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February 26, 1996


The opinion of the court was delivered by: GETTLEMAN

 After deliberating all of ten minutes, the jury in this case returned a verdict finding defendant, a former U.S. Postal Service mail carrier, guilty of possessing stolen mail in violation of 18 U.S.C. § 1708. Defendant has renewed his motion for judgment of acquittal under Fed. R. Crim. P. 29, which was originally filed at the close of the government's case, and has also moved for a new trial pursuant to Fed. R. Crim. P. 33. The issue presented is whether the government proved beyond a reasonable doubt that defendant had constructive possession of the mail within the five year statute of limitations period preceding the indictment. For the reasons set forth below, the court grants defendant's motion for acquittal.


 Defendant was a mail carrier from May 1986 until September 1991. From 1986 until June 1988, defendant and his wife resided at a two-unit home located at 1834 South Troy, Chicago, Illinois (the "House"). The House was sold by defendant and his wife in 1993. While defendant resided at the House, his family occupied the first floor unit and rented the second floor. When defendant moved from the House in 1988, the second floor tenant moved to the first floor, and the second floor was rented to a new tenant. Thereafter, until he sold the house in 1993, defendant continued to store personal property in locked rooms in the basement and in the first floor back porch, which was also locked. Defendant had the only key to these locks. He would visit the house monthly to collect rent and mail that had been delivered to him, *fn1" and at other times to retrieve some of the personal property that was kept in the locked areas.

 On April 13, 1994, a quantity of mail was discovered beneath the back porch of the House. The mail bore postmarks from October 17, 1987, and March 23, 1988, and was from routes for which defendant was to have delivered on those dates. The evidence establishes that defendant was responsible for failing to deliver this mail, and that instead he put it under his back porch. According to photographs introduced by the government at trial, the porch is approximately three to four feet off the ground, and the opening had a light chicken wire fence tacked around it during the time defendant lived at the House. *fn2" The photograph reveals that the area under the porch is exposed to the elements, that anyone could easily obtain access to it, and that items of personal property have been discarded under the porch.

 On March 23, 1995, the Grand Jury indicted defendant for unlawfully secreting, detaining and delaying the United States mail, in violation of 18 U.S.C. § 1703(a). This court dismissed that indictment, holding that the conduct proscribed by § 1703(a) is not a "continuing offense," and that the five year statute of limitations contained in 18 U.S.C. § 3282 expired in 1993. United States v. Cunningham, 891 F. Supp. 460 (N.D. Ill. 1995) ("Cunningham I").

 On July 26, 1995, the Grand Jury returned a second indictment against defendant, this time charging him with possession of stolen mail in violation of 18 U.S.C. § 1708. This court denied defendant's motion to dismiss the second indictment, holding that possession of stolen mail is a continuing offense. The court further held that the government would be required at trial to prove beyond a reasonable doubt that defendant "knowingly possessed stolen mail . . . later than July 26, 1990," and that this burden would require proof that defendant "knew he had the power, and intended to exercise dominion and control over, the mail that allegedly lay under the porch of the House." United States v. Cunningham, 902 F. Supp. 166, 169 (N.D. Ill. 1995) ("Cunningham II"). The final instructions to the jury conformed to this ruling.

 At the close of the government's case, defendant moved for acquittal pursuant to Fed. R. Crim. P. 29(a). The court reserved ruling until after the verdict, pursuant to Rule 29(b). Defendant did not testify at the trial. Ten minutes after retiring for deliberation, the jury announced that it had reached a verdict of guilty. Thereafter, defendant timely moved for acquittal notwithstanding the verdict, pursuant to Rule 29(c).


 To set aside a verdict of guilty pursuant to Rule 29, the defendant must demonstrate that no rational juror, viewing the evidence in the light most favorable to the government, could have found defendant guilty beyond a reasonable doubt. United States v. Klein, 910 F.2d 1533, 1538 (7th Cir. 1990). In determining whether defendant has met this heavy burden, the court must bear in mind that "it is the exclusive function of the jury to determine the credibility of the witnesses, resolve evidentiary conflicts and draw reasonable inferences." Id.

 In the instant case, the facts are not seriously in dispute. There is no question in the court's mind that defendant stole the mail, threw it under his porch, continued to reside in the House until 1988, had the power to control the House, the porch and the stolen mail until 1993, and in fact exercised control over certain areas and aspects of the House until that year. The government has never contended that defendant exercised actual possession of the stolen mail, arguing instead that the evidence demonstrates beyond a reasonable doubt that he had constructive possession within the five years preceding the date of the indictment, July 26, 1995. At this stage in the proceedings, with the Rule 29 standards firmly in mind, the court accepts as fact that, at and after that date, defendant had the power to exercise control over the mail lying beneath the porch. The issue, therefore, is whether there was sufficient evidence, if any, that defendant intended to exercise that power. United States v. Taylor, 728 F.2d 864, 868 (7th Cir. 1984); Cunningham II.

 There is certainly no direct evidence that defendant intended to exercise control. No witness testified that defendant ever did or said anything to indicate that he was mindful of where the mail had been discarded or intended to return to it after he disposed of it in 1987 and 1988. More important, defendant did keep property at the House over which he intended to exercise control, but that property was kept under lock and key. The only inference that can be drawn from this undisputed evidence is that when plaintiff recognized that he had property worth preserving that he kept at the House, he secured that property.

 The stolen mail, which was discovered in a deteriorated condition, obviously did not fit into the category of property defendant wished to secure. It was abandoned under an open porch which, taking the government's evidence at its best, was secured by a flimsy chicken wire fence that the photograph indicates was easily removed by natural or human forces. Although the government is correct in pointing out that anyone wishing to access the area beneath the porch would have had to trespass on defendant's property, that would appear to have been an easy matter. Certainly, no one wishing to secure property or exercise control over it would throw it under an open porch as defendant did with the ...

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