The opinion of the court was delivered by: MUIR
On February 11, 1981, Rupert filed a motion pursuant to Fed.R.Crim.P. 12(b) to dismiss the indictment on the grounds that it fails to allege offenses. Rupert was given two extensions of time in which to file a brief in support of the motion and he did so on March 2, 1981. The Government filed an opposing brief on March 12, 1981. The motion became ripe for disposition on March 16, 1981 when Rupert filed a reply brief. For the following reasons, the motion to dismiss the indictment will be denied.
At the time the motion was filed, it was counsels' intention to submit to the Court a statement of agreed upon facts. Counsel, however, were not able to agree on such a submission. The Court, therefore, will treat this motion as it would treat the usual 12(b) motion and determine whether, based on the indictment, the Government's contentions of what it will prove and the facts the Defendant is willing to concede for the purposes of the motion the indictment states offenses against the United States.
The Government contends that on December 17, 1980, postal inspectors placed an envelope containing $ 8.00 addressed to a Ms. Sherri Dupont, 100 Carpenter Street, Muncy, Pennsylvania and bearing a third class bulk rate stamp and a return address in the "no value" section of the throwback case of the Muncy, Pennsylvania Post Office. The throwback case is the case where mail carriers place mail after they have examined it and found that it cannot be delivered on their routes. On December 17, 1980, it was Rupert's job to examine the mail in the throwback case and process it in accordance with Postal Service regulations.
The letter addressed to Ms. Dupont was a so-called "test letter" prepared by postal inspectors and designed to uncover theft by postal employees. According to the Government, it contained seven one dollar bills and two fifty cent pieces that were loose in the envelope. The name and address of the addressee on the letter were fictitious although the return address was that of a genuine third class bulk rate permittee. It is alleged that Rupert took the envelope from the throwback case, carried it to his work area, felt the envelope, opened the envelope, extracted the $ 8.00 and threw the then empty envelope into a waste receptacle.
Title 18 U.S.C. § 1709 makes a crime the theft or removal by a Postal Service employee of any item from any letter intended to be conveyed by mail. It is Rupert's position that the letter in question was not mail, that it was not intended to be conveyed by mail, and that he did not steal the $ 8.00. The Court will address each contention separately.
Rupert argues that the test letter was not mail because it did not fall within any of the categories of matter permitted to be mailed as third class bulk mail. Rupert has submitted in support of his motion excerpts from the Domestic Mail Manual (DMM). Section 621.1 defines third class mail as matter that is not mailed or required to be mailed as first class mail, not entered as second class mail, and weighing less than 16 ounces. Rupert has not, however, included with his motion those portions of the DMM that define first and second class mail; consequently, the Court cannot determine whether currency may properly be mailed third class. Rupert's citation to section 623 is not helpful because that section concerns special bulk rates and the Government does not contend that the purported sender of the matter sought to be qualified under that provision.
Even assuming, however, that Rupert is correct that the test letter was not proper third class mail, it does not follow that the letter was not mail within the meaning of § 1709 or that the theft or removal of its contents does not fall within the conduct proscribed by that section. It defies common sense to argue that a letter that on its face appears to be mail loses that status because the purported sender has not paid the proper postage. Rupert has cited no case so holding and the Court declines to adopt such a reading of the statute.
Moreover, Rupert has not been charged with stealing or removing money from the mail but with theft and removal of money from a letter intended to be conveyed by mail, conduct also prohibited by § 1709. In Goode v. United States, 159 U.S. 663, 671, 16 S. Ct. 136, 138, 40 L. Ed. 297 (1895), the Supreme Court held that for the purposes of Rev.Stat. § 5467, the predecessor to § 1709, a letter "is a document, which bears the outward semblance of a genuine communication, and comes into the possession of the employer in the regular course of his official business.... It is not for him to judge its genuineness." There can be no dispute that the envelope allegedly opened by Rupert was a letter under this definition of the term.
Rupert's argument that the letter was not intended to be conveyed by mail rests on two nineteenth century cases of Circuit Courts of Appeals and his interpretation of regulations governing third class bulk mail. United States v. Rapp, 30 F. 818 (C.C.N.D.Ga.1887), held that a dead letter decoy that was not received in the mail in the normal manner and was not intended to be delivered to anyone, was not "intended to be conveyed by mail" under Rev.Stat. § 5467. United States v. Matthews, 35 F. 890 (C.C.D.Md.1888), held that it was for the jury to determine if the mailer had the subjective intent that the letter be conveyed by mail. It appears to be Rupert's position that since the letter was placed in the throwback case with the intention that it be taken and appropriated by a postal employee the Court must conclude that there was no intent to convey the letter by mail.
Although the Court of Appeals for the Third Circuit has not addressed this contention, it has been rejected by at least three other Courts of Appeals. United States v. Rodriguez, 613 F.2d 28, 31 (2d Cir.) (per curiam), cert. denied, 446 U.S. 967, 100 S. Ct. 2946, 64 L. Ed. 2d 827 (1980); United States v. Hergenrader, 529 F.2d 83, 85 (8th Cir.), cert. denied, 426 U.S. 923, 96 S. Ct. 2632, 49 L. Ed. 2d 377 (1976); United States v. Kent, 449 F.2d 751, 752 (5th Cir. 1971), cert. denied, 405 U.S. 994, 92 S. Ct. 1268, 31 L. Ed. 2d 462 (1972). Rupert has called no 20th century case that follows Rapp or Matthews to the Court's attention. In determining whether the matter was intended to be conveyed by mail, the modern approach is to apply an objective standard. The subjective intent of the person who prepared the letter is not relevant; rather, an item was intended to be conveyed by mail if a reasonable person who saw the letter would think it was a letter that was intended to be delivered. "It is the appearance which it carries to the postal employee which is crucial." United States v. Hergenrader, 529 F.2d at 85 (8th Cir. 1976).
In Hergenrader the Court of Appeals for the Eighth Circuit upheld a conviction under § 1709 when a test letter placed in the trash was removed by a custodian who extracted $ 6.00 from it. The Court relied in part on Scott v. United States, 172 U.S. 343, 19 S. Ct. 209, 43 L. Ed. 471 (1899), which held that a decoy letter placed in a collection box and addressed to a fictitious addressee was a matter intended to be conveyed by mail. The Court of Appeals also reasoned that a stamped and sealed letter found in an area where mail was being processed would appear to a reasonable employee to be matter intended to be conveyed by mail. In Kent and Rodriguez, the decoy matter was not deposited in a mailbox but placed at a location in a post office that was normally used in the sorting or distribution of mail. In this case it is for the jury to determine whether a reasonable postal employee in Rupert's position would believe the test letter was intended to be conveyed by mail. The Court reads nothing in Scott that indicates that in order to support a conviction under § 1709 a letter must be placed in a mailbox rather than some other location in the mail handling system. This Court joins the Courts of Appeals for the Second, Fifth and Eighth Circuits in rejecting the reasoning of Rapp and Matthews, and adopts an objective test for determining if the letter was intended to be conveyed by mail and concludes that the test letter need not have 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 ...