31 F.Supp.2d 731 (1998)
Rosemary J. McLACHLAN, Trustee of the Mary Butschek Living Trust, et al., Plaintiffs,
v.
Donald SIMON, an individual and former Trustee of The Navellier Series Fund, et al., Defendants.
No. C-97-1258 WHO.
United States District Court, N.D. California.
July 23, 1998.
*732 *733 *734 Samuel Kornhauser, Samuel Kornhauser Law Office, San Francisco, CA, for plaintiffs.
Gregory L. Lippetz, Vincent P. Finigan, Jr., Robert P. Varian, Brobeck Phleger & Harrison LLP, San Francisco, CA, for Donald Simon, defendant.
Gregory L. Lippetz, Vincent P. Finigan, Jr., Robert P. Varian, Brobeck Phleger & Harrison LLP, San Francisco, CA, Ralph C. Alldredge, Leigh A. Kirmsse, Emeryville, CA, for Kenneth Sletten, defendant.
Gregory L. Lippetz, Vincent P. Finigan, Jr., Brobeck Phleger & Harrison LLP, San Francisco, CA, James A. Lassart, Ropers Majeski Kohn & Bentley, San Francisco, CA, for Lawrence Bianchi, defendant.
Jonathan C. Dickey, Alice W. Detwiler, Gibson Dunn & Crutcher LLP, Palo Alto, CA, for Arnold Scott, Massachusetts Financial Services, defendants.
Jacquelyn J. Garman, Hanson Bridgett Marcus Vlahos & Rudy, San Francisco, CA, for Roy Adams, defendant.

OPINION AND ORDER
ORRICK, District Judge.
Plaintiffs in this case are shareholders and former shareholders of the Navellier Series Fund ("Fund"), Louis G. Navellier, an individual and Trustee and Shareholder of the Navellier Series Fund on his own behalf as a Trustee on behalf of The Navellier Series Fund and as a class representative ("Navellier"), and Navellier Management, Inc ("NMI"). They brought this action against defendants Donald Simon ("Simon"), Kenneth Sletten ("Sletten"), and Lawrence Bianchi *735 ("Bianchi"), who are Independent Trustees of the Navellier Series Fund (collectively "Independent Trustees"), Roy Adams ("Adams"), the Independent Trustees' attorney, and Massachusetts Financial Services ("MFS") for, among other things, breach of fiduciary duty. Defendants now move to dismiss the action for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Independent Trustees' motion is denied, and the MFS's and Adams' motions are granted with prejudice.

I.
On May 15, 1993, Navellier and NMI caused the Fund to be organized as a Delaware business trust to engage in the business of investing assets in an open-end investment company (a mutual fund). Navellier and Jack Drinkwater ("Drinkwater") were elected as Interested Trustees, while Simon, Sletten, and Bianchi were elected as Independent Trustees.[1] On that same day, the Fund entered into an investment advisory agreement with NMI.
In July 1995, Drinkwater was terminated from his employment with NMI, and resigned as an Interested Trustee of the Fund. He was replaced by Alan Alpers as an Interested Trustee.
On April 26, 1996, Navellier made a motion to merge the Fund into The Navellier Performance Funds. This would have terminated the Independent Trustees' positions. The Independent Trustees rejected Navellier's proposal.
Between May and November 1996, the Independent Trustees requested certain information from Navellier as part of their reconsideration of his merger proposal. After Navellier refused to provide the information, it was suggested that the issue of a merger be presented to the shareholders by way of a proxy. On November 11, 1996, the Independent Trustees voted to have NMI prepare and file a proxy statement with the Securities and Exchange Commission ("SEC").
In early 1997, the Independent Trustees reviewed NMI's proxy filing. On March 13, 1997, a Board of Directors ("Board") meeting was held, which was attended by all of the Trustees. At this meeting, the Fund's Independent Trustees voted not to renew NMI's contract, which was set to expire by its terms on March 15, 1997. The Independent Trustees also voted to hire MFS as the Fund's investment advisor.
Plaintiffs filed a complaint on April 10, 1997 seeking to enjoin defendants, as Trustees (and counsel) of the Fund, from removing Navellier as an Interested Trustee. Between April 1997 and June 1997, plaintiffs brought a series of motions for injunctive relief that attempted to block the Independent Trustees' efforts to obtain ratification of their investment advisory agreement with MFS and to enable NMI to regain control of the Fund.
On May 23, 1997, a majority of shareholders voted for MFS to continue as investment advisor to the Fund. The required two-thirds of the shareholders, however, did not vote to support MFS.[2] MFS was, then, rejected as the Fund manager by default. The results were not announced until June 1997. On July 14, 1997, defendants returned management of the Fund to NMI, and were forced to resign.
On February 2, 1998, the parties filed an amended complaint, which added other Independent Trustees of the Fund and their lawyer, as well as MFS, as defendants, and two different classes of plaintiff shareholders. *736 Class A plaintiffs are those who were forced to leave the Fund due to the management change and suffered damages, and Class B plaintiffs are those who remained in the Fund and suffered damages due to the management change. The only damages alleged for these classes are capital gains taxes. The causes of action within the amended complaint are for (1) breach of fiduciary duty under 15 U.S.C. § 80a-35(a) against the Independent Trustees, Scott and MFS (first and fifth causes of action); (2) common law breach of fiduciary duty under Delaware law against the Independent Trustees, Scott and MFS (second and sixth cause of action); (3) common law breach of fiduciary duty under California law against Adams (third and seventh cause of action); (4) negligence against Adams (fourth and eighth causes of action); (5) corporate waste against all defendants (ninth cause of action); and (6) interference with prospective economic relations against all defendants (tenth cause of action).

II.

A.

1.
The Independent Trustees, MFS and Scott[3] first argue that the federal claims should be dismissed because there is no implied private right of action under § 36 of the Investment Company Act of 1940 ("ICA") as codified in 15 U.S.C. § 80a-35(a).[4] Plaintiffs, they claim, lack standing to bring suit under this statute. Because Congress intended shareholders to have a right of action under ICA § 36(a), the Court finds an implied private right of action.
In determining whether to infer a private right of action from a federal statute, the focus of the Court's inquiry is Congressional intent. Thompson v. Thompson, 484 U.S. 174, 179, 108 S.Ct. 513, 98 L.Ed.2d 512 (1988). As guides to discerning that intent, the Supreme Court often has relied on the four-factor test set forth in Cort v. Ash, along with other tools of statutory construction. Id.
First, is the plaintiff one of the class for whose especial benefit the statute was enacted, that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?
Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975) (internal quotation marks and citations omitted). The four factors are not, however, entitled to equal weight; the central inquiry remains the intent of Congress. Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979).
The Court first looks to the language of the statute itself, then to the legislative history. Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 16-17, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979). The absence of anything in the legislative history that indicates an intent to confer a private right of action is not dispositive. Id. at 18, 100 S.Ct. 242. The failure of Congress expressly to consider a private right of action "is not inevitably inconsistent with an intent on its part to make such a remedy available." Id. Rather, "[s]uch an intent may appear implicitly in the language or structure of the statute, or in the circumstances of its enactment." Id. "The intent of Congress remains *737 the ultimate issue, however, and `unless this congressional intent can be inferred from the language of the statute, the statutory structure, or some other source, the essential predicate for implication of a private remedy simply does not exist.'" Thompson, 484 U.S. at 179, 108 S.Ct. 513 (quoting Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 94, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981)).
The question of what remedies are available under a statute that provides a private right of action is analytically distinct from the issue of whether such a right exists in the first place. Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 66, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992). Once the Court has found that Congress intended to create a private right of action, however, "we presume the availability of all appropriate remedies unless Congress has expressly indicated otherwise." Id. at 66, 112 S.Ct. 1028.
The language of § 36 only expressly allows the SEC to bring suit. Despite that clear language, four Courts of Appeals have found an implied private right of action.[5] Lest there be any doubt concerning the private right of action, Congress, in 1980, amended the ICA in the Small Business Investment Incentive Act, and evidenced a clear intent for courts to imply a private cause of action in § 36. The House Report on Public Law No. 96-477 states that "breaches of fiduciary duty involving personal misconduct should be remedied under Section 36(a) of the Investment Company Act .... the Committee contemplates suits by shareholders as well as by the Commission, since these are the persons the provision is designed to protect...." Bancroft Convertible Fund, 825 F.2d at 736 (quoting H.R.Rep. No. 1341, 96th Cong., 2d Sess. 28-29 (1980), reprinted in 1980 U.S.C.C.A.N. 4800, 4810-11).
Thus, Congress clearly intended for § 36 to provide a private right of action to shareholders suing board members and investment advisors for breach of fiduciary duty, and the Court finds a private cause of action exists under § 80a-35(a). The motions of the Independent Trustees and Scott and MFS to dismiss the first and fifth causes of action are denied on this ground.

2.
The Independent Trustees, Scott and MFS next contend that plaintiffs cannot state a cause of action under § 80a-35(a) for breach of fiduciary duty because the Business Judgment Rule ("BJR") protects defendants. Plaintiffs, however, have alleged certain facts that, if true, would overcome the BJR presumption.
The BJR "is a presumption that in making a business decision the directors of a corporation acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company." Aronson v. Lewis, 473 A.2d 805, 812 (Del.Sup.1984) (citations omitted). This presumption only attaches to decisions made by directors who are completely independent and wholly disinterested. Id. When the BJR applies, it imposes upon the party challenging the decision the burden of rebutting the presumption. Id. The BJR applies to the breach of fiduciary standard under § 36 as it does to state causes of action. Reserve Management Corp. v. Anchor Daily Income Fund, Inc., 459 F.Supp. 597, 611 (S.D.N.Y. 1978).
Plaintiffs argue that the BJR presumption does not apply in this case. They contend that the Trustees took defensive measures in the context of a battle for corporate control, which triggers the heightened scrutiny first mandated by the Delaware Supreme Court in Unocal Corp. v. Mesa Petroleum Co., 493 A.2d 946 (Del.Sup.1985).
*738 In Unocal, the Court held that when the BJR is applied to a board adopting a defensive mechanism (in that case a discriminatory self-tender) in response to a takeover threat, the initial burden of showing that the BJR applies falls upon the directors. Id. Furthermore, the Unocal standard applies whether the takeover bid is pending or not. See, e.g., Moran v. Household Int'l, Inc., 500 A.2d 1346 (Del.Sup.1985).
All of the cases cited by plaintiffs and defendants on this issue, however, deal with defensive mechanisms that were put in place to ward off potential corporate takeovers. That is not the case here. The proposed merger of the Fund with The Navellier Performance Funds, and the possible retaliation for the firing of Drinkwater are not similar to the possibility of a corporate takeover.
In any event, the main concern of courts in such takeover situations is that the directors will frustrate or completely disenfranchise the shareholders' right to vote. Stroud v. Grace, 606 A.2d 75, 91 (Del.Sup.1992). Here, the shareholders did vote on whether to allow MFS to continue as the investment advisor. Thus, the Independent Trustees did not usurp the right of shareholders to vote because a shareholder vote on MFS (and de facto on NMI) was held. The proper BJR standard, then, is the normal presumption, which plaintiffs must overcome.
Plaintiffs have, however, alleged facts that, if true, would overcome the BJR presumption. They allege that the Independent Trustees took actions against Navellier and NMI in retaliation for Navellier's firing of Drinkwater as a trustee, and in order to entrench themselves on the Board. The amended complaint alleges actions by the Independent Trustees that support these allegations. For example, plaintiffs allege that the Independent Trustees were upset by Drinkwater's firing, defeated the merger proposal, failed to renew NMI's contract, ousted Navellier from the Board, demanded privileged personal financial information from Navellier, interfered with the SEC's review of the potential proxy vote on the merger, and had an agreement with MFS to remain as Board members.
For a Rule 12(b)(6) motion to dismiss, the Court must accept as true all material allegations in the complaint, as well as all reasonable inferences to be drawn from those allegations. NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986). Thus, the Independent Trustees', Scott and MFS' motions to dismiss the first and fifth causes of action under § 80a-35(a) are denied because plaintiffs have adequately pled to overcome the presumption of the BJR.

3.
Plaintiffs assert that Scott and MFS breached a fiduciary duty to Fund shareholders by convincing the Trustees not to renew NMI's investment advisory contract. Under the ICA, it is within the Independent Trustees' sole discretion to renew the investment advisor's contract. 15 U.S.C. § 80a-15(c). In fact, at the time the decision was made by the Independent Trustees, Scott and MFS did not even owe a fiduciary duty to the Fund or its shareholders under the ICA. MFS did not become the investment company advisor until after the March 13, 1997 vote, and Scott was not a trustee until April 10, 1997.
Plaintiffs advance several theories under which they argue Scott and MFS are liable under the ICA. The first of these is that MFS and Scott were "de facto" investment advisor and trustee. Plaintiffs point out that MFS drafted the investment advisory agreements and minutes removing NMI for the March 13, 1997 meeting.[6] They assert that NMI was, then, "acting" as the investment advisor at that time. As the "acting" advisor, MFS  and its representative Scott  had a fiduciary duty to the Fund's shareholders under the ICA because § 80(a)-35(a) holds persons "serving or acting" in the role of investment advisor to such a duty.
*739 Plaintiffs, however, have cited no authority to support their theory of a "de facto" advisor. Indeed, such a theory does not seem to exist in case law.[7] It is also doubtful that "serving or acting" includes the situation in which MFS found itself. MFS could not have acted as the investment advisor until the Independent Trustees voted to accept its contract at the March 13 meeting. Thus, MFS had no fiduciary duty to shareholders stemming from § 80a-35(a), and no authority to renew NMI's contract, at the time the Independent Trustees voted not to renew NMI as the investment advisor.
Plaintiffs also argue that Scott and MFS are liable for breach of fiduciary duty because they procured the Independent Trustees' breach under § 80a-35(a). They rely on § 80a-47(a), which makes it "unlawful for any person, directly or indirectly, to cause to be done any act or thing through or by means of any other person which it would be unlawful for such person to do under the provisions of this subchapter...." Plaintiffs contend that Scott and MFS caused the Independent Trustees not to renew NMI's contract because they controlled the Independent Trustees.
The definition of "control" is provided by § 80a-2(a)(9).[8] Under this section, "control means the power to exercise a controlling influence over the management or policies of a company...." Plaintiffs allege that Scott and MFS control the Independent Trustees because they offered to keep them on as Independent Trustees, and offered them insurance.
Plaintiffs, however, neglected to read the remainder of § 80a-2(a)(9). The statute is concerned with control through stock ownership.[9] It specifically states that any person who does not own more than twenty-five percent of the voting shares of the company is presumed not to control the company. Furthermore, there is a presumption that natural persons, which the Independent Trustees are, are not controlled persons. Finally, these presumptions remain in force until the SEC makes a determination to the contrary. Because the SEC has not made any such determination, whether MFS and Scott can be said to have controlled the Independent Trustees or not, plaintiffs cannot rely on § 80-a2(a)(9). Scott and MFS did not, then, "control" the Independent Trustees and "cause" them to not renew NMI's contract. Scott and MFS's motion to dismiss with prejudice the first and fifth causes of action is granted.

B.

1.
Plaintiffs bring their second and sixth causes of action against the Independent Trustees, Scott and MFS for breach of fiduciary duty under Delaware statutory and common law. Defendants argue that the BJR protects them from liability. This analysis is identical to that on the BJR in section II.A.2. above. Thus, the Independent Trustees' motion to dismiss the second and sixth *740 causes of action for breach of fiduciary duty is denied because plaintiffs have adequately pled to overcome the presumption of the BJR.

2.
Plaintiffs cannot plead an action under Delaware law for breach of fiduciary duty against Scott and MFS. Plaintiffs assert that Scott and MFS breached a fiduciary duty to Fund shareholders by convincing the Independent Trustees not to renew NMI's investment advisory contract just as they did in their first and fifth causes of action. At the time the decision was made by the Independent Trustees on March 13, 1997, Scott and MFS did not owe a fiduciary duty to the Fund or its shareholders under Delaware law. MFS did not become the investment company advisor until after that March 13 vote, and Scott was not a trustee until April 10, 1997.
Under Delaware law, the analysis is similar to that under the ICA. Scott was not a trustee, and MFS was not the investment advisor at the time the Independent Trustees voted not to renew NMI's investment advisor contract on March 13, 1997. In Gilbert v. El Paso Co., 490 A.2d 1050, 1056 (Del.Ch.1984), the Court made it clear that "[s]tate law claims of breach of ... fiduciary relationship must subsist on the actuality of a specific legal relationship, not its potential."
Scott and MFS cannot be considered "control persons" under Delaware law just as they could not be so considered under the ICA. "Control" in Delaware means ownership of voting shares as it does under the ICA. For example, in Harriman v. E.I. DuPont DeNemours & Co., 372 F.Supp. 101 (D.Del.1974), the Court discussed several ways that outsiders could be considered to control other companies under Delaware law. Id. at 106. All such examples dealt with stock ownership. Id. The Gilbert Court also determined that outsiders do not assume a fiduciary duty to a corporation's shareholders because they have "superior bargaining position in dealing with management." Gilbert, 490 A.2d at 1055. Scott and MFS's motion to dismiss the second and sixth causes of action with prejudice is granted.[10]

C.
Plaintiffs have brought four causes of action against Adams only. Adams was the Independent Trustees' legal advisor from October 1995 to July 14, 1997. The third and seventh causes of action are for breach of fiduciary duty under California law. The fourth and eighth causes of action are for negligence under California law.[11]

1.
Plaintiffs' third and seventh causes of action are brought against Adams alone for breach of fiduciary duty.
Plaintiffs contend that Adams, by virtue of his position as counsel to the Independent Trustees, had a fiduciary duty to the Funds' shareholders. Their main piece of authority, however, is the depublished Gump v. Wells Fargo Bank, N.A., 237 Cal.Rptr. 311, 355 (1987). The only other authority offered is Morales v. Field, DeGoff, Huppert & MacGowan, 99 Cal.App.3d 307, 160 Cal.Rptr. 239 (1979). In Morales, the Court stated that counsel to the trustee of a testamentary trust assumed a "relationship with the beneficiary akin to that between trustee and beneficiary." Id. at 316, 160 Cal.Rptr. 239.
This language from Morales does not support plaintiffs' position. First, the testamentary trust in Morales is quite different from the business trust at issue here. Second, although there may be a "relationship" with the beneficiary, the beneficiary is not also the *741 attorney's client, and there is no fiduciary duty. The court in Lasky, Haas, Cohler & Munter v. Superior Court, 172 Cal.App.3d 264, 218 Cal.Rptr. 205 (1985), found that this language from Morales "falls short of a holding that the beneficiary is a client of the trustee's counsel." Id. at 283, 218 Cal.Rptr. at 216. Furthermore, Pierce v. Lyman, 1 Cal.App.4th 1093, 3 Cal.Rptr.2d 236 (1991), makes it clear that, when no attorney-client relationship exists between counsel to trustees and beneficiaries, no fiduciary obligations exist between them. Id. at 1102, 3 Cal. Rptr.2d 236. Adams' motion to dismiss the third and seventh causes of action is granted with prejudice.

2.
The fourth and eighth causes of action are brought against Adams for negligence.
In order for plaintiffs to sue Adams for negligence, they must establish that he owed them a duty of care. Goldberg v. Frye, 217 Cal.App.3d 1258, 1267, 266 Cal.Rptr. 483 (1990). Attorneys generally will not be liable to a third person who is not in privity of contract with them because attorneys only owe a duty to their client. Schick v. Bach, 193 Cal.App.3d 1321, 1329, 238 Cal.Rptr. 902 (1987). Whether an attorney may under the circumstances owe a duty to a nonclient "is a question of law and depends on a judicial weighing of the policy considerations for and against the imposition of liability...." Goodman v. Kennedy, 18 Cal.3d 335, 342, 134 Cal.Rptr. 375, 556 P.2d 737 (1976) (citations omitted).
The court in Skarbrevik v. Cohen, England & Whitfield, 231 Cal.App.3d 692, 282 Cal. Rptr. 627 (1991), applied the above principles to determine that an attorney owed no duty to a nonclient. The attorney, corporate counsel, advised the majority shareholders on the procedure to follow in order to dilute the minority shareholder's stock. Id. at 698-700, 282 Cal.Rptr. at 630-32. The Court held that "an attorney representing a corporation does not become the representative of its stockholders merely because the attorney's actions on behalf of the corporation also benefit the stockholders...." Id. at 703, 282 Cal.Rptr. at 634 (citing Meehan v. Hopps, 144 Cal.App.2d 284, 293, 301 P.2d 10, 15-16 (1956)). Thus, the Court found that the attorney owed no duty to the minority shareholder, and could not be liable to that shareholder.[12]
The situation here is analogous to that in Skarbrevik. Plaintiffs admit that Adams was counsel for the Independent Trustees. They allege, however, that Adams owed a duty of care to the Funds' shareholders because his advice to his clients might affect them. Thus, plaintiffs argue, any alleged negligent advice Adams gave to the Independent Trustees that damaged plaintiffs would be actionable.
In fact, Adams had no duty of care to the shareholders of the Fund because the Independent Trustees were his sole client. As in Skarbrevik, simply because Adams' advice might affect the shareholders does not give rise to a cause of action by those shareholders for negligence. Adams motion to dismiss the fourth and eighth causes of action is granted with prejudice.

D.
The ninth cause of action for corporate waste is brought by Navellier as an Interested Trustee of the Fund against all defendants. The essence of the claim is that defendants wasted the Fund's assets in the proxy battle to affirm MFS as the investment advisor. Defendants contend that the actions taken during the proxy contest were legal and necessary. Hence, they argue, those actions are protected by the BJR.[13]
*742 If, however, defendants' actions in not renewing NMI's contract and ousting Navellier from the Board constituted breaches of fiduciary duty, any damages flowing from those breaches are also actionable. Just as those decisions by the Independent Trustees may be protected by the BJR, so any expenditures from waging the proxy contest may be protected by the BJR. Because plaintiffs have alleged sufficient facts to overcome the BJR presumption for the decision to replace NMI with MFS, though, the BJR is also overcome at this stage for the waste cause of action.
Because the Independent Trustees made the decision to terminate NMI and hire MFS, they are also liable for any alleged damages flowing from that decision. As discussed above, Scott and MFS are not liable for the initial decision of the Board. Any assets spent during the proxy contest flowed from that decision because by law the shareholders had to vote on MFS's contract pursuant to § 80a-15. Any assets spent by Scott and MFS while they were fiduciaries, then, were mandated by the Independent Trustees' decision. Scott and MFS are not liable for any "waste" arising from the proxy battle. Finally, as discussed above, Adams was also not a fiduciary at the time of the March 13, 1997, Board meeting so he cannot be liable for any alleged waste. In any event, Adams never had any authority to spend corporate assets.
Thus, the Independent Trustees' motion to dismiss the ninth cause of action is denied. Scott and MFS's and Adams' motions to dismiss the ninth cause of action for corporate waste are granted with prejudice.

E.
NMI brings the tenth cause of action for interference with prospective economic relations against all defendants.[14]
The Independent Trustees contend that an officer or director cannot be personally liable for interfering with an economic relationship of their employer. See Shearin v. E.F. Hutton Group, Inc., 652 A.2d 578, 590 (Del.Ch.1994). While they are correct that this is the general rule, there is an exception for corporate officers who exceed the scope of their agency. International Ass'n of Heat & Frost Insulators & Asbestos Workers, Local Union 42 v. Absolute Envtl. Servs., Inc., 814 F.Supp. 392, 400 (D.Del. 1993). This rule is consistent with the BJR, which holds corporate officers immune from personal liability when they make business decisions in their fiduciary capacity. Id. Because the rule for officer liability for intentionally interfering with economic relationships is the same standard as that for the BJR, as discussed above, plaintiffs have pled sufficient facts to defeat the Independent Trustees' motion. The Independent Trustees' motion to dismiss the tenth cause of action is denied.
Scott and MFS argue that they cannot be held liable for interference with the prospective economic relations of a competitor. They are correct that this "competition privilege" shields Scott and MFS from liability for allegedly persuading the Independent Trustees to allow NMI's contract to expire and hire MFS. The court in Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal.4th 376, 45 Cal.Rptr.2d 436, 447, 902 P.2d 740 (1995), held that a plaintiff who seeks to recover for an alleged interference with prospective economic relations must prove that the defendant "engaged in conduct that was wrongful by some legal measure other than the fact of interference itself." Plaintiffs here have not made, nor can they make, any such showing. Scott and MFS were within their rights to use persuasive sales tactics to convince the Independent Trustees to hire MFS. Scott and MFS's motion to dismiss the tenth cause of action is granted with prejudice.
Finally, Adams contends that he cannot be liable or interference with the prospective economic relations between NMI and the Fund because an attorney cannot be liable for urging his client to breach a contract.[15]*743 Los Angeles Airways, Inc. v. Davis, 687 F.2d 321 (9th Cir.1982). Plaintiffs, however, counter that Adams can be liable because he participated in carrying out the breach in order to maintain his employment as counsel to the Independent Trustees. Plaintiffs have not, and cannot, allege that Adams did anything more than advise his clients how to proceed according to the law and then carry out their decisions. Furthermore, any desire Adams had to promote his standing within his job does not negate his privilege to advise his clients to breach a contract. Id. at 328. Adams' motion to dismiss the tenth cause of action is granted with prejudice.

III.
Accordingly,
IT IS HEREBY ORDERED that:
1. The Independent Trustees' motion to dismiss the first and fifth causes of action brought under 15 U.S.C. § 80a-35(a) is DENIED, but Scott and MFS's motion to dismiss these causes of action is GRANTED with prejudice.
2. The Independent Trustees' motion to dismiss the second and sixth causes of action for breach of fiduciary under Delaware law is DENIED, but Scott and MFS's motion to dismiss these claims is GRANTED with prejudice.
3. Adams' motion to dismiss the third and seventh causes of action for breach of fiduciary duty under California law is GRANTED with prejudice.
4. Adams' Motion to dismiss the fourth and eighth causes of action for negligence under California law is GRANTED with prejudice.
5. The Independent Trustees' motion to dismiss the ninth cause of action for waste is DENIED, but Scott and MFS's and Adams' motions to dismiss the ninth cause of action are GRANTED with prejudice.
6. The Independent Trustees' motion to dismiss the tenth cause of action for interference with prospective economic relations is DENIED, but the motions to dismiss of Scott and MFS and Adams to dismiss the tenth cause of action are GRANTED with prejudice.
NOTES
[1]  Boards of directors are composed of "interested" and "noninterested," or "independent," persons. An "interested" person is defined by statute in 15 U.S.C. §§ 80a-2(a)(19) and 80a-2(a)(3), generally to mean any person having a direct or indirect simple interest in an investment company. No registered investment company shall have a board of directors more than sixty percent of the members of which are persons who are interested persons of such registered company. 15 U.S.C. § 80a-10(a). Inasmuch as the Fund is organized under Delaware law as a business trust, members of its Board of Directors are herein called "Trustees." The Fund has five Trustees, two of whom are "Interested Persons" (herein "Interested Trustees"). The remaining three are not "Interested Persons" and are herein called "Independent Trustees." Id.
[2]  15 U.S.C. §§ 80a-2(a)(42)(A), 80a-15(a).
[3]  Adams also joins in both of the motions by the other defendants.
[4]  Section 80a-35(a)(1) of the ICA provides:

The Commission is authorized to bring an action in the proper district court of the United States ... alleging that a person serving or acting in one or more of the following capacities has engaged ... in any act or practice constituting a breach of fiduciary duty involving personal misconduct in respect of any registered investment company for which such person so serves or acts
(1) as officer, director, member of any advisory board, investment advisor, or depositor....
[5]  See, e.g., Brown v. Bullock, 294 F.2d 415, 418 (2d Cir.1961); Esplin v. Hirschi, 402 F.2d 94, 103 (10th Cir.1968), cert. denied, 394 U.S. 928, 89 S.Ct. 1194, 22 L.Ed.2d 459 (1969); Levitt v. Johnson, 334 F.2d 815, 819 (1st Cir.1964), cert. denied, 379 U.S. 961, 85 S.Ct. 649, 13 L.Ed.2d 556 (1965), Bancroft Convertible Fund, Inc. v. Zico Inv. Holdings, Inc., 825 F.2d 731, 735 (3d Cir.1987). Only the Eighth Circuit refused to imply a private cause of action, but that holding was thrown into doubt by a later decision of that Circuit. See Brouk v. Managed Funds, Inc., 286 F.2d 901, 912 (8th Cir.1961), cert. denied, 366 U.S. 958, 81 S.Ct. 1921, 6 L.Ed.2d 1252 (1961), vacated as moot per curiam, 369 U.S. 424, 82 S.Ct. 878, 8 L.Ed.2d 6 (1962), later questioned in Greater Iowa Corp. v. McLendon, 378 F.2d 783, 793 (8th Cir.1967).
[6]  These facts are not relied on in the amended complaint. In fact, plaintiffs rely on facts, and statutes (§§ 80a-47(a), 80a-2(a)(9)) that are not found in the amended complaint. Because they have no merit, rather than make plaintiffs amend the amended complaint, the Court will deal with them here.
[7]  Plaintiffs have not made a claim for aiding and abetting or conspiracy in any of their breach of fiduciary duty claims. To the extent they attempt to do so with these allegations, such an implied cause of action is not allowed under the ICA. In re ML-Lee Acquisition Fund II, L.P. Sec. Litig., 848 F.Supp. 527, 545-547 (D.Del.1994); See also Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 179, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994).
[8]  Section 80a-2(a)(9) states in relevant part:

"Control" means the power to exercise a controlling influence over the management or policies of a company, unless such power is solely the result of an official position with such company.
Any person who owns beneficially, either directly or through one or more controlled companies, more than 25 per centum of the voting securities of a company shall be presumed to control such company. Any person who does not so own more than 25 per centum of the voting securities of any company shall be presumed not to control such company. A natural person shall be presumed not to be a controlled person within the meaning of this subchapter. Any such presumption may be rebutted by evidence, but except as hereinafter provided, shall continue until a determination to the contrary made by the Commission by order either on its own motion or on application by an interested person....
[9]  The cases cited by plaintiffs for support also show that "control" is solely a matter of voting shares owned. See, e.g., Harriman v. E.I. DuPont DeNemours & Co., 372 F.Supp. 101 (D.Del.1974).
[10]  Because the Court dismisses these claims, it does not reach Scott and MFS's contention that the Investment Advisors Act of 1940 preempts these state law claims.
[11]  As an introductory note, plaintiffs made numerous mistakes in their opposition to Adams' motion. For example, they attribute two separate quotations to the Court in Morales v. Field, DeGoff, Huppert & MacGowan, 99 Cal.App.3d 307, 160 Cal.Rptr. 239 (1979). In reality, these quotations come from the depublished case of Gump v. Wells Fargo Bank, N.A., 237 Cal.Rptr. 311, 335 (1987). A depublished case, of course, cannot be cited as authority. The Court cannot have any confidence in plaintiffs' counsel or plaintiffs' case when it is confronted by such egregious mistakes.
[12]  The Skarbrevik situation is analogous to the standard determined by the Court in Goldberg, 217 Cal.App.3d at 1267, 266 Cal.Rptr. 483, for counsel for estate administrators. There the Court stated that the attorney for the administrator of an estate represents the administrator and not the estate so there is no duty to the estate. Id.
[13]  The Independent Trustees also claim that Navellier should have made a demand on the Board to end the alleged waste. Because Navellier was engaged in this proxy contest with the Board, any such demand would clearly have been futile. Thus, Navellier may bring the claim without having made a demand on the Board.
[14]  Plaintiffs have failed to state whether this claim is brought under California or Delaware law. The Court will, then, refer to the law of both states.
[15]  Of course, NMI's contract was not breached, it was simply allowed to expire.


          United States Court of Appeals
                     For the First Circuit

No. 05-1121

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                 JOSÉ RAMÓN HERNÁNDEZ-RODRÍGUEZ,

                      Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Juan M. Pérez-Giménez, U.S. District Judge]

                             Before

                  Torruella, Lipez and Howard,
                         Circuit Judges.

     Lorenzo J. Palomares, for appellant.
     Timothy R. Henwood, Assistant United States Attorney, with
whom Nelson Pérez-Sosa, Senior Appellate Assistant United States
Attorney, and H.S. García, United States Attorney, were on brief,
for appellee.

                          April 6, 2006
           TORRUELLA, Circuit Judge.         On September 3, 1998, a jury

returned   a   verdict    against     José     Ramón   Hernández-Rodríguez

("Hernández"), finding him guilty of five offenses associated with

conspiracy to import, possess, and distribute a large quantity of

cocaine. His co-defendant, Douglas Gorbea-Del Valle ("Gorbea") was

also convicted.    Hernández was sentenced to five concurrent terms

of imprisonment, each 293 months in duration.              He filed a timely

appeal, and this court affirmed the conviction and sentence on

July 17, 2000.    United States v. Hernández, 218 F.3d 58 (1st Cir.

2000), cert. denied, 531 U.S. 1103 (2001).

           In June 2002, Hernández filed a Motion for a New Trial

under Fed. R. Crim. P. 331 ("Rule 33") alleging that he was

misidentified and offering newly discovered evidence.              Two years

later, in June 2004, a magistrate judge issued a Report and

Recommendation    that   Hernández    be     granted   a   new   trial.   On

December 22, 2004, the district judge rejected the magistrate's

recommendation and denied the motion for a new trial.

           Hernández herein appeals from the district court's denial

of his motion for a new trial.       Because we find that the district

court erred both in its analysis of the new evidence and insofar as

it rejected the magistrate's credibility determination without

1
   "Upon the defendant's motion, the court may vacate any judgment
and grant a new trial if the interest of justice so requires."
Fed. R. Crim. P. 33(a).

                                     -2-
first hearing the evidence, we reverse the district court and

remand the case for action consistent with this opinion.

                                        I.

              On September 27, 1997, U.S. Customs officials intercepted

a container at Crowley Yard in San Juan, Puerto Rico.              It had just

arrived from Venezuela, and although the bill of lading indicated

that the container held only plastic cups, there was contraband

inside   as    well.    The   consignee      was   a    supermarket,    and   the

consignee's     representative    was    South     Atlantic   Trading    Company

(SATCO), of which Gorbea was part owner.               Customs agents unloaded

7,514 pounds of cocaine, worth nearly one billion dollars.                    They

then re-packed the containers with approximately 24 pounds of

cocaine.

              On October 2, driver Alain Ruiz-Galíndez ("Ruiz"),2 an

employee of J.R. Transport -- a company owned by Hernández --

arrived at Crowley Yard to retrieve the container.                     The truck

stopped several times during its route, sometimes for thirty

minutes or more.       A trip that the district court judge estimated

should have taken thirty minutes took about four hours.                 Although

other cars on the road at that time had their headlights on, Ruiz

drove without headlights.        From the moment the truck left Crowley

Yard, Hernández followed it in a gray van.                  During one of the

2
    Ruiz was tried jointly with Gorbea and Hernández, but was
acquitted on all counts.

                                     -3-
stopovers he exited the van and entered the truck, where he

remained until it arrived at J.R. Transport's truck yard.            At some

point, the van stopped following the truck.

            It appeared to the officers following the truck that a

Crown Victoria with several passengers inside arrived at the truck

yard at the same time as the truck, and that one passenger carried

an object that might have been a gun.       The officers reported seeing

people in the truck yard greeting and congratulating one another

once the container was inside the lot.        After surveying the scene,

the officers moved in and made arrests.       The container had not been

opened.

            When Gorbea was arrested in December 1997, a faxed

document was found in his briefcase ("the fax").              It was dated

February 5, 1997 -- nearly ten months prior to his arrest and

almost eight months before the container was intercepted -- from a

Marina Kassert in Venezuela regarding an earlier shipment of

plastic cups.     It said, "I urgently need the information of your

friend that has the truck to square everything with him."            On the

back of the two-page fax, among several other handwritten notes,

was the name José Hernández.

            At   their   joint   trial,   neither   Gorbea   nor   Hernández

presented any evidence and both were convicted on September 3,

1998.     Ruiz, also a defendant, was acquitted.         After this court

affirmed his conviction, Hernández, 218 F.3d at 71, Hernández filed

                                    -4-
a 28 U.S.C. § 2255 petition claiming ineffective assistance of

counsel.    Hernández v. United States, No. 97-228, 2004 WL 1737361,

*2    (D.P.R.    June   29,   2004).          In    that   petition,    Hernández

specifically pointed to his attorney's failure to interview Gorbea,

alleging that such an interview would have revealed exculpatory

evidence.    Id. at *2.    His § 2255 petition was denied in June 2002.

Id.    On July 16, 2002, Hernández filed a Motion for a New Trial

under Fed. R. Crim. P. 33, alleging newly discovered evidence and

innocence.

             The new evidence was an affidavit from Gorbea, declaring

that he and Hernández did not know each other personally until they

met, after their arrest, in a detention facility in Puerto Rico.

According to his affidavit, at the time of his arrest Gorbea told

U.S. Customs agents Ricardo Rivera ("Agent Rivera") and Brenda

Talavera     ("Agent    Talavera")     that    he    did   not   know   Hernández

personally, and the agents took note of this information.                 Id. at

*4. At the evidentiary hearing before the magistrate judge, Gorbea

testified that he never told Hernández about the drugs in the

truck, and that because no one in Venezuela knew Hernández either,

Hernández had "no reason to know" of the drugs in the container.

Id. at *5.      Gorbea testified that he never told truckers what they

were hauling, and -- although he did not admit his own guilt -- he

explained that if he were to import drugs, he would never inform

                                       -5-
the truckers because he would need to pay them extra otherwise.3

Id.    Gorbea also testified that he chose to use J.R. Transport only

because its rates undercut those of the other trucking companies he

had considered.       Id.     For his part, Hernández testified that he

had only one telephone conversation with Gorbea prior to their

arrest, and that conversation pertained only to the negotiation of

his fee for transporting the cargo.4             Id.    Under the agreed terms,

Hernández had transported two shipments of plastic cups prior to

the final shipment, at issue in this case.                   Id.

            Of     particular      significance        was    Gorbea's      testimony

regarding the fax.         At the evidentiary hearing, he explained that

in May 1997 (approximately three months after the fax transmission)

he was in Venezuela looking for information regarding a shipment of

soda    crackers    that    was    scheduled    to   go      to    Puerto   Rico   from

Venezuela.       Id. at *6.       Gorbea stated that he called the company

representing Crowley Maritime Shipping in Venezuela and spoke to an

individual by the name of José Hernández-Avilés, or some similar

name, who was unable to help him.              Id.   That employee transferred

him to two or three other people at Crowley in Puerto Rico until

3
  By contrast, Hernández testified that he agreed to charge twenty
percent below market rate in order to secure the job with Gorbea.
Id.
4
   We do not understand this testimony to be inconsistent with
Gorbea's statement that the two only "met" after they were both in
custody because Gorbea seems clearly to refer to the first meeting
in which more transpired than simply a negotiation between a common
carrier and a consignee regarding a shipment of plastic cups.

                                        -6-
Gorbea found someone who knew when the container was due to arrive.

Id.   Gorbea testified that the person who finally provided the

information he needed was called José Hernández, and that he wrote

the name on the back of the fax paper as he was being transferred

from one person to the next.       Id.        Finally, Gorbea stated his

belief that Defendant Hernández was not the individual to whom he

spoke on the phone that day.     Id. at *7.      He explained that if he

had been referring to Defendant Hernández, he would have known and

used Hernández's    nickname, "Papito," or the name of his company,

"J.R. Trucking."    Id.

          After filing for a new trial but before the evidentiary

hearing, Hernández moved to compel Crowley Maritime Corporation to

produce personnel records regarding the existence of any employees

with the name José Hernández during the time period in question.

The records indicate that from May to October 1997, the following

were Crowley employees: 1) José Hernández-Vélez (San Juan); 2) José

Hernández-Marrero (San Juan); 3) José Hernández-Febus (San Juan);

4) José Hernández (Venezuela).

          At the evidentiary hearing, the government presented the

testimonies   of   Agents   Talavera    and    Rivera.   Agent   Talavera

testified that she went to Crowley as part of her investigation to

determine whether José Hernández had ever worked there.          Although

she did not remember the outcome of the inquiry, she stated her

belief that knowledge of a Crowley employee by the same name in

                                  -7-
Venezuela would have been "important and significant" to her

investigation.      Id. at *8.      Similarly, Agent Rivera testified that

he did not personally verify whether a person with the name José

Hernández       worked    at    Crowley,   and    when     asked     whether    such

information would have been important to his investigation, he

replied "[w]ell, now it is.          Perhaps back then it wasn't."             Id. at

*9.

              Agent Talavera was asked to describe the evidence --

aside    from    the     fax   --   of   Hernández's       willing    and   knowing

participation in the crime.          Id. at *8.         Agent Talavera responded

with    the   following:       employees   of    J.R.    Trucking    obtained    the

paperwork for the shipment and moved the container which held the

drugs; a surveillance video recorded Ruiz walking around the truck

prior to departure, inspecting the seal, the locks, and the tires;

agents following the truck saw Hernández and Ruiz periodically

getting out of the truck to examine it from behind during the

unusually long journey from Crowley Yard to the J.R. Trucking yard;

and the truck drove without headlights.                    Id.      Agent Talavera

testified that she had no knowledge of whether the truck had

mechanical problems, but the magistrate judge found that Agent

Talavera's report clearly contained the driver's explanation as to

his circuitous route: the truck had no serviceable lights and he

used the back roads so as to avoid police detection of the fact

that the truck was driving without lights.                Id.

                                         -8-
             Of note is Hernández's testimony at the evidentiary

hearing regarding Agent Talavera's summary of the evidence against

him. Hernández explained that when a trailer is made available for

pickup it has already been cleared by U.S. Customs, and thus the

fact    of   his   company   having   transported   the   container   is   not

intrinsically incriminating because he was misled by the government

as to the legality of the container's contents.           He also shed light

on the driver's behavior as Talavera described it, saying that once

the driver receives a container for pickup, the trailer is sealed

and the driver is not permitted to break the seal under threat of

penalty.       Id. at 20.    The driver must also conduct an external

inspection of the truck, checking the tires and inspecting the

seal.    Id.

                                      II.

             Our standard of review of a district court's denial of a

Rule 33 motion for a new trial is "manifest abuse of discretion."

United States v. Falú-González, 205 F.3d 436, 442 (1st Cir. 2000).

The issue before us on appeal is thus whether the district court

abused its discretion when it found the newly proffered evidence

insufficient to warrant a new trial under Rule 33.5

5
   Hernández also raises a separate entrapment claim, apparently
for the first time in his brief on this appeal. We do not address
it because "[t]heories not raised in the district court cannot be
raised for the first time on appeal." Tobin v. Liberty Mut. Ins.
Co., 428 F.3d 54, 59 n.3 (1st Cir. 2005).

                                      -9-
             We use a four-part test to evaluate a request for a new

trial on the basis of newly discovered evidence.                   Id.      The

defendant bears the weighty burden "to establish that 'the evidence

was: (i) unknown or unavailable at the time of trial, (ii) despite

due diligence, (iii) material, and (iv) likely to result in an

acquittal     upon    retrial.'"    Id.    (quoting    United     States     v.

Montilla-Rivera, 115 F.3d 1060, 1064-65 (1st Cir. 1997)).

             The district court did not analyze the first two prongs,

finding that Hernández could not surmount either the third or

fourth part.       We will consider appellant's claim with respect to

the test in its entirety, cognizant of our own precedent which

dictates that we have no discretion to grant a motion for a new

trial if any one of the four factors is lacking.          United States v.

Natanel, 938 F.2d 302, 313 (1st Cir. 1991).

             Hernández claims, and the magistrate judge agreed, that

the new evidence proffered in this case -- Gorbea's affidavit --

was unavailable at the time of trial.           This circuit has long held

that exculpatory affidavits from co-defendants who exercised their

Fifth Amendment privilege not to testify at trial may constitute

"newly discovered evidence" for Rule 33 purposes. Montilla-Rivera,

115 F.3d at 1065-66.         Contra United States v. Theodosopoulos, 48

F.3d 1438, 1448 (7th Cir. 1995); United States v. Muldrow, 19 F.3d

1332, 1339 (10th Cir. 1994). Nevertheless, we have also emphasized

the   need   for    "great   skepticism"   in   such   cases    because    "[a]

                                    -10-
convicted, sentenced codefendant has little to lose (and perhaps

something to gain) by such testimony."         Montilla-Rivera, 115 F.3d

at 1066.    Thus, although we are satisfied that the new evidence in

this case was unavailable at trial -- and thus sufficient to

satisfy the first prong of Montilla-Rivera -- we proceed through

the remainder of the inquiry with the appropriate caution.6

            The district court assumed arguendo, without further

discussion, that the defendant established due diligence.              The

magistrate, however, considered the issue and found persuasive an

affidavit    by   Hernández's   counsel   in   response   to   Hernández's

unsuccessful § 2255 motion in which he detailed his efforts to

solicit Gorbea's testimony at trial.       Hernández, 2004 WL 1737361,

at *12.    He stated that in pretrial meetings with both defendants

and their counsel,

            it was agreed that Defendant Gorbea would take
            the stand and testify in a way favorable to
            both him and Hernández.     However, when the
            government rested its case Gorbea had made up
            his mind, and refused to testify although his
            counsel had advised him to do so and explained
            to him that the defense needed his testimony
            to convey to the jury the fact that the
            defendants had no knowledge at all about the
            presence of cocaine in the container.

6
  In his dissenting opinion, Judge Howard expresses concern about
whether Gorbea's testimony should be accorded significant weight in
light of the fact that Gorbea has not admitted guilt. As Montilla-
Rivera requires, we have considered this evidence with "great
skepticism."    Nevertheless, we disagree with Judge Howard's
conclusion that Gorbea's testimony, even if deemed credible, would
fail to undermine significantly the government's case against
Hernández.

                                  -11-
Id.

              A survey of the circuits reveals that the requisite

measure of diligence in a Rule 33 inquiry is dependent upon the

nature of the evidence in question.                 See, e.g., United States v.

Villarreal,        324   F.3d   319,   326   (5th    Cir.    2003)   (finding     that

defendant was not sufficiently diligent where the new evidence

proffered consisted of details in a video that was introduced at

trial, and which would have been visible had the tape been played

more slowly);        United States v. Alessi, 638 F.2d 466, 479 (2d Cir.

1980) (observing that defendant should have been more diligent in

attempting to obtain a letter -- offered after conviction as the

basis of a Rule 33 motion -- the existence of which he had been

aware at trial).

              We find that the diligence factor -- where the new

evidence      in   question     is   the   testimony    of    a   co-defendant     who

exercised his Fifth Amendment privilege at trial -- does not

require more than Hernández has shown in this case.                        He did not

have the power to compel Gorbea to waive the privilege against

self-incrimination, and since both defendants and their counsel

agreed in pretrial meetings that Gorbea should and would testify,

it    seems   certain     that   Hernández's        diligence     burden    has   been

discharged.         Hernández has thus satisfied the second prong of

Montilla-Rivera.

                                           -12-
            The district court found that the new evidence, even if

unavailable at trial despite Hernández's exercise of due diligence,

was not material.   We have long held that a showing of materiality

is essential to a successful Rule 33 claim on the basis of new

evidence.   United States v. Wright, 625 F.2d 1017, 1019 (1st Cir.

1980).   The district court's materiality analysis was confined to

its determination that, "as the fax pertains to a different time

period and shipment, though supportive in establishing the present

conspiracy, it is logically unnecessary, and hence immaterial."

Hernández v. United States, 350 F. Supp. 2d 340, 345 (D.P.R. 2004).

            Although the district court correctly points out the

seven month gap between the date of the fax (February 5) and the

interception of the shipment at issue in this case (September 27),

we find the materiality analysis to have been too limited.      New

evidence is material if it has the potential "to alter the outcome

of the lawsuit under the applicable legal tenets."   Roche v. John

Hancock Mut. Life Ins. Co., 81 F.3d 249, 253 (1st Cir. 1996).7

7
    Although the materiality standard set forth in Roche was
actually used in the summary judgment context, we have borrowed it
here because we have not previously defined evidentiary materiality
in this context, and we find it to be apt.

    We have defined materiality where the Rule 33 motion is based
on an alleged Brady violation. Conley v. United States, 415 F.3d
183, 188 (1st Cir. 2005) ("The suppression of impeachment evidence
is material when a reasonable probability exists that the result of
the trial would have been different if the suppressed documents had
been disclosed to the defense.") (internal citation and quotation
marks omitted). However, there is a slight difference between the
Rule 33 analysis within the Brady context and outside of it, and we

                                -13-
Hernández was convicted of conspiracy.         The bulk of Gorbea's

affidavit and testimony speaks directly to the question of whether

Hernández knew or had reason to know that there were drugs in the

container.      This alone, in our opinion, would be sufficient to

satisfy   the   materiality   element.   As   for   Gorbea's   testimony

regarding the fax, despite the seven month delay between the fax

and the shipment, we clearly stated in our affirmance of his

conviction that "[o]f great weight is the fact that Gorbea wrote

Hernández's name on the back of the fax" because it suggested the

existence of conspiracy at an earlier date. Hernández, 218 F.3d at

67.   Furthermore, we find significant the fact that in its closing

argument at trial, the government made specific reference to the

fax, asking the jury, "[n]ow, ladies and gentlemen, why does a

shipper in Venezuela need the name of the trucker in Puerto Rico,

to square what?"     Hernández, 2004 WL 1737361, at *15. And in its

rebuttal the government argued:

           The fourth count deals only with Mr. Douglas
           Gorbea and Mr. Hernández and that is a
           conspiracy to import and what is the evidence
           there. Mr. Gorbea, as early as March, starts
           importing paper cups and who is his friend and
           trucker, Mr. J.R. In government's Exhibit 11,
           the telefax, Mr. Gorbea writes in his own
           handwriting, Juan Hernández and what is Marina
           Kassert asking him, give me the name of your
           trucker, your friend.   So now you know that
           Mr. Hernández had participated in that

have not herein adopted the Conley definition of materiality
because it would be difficult to reconcile with the fourth prong of
the Falú-González test that controls here.

                                  -14-
            importation      and     that   the     importation       did
            succeed.

Id. (emphasis added).          The government specifically told the jury

that the fax constituted evidence of at least one count with which

Hernández      was   charged    and    ultimately        convicted.          Gorbea's

alternative explanation for the name on the fax, coupled with new

corroborating evidence of multiple employees with the same name

working   at    Crowley   during      the   time    period     in   question,      goes

directly to Hernández's claim of misidentification.                   Thus, we find

that Hernández has satisfied Montilla-Rivera's third prong.

            Finally, Hernández must demonstrate that the new evidence

is "likely to result in an acquittal upon retrial." Falú-González,

205 F.3d at 442 (quoting Montilla-Rivera, 115 F.3d at 1064-65).

The district court began its analysis with a statement that it

would assume, arguendo, that the defendant's proffered evidence is

credible.       Hernández,     350    F.    Supp.   2d    at   344.         The   court

nonetheless held that Hernández has not made a sufficient showing

under this prong because

            [w]hile there may be other explanations for
            the truck's evasive route, and even for the
            name written on the fax, "[a] reasonable jury
            could infer [petitioner's] knowledge of the
            contents   of    the   container    and    his
            participation in the larger scheme," from his
            suspicious   behavior  in   transporting   the
            container, to wit, tailing the truck in a van
            for four hours, when it should have taken an
            unaccompanied truck driver no more than a half
            hour.

                                       -15-
Id.   at    345     (quoting   Hernández,        218   F.3d    at   58).       Similarly

insurmountable, in the district court's view, are the "celebration

which ensued in petitioner's truck yard upon the arrival of the

container" and "the fact that the container was taken to the J.R.

Transport lot, rather than directly to [Gorbea's premises]."                          Id.

(internal citation and quotation marks omitted).

                 The district court considered the primary value of the

defendant's         new   evidence    to    be     Gorbea's      suggestion      of     an

alternative explanation for the name written on the fax. We think,

however,     that     this   assessment      fails     to     account   for    the    full

implications of the new evidence.                  If the jury were to believe

Gorbea's affidavit and testimony at a new trial, it would find

that:      Hernández and Gorbea did not know one another personally

prior to arrest; Gorbea never spoke to Hernández about transporting

drugs      and    gave    Hernández   no     reason      to    think    that    he    was

transporting anything but ordinary cargo that had cleared U.S.

Customs in the ordinary fashion; Gorbea never mentioned Hernández

to anyone in Venezuela; Gorbea only hired Hernández to haul the

container because he was the lowest bidder for the job; and the

name on the back of the February 5 fax referred to an altogether

different person.

                 Inasmuch as the district judge failed to consider the

full import of the defendant's new evidence, we conclude that the

district court abused its discretion.                  As we view the evidence in

                                           -16-
this case, if deemed credible by a jury, Gorbea's testimony would

greatly undermine the conspiracy charges against Hernández.            The

government relied heavily on the theory that Hernández and Gorbea

were close and trusted partners in establishing its case against

Hernández.     In   addition   to   the    government's   other   comments

regarding the contents of the fax, for example, the government

emphasized to the jury that "[t]his is not García Trucking, this is

J.R. Trucking.   So the plan, you see, for this deception go[es] way

back.   This did not happen over night because the people in . . .

Venezuela . . . are not going to send [the cocaine] to anybody

. . .   They are going to send it to somebody they know, somebody

they can trust, somebody who is responsible to them, if something

happens."    The government premised its case against Hernández on

the notion that the people in Venezuela who shipped the cocaine

wanted Gorbea to choose a trusted friend to transport the shipment

once it arrived.    If the jury were to believe Gorbea's testimony

that he and Hernández had no such relationship prior to their

arrest and that he never told any of his contacts in Venezuela

about Hernández, the government's theory begins to unravel.             To

prove conspiracy, the government must demonstrate "the existence of

a conspiracy, the defendant's knowledge of the conspiracy, and the

defendant's voluntary participation in the conspiracy." Hernández,

218 F.3d at 64-65 (internal citation and quotation marks omitted).

Given the government's emphasis on the importance of Hernández's

                                    -17-
close relationship with Gorbea, Gorbea's testimony would go to the

heart of each showing.

          In a new trial, the government would be left to contest

Gorbea's credible testimony (so assumed by the district court) with

the circumstantial evidence of the truck's long route, the strange

behavior of the defendant and the driver, and the celebration that

ensued upon the truck's arrival.       The district court placed great

weight on this circumstantial evidence in its analysis, relying on

our assessment of the sufficiency of the evidence on direct review.

However, a determination on direct review that certain evidence is

sufficient to support a verdict does not eliminate the possibility

that, if new evidence is later presented, a court may grant a

motion for a new trial.         Indeed, we have previously stated that

where the government's case against a defendant is "sufficient, but

underwhelming," new, credible testimony "could lead to a different

outcome." Montilla-Rivera, 115 F.3d at 1066. On direct review, we

determined   that   the    circumstantial   evidence   presented   against

Hernández was sufficient to support the guilty verdict when viewed

in the light most favorable to the government. Hernández, 218 F.3d

at 67 & n.6.   However, we also acknowledged that, "[a]s with much

of the evidence in this case, the record provides other possible

explanations for the[] facts" regarding the "suspicious" transport

of the container.         Id.   The record shows that the jury heard

testimony from a government witness that Ruiz, Hernández's employee

                                    -18-
and   driver   of   the   truck,   had   explained   that   the   truck   was

experiencing electrical problems, including the loss of headlights,

and that he chose to drive on back roads because of those problems.

The jury also heard testimony that witnesses had observed what

appeared to be a battery generator hooked up to the truck.            These

electrical problems could explain the truck's use of back roads and

frequent stops. The eventual "celebration" in the truck yard could

be merely a congratulatory exchange regarding the safe arrival of

a disabled truck.     At the very least, this alternative explanation

calls into question the strength of the government's circumstantial

evidence.

            In considering the motion for a new trial, we must

carefully consider the strength of the government's case in light

of the new evidence.         In so doing, we find it difficult to

understand how the government's circumstantial evidence could so

overwhelm the direct testimony of Gorbea (that the district court

assumed was credible and which, by its terms, undermines the

government's theory that Gorbea and Hernández were conspiring to

transport the drugs) as to preclude a likelihood of acquittal upon

retrial.

            To the extent that the district court's denial of the

motion for a new trial may have been influenced by a negative

assessment of Gorbea's credibility, there was another error in the

judge's ruling.     Despite the district court's strong suggestion to

                                    -19-
the contrary, Hernández, 350 F. Supp. 2d at 344, we find that

Gorbea's testimony and credibility were of great import in the

disposition of this case because we think a reasonable jury would

not   convict   Hernández   if   it   were   to   find   Gorbea's   testimony

credible.    The Supreme Court has held that a district judge need

not hear the live testimony of a witness in order to accept the

credibility determination of a magistrate judge.           United States v.

Raddatz, 447 U.S. 667, 680-81 (1980). However, the Court left open

the question of whether a district judge may reject a credibility

determination of a magistrate without first hearing the testimony.

Id. at 681 n.7 ("[W]e assume it is unlikely that a district judge

would reject a magistrate's proposed findings on credibility . . .

[T]o do so without seeing and hearing the witness or witnesses

whose credibility is in question could well give rise to serious

questions which we do not reach.").

            Although we have not previously addressed this question,

a few other circuits have had occasion to consider it, and they are

in broad agreement: A district judge may not reject a magistrate's

findings as to the credibility of a witness without hearing the

witness testify first-hand. See United States v. Cofield, 272 F.3d

1303, 1306 (11th Cir. 2001); Hill v. Beyer, 62 F.3d 474, 482 (3d

Cir. 1995); Louis v. Blackburn, 630 F.2d 1105, 1109 (5th Cir.

1980).

                                      -20-
           Today we join our sister circuits when we find that,

absent special circumstances, a district judge may not reject the

credibility determination of a magistrate judge without first

hearing the testimony that was the basis for that determination.

Thus, to the extent that the district court's analysis rested upon

the rejection of the magistrate judge's credibility determination

without hearing the testimony, the district court abused its

discretion.

                                  III.

           In summary, we conclude that the district court abused

its   discretion   by   failing   to   consider   the   full   import   of

defendant's new evidence given its decision to assume, arguendo,

Gorbea's credibility. Furthermore, to the extent that the district

court's analysis rested upon the rejection of the magistrate

judge's credibility determination without hearing the evidence, it

abused its discretion.     In light of these errors, we remand for

further proceedings.

           In considering this case, however, we are faced with a

dilemma as to whether we should remand to a different district

judge.   This dilemma arises because it will become necessary for

the district court, if it chooses not to accept the credibility

findings of the magistrate judge on remand, to hear Gorbea testify

first-hand and make its own credibility determination. Although we

believe that, upon remand, the district judge in this case would

                                  -21-
conduct    the   necessary   proceedings      with   impartiality,    we   are

concerned here with the possible appearance of injustice.                  The

district judge in this case assumed the credibility of the evidence

and then concluded, in error, that a new trial was not warranted.

If, upon remand, the same district judge were to conduct a hearing

(rather than accept the magistrate's credibility determination) and

find that the testimony was not credible, it might appear that his

determination was improperly influenced by his initial decision.

As one of our sister circuits observed in a factually similar case,

"[t]here are occasions when a matter is appropriately remanded to

a   different    district    judge   not    only   in   recognition   of   the

difficulty that a judge might have putting aside his previously

expressed views, but also to preserve the appearance of justice."

Cullen v. U.S., 194 F.3d 401, 408 (2d Cir. 1999) (internal citation

and quotation marks omitted).              We find that this is such an

occasion.

            For the foregoing reasons, we remand this case to a

different district judge for proceedings consistent with this

opinion.

            Remanded.

                     (Dissenting opinion follows.)

                                     -22-
           HOWARD, Circuit Judge, dissenting. In finding a manifest

abuse of discretion, see, e.g., United States v. Rivera Rangel, 396

F.3d 476, 485-86 (1st Cir. 2005), the majority fails to accord

appropriate weight to the fact that Gorbea's evidence is of a type

which, for obvious reasons, we have admonished trial courts to

regard with "great skepticism," United States v. Montilla-Rivera,

115 F.3d 1060, 1066 (1st Cir. 1997) (noting that a convict who

comes forward to exonerate a codefendant only after his conviction

and sentence have become final often has little to lose and,

perhaps, something to gain).8      The majority also is too credulous

in relying on the evidence of the truck's alleged mechanical

problems   --   evidence   that   was   without   question   available   to

Hernández at the time of trial -- to discount the inculpatory

nature of the curious events surrounding delivery of the container,

which included evidence that there was no real purchaser of the

shipment, see United States v. Hernández, 218 F.3d 58, 63-64 (1st

Cir. 2000), that the driver gave an untrue statement to the police

after his arrest, id. at 64, that Hernández gave the mundane

shipment of "plastic cups" -- for which his company supposedly was

to be paid a below-market rate of $90 -- extraordinary attention,

id., that a man who appeared to be armed was present when the

8
   In fact, nine other circuits categorically treat evidence of
this sort as insufficient to ground a Rule 33(b)(1) new trial
order. See United States v. Jasin, 280 F.3d 355, 364-68 (3d Cir.
2002) (collecting and summarizing cases).

                                   -23-
shipment arrived, id., and that the arrival of the shipment was met

with a celebration, id. at 67.9    But even if I were to leave these

matters aside, I still could not join the majority opinion.

           In stating that Gorbea's testimony, if believed, would

"greatly undermine the conspiracy charges against Hernández," ante

at 17, the majority analyzes the matter as if Gorbea has now

admitted to knowing that drugs were in the truck and belatedly

stepped forward to accept responsibility and exonerate the innocent

Hernández.   But Gorbea has not admitted to any such knowledge.   In

fact, Gorbea told the magistrate judge that he was innocent, and

that "I can say over my mother right there that that cocaine wasn't

mine.   That I didn't know that the cocaine was there."   If Gorbea

had no knowledge of the cocaine, of what probative value is the

fact that he did not meet Hernández until after they were arrested?

And of what probative value are the facts that he did not tell the

truckers he hired what they were hauling, that he gave Hernández no

reason to think that he was transporting anything other than

ordinary cargo, and that the "José Hernández" on the fax was

someone other than the defendant?        Little if any.

9
  The mechanical-problems story also fails to account for why the
truck made a number of u-turns on its long journey to the truck
yard.   See Hernández, 218 F.3d at 67.     The majority does not
explain why a truck carrying a shipment of plastic cups might
engage in needlessly hazardous u-turns while driving without its
headlights on a back road.

                                  -24-
          The majority describes Gorbea's statements that he knew

nothing about the cocaine as a failure to admit guilt.       See ante at

5 & 11 n.6.   With respect, I think this description significantly

understates matters.        There is a difference between failing to

admit guilt and affirmatively representing that one knew nothing

about the cocaine.     Gorbea made at least two such affirmative

representations, and thereby undermined any probative value that

otherwise might have been ascribed to his testimony about not

knowing Hernández, not telling the truckers what they were hauling,

and not having Hernández in mind when he wrote "José Hernández" on

the back of the fax.    In fact, when asked whether Hernández knew

about the drugs, Gorbea responded:        "I don't know."   Clearly, the

trial judge acted well within his discretion in concluding that

Gorbea's testimony was immaterial and unlikely to result in an

acquittal if offered at a retrial.        See, e.g., Rivera Rangel, 396

F.3d at 485-86.     Indeed, any other conclusion would have been

unsustainable.    See id.

          I understand the impulse not to terminate the Rule 33

proceedings, which the government has botched by (1) failing to

bring to the attention of the magistrate judge, the district judge,

or this court the fact that Hernández's motion was untimely,10 and

10
    Under Fed. R. Crim. P. 33(b)(1), a defendant has only three
years from the date of "the verdict or the finding of guilty" to
file a motion for new trial on the basis of newly discovered
evidence. This time period may not be extended. Fed. R. Crim. P.
45(b)(2). Here, the verdict was returned on September 3, 1998, but

                                   -25-
(2) failing to highlight clearly and effectively the immateriality

of Gorbea's testimony, given Gorbea's concomitant insistence that

he did not know about the drugs.            Under the rule established in

Eberhart v. United States, __ U.S. __, 126 S. Ct. 403, 404-07

(2005) (Rule 33 time limits are not jurisdictional and may be

forfeited), the government appears to have forfeited any timeliness

argument that it might have had.        But Gorbea's testimony still is

what   it   is,   and,   for   the   reasons   set   forth   above,   it   is

insufficient as a matter of law to ground a new trial order.

            Accordingly, I respectfully dissent.

Hernández did not file his motion until July 29, 2002 -- more than
ten months beyond the three-year deadline. Like the defendant in
United States v. Mojica-Rivera, 435 F.3d 28 (1st Cir. 2006),
Hernández has no claim that application to his motion of the three-
year time limit in Rule 33(b)(1) would be unjust or impracticable,
as he had approximately two years and nine months to file his
motion from the time the Rule was amended, see id. at 33; see also
United States v. Ristovski, 312 F.3d 206, 209-13 (6th Cir. 2002).

                                     -26-


804 F.2d 678Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Lucious Hilton WINSLOW, Plaintiff-Appellant,v.DEPARTMENT OF CORRECTIONS;  David A. Garraghty, Warden,Defendants-Appellees.
No. 86-7190.
United States Court of Appeals, Fourth Circuit.
Submitted Oct. 17, 1986.Decided Nov. 3, 1986.

Lucious Hilton Winslow, appellant pro se.
E.D.Va.
AFFIRMED.
Before RUSSELL, HALL and ERVIN, Circuit Judges.
PER CURIAM:

1
A review of the record and the district court's opinion discloses that this appeal from its order denying relief under 42 U.S.C. Sec. 1983 is without merit.  Because the dispositive issues recently have been decided authoritatively, we dispense with oral argument and affirm the judgment below on the reasoning of the district court.  Winslow v. Department of Corrections, C/A No. 86-0100 (E.D.Va., June 23, 1986).

2
AFFIRMED.


                                                          Electronically Filed
                                                          Supreme Court
                                                          SCWC-11-0000668
                                                          03-FEB-2015
                                                          12:00 PM

                            SCWC-11-0000668

            IN THE SUPREME COURT OF THE STATE OF HAWAI'I

                          MARCELINO RAMENTO,

                    Respondent/Plaintiff-Appellee,

                                  vs.

                          M&M TANKS, INC.,

                   Petitioner/Defendant-Appellant,

                                  and

                            JOHN S. BRUNS,

                              Plaintiff.

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

             (CAAP-11-0000668; CIVIL NO. 07-1-1920-10)

         ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI

(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)

          Petitioner/Defendant-Appellant M&M Tanks, Inc.’s,

Application for Writ of Certiorari filed on January 8, 2015, is

hereby rejected.

          DATED:   Honolulu, Hawai'i, February 3, 2015.

Carl H. Osaki
for petitioner                   /s/ Mark E. Recktenwald

Ronald Albu                      /s/ Paula A. Nakayama

for respondent

                                 /s/ Sabrina S. McKenna

                                 /s/ Richard W. Pollack

                                 /s/ Michael D. Wilson


71 Ill. App.3d 782 (1979)
390 N.E.2d 142
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
GREGORY McNAIR, Defendant-Appellant.
No. 78-566.
Illinois Appellate Court  First District (2nd Division).
Opinion filed May 1, 1979.
*783 James J. Doherty, Public Defender, of Chicago (Ira Churgen, Assistant Public Defender, of counsel), for appellant.
Bernard Carey, State's Attorney, of Chicago (Lee T. Hettinger, Mary Ellen Dienes, and Dale F. Weigand, Assistant State's Attorneys, of counsel), for the People.
Judgment affirmed in part and cause remanded.
Mr. JUSTICE PERLIN delivered the opinion of the court:
Following a bench trial, defendant, Gregory McNair, was convicted of burglary and unlawful use of a weapon (Ill. Rev. Stat. 1977, ch. 38, pars. 19-1, 24-1(a)(10), 24-1(b)) and was sentenced by the trial court to a single term of one to three years in the penitentiary.[1] Defendant appeals, contending that the prosecution failed to prove him guilty beyond a reasonable doubt of the aforementioned charges because the possession of proceeds from a burglary was insufficient evidence to support such conviction and because the prosecution failed to demonstrate that when arrested carrying a loaded weapon, he was not in his own abode as required by statute.
At trial, Spurag Foster testified for the prosecution and stated that some time between 8 a.m. and 5 p.m. on February 2, 1977, his apartment, located at 7753 Cornell Avenue in Chicago, was burglarized; that his clarinet, two television sets, clothing, leather coat, sheepskin coat, camera and a large jar of money were taken; that he did not give permission to defendant to enter his apartment or to remove any property therefrom; and that the locks on his apartment door were intact when he left on the morning of February 2, but that when he returned at approximately 5:30 p.m., they had been broken.
Earl Tucker also testified for the prosecution and stated that he shared the aforementioned apartment with Foster. On the date in question, he left for work at approximately 5 a.m. and returned at 7 p.m. He indicated that his 30.06 hunting rifle, a.357 revolver and a .38-caliber revolver were taken during the burglary. He further testified that televisions, watches, rings, clothes, money and other items were also stolen; that he had not given permission to the defendant to enter his *784 apartment nor to remove any property from it; and that subsequent to the burglary he went to the police station where he identified his 30.06 rifle and .357 magnum revolver.
Police Investigator James Green testified that while completing an arrest[2] in a resident hotel, located at 1540-1550 East 64th Street, at approximately 11:15 a.m. on February 2, 1977, he and Officer Weir observed a man pointing a rifle through a partially opened door. Green identified this man as Herbert Stroughter. The police officer then drew his weapon and entered the room where he saw Stroughter drop the rifle onto a bed. At this point, Green viewed defendant drop a loaded .357 magnum revolver to the floor and also saw a woman drop a.38-caliber revolver. The two police officers radioed for assistance and placed the people in the room under arrest. Officer Weir then took the guns to the station where he inventoried them. On March 10, 1977, Tucker came to the police station and identified the 30.06 hunting rifle and the .357 magnum revolver, which had been confiscated by the two police officers, as being the same weapons taken in the burglary of his apartment.
On cross-examination, Investigator Green testified that he had asked defendant whether he lived at the apartment in which he was arrested and that defendant failed to respond that he lived there. However, Investigator Green admitted that the police reports he prepared, as well as those prepared by his fellow officer, indicated that defendant's address was 1550 East 64th Street. No items other than the guns were taken from the hotel room because at that time Investigator Green was unaware of the prior burglary of Foster's apartment. However, Green indicated that coats, televisions, and stereos were in the room when he made the arrest and that when police officers returned the following day, the room was empty.
Officer Weir was also called as a witness by the prosecution and his testimony substantially corroborated the testimony given by Investigator Green.
Co-defendant Herbert Stroughter testified that he arrived at 1550 East 64th Street at approximately 11 a.m. on the date in question. Stroughter stated that he had gone to that hotel in order to visit a woman friend, who, as it turned out, was not present. On his way out of that building, Stroughter met some police officers who informed him they were looking for a Cecil Cooper. Another individual indicated that he knew where Cooper's girlfriend lived. The police officer asked this person and Stroughter to show him the location of her address and the two men then went with this officer to another location. However, the police officer then indicated that he already knew about that location and drove them back to the hotel. After Stroughter reentered this building, *785 defendant called Stroughter upstairs, stating to Stroughter that he had something to show him. When Stroughter entered the room, which contained several other people, defendant asked him if he wanted to buy a "piece." There was a knock at the door, and, when Stroughter opened it, there were uniformed police outside. He then shut the door and asked if they had a warrant. The police officer stated that he did not need one, and ordered Stroughter to let go of the door. After a struggle took place, Stroughter and defendant were arrested.
It was stipulated that defendant had been convicted of the felony offense of bail jumping and that he had been released from the penitentiary for that conviction on November 5, 1975. After hearing this evidence, the trial court found defendant guilty of both burglary and unlawful use of weapons.
Defendant maintains that the evidence of his possession of the proceeds from a recent burglary does not support the inference that he committed burglary beyond a reasonable doubt. We cannot agree with this contention.
 1 A burglary can seldom be proved by direct evidence of the actual breaking and entry. The inference of guilt, in most cases, must necessarily be drawn from other facts satisfactorily established. (People v. Francis (1935), 362 Ill. 247, 250, 199 N.E. 100.) Accordingly, it is well established that the recent, exclusive and unexplained possession of stolen property by an accused, in and of itself, gives rise to an inference of guilt which may be sufficient to sustain a conviction in the absence of other facts and circumstances which leave in the mind of the trier of fact a reasonable doubt as to his guilt. See People v. Owens (1962), 23 Ill.2d 534, 537, 179 N.E.2d 630, cert. denied (1962), 370 U.S. 947, 8 L.Ed.2d 812, 82 S.Ct. 1592.
 2 In the present matter, the prosecution demonstrated that Spurag Foster's apartment was burglarized some time after 8 a.m. on February 2, 1977. The testimony of the two police officers also showed that defendant was in possession of part of the proceeds taken in the aforementioned burglary at noon the same day in a room of an apartment building, located approximately 15 blocks from Foster's apartment.
Defendant did not testify in this case; nor is there any evidence in the record which in any way attempts to explain his possession of the stolen guns. Since the prosecution demonstrated that a burglary occurred, that certain items were taken, that defendant was in possession of at least some of these items when arrested and that he was in possession of these items within a very recent period of time after the burglary took place, we feel that the prosecution has sustained its burden of proving defendant guilty of burglary beyond a reasonable doubt.
It is true that Investigator Green testified that no other items, besides *786 the two weapons, were recovered from the apartment in which defendant was arrested. However, he did indicate that he observed clothing, coats, televisions and stereos in the room at the time of the arrest, but stated he did not attempt to recover these items because he was unaware of the burglary at that point. This court has held that "possession of only a part of the goods does not create a reasonable doubt" of guilt. People v. Florman (1966), 77 Ill. App.2d 158, 165, 222 N.E.2d 191, cert. denied (1967), 389 U.S. 826, 19 L.Ed.2d 82, 88 S.Ct. 73.
Defendant, nevertheless, calls attention to these facts and argues that the inference flowing from the possession of stolen property is not a substitute for evidence and that it cannot be used, consistent with due process, to circumvent the reasonable doubt standard approved in criminal trials. Defendant concedes that, prior to the present time, four hours may have been a short interval in which to dispose of a stolen gun and that wrongful possession of such weapon may have demonstrated wrongful taking. But, defendant argues that in this day and age such a presumption is naive and out of place since a gun is a highly negotiable item. For this reason, defendant asserts that the aforementioned inference is not sufficiently persuasive to sustain his burglary conviction.
 3 However, defense counsel failed to raise this constitutional issue at trial or in his oral motion for a new trial. The general rule is that failure by defendant to raise an issue in the trial court constitutes a waiver and the issue cannot be urged as a ground for reversal on review. This waiver rule applies to constitutional as well as to other issues. (See People v. Precup (1978), 73 Ill.2d 7, 16, 382 N.E.2d 227; People v. Amerman (1971), 50 Ill.2d 196, 197, 279 N.E.2d 353; and People v. Graves (1974), 23 Ill. App.3d 762, 765, 320 N.E.2d 95.) Since defendant failed to raise this contention at the trial level, we deem it to have been waived.
Nonetheless, we have examined the aforementioned contention and find it to be without merit. The United States Supreme Court has considered the due process limitations of criminal presumptions on several occasions, but in two cases specifically declined to rule that a presumption must satisfy the reasonable doubt standard in order to meet due process requirements. (See Leary v. United States (1969), 395 U.S. 6, 23 L.Ed.2d 57, 89 S.Ct. 1532, and Barnes v. United States (1973), 412 U.S. 837, 37 L.Ed.2d 380, 93 S.Ct. 2357.) In Leary, the court considered a challenge to a statutory inference that possession of marijuana, unless satisfactorily explained, was sufficient to prove that defendant knew that the marijuana had been illegally imported into the United States. The court concluded that in view of the significant possibility that any given marijuana was domestically grown and the improbability that a marijuana user would know whether his marijuana was of domestic or imported origin, the inference did not meet the standard set by Tot v. *787 United States (1943), 319 U.S. 463, 87 L.Ed. 1519, 63 S.Ct. 1241; United States v. Gainey (1965), 380 U.S. 63, 13 L.Ed.2d 658, 85 S.Ct. 754; and United States v. Romano (1965), 382 U.S. 136, 15 L.Ed.2d 210, 86 S.Ct. 278. Citing these three cases, the Supreme Court held that a criminal statutory presumption must be regarded as "irrational" or "arbitrary," and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend. (395 U.S. 6, 36, 23 L.Ed.2d 57, 82, 89 S.Ct. 1532.) In a footnote, the court stated that since the challenged inference failed to satisfy the more-likely-than-not standard, it did not have to "reach the question whether a criminal presumption which passes muster when so judged must also satisfy the criminal `reasonable doubt' standard if proof of the crime charged or an essential element thereof depends upon its use." 395 U.S. 6, 36, n. 64, 23 L.Ed.2d 57, 82 n. 64, 89 S.Ct. 1532.
 4 In the present matter, the challenged presumption permits the inference of guilt where there is an unexplained possession of recently stolen property. The evidence established that defendant possessed two weapons that were stolen from the apartment in question, approximately four hours earlier. Defendant failed to provide any plausible explanation for such possession consistent with innocence. In view of this evidence, we are of the opinion that it can be said with substantial assurance that the presumed fact of guilt is more likely than not to flow from the proved fact of the possession of the stolen weapons.
Defendant contends that he was not proved guilty beyond a reasonable doubt of unlawful use of weapons because the State failed to adequately show that he was not in his own abode when he carried the loaded revolver. (See Ill. Rev. Stat. 1977, ch. 38, par. 24-1(a)(10); People v. Chmilenko (1976), 44 Ill. App.3d 1060, 1062, 358 N.E.2d 1247.) We also cannot agree with this contention.
Regarding this argument, the following testimony by Investigator Green is particularly relevant:
"Q [Defense counsel] Did you ever determine whether or not Mr. McNair lived in that apartment subsequent to this?
A All the people were asked if they lived there. None responded that they lived there.
Q Did you ever conduct any investigation to determine whether or not Mr. McNair occupied that apartment?
A He stated that he did not occupy that apartment.
Q Well, did you?
A Yes, sir.
Q You asked a general question, to all the occupants, whose room it was, and no one responded, is that correct?

*788 A And they were asked individually.
Q Well, where did you ask him?
A I believe that was at the police station, furthering the investigation."
Additionally, Investigator Green admitted that both his own police report and a report prepared by another officer indicated that defendant's address was 1550 East 64th Street, the address of the resident hotel in which he was arrested. Defendant contends that these reports evidence the fact that he lived in the apartment where the arrest took place.
 5 By virtue of its guilty finding, the trial court necessarily found that defendant was not in his own abode when arrested carrying the .357 revolver. This finding is supported by the fact that the aforementioned police reports gave defendant's address only as 1550 East 64th Street but did not indicate in which apartment within the resident hotel defendant lived. In this regard Officers Green and Weir described the hotel as a rooming house with single rooms and with a corridor running down through the middle of the building. We cannot say that the evidence was insufficient to show defendant was not in his own abode when arrested.
In a bench trial in criminal cases it is for the trial court to hear the testimony and determine the credibility of the witnesses. Where the truth lies is a matter peculiarly for the trier of fact, and it is not for a reviewing court to substitute its opinion therefor. (People v. Williams (1966), 75 Ill. App.2d 50, 59, 221 N.E.2d 48.) In view of the opportunities of observation available to the trial court, a reviewing court will not disturb a guilty finding unless the proof is so unsatisfactory or implausible as to justify a reasonable doubt as to defendant's guilt. (People v. Crenshaw (1959), 15 Ill.2d 458, 468, 155 N.E.2d 599, cert. denied (1959), 359 U.S. 997, 3 L.Ed.2d 985, 79 S.Ct. 1133.) For the foregoing reasons, we feel that defendant was proved guilty beyond a reasonable doubt of unlawful use of a weapon.
 6 The trial court imposed only one sentence although it had entered convictions for burglary and the felony of unlawful use of a weapon against defendant. But the record is unclear as to which offense sentence was imposed. Under such circumstances, the failure to impose two sentences renders the judgment of convictions incomplete. (See People v. Scott (1977), 69 Ill.2d 85, 88-89, 370 N.E.2d 540.) Accordingly, the two convictions for burglary and unlawful use of a weapon and the one sentence imposed are affirmed. However, the cause is remanded with directions to clarify the record as to which offense sentence was imposed (see People v. Cook (1976), 41 Ill. App.3d 946, 354 N.E.2d 122), and that the circuit court enter a second sentence for the conviction upon which no sentence was previously imposed.
*789 For the aforementioned reasons, the judgment of the circuit court is affirmed, but the cause is remanded with directions that the circuit court hold further proceedings consistent with the views expressed herein.
Affirmed in part and remanded with directions.
STAMOS, P.J., and HARTMAN, J., concur.
NOTES
[1]  Herbert C. Stroughter was indicted jointly with defendant for the offense of burglary. Stroughter was tried along with defendant on this charge but was found not guilty by the trial court.
[2]  This arrest was unrelated to the case under consideration.