ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY. (D.C. Criminal Action No. 90-00569-4)
Before:becker, Mansmann, and Nygaard, Circuit Judges
A jury convicted Mark Iafelice of possessing heroin with the intent to distribute. Iafelice moved for a post-verdict judgment of acquittal, which the district court granted, concluding that the evidence was insufficient for a reasonable jury to conclude beyond a reasonable doubt that Iafelice committed the crime. The government appeals from this order. The principal issue is whether there was sufficient evidence to convict Iafelice. We hold that a reasonable jury could conclude beyond a reasonable doubt that Iafelice possessed heroin with the intent to distribute it. We will vacate the district court's order and will reinstate the judgment of conviction.
A court of appeals has jurisdiction under 18 U.S.C. § 3731 to review a district court's post-verdict judgment of acquittal. In section 3731, "Congress intended to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit." United States v. Wilson, 420 U.S. 332, 337, 95 S. Ct. 1013, 1019, 43 L. Ed. 2d 232 (1975). When a court sets aside a jury's verdict of guilty and enters a judgment of acquittal, the government may appeal that decision. United States v. Schoenhut, 576 F.2d 1010, 1018 n.7 (3d Cir. 1978). The Constitution permits these appeals because double jeopardy is not implicated. There is no second trial for the same offense. The original verdict of guilty is reinstated. Wilson, 95 S. Ct. at 1026 (appeal permitted when jury found defendant guilty but court dismissed indictment on ground of preindictment delay); United States v. Ceccolini, 435 U.S. 268, 270-71, 98 S. Ct. 1054, 1057, 55 L. Ed. 2d 268 (1978) (appeal permitted when court found defendant guilty in bench trial but later vacated its verdict).
Our standard in examining a post-verdict judgment of acquittal is the same as that which the trial court applied. United States v. Coleman, 811 F.2d 804, 807 (3d Cir. 1987). We must view the evidence in the light most favorable to the jury verdict and presume that the jury properly evaluated credibility of the witnesses, found the facts, and drew rational inferences. Id. "The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it." Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680 (1942). See United States v. Dixon, 658 F.2d 181, 188 (3d Cir. 1981).
This case arises from a "drug bust" at a Marriott Hotel following several months of investigation. John Guslavage, an undercover agent of the Drug Enforcement Administration, negotiated to buy a half-kilogram of heroin from two brothers, Richard and John Sinde. On the morning of the scheduled drug transaction, law enforcement agents set up surveillance at the parking lot of the Marriott. At about noon, they spotted a white Cadillac pull into the parking lot. Iafelice stipulated that he was both the driver and owner of the Cadillac. He had two passengers, John Sinde and Thomas Finn.
The movement of the Cadillac immediately made the agents suspicious. As soon as Iafelice entered the lot, he came to a complete stop for a moment, and then resumed driving at a very slow speed. As he passed a group of cars, he slowed down again. Approaching a surveillance agent's car, he came to a near stop so that he and the other two occupants could turn their heads and look at the agent. He then drove past the agent's car while the other two continued to watch the agent.
Iafelice drove a bit further and then stopped the car for a few moments, at which time an agent saw all three men in the Cadillac looking for something. The agent radioed the other agents in the vicinity that the drug dealers had arrived. After standing idle for a while, Iafelice pulled away, left the Marriott lot, but returned almost immediately. He again drove very slowly through the parking lot. Instead of parking in one of the many empty parking spaces, he drove to an area marked "Service Area" and backed his car into the space closest to the hotel.
The three got out of the car. John Sinde talked with Iafelice and Finn briefly before he walked into the hotel. Iafelice and Finn got back into the Cadillac, Iafelice in the driver's seat and Finn in the passenger's. About a minute later, John Sinde emerged from the hotel and walked back to the car. As he approached, the trunk was popped open from inside the car. John Sinde reached into the open trunk and removed a brown camera bag containing half a kilogram of heroin. While Iafelice maneuvered the car to face the hotel, John Sinde placed the bag over his shoulder and went back into the hotel.
At the hotel, John Sinde met his brother Richard Sinde and together they waited for Agent Guslavage. The Sindes gave the bag to Guslavage, who unzipped it and found the heroin in a clear plastic bag. Richard Sinde said another package would arrive within an hour or two and that Guslavage could have four kilograms within five to ten days. At that moment, Richard Sinde's beeper ...