United States of America v. Michael Makalou

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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. United States v. Lawing, 703 F.3d 229, 239 (4th
Cir. 2012). 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.” Id. (internal quotation marks
omitted). We will not weigh evidence or review witness
credibility. 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. Taking the view most
favorable to the government, the evidence established each
element of the offense beyond a reasonable doubt. We thus

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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). Our
review of the district court’s denial is for abuse of
discretion. United States v. Moore, F.3d , , 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 motion for new trial based on newly discovered
evidence). 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

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legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED

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