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January 4, 1990


The opinion of the court was delivered by: BRODERICK

 Defendant Rodney Bevans was convicted of conspiracy to sell and willful possession of stolen mail matter in violation of 18 U.S.C. § 1708 and 18 U.S.C. § 371. Defendant now moves the Court to set aside the jury's verdict of guilty and enter a judgment of acquittal, or, in the alternative, to order a new trial. Fed.R.Crim.P. 29(c) & 33. The Court concludes that defendant's contentions are meritless and therefore denies his motions.

 On a motion for judgment of acquittal, the Court must uphold a verdict of guilty if, viewing the evidence introduced at trial in the light most favorable to the Government, it ascertains that a reasonable jury could declare the defendant guilty of every element of the offenses charged beyond a reasonable doubt. Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680 (1942); United States v. Terselich, 885 F.2d 1094, (3d Cir. 1989); United States v. Ashfield, 735 F.2d 101, 106 (3d Cir.), cert. denied, 469 U.S. 858, 105 S. Ct. 189, 83 L. Ed. 2d 122 (1984). When reviewing a conviction for sufficiency of the evidence, the Court may not intrude into the province of the jury and evaluate the credibility of the witnesses. United States v. Dixon, 658 F.2d 181, 192 (3d Cir. 1981). In contrast, the decision whether to grant a motion for a new trial on the ground that the verdict is contrary to the weight of the evidence is committed to the sound discretion of the trial court, which may set aside the verdict and order a new trial if it ascertains that the verdict constitutes a miscarriage of justice. United States v. Martorano, 596 F. Supp. 621, 624 (E.D.Pa. 1984), aff'd, 767 F.2d 63 (3d Cir.), cert. denied, 474 U.S. 949, 106 S. Ct. 348, 88 L. Ed. 2d 296 (1985); United States v. Phifer, 400 F. Supp. 719, 723 (E.D. Pa. 1975), aff'd, 532 F.2d 748 (3d Cir. 1976). The Eighth Circuit has explained that when considering a motion for a new trial,

the district court need not view the evidence in the light most favorable to the verdict; it may weigh the evidence and in so doing evaluate for itself the credibility of the witnesses. If the court concludes that, despite the abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred, it may set aside the verdict, grant a new trial, and submit the issues for determination by another jury.

 United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980) (quoted with approval in Tibbs v. Florida, 457 U.S. 31, 38 n.11, 102 S. Ct. 2211, 2216 n.11, 72 L. Ed. 2d 652 (1982)); see also Phifer, 400 F. Supp. at 722; 3 C. Wright, Federal Practice and Procedure § 553, at 245-48 (1982 & Supp. 1989). The Court also must grant a new trial if there is a reasonable probability that error infecting the prior proceedings could have had a substantial influence on the jury's decision. Government of Virgin Islands v. Bedford, 671 F.2d 758, 762 (3d Cir. 1982); United States v. Mastro, 570 F. Supp. 1388, 1390 (E.D.Pa. 1983).

 The facts leading to the arrest and conviction of defendant Bevans may be summarized as follows. Joseph Patterson testified at trial that he encountered defendant, who was a postal employee, on a street in Philadelphia in June or July, 1989. Although Patterson and Bevans had socialized infrequently since the early 1970s, they had been close childhood friends. Bevans asked Patterson whether he could sell stolen checks for him. Patterson replied that he might be able to, but would have to let Bevans know. Some time afterward, Patterson sought out an acquaintance, James Jones, to arrange the transaction. Jones in turn contacted John Bolger, a Postal Inspector acting undercover, offered to sell him checks, and agreed to a meeting.

 Patterson informed Bevans that the deal had been set in motion, and Bevans instructed him to come to his house to get the checks. Jones and Patterson drove to defendant's home in West Philadelphia. There, Bevans handed Patterson an open envelope containing five United States Treasury checks. Patterson inspected the envelope's contents, but did not look at the value of the checks. He and defendant discussed the percentage of the sale proceeds that defendant would receive.

 On July 14, 1989, two or three days after Patterson procured the checks from defendant, James Mathews drove Patterson and Jones to the parking lot of a Howard Johnson's in Chester, Pennsylvania, to meet Inspector Bolger, as previously arranged. Bolger testified that for $ 730 Jones sold him the set of five checks, which had a total face value of $ 2,187.75. Although Bolger was aware of the presence of Mathews and Patterson at the buy, he had direct dealings with Jones only. On the return trip to Philadelphia, Jones and Patterson apportioned the proceeds from the sale. Afterward, Patterson went to defendant's home to deliver Bevans's share of the money. In conformance with Bevans's instructions, Patterson placed the cash in an envelope and slipped it under the front door.

 The third sale occurred on August 3, 1989. Bevans previously had given Patterson two stolen commercial checks worth $ 587.69. Patterson and Jones again met with Bolger and offered to sell him the checks, but this time they were arrested. After initially denying involvement in any illegal activity, Patterson finally admitted participation in the scheme and agreed to cooperate with the Postal Inspectors' investigation.

 On the following morning, Patterson, who had spent the prior night at home, returned to the fourth floor of the Post Office at 30th Street. After Patterson consented to have the conversation electronically recorded, he spoke to defendant on a telephone to which agents had attached a tape machine. Patterson first told Bevans that he had his money. When Patterson asked Bevans whether he had any more checks, Bevans indicated that he did not. Patterson also stated that he was on his way to deliver the money, to which defendant replied, "Yeah." An agent for the Post Office then drove Patterson to defendant's home and instructed Patterson to hand Bevans a sealed white envelope containing $ 75 in cash. Patterson entered defendant's house and gave him the envelope. Bevans placed the unopened envelope inside a cookie jar in the kitchen, where it stayed until after defendant was arrested.

 I. Weight and Sufficiency of the Evidence

 In the present case, viewed under the standards of either Rule 29 or Rule 33, the evidence was sufficient to justify the jury's finding of guilt as to each element of the offenses for which Bevans was charged. The Court initially turns to defendant's conviction for possession of stolen mail matter pursuant to 18 U.S.C. § 1708. Count Two of the indictment alleged that Bevans illegally possessed two United States Treasury checks worth $ 987.00 which had been abstracted from the mail. Count Four charged defendant with unlawful possession of a Pennsylvania Central Tax Bureau check that also had been stolen from the United States mail. To establish a violation of 18 U.S.C. § 1708, the Government must prove: (1) the item specified in the indictment had been stolen from the mail, (2) the defendant unlawfully possessed the item, (3) the defendant knew the item was stolen, and (4) the defendant had the specific intent to possess the item unlawfully. United States v. Hall, 845 F.2d 1281, 1284 (5th Cir.), cert. denied, U.S. , 109 S. Ct. 155, 102 L. Ed. 2d 126 (1988); United States v. Osunegbu, 822 F.2d 472, 475 (5th Cir. 1987).

 The Government clearly has met these requisites. It was not contradicted at trial that the three checks had been introduced into the mail, that they failed to reach the parties to whom the checks were addressed, and that the payees did not authorize any party to cash the checks. Nor did Bevans dispute that the normal course of postal operations would have taken the three checks through the 30th Street Station in Philadelphia, where defendant worked, and defendant's supervisor at the Post Office testified that Bevans's usual duties as a handler in the break-up areas of the station afforded him regular access to mail. Inspector Bolger stated that he purchased the three relevant checks from Jones and Patterson. Patterson, a co-defendant who had pled guilty to selling stolen United States Treasury checks in violation of 18 U.S.C. § 510(b) and conspiring to sell checks stolen from the mail in violation of 18 U.S.C. § 371, in turn testified that he had received from defendant Bevans the checks which he and Jones sold to Inspector Bolger. A Government expert identified Bevans's latent fingerprints on the checks and on an envelope that contained five checks which Jones and Patterson had sold to Inspector Bolger. Indeed, Bevans himself admitted that he had come into contact with the checks and that he knew that they were stolen. Patterson ...

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