been placed in a collection box but only have been placed in any part of the mail handling process.
This is not a case in which a test letter was placed on a sidewalk outside a post office and found by a postal employee who then took the contents of the letter. In this case, it is alleged that the test letter was placed in the normal work flow of the post office, removed by Rupert, taken to his duty station and in the course of performing his duties Rupert took the contents of the letter. Under the objective standard of "intended to be conveyed" the Court concludes that the indictment sets forth an offense against the United States.
Rupert's second argument on the conveyance point is that based on certain postal regulations, a reasonable employee in Rupert's position would have believed that the test letter should have been treated as waste and for that reason was not matter intended to be conveyed by mail.
Section 159.15 of the DMM provides that mail that is undeliverable as addressed may be forwarded, returned to sender, or treated as dead mail, depending on the class of mail. According to exhibit 159.151 of the DMM, the proper treatment of the test letter, since it contained no notation indicating that forwarding and return postage were guaranteed, was to treat the mail as waste unless it was of obvious value in which case it was to be returned to the apparent sender at the applicable rate.
Section 159.231 states that a sender of third class mail may identify pieces that are considered to be of obvious value by marking the wrapper with either "return postage guaranteed" or "forwarding and return postage guaranteed." Section 159.232 provides that if an undeliverable piece of mail is not so marked "its value will be appraised before it is disposed of." The section then lists some examples of matter having obvious value and states that miscellaneous printed matter such as circulars and unsolicited articles such as samples of merchandise are examples of matter that are not of obvious value.
It is the Government's position that it was Rupert's job to determine if the test letter was of obvious value. It further argues Rupert felt the two half dollar coins and at that point should have concluded the test letter was of obvious value. Even if Rupert was not sure at that time if the letter was of obvious value, the Government argues he most certainly was of that opinion after he opened the letter and found $ 8.00.
Rupert argues that because currency is not listed as an example of a matter of obvious value, it is an item of no obvious value. This contention is without merit. In the first place, it is clear that despite galloping inflation $ 8.00 is still obviously of value. Secondly, the listing of examples in section 159.232 does not purport to be exclusive. If Rupert wishes to base a defense to the jury on a contention that $ 8.00 is of no obvious value, he may attempt to do so. The Court, however, will not rule as a matter of law that a reasonable employee in Rupert's position would conclude that the test letter was of no obvious value. The Government, therefore, is entitled to prove that a reasonable employee would know that the letter was of obvious value and therefore was intended to be returned by mail to the apparent sender at the applicable rate as required by Exhibit 159.151 of the DMM.
Rupert's final argument with respect to Count I is that under applicable postal regulations he was entitled to possess the $ 8.00 and therefore at most he embezzled the money rather than stole it and for that reason Count I must be dismissed. Rupert argues under DMM § 159.42 it was Rupert's obligation to remove the money and promptly turn it over to his supervisor. That section, however, deals with money found loose in the mail. In this case it is alleged that the $ 8.00 was inside the envelope and hence cannot be said to have been loose in the mail. For this reason Rupert must search elsewhere to find support for this theory as to why Count I must be dismissed.
Although § 1709 prohibits both embezzlement of any letter or anything contained in a letter by a postal service employee as well as the theft or removal of anything from a letter intended to be conveyed, the indictment charges Rupert with theft and removal of the $ 8.00. It appears from the Government's brief and exhibits that it was part of Rupert's duties to possess the envelope in order to make a determination of how it should be processed. Although the matter is not free from doubt, it appears to the Court that if Rupert had lawful possession of the envelope he also had lawful possession of the contents of the envelope. United States v. Hergenrader, 529 F.2d 83 (8th Cir.), cert. denied, 426 U.S. 923, 96 S. Ct. 2632, 49 L. Ed. 2d 377 (1976) is not persuasive authority to the contrary. Although in that case it could be argued that the defendant had lawful possession of the envelope in that he came across it during his duties as a custodian, it does not appear that the defendant in that case raised the point asserted by Rupert here. Rodriguez involved charges of embezzlement of articles contained in mail matter by a postal employee who had lawful possession of the mail from which the item was taken. The Court, therefore, agrees with Rupert that if he had lawful possession of the test letter he cannot be convicted of theft of the contents of the envelope. See United States v. Trevino, 491 F.2d 74, 75 (5th Cir. 1974).
As indicated above, § 1709 prohibits the theft or removal by a postal employee of any article from any letter intended to be conveyed by mail. The Government, therefore, properly charged Rupert with theft and removal of the $ 8.00. In order to obtain a conviction, however, the Government must prove that Rupert committed a theft or removed the $ 8.00 from the letter. See United States v. Niederberger, 580 F.2d 63, 68 (3d Cir.), cert. denied, 439 U.S. 980, 99 S. Ct. 567, 58 L. Ed. 2d 651 (1978). It is the Government's position that even if Rupert was authorized to open the letter to determine whether it was of value, he was not authorized to remove the contents. Since the Government does not concede that Rupert was authorized to remove the contents of the envelope and since unauthorized removal of the contents is a violation of § 1709, the Court will not dismiss Count I.
Title 18 U.S.C. § 1701 prohibits anyone from knowingly obstructing or retarding the passage of the mail. Rupert argues that he could not obstruct or retard the mail because he was authorized to open the letter and that there was no passage of mail because the letter never entered the "stream of postal administration." Rupert also contends that he did not willfully or knowingly do an illegal act because he was obligated to act with respect to the envelope in the manner in which he acted.
Rupert's contentions with respect to Count II are without merit. As indicated above, even if Rupert could lawfully open the letter, once he discovered that it contained $ 8.00 he was obligated under postal regulations either to turn the letter and its contents over to a supervisor or return it himself to the sender. Throwing the envelope into the waste receptacle was clearly obstruction. In addition, since the letter was at the time it was allegedly purloined by Rupert in the normal work flow of the post office and would have continued in that flow had Rupert acted properly, Rupert's obstruction was with the passage of mail. Rupert reads United States v. Lavin, 567 F.2d 579 (3d Cir. 1977) too narrowly when he argues that the "passage of the mail" ended when the letter could not be delivered; rather, the letter was in the "passage of the mail" until it was returned to the apparent sender. Finally, it is for the jury to decide whether Rupert did the acts willfully and knowingly.
Based on the foregoing, the Court concludes that the indictment alleges offenses against the United States and is not subject to dismissal for the reasons urged by Rupert.
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