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UNITED STATES v. SCARBOROUGH

September 26, 1980

UNITED STATES of America
v.
Cathy SCARBOROUGH



The opinion of the court was delivered by: BRODERICK

The defendant, Cathy Scarborough, was convicted of obstruction of the mails, in violation of 18 U.S.C.A. § 1701, by Magistrate Scuderi after she waived her right to be tried by a district court judge or by a jury. She appealed the judgment of conviction to this Court under Magistrate's Rule 7(b), *fn1" and asserts as her sole ground of appeal that the Magistrate should not have denied her motion for judgment of acquittal. For the reasons hereinafter set forth, the defendant's judgment of conviction will be affirmed.

 As previously stated, the defendant was tried and convicted under 18 U.S.C.A. § 1701, which provides:

 
Whoever, knowingly and willfully obstructs or retards the passage of the mail, or any carrier or conveyance carrying the mail, shall be fined not more than $ 100 or imprisoned not more than six months, or both.

 The elements of this offense are: (1) obstructing or retarding; (2) the passage of mail; and (3) willfully and knowingly. United States v. Fleming, 479 F.2d 56 (10th Cir. 1973).

 Rule 29 of the Federal Rules of Criminal Procedure states that a court

 
shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.

 At the end of the trial, Magistrate Scuderi denied the motion of the defendant for judgment of acquittal, and the defendant contends on appeal that this motion should have been granted on the basis that there was insufficient evidence to sustain her conviction. Magistrate's Rule 7(e) prescribes the scope of appeal by this Court. It states:

 
Scope of Appeal. The defendant shall not be entitled to a trial de novo by a judge of the district court. The scope of appeal shall be the same as on an appeal from a judgment of a district court to a court of appeals.

 Pursuant to Rule 7(e), we must apply the standard that a court of appeals uses in deciding an appeal from a district court's denial of a motion for judgment of acquittal. Accordingly, we shall apply the standard used by our Third Circuit Court of Appeals in United States v. United States Gypsum Co., 600 F.2d 414, 416-17 (3d Cir.), cert. denied, 444 U.S. 884, 100 S. Ct. 175, 62 L. Ed. 2d 114 (1979), and

 
we must sustain the verdict if there is substantial evidence, viewed in the light most favorable to the Government, to uphold the . . . decision. Burks v. United States, (437 U.S. 1, 17,) 98 S. Ct. 2141 (57 L. Ed. 2d 1) (1978); Glasser v. United States, (315 U.S. 60, 80,) 62 S. Ct. 457 (, 86 L. Ed. 680) (1942). *fn2"

 In applying this standard, the appellate court does not weigh the evidence or determine the credibility of witnesses. United States v. Bycer, 593 F.2d 549 (3d Cir. 1979).

 The evidence at trial showed the following: The defendant was an employee of the United States Post Office at the time in question, and worked in the Rewrap Section of the Post Office. This section receives parcels which have been damaged in the United States mail, and is responsible for rewrapping these damaged parcels by placing them in new cartons or durable two-ply bags known as "jiffy bags." After a parcel is rewrapped, it is stamped "Repaired in Philadelphia BMC" (Bulk Mail Center). This section also sends out notices to other departments of the Post Office when a package is lost or there are no contents inside a package.

 The defendant worked on the shift which commenced at 8:30 p.m. on November 6, 1979 and ended at 5:00 a.m. on November 7, 1979. Her assignment during this shift was to send out notices regarding packages that were lost or devoid of ...


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