USA v. Delpriore

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
MICHAEL ANGELO DELPRIORE,
JR.,
Defendant.
Case No. 3:18-cr-00136-SLG-MMS
ORDER RE RENEWED MOTION FOR JUDGMENT OF ACQUITTAL [FRCrP 29]
AND MOTION FOR NEW TRIAL [FRCrP 33]
At the close of the government’s case-in-chief during the jury trial in this case,
defendant Michael Delpriore moved for a judgment of acquittal as to Counts 1, 2, and
3 of the Superseding Indictment at Docket 28 pursuant to Federal Rule of Criminal
Procedure 29.1 	He renewed the motion after the jury returned a guilty verdict on
Count 4. The Court reserved ruling on the motion.2 Following trial, Mr. Delpriore filed
a written Renewed Motion for Judgment of Acquittal [FRCrP 29]. 	The government
filed a response in opposition to the motion at Docket 327. Mr. Delpriore also filed a
Motion for New Trial [FRCrP 33] at Docket 322, to which the government responded
in opposition at Docket 329-1.
1 Docket 295 (minute entry).
2 Docket 295 (minute entry).
Case 3:18-cr-00136-SLG-MMS Document 349 Filed 01/05/23 Page 1 of 10

Case No. 3:18-cr-00136-SLG-MMS, USA v. Delpriore
Order re Renewed Motion for Judgment of Acquittal; Motion for New Trial
Page 2 of 10
I. 	Standard for a Rule 29 Motion for Judgment of Acquittal
Pursuant to Rule 29, a court must decide the motions for judgments of acquittal
“on the basis of the evidence at the time the ruling was reserved.”3 	The Court
assesses the evidence to determine whether it is sufficient to sustain a conviction.4
The evidence is sufficient to sustain a conviction if, “viewing the evidence in the light
most favorable to the prosecution, ‘any rational trier of fact could have found the
essential elements of the offenses charged beyond a reasonable doubt.’”5 	The
“evidence is insufficient to support a verdict where mere speculation, rather than
reasonable inference, supports the government’s case.”6
When viewing the evidence in the light most favorable to the government, a
court does not determine witness credibility and does not consider how it would have
resolved conflicts in the evidence.7 	“Therefore, in a case involving factual disputes
and credibility determinations, we ‘must presume . . . that the trier of fact resolved
any such conflicts in favor of the prosecution, and must defer to that resolution.’”8
3 Fed. R. Crim. P. 29(b).
4 Fed. R. Crim. P. 29(a).
5 United States v. Rosales, 516 F.3d 749, 751–52 (9th Cir. 2008) (quoting United States v. Hinton,
222 F.3d 664, 669 (9th Cir. 2000)).
6 United States v. Nevils, 598 F.3d 1158, 1167 (9th Cir. 2010) (en banc).
7 United States v. Alarcon-Simi, 300 F.3d 1172, 1176 (9th Cir. 2002).
8 United States v. H.B., 695 F.3d 931, 935 (9th Cir. 2012) (quoting Nevils, 598 F.3d at 1164) (ellipsis
in H.B.).
Case 3:18-cr-00136-SLG-MMS Document 349 Filed 01/05/23 Page 2 of 10

Case No. 3:18-cr-00136-SLG-MMS, USA v. Delpriore
Order re Renewed Motion for Judgment of Acquittal; Motion for New Trial
Page 3 of 10
II. 	Standard for a Rule 33 Motion for New Trial
Rule 33(a) provides that a court “may vacate any judgment and grant a new
trial if the interest of justice so requires.” 	“A district court’s power to grant a motion
for a new trial is much broader than its power to grant a motion for judgment of
acquittal.”9 When reviewing a motion for new trial, in contrast to when considering a
Rule 29 motion, a district court is not required to view the evidence in the light most
favorable to the verdict; instead, a court may independently weigh the evidence and
evaluate the credibility of the witnesses.10 	“If the court concludes that, despite the
abstract 	sufficiency 	of 	the 	evidence 	to 	sustain 	the 	verdict, 	the 	evidence
preponderates sufficiently heavily against the verdict that a serious miscarriage of
justice may have occurred, it may set aside the verdict, grant a new trial, and submit
the issues for determination by another jury.”11 A new trial should only be granted “in
exceptional cases in which the evidence preponderates heavily against the verdict.”12
III. Count 1: Possession of Heroin with Intent to Distribute
The jury was instructed on the essential elements of the offense as follows:
9 United States v. Alston, 974 F.2d 1206, 1211 (9th Cir. 1992) (citing 3 Wright, Federal Practice and
Procedure, Criminal § 553 at 245 (1982)).
10 United States v. Kellington, 217 F.3d 1084, 1097 (9th Cir. 2000) (citing Alston, 974 F.2d at 1211
(citation omitted)).
11 Alston, 974 F.2d at 1211–12 (citing United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980)).
12 United States v. Pimentel, 654 F.2d 538, 545 (9th Cir. 1981) (quoting 2 Wright, Federal Practice
and Procedure, Criminal § 553 at 487 (1969)).
Case 3:18-cr-00136-SLG-MMS Document 349 Filed 01/05/23 Page 3 of 10

Case No. 3:18-cr-00136-SLG-MMS, USA v. Delpriore
Order re Renewed Motion for Judgment of Acquittal; Motion for New Trial
Page 4 of 10
(1) On or about August 7, 2018, the defendant knowingly possessed a controlled
substance; and
(2) The defendant possessed the controlled substance with the intent to distribute
it to another person.
The focus of Count 1 was the 138 grams of heroin that was found hidden
behind the dashboard in Mr. Delpriore’s vehicle. Mr. Delpriore maintains there was
insufficient evidence to show that he knowingly possessed the heroin. 	A jury may
properly infer that a defendant who is the driver and sole occupant of a vehicle knows
about contraband hidden in the vehicle.13 	A jury can also infer knowledge from
possession 	of 	a 	large 	quantity 	of 	drugs.14 	The 	evidence 	presented 	in 	the
government’s case-in-chief meets both criteria, and constitutes sufficient evidence to
support the jury’s determination that Mr. Delpriore knowingly possessed the heroin.
Mr. Delpriore also asserts that the government presented insufficient evidence
that he intended to distribute the heroin. 	But intent to distribute may reasonably be
inferred where a defendant possesses “an amount [of a controlled substance] not
ordinarily associated with personal use.”15 As testified to by Detective Randy Adair,
13 United States v. Diaz-Cardenas, 351 F.3d 404, 407 (9th Cir. 2003); United States v. Davila-
Escovedo, 36 F. 3d 840, 842 (9th Cir. 1994).
14 United States v. Cervantes, 219 F.3d 882, 893 (9th Cir. 2000), abrogated on other grounds by
Brigham City v. Stuart, 547 U.S. 398 (2006).
15 United States v. Magallon-Jimenez, 219 F.3d 1109, 1113 (9th Cir. 2000); United States v.
Savinovich, 845 F.2d 834, 838 (9th Cir. 1988) (“Intent to distribute may be inferred from the purity,
price, and quantity of the drug possessed.”).
Case 3:18-cr-00136-SLG-MMS Document 349 Filed 01/05/23 Page 4 of 10

Case No. 3:18-cr-00136-SLG-MMS, USA v. Delpriore
Order re Renewed Motion for Judgment of Acquittal; Motion for New Trial
Page 5 of 10
the amount of heroin that Mr. Delpriore possessed was considerable—well over two
months’ worth of daily doses of heroin.16 In addition, the digital scale, loaded firearm,
and cash in the vehicle all constituted probative evidence of an intent to distribute.17
The Court finds that there was sufficient evidence for a rational jury to conclude
beyond a reasonable doubt that Mr. Delpriore intended to distribute the heroin.
Mr. Delpriore asserts that “even if the evidence is found sufficient to sustain
the verdict,” the Court should nonetheless grant a new trial on Count 1 because the
evidence at trial “preponderates heavily against the verdict.”18 	As to Count 1, the
Court does not find this to be an exceptional case that warrants a new trial. Rather,
the evidence presented at trial, as summarized by the government in its opposition
to the motion for a new trial,19 weighs heavily in support of the verdict that the jury
reached on this count.
IV. Count 2: Possession of Methamphetamine with Intent to Distribute
The jury was instructed the same as for Count 1 on Count 2, which related to
approximately four grams of 98% pure methamphetamine that was found in two
separate baggies, both in Mr. Delpriore’s jacket, which he had removed as he exited
the vehicle and it was later searched.
16 Docket 324 at 20.
17 Savinovich, 845 F.2d at 837.
18 Docket 322 at 2 (citing United States v. Pimentel, 654 F.2d 538, 545 (9th Cir. 1981) (quotation
omitted)).
19 Docket 329-1 at 2-13.
Case 3:18-cr-00136-SLG-MMS Document 349 Filed 01/05/23 Page 5 of 10

Case No. 3:18-cr-00136-SLG-MMS, USA v. Delpriore
Order re Renewed Motion for Judgment of Acquittal; Motion for New Trial
Page 6 of 10
Mr. Delpriore maintains there was an insufficient quantity of methamphetamine
for the jury to infer an intent to distribute. 	He maintains that “[a] mere 4 grams of
methamphetamine is consistent with personal use and there was no testimony that
any 	methamphetamine 	or 	methamphetamine-like 	substance 	was 	found 	on 	the
scale.”20 Mr. Delpriore cites to two cases to support this assertion. In United States
v. Hernandez, 476 F.3d 791, 799 (9th Cir. 2007), the Ninth Circuit cited to Turner v.
United States, 396 U.S. 398, 422-23 (1970), for the proposition that at one end of the
evidentiary spectrum there are “cases 	where the value and quantity of drugs
possessed by the defendant are such that no reasonable jury could find an intent to
distribute.” In Turner, the Supreme Court invalidated a conviction where the jury had
been instructed that the possession of a small amount of a sugar and cocaine mixture
constituted a sufficient predicate for concluding that the possessor was dispensing or
distributing the cocaine.21
Here, there was sufficient evidence from which a reasonable jury could
conclude 	that 	Mr. 	Delpriore 	intended 	to 	distribute 	at 	least 	some 	of 	the
methamphetamine. 	As testified to by Detective Adair, the usual personal dose per
day of methamphetamine is a couple tenths of a gram at a time to get high, and that
“it wouldn’t be uncommon for somebody to use a gram a day.”22 	He acknowledged
20 Docket 321 at 3.
21 396 U.S. at 422–23.
22 Docket 324 at 20.
Case 3:18-cr-00136-SLG-MMS Document 349 Filed 01/05/23 Page 6 of 10

Case No. 3:18-cr-00136-SLG-MMS, USA v. Delpriore
Order re Renewed Motion for Judgment of Acquittal; Motion for New Trial
Page 7 of 10
that four grams is “on the border” as between personal use and distribution.23
Considering this evidence in the light most favorable to the prosecution, together with
the fact that the methamphetamine was in two separate baggies, and also in the
vehicle was a scale (albeit without white residue), a loaded firearm, over $1,000 in
cash, and the considerable amount of heroin, there was sufficient evidence from
which a rational jury could have found an intent to distribute at least some of the
methamphetamine beyond a reasonable doubt.
And, while it presents a considerably closer question than with respect to the
distribution 	of 	heroin, 	the 	Court 	finds 	that 	the 	evidence 	presented 	during 	the
government’s case-in-chief does not preponderate heavily against the jury’s verdict
with respect to Court 2.
V. 	Count 	3: 	Possession 	of 	a 	Firearm 	in 	Furtherance 	of 	a 	Drug
Trafficking Crime
Mr. Delpriore maintains there was insufficient evidence that he knowingly
possessed the firearm, as “[t]here were no prints or DNA evidence presented.”24 But
based on the evidence of Mr. Delpriore’s accessibility and proximity to the firearm in
the steering column directly in front of him,25 and the testimony regarding his
23 Docket 324 at 21.
24 Docket 321 at 4.
25 See United States v. Krouse, 370 F.3d 965, 968 (9th Cir. 2004) (holding there was sufficient
evidence to support a § 924(c) conviction when firearms “[are] strategically located within easy reach
in a room containing a substantial quantity of drugs and drug trafficking paraphernalia”).
Case 3:18-cr-00136-SLG-MMS Document 349 Filed 01/05/23 Page 7 of 10

Case No. 3:18-cr-00136-SLG-MMS, USA v. Delpriore
Order re Renewed Motion for Judgment of Acquittal; Motion for New Trial
Page 8 of 10
“suspicious or furtive movements inside the car” during this incident,26 there was
sufficient evidence from which a rational jury could reasonably conclude beyond a
reasonable doubt that Mr. Delpriore knowingly possessed the handgun. 	And with
respect to the motion for a new trial on this count, the Court does not find that the
evidence presented heavily predominates against the jury’s verdict on Count 3.
Mr. Delpriore also maintains that “because the Government did not present
sufficient evidence on Counts 1 and 2, Count 3 must fail as there is no drug trafficking
offense to anchor the count.”27 	However, because the Court has found sufficient
evidence and denies a new trial on both Counts 1 and 2, the jury’s verdict as to Count
3 will not be vacated.
VI. Count 4: Felon in Possession of a Firearm
The trial was bifurcated and Count 4 was presented to the jury after it had
returned verdicts on Counts 1 through 3. As to this count, Mr. Delpriore asserts that
the government did not present evidence of interstate nexus to the grand jury. 	But
Mr. Delpriore’s speculation about what evidence was or was not presented to the
grand jury is not a basis to set aside Count 4 or to conduct a new trial on that charge.28
26 See United States v. Gutierrez, 995 F.2d 169, 172 (9th Cir. 1993) (holding officer testimony that
they saw suspicious or furtive movements inside the car supported jury’s finding of knowing
possession of contraband within the vehicle).
27 Docket 321 at 4.
28 Cf. United States v. Ferreboeuf, 632 F.2d 832, 835 (9th Cir. 1980) (holding that defendant not
entitled to disclosure of grand jury materials based on “unsubstantiated, speculative assertions of
improprieties in the proceedings”) (quotation omitted).
Case 3:18-cr-00136-SLG-MMS Document 349 Filed 01/05/23 Page 8 of 10

Case No. 3:18-cr-00136-SLG-MMS, USA v. Delpriore
Order re Renewed Motion for Judgment of Acquittal; Motion for New Trial
Page 9 of 10
Mr. Delpriore also asserts that “the government constructively amended the
indictment by expanding the conduct for which the defendant could be found guilty
beyond its bounds.”29 Specifically, the First Superseding Indictment charged that the
firearm was “in and affecting interstate commerce.” But at trial, the jury was instructed
that the government needed to prove that the firearm was “transported from one state
to another or between a foreign nation and the United States.”30
Mr. Delpriore’s argument on this point is foreclosed by Ninth Circuit precedent.
In United States v. Alvarez, 972 F.2d 1000 (9th Cir. 1992), the indictment used the
term “interstate commerce,” while the evidence at trial was that the firearm had only
travelled in foreign commerce—from a foreign country directly to a port of entry in
California, where Alvarez was indicted. The Ninth Circuit held that evidence that the
firearm had been manufactured outside of the United States “was sufficient to prove
that the firearm had moved in interstate commerce.”31 	The Circuit specifically
rejected Alvarez’s assertion that a constructive amendment of the indictment had
occurred, stating “[t]he fact that the indictment referred specifically to interstate
commerce 	had 	no 	effect 	on 	Appellant’s 	constitutional 	rights. 	There 	was 	no
constructive amendment of the indictment, and the variance was not prejudicial to
29 Docket 321 at 5 (citing Stirone v. United States, 361 U.S. 212, 214 (1960)).
30 Compare Docket 28 at 3 with Docket 309 at 3.
31 Alvarez, 972 F.2d at 1003.
Case 3:18-cr-00136-SLG-MMS Document 349 Filed 01/05/23 Page 9 of 10

Case No. 3:18-cr-00136-SLG-MMS, USA v. Delpriore
Order re Renewed Motion for Judgment of Acquittal; Motion for New Trial
Page 10 of 10
Appellant.”32 	Here too, the variance was not prejudicial to Mr. Delpriore, as he was
accorded complete discovery in this case, including the ATF report that identified the
firearm’s country of origin as Croatia. 	For these reasons, an acquittal or a new trial
on Count 4 is not warranted.
CONCLUSION
For the foregoing reasons, the Renewed Motion for Judgment of Acquittal at
Docket 321 and the Motion for New Trial at Docket 322 are each DENIED.
DATED this 5th day of January, 2023, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
32 Id. at 1004.
Case 3:18-cr-00136-SLG-MMS Document 349 Filed 01/05/23 Page 10 of 10