The opinion of the court was delivered by: VAN ANTWERPEN
VAN ANTWERPEN, DISTRICT JUDGE
Following a jury trial on December 5 and 6, 1989, defendant Mark Anthony Williford was found guilty of two counts of Distribution of Cocaine in violation of 21 U.S.C. § 841(a)(1) and two counts of Distribution of Cocaine Within 1,000 Feet of a School, in violation of 21 U.S.C. § 845a. Defendant has filed a "Motion for Judgment not Withstanding the Verdict; Motion for Judgment of Acquittal and/or Motion for New Trial."
In the Motions the defendant contends that:
1. The verdict was contrary to law.
3. The verdict was unsupported by the evidence.
4. The verdict was contrary to the evidence.
5. The court erred in its ruling as concerns the Suppression Hearing relative to the admissability of the evidence, as concerns "identification."
At trial two stipulations were jointly entered into evidence by the defendant and the government. The first stipulation was that the drug distributions in question were within 1000 feet of the Hunter Elementary School. The second stipulation was that the substance distributed to each of two undercover police officers was indeed cocaine. Therefore the only essential issue raised by the defense at trial was the identification of the defendant by the two Philadelphia police officers, Officer Stanford and Officer Sewell. The defendant moved to suppress evidence of the identification made by these two police officers. After a Suppression Hearing on December 4, 1989, the Motion was denied.
The Federal Rules of Criminal Procedure do not provide for a Motion for Judgment Notwithstanding the Verdict, but such a motion would, in substance, be equivalent to a Motion for a Judgment of Acquittal made after discharge of the jury, pursuant to Fed.R.Crim.P. 29(c). Consequently I will treat the combined Motions as a Motion for a New Trial, pursuant to Fed.R.Crim.P. 33, based primarily on my ruling permitting introduction of evidence concerning identification by undercover Police Officers Stanford and Sewell, and a Motion for Judgment of Acquittal pursuant to Fed.R.Crim.P. 29 based primarily on the sufficiency of identification evidence.
With regard to the motion for a new trial, the Court may grant a new trial in the interest of justice. The standard for admission of identification evidence is found in Manson v. Brathwaite, 432 U.S. 98, 114-17, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977). Under Manson, identification evidence, even if the identification had derived from an unnecessarily suggestive source, need not be excluded if the totality of circumstances surrounding the identification indicates that it was reliable. In Manson, the Supreme Court upheld a police officer's identification of the defendant from an array consisting of a single photograph because the officer was a trained observer, had had an adequate opportunity to view the suspect, had given an accurate description of the suspect at the time of the offense and was certain about the identification.
With regard to the Motion for Judgment of Acquittal, under Fed.R.Crim.P. 29 it is well settled that: "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, 86 L. Ed. 680, 62 S. Ct. 457 (1942). In making this determination, the "relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Coleman, 862 F.2d 455, 460-61 (3d Cir. 1988), citing Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979) (emphasis in original). For a judgment of acquittal to be granted, the Court must decide, as a matter of law, that the evidence presented at trial was insufficient to support the conviction. "In reviewing testimony for determining a Rule 29 motion, questions of the weight of the evidence or of the credibility of the witnesses is foreclosed by the jury's verdict." United States v. Cohen, 455 F. Supp. 843, 852 (E.D.Pa. 1978), aff'd 594 F.2d 855 (3d Cir. 1978), cert. denied, 441 U.S. 947, 60 L. Ed. 2d 1050, 99 S. Ct. 2169 (1979). With these standards in mind I shall review the facts established at trial.