discretion in denying the motions for a new trial. Accordingly, we affirm the judgment of the district court. We dispense with oral argument because the facts and 3 legal before contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 4