                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                       No. 14-2881


                            UNITED STATES OF AMERICA

                                             v.

                                    ERIC ESPOSITO,

                                                  Appellant


                       Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                               (D.C. No. 2-09-cr-00496-013)
                      District Judge: Honorable Eduardo C. Robreno
                                    ________________

                       Submitted under Third Circuit LAR 34.1(a)
                                  on October 29, 2015

           Before: GREENAWAY, JR., SCIRICA and ROTH, Circuit Judges

                            (Opinion filed: February 11, 2016)


                                        OPINION*


ROTH, Circuit Judge




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Eric Esposito challenges the sufficiency of the evidence supporting his conviction,

after a jury trial, for operating an illegal gambling business in violation of 18 U.S.C. §

1955. In the alternative, Esposito seeks a new trial, even though he failed to so move in

the court below. Substantial evidence was introduced at trial from which a rational trier

of fact could find Esposito guilty beyond a reasonable doubt and, absent a timely motion

for a new trial, that form of relief is unavailable to him. Consequently, we will affirm the

judgment of the District Court.

                                              I.

       Esposito and his co-defendants were “made” members of the Philadelphia La Cosa

Nostra crime syndicate. Esposito was indicted for operating an illegal gambling business

based on his involvement in the First Ward Republican Club, a private supper club—not

affiliated with the Republican Party—in South Philadelphia. Evidence at trial established

that the club obtained a substantial portion of its revenue from multiple video poker

machines. Customers bought credits in the machines for dollars and, if the customer had

a winning poker hand, the bartender would pay the customer her winnings in cash. The

machines took in more than they paid out, and the club pocketed the difference.

       The video poker machines were serviced by a vendor, Curt Arbitman, who

pleaded guilty to a separate charge based on his role in a larger RICO conspiracy.

Arbitman testified that Esposito was introduced to him as the owner of the First Ward

Republican Club and that Arbitman and Esposito split the proceeds from a variety of

concessions in the club.



                                              2
       The evidence, linking Esposito to the operation of the club, was not limited to

Arbitman’s testimony. Inside the club, FBI agents found lists with the names and phone

numbers of its key operators, with Esposito’s name listed first. Cellular telephone

intercepts introduced at trial included conversations in which Esposito discussed hiring

and firing decisions he made for the club’s bartenders, arranged for security, negotiated

over other concessions, and developed business strategies and strategies to deal with

unruly patrons. When the club was eventually raided by the FBI, agents intercepted a

telephone call between Esposito and one of his associates in which Esposito was warned

to stay away from the club and Esposito noted that he was in the process of purchasing

liquor for the club.

       One defense witness, Frank McGonigal, testified that he was the manager of the

First Ward Republican Club and Esposito had “no official duties.” This testimony was

questioned, however, by other evidence indicating that, when McGonigal was on

vacation, Esposito managed the day-to-day operations of the club. Moreover, Esposito

was present in the club during its most profitable periods—nights and weekends—while

McGonigal, the supposed manager, was present only during the slowest periods.

       At trial, Esposito’s counsel moved for a judgment of acquittal pursuant to Federal

Rule of Criminal Procedure 29 following the government’s case-in-chief. The district

court denied the motion. Esposito put on a defense and called McGonigal to testify but

failed to renew his Rule 29 motion after the defense’s case-in-chief. The jury convicted

Esposito of operating an illegal gambling business.



                                             3
                                             II

       The district court had jurisdiction over this criminal case under 18 U.S.C. § 3231.

We have appellate jurisdiction under 28 U.S.C. § 1291. We review the evidence in the

“light most favorable to the government” to determine whether “any rational trier of fact

could have found the essential elements of the offenses charged . . . [proven] beyond a

reasonable doubt.”1 Since Esposito did not renew his Rule 29 motion at the conclusion of

his case in chief, we review the evidence for plain error.2 A conviction is plainly

erroneous “only if the verdict constitutes a fundamental miscarriage of justice.”3

       To prove a violation of 18 U.S.C. § 1955, the government must show (1) that a

gambling business “was conducted which violated the laws of the state in which it was

conducted;” (2) “five or more persons including the defendant, knowingly and

deliberately conducted, financed, managed, supervised, directed or owned all or part of

that gambling business;” and (3) the business was “in substantially continuous operation

for more than thirty days.”4 Esposito challenges only the second element, claiming that

he did not knowingly and deliberately participate in the gambling business at the First

Ward Republican Club.

       Esposito’s challenge rests entirely on McGonigal’s testimony. McGonigal made

clear that he believed he was the manager of the First Ward Republican Club, but

McGonigal’s subjective belief is of little consequence. There is ample evidence in the

1
  United States v. Anderson, 108 F.3d 478, 480 (3d Cir. 1997).
2
  United States v. Berrios, 676 F.3d 118, 132 (3d Cir. 2012).
3
  United States v. Gordon, 290 F.3d 539, 547 (3d Cir. 2002) (internal quotation marks
omitted).
4
  United States v. Conley, 37 F.3d 970, 977 (3d Cir. 1994).
                                             4
record that Esposito managed the club’s personnel, arranged for the poker machines’

maintenance and split proceeds with the vendor, Arbitman, and that Esposito maintained

security for the club while fully aware of the illegal gambling occurring on site. In short,

while a jury could have credited McGonigal’s statement that Esposito was not a manager

of the club, it was not plain error for the jury to credit the ample evidence showing that

Esposito supervised and directed the club’s operations and profited from it, even without

the title of “manager.” The jury’s verdict does not represent a miscarriage of justice

sufficient to overturn Esposito’s conviction.

         In the alternative, Esposito seeks a new trial pursuant to Federal Rule of Criminal

Procedure 33. Esposito did not move for such relief below, foreclosing that avenue of

relief. Rule 33 allows for a new trial only “[u]pon the defendant’s motion.”5 Since

Esposito did not make such a motion, the trial judge could not have ordered a new trial,

nor may we.6

                                              III.

         The jury heard ample evidence at trial as to all of the essential elements of the

crime with which Esposito was charged so that a rational trier of fact could have found

him guilty beyond a reasonable doubt. Esposito failed to preserve his motion for a new

trial. Consequently, we will affirm the judgment of the District Court.




5
    FED. R. CRIM. P. 33(a).
6
    See United States v. Wright, 363 F.3d 237, 248 (3d Cir. 2004).
                                                5
