APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA D.C. CRIM. No. 75-760-1.
Rosenn and Van Dusen, Circuit Judges, and Maurice B. Cohill, Jr. District Judge.*fn*
The United States Postal Service has served as the keystone of the American communications system since its founding by Benjamin Franklin in 1775.*fn1 In recognition of the indispensable role the Postal Service plays in the private and commercial life of the nation, Congress has provided criminal penalties for activities that interfere with the Postal Service's mandate to deliver the mail.*fn2 The defendant in this case, John Lavin, was found guilty by a jury in the United States District Court for the Eastern District of Pennsylvania of obstruction of the mails*fn3 and possession of stolen mail matter.*fn4 On appeal, the defendant seeks to overturn his conviction primarily on the ground that the evidence adduced at trial was legally insufficient to prove that he stole from the mails.*fn5 This appeal raises the question of when in the mail delivery process a misdelivered letter ceases being "mail," thereby no longer enjoying protection under the federal mail theft statutes.
In March 1975, the Fireman's Fund Insurance Company mailed a properly addressed letter, containing a check in payment of an insurance claim, to James Purdy, who lived in an apartment building in Philadelphia. Mr. Purdy did not have a designated mail box, so his mail was often left under the defendant's door, the adjacent apartment. Mr. Purdy never received the check; the jury found that the defendant cashed that check with his forged endorsement.
The defendant contends that, as a legal matter, even if the jury did believe that he converted the check, his actions did not constitute a violation of the federal mail theft statutes, sections 1701 and 1708. We disagree and affirm the conviction.
There is little case law interpreting section 1701, and those cases that do discuss it simply give the words of the statute their ordinary language use meaning. The only difficult element of section 1701 to interpret is determining when mail matter is within the "passage of the mail." In United States v. Takacs, 344 F. Supp. 947 (W.D. Okla. 1972), the court stated:
No case has been found in which the term "passage of the mail" as used in 18 U.S.C. § 1701 has been defined, construed or interpreted. However, long ago in considering a similar Statute employing the same term it was defined to mean the transmission of mail matter from the time the same is deposited in a place designated by law or by the rules of the post office department up to the time the same is delivered to the person to whom it is addressed. United States v. Claypool, 14 F. 127 (W.D. Mo. 1882). The Court accepts this early definition of the term "passage of the mail" as being within the intention of Congress in using such language in 18 U.S.C. § 1701 when such Statute was thereafter enacted. (Emphasis supplied.)
Id. at 949. Also adopting this definition was the court in United States v. Fleming, 479 F.2d 56 (10th Cir. 1973). Although this interpretation of "passage of the mail" is quite comprehensive, we believe that it accurately reflects the responsibility of the Postal Service. We see no reason why this court should diverge from that precedent, and so we adopt it as well.
According to the record in this case, the letter in question was properly mailed to James Purdy - "the person to whom [the letter] [was] [properly] addressed" - who never received the letter. Therefore, that letter must be considered within the "passage of the mail." Because evidence adduced at trial placed the check in the defendant's hands, the jury reasonably could have found him guilty of violating section 1701. See United States v. Hines, 256 F.2d 561, 564 (2d Cir. 1958).
In contrast to the infrequent treatment of section 1701, the body of case law discussing section 1708 is ample, and divides into two general factual groups: cases in which the stolen mail was improperly addressed and cases in which the stolen mail was misdelivered. Because the letter in the instant case was properly addressed, only the latter group of cases is relevant to this decision.*fn6
The defendant contends that mail misdelivered to an adjacent apartment - which is not an authorized receptacle for mail - is not governed by section 1708. In support of that contention, the defendant notes that specific language in 18 U.S.C. § 1702 (1970) (obstruction of correspondence) makes that section applicable to mail at any time "before it has been delivered to the person to whom it was directed" whether or not it was in an authorized receptacle at the time of the theft.*fn7 Because section 1708 is not so explicit, the defendant argues, its protective breadth is ...