                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-1167
                                    ___________

United States of America,                *
                                         *
                   Appellant,            * Appeal from the United States
                                         * District Court for the District
      v.                                 * of North Dakota.
                                         *
Dwight Dean Sundby,                      *      [UNPUBLISHED]
                                         *
                   Appellee.             *
                                    ___________

                               Submitted: May 12, 2000

                                   Filed: May 18, 2000
                                    ___________

Before WOLLMAN, Chief Judge, FAGG, Circuit Judge, and HENDREN,* District
      Judge.
                             ___________

PER CURIAM.

       The United States appeals the district court's grant of Dwight Dean Sundby's
post trial motion for judgment of acquittal. We reverse and remand.




      *
        The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas, sitting by designation.
        After drug dogs in Phoenix, Arizona and Minneapolis, Minnesota alerted to a
suspicious package, a Minneapolis Postal Inspector obtained a search warrant, opened
the package, and discovered a large number of screws and a substance that tested as
171.89 grams of 98.5% pure methamphetamine with traces of caffeine impurities.
After replacing all but one gram of the methamphetamine with brown sugar, the
Inspector marked the baggie containing the original gram of methamphetamine for
identification purposes, left the screws in the box, and resealed the box for a controlled
delivery to Dwight Sundby's rural Bismarck, North Dakota mailbox. Police officers
watched the mailbox, located at the edge of a dirt road in front of Sundby's house, from
a distance of about 3/4 mile, but their view was frequently obscured by dust kicked up
as vehicles passed. At one point, a light colored pickup with an unknown number of
occupants arrived at Sundby's house, but left twenty minutes later without interference
from police. About two hours after the package was placed in the mailbox, Sundby left
the house without stopping at the mailbox. The officers immediately checked Sundby's
mailbox and although they had not seen anyone at the mailbox since the initial delivery,
the package was gone. The officers set out after Sundby, stopped him, and searched
his vehicle, finding a substance that tested as 0.3 grams of 93.1% pure
methamphetamine with traces of cocaine and caffeine impurities. At Sundby's house,
officers found the marked baggie from the package, a handwritten record showing
amounts of money in a column marked sent and quantities of contraband in a column
marked received, a phone log showing calls to the Phoenix area, a scale, baggies, tin
foil, a sifter containing cocaine residue, marijuana seeds, and a grow light and hood.
No methamphetamine was found in Sundby's house. Sundby was indicted for
conspiracy to possess with the intent to distribute methamphetamine, possession with
intent to distribute methamphetamine, and possession with intent to manufacture
marijuana. See 21 U.S.C. §§ 841(a)(1) & 846. A jury found Sundby not guilty on the
marijuana charge and guilty of both methamphetamine charges. The district court
granted Sundby's post trial motion for judgment of acquittal.




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       On appeal, the Government claims the district court erroneously granted
Sundby's motion for judgment of acquittal. We agree. Evidence introduced at trial
showed that a package addressed to Sundby bearing an invalid Phoenix, Arizona area
return address was intercepted by postal inspectors and found to contain 171.89 grams
of methamphetamine. A marked baggie was used to make a controlled delivery of one
gram of the methamphetamine to Sundby. A search of Sundby's house turned up a
similarly marked baggie containing methamphetamine residue and the agent who
marked the original baggie testified that the markings on the original baggie and the
baggie found in Sundby's house were the same. Sundby's phone bills showed a series
of calls to the Phoenix area and Sundby sent two packages to and received one other
package from the Phoenix area, all within a few weeks of the delivery of the
methamphetamine package. A handwritten record, showing amounts of money with
corresponding quantities of contraband, and other drug paraphernalia were also found
in Sundby's house. On this mix of evidence, reasonable jurors could have found that
Sundby conspired to and did possess with the intent to distribute methamphetamine.
See United States v. Moyer, 182 F.3d 1018, 1021 (8th Cir.), petition for cert. filed, 68
U.S.L.W. 3401 (U.S. Dec. 13, 1999) (No. 99-998). We thus reverse the judgment of
acquittal and remand the case to the district court for reinstatement of the jury's verdict
and for sentencing.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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