U.S. v. Iafelice

• Decision Date: 19 November 1992
• Docket Number: No. 91-6060,91-6060
• Citation: 978 F.2d 92
• Parties: UNITED STATES of America, Appellant, v. Mark IAFELICE.
• Court: U.S. Court of Appeals — Third Circuit

Page 92

978 F.2d 92

UNITED STATES of America, Appellant, v. Mark IAFELICE.

No. 91-6060.

United States Court of Appeals Third Circuit.

Argued July 30, 1992.

Decided Oct. 20, 1992.

Sur Petition for Rehearing Nov. 19, 1992.

Eric L. Muller (argued), Asst. U.S. Atty., Edna B. Axelrod, Newark, N.J. for appellant.

Dennis D. McAlevy (argued), McAlevy & Lynch, Union City, N.J., Paulette L. Pitt, Hayden, Perle & Silber, Weehawken, N.J., for appellee.

Before: BECKER, MANSMANN, and NYGAARD, Circuit Judges.

OPINION OF THE COURT

NYGAARD, Circuit Judge.

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.

I.

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, 420 U.S. at 351-53, 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).

II.

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 sounded. Telephone records indicated that the call came from Finn's mobile phone inside Iafelice's car.

Guslavage removed a small sample of heroin for testing. He asked the Sindes whether they trusted him to walk away with the sample, and Richard Sinde asked him in turn if Guslavage would trust Sinde with his mobile phone. Guslavage gave Richard Sinde the phone, left the lobby to test the heroin and give the arrest signal.

After Guslavage walked away, one of the Sinde brothers used the mobile phone to call the telephone in Iafelice's car. At about that time, an agent watching the Cadillac saw Iafelice reach down and pick up the car phone. Shortly thereafter agents arrested the Sinde brothers, Finn and Iafelice. During the investigation leading to these arrests, Guslavage had never seen Iafelice or heard of him.

The four were indicted for conspiring to possess with the intent to distribute more than four kilograms of heroin, in violation of 21 U.S.C. § 841(a)(1), and for possessing with intent to distribute about half a kilogram of heroin, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Richard Sinde and Thomas Finn pleaded guilty, but John Sinde and Iafelice did not. ¹

At trial and after the government presented its cases, Iafelice moved under Federal Rule of Criminal Procedure 29(a) for a judgment of acquittal. The district court denied the motion. Iafelice renewed his motion at the close of all the evidence. The court again denied it and allowed the jury to deliberate. The jury convicted John Sinde of both the possession and conspiracy charges. It acquitted Iafelice of the conspiracy charge, but convicted him of the possession charge. Iafelice moved for a post-verdict judgment of acquittal which the district court granted. The court concluded that the evidence was insufficient for a reasonable jury to find that the government had proven beyond a reasonable doubt each element of the possession offense. ²

III.

A conviction for possession with intent to distribute drugs requires that the defendant knowingly and intentionally possessed the drugs with the intent to distribute them. United States v. Martorano, 709 F.2d 863, 866 (3d Cir.1983). The district court concluded that a reasonable jury could have inferred that Iafelice knew he was participating in some sort of criminal activity. The court also concluded that a reasonable jury could find that Iafelice paged Richard Sinde's beeper while the Sinde brothers were meeting with Guslavage and that one of them returned the call to Iafelice. But it believed that Iafelice's suspicious behavior and the telephone call to Richard Sinde could not reasonably lead to the inference that he knowingly possessed a controlled substance with the intent to distribute it.

We need not belabor that Iafelice's suspicious driving activity, leading to the inference that Iafelice was performing countersurveillance, supports the further inference that Iafelice knew he was engaging in criminal activity. Nor is there any question that a reasonable jury could infer that Iafelice knew that the brown camera bag was in his trunk, that he opened or asked Finn to open the trunk for John Sinde, and that he paged the Sindes from Finn's mobile phone and spoke with one of them during the drug transaction. The question, as articulated by the district court, is: Does the evidence support the inference that Iafelice knew the bag contained heroin and intended to distribute the drugs? No, the district court concluded, relying on two cases: United States v. Wexler, 838 F.2d 88 (3d Cir.1988) and United States v. Salmon, 944 F.2d 1106 (3d Cir.1991).

In Wexler the defendant Wexler challenged his conspiracy and aiding and abetting convictions contending that the evidence was insufficient to show that he knew hashish was stashed in a yellow Ryder truck. The evidence showed:

a white Ford Sedan [ ] was driving by the surveillance area at about five miles per hour. The three occupants of the Ford Sedan, all readily visible, were looking around until the driver made eye contact with the surveillance agents. At this point, the car stopped in the middle of the street, backed into a nearby driveway and pulled away in a fast manner, with one of the occupants watching the agents until the car was out of sight.

838 F.2d at 89-90. Wexler rented the Ford Sedan and was identified as its driver. An operational CB radio was...