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United States v. Collins

decided: August 6, 1965.


Lumbard, Chief Judge, and Hays and Anderson, Circuit Judges.

Author: Hays

HAYS, Circuit Judge:

The defendant was convicted after a six-day jury trial of violating 18 U.S.C. § 1708 (1964).*fn1 The count on which defendant was convicted alleged that on November 9, 1964, he unlawfully, willfully and knowingly possessed the contents of a package, i.e., six emeralds allegedly worth $152,190, which had been stolen or taken from the Mail Division of the Appraisers' Stores, United States Customs, at 201 Varick Street, in New York City, knowing the same to have been stolen or taken.*fn2

Defendant was a clerical employee of the Customs Service. He worked in the Mail Division of the Appraisers' Stores, on the sixth floor of a federal building in New York. It was his job to complete notices of arrival of parcels over $250 in value received through the mail from overseas and to mail the completed notices to the consignees of the parcels.

On November 9, 1964, a package containing six emeralds worth $152,190 disappeared from the office in which defendant worked. The package was last seen on a chair beside defendant's desk.

The Government's case against defendant rested entirely on circumstantial evidence. Government agents and others gave detailed accounts of the movements of the package containing the emeralds until it disappeared, and of the activities of defendant on the day of their disappearance. They also testified to evidence found in a search of defendant's person, clothing and home which indicated his illegal possession of the emeralds and to contradictory statements taken from the defendant on the night of the gems' disappearance.

The defendant appeals the judgment of conviction on four grounds: (1) that the facts as alleged in the indictment and proved at trial do not constitute a violation of the statute proscribing the knowing possession of stolen mail; (2) that the evidence was insufficient for conviction; (3) that evidence obtained by government agents from defendant's work jacket was unconstitutionally seized and introduced at trial; and (4) that evidence obtained in a search of defendant's person, clothing and home without a search warrant was also unconstitutionally seized and introduced into evidence. We affirm the conviction.

I. Applicability of the statute

The defendant argues that when government agents took the package containing the emeralds out of the usual course of the mails on Wednesday, November 4, 1964, photographed and made a sketch of it, took it to the General Post Office where a fluorescent dye was injected into it and did not return it to the Mail Division of the United States Customs until Friday, November 6, "it lost its character as mail." However, it has long been held under similar statutes that decoy letters to fictitious addresses, which are intended to detect mail thefts, constitute mail, e.g., Goode v. United States, 159 U.S. 663, 16 S. Ct. 136, 40 L. Ed. 297 (1895). Genuine mail temporarily withdrawn from its usual course and treated by government agents for the same purpose is also none the less mail. See Ennis v. United States, 154 F. 842 (2d Cir. 1907).

Defendant also contends that the statute is not applicable because the package when last seen was near the desk of a Customs employee, from which it was supposed to have been stolen, and was not, he argues, in the custody of the Post Office Department. However, the Government cites a group of regulations*fn3 that authorize clearance and inspection of overseas mail by the United States Customs before ultimate delivery, and there was evidence that defendant's desk was in the usual channel of such mail. Thus, the statute was applicable since the package was "stolen, taken, embezzled, or abstracted" from a "mail route or other authorized depository for mail matter." 18 U.S.C. § 1708 (1964); see Rosen v. United States, 245 U.S. 467, 472-473, 38 S. Ct. 148, 62 L. Ed. 406 (1918).

II. Sufficiency of the evidence

The defendant's contention that the evidence was too scanty and circumstantial to justify conviction is frivolous in the light of the overwhelming evidence of guilt produced at the trial. Government agents testified that they watched the progress of the package from concealed peepholes in a gallery overlooking the Mail Division floor until it disappeared, that other undercover agents working in the office watched both the package and defendant, that the package reached defendant's desk Friday, November 6, that defendant appeared to read the special customs invoice, which indicated the value in Swiss francs of its contents, that defendant kept the package on or about his desk except for the weekend when it was put into a safe by government agents, that it was last seen on a chair beside defendant's desk on Monday, November 9, at 10:55 A.M., that at 11:00 A.M. he was seen walking hurriedly away from the desk with his arm stiff against his right side, and that the package could not be found in the Mail Division despite the efforts of government agents during the afternoon and evening of that day. Nevertheless, the defendant denied ever having seen or handled this package.

It was agreed by all that the defendant signed out on Monday, November 9, one hour earlier than usual; witnesses testified that he gave several different reasons for leaving early. The defendant claimed that upon leaving his office he walked across lower Manhattan to his home on East 10th Street, but two government agents and a coemployee, Gennaro Ungaro, testified that Ungaro drove the defendant uptown to 72nd Street. Defendant expressly denied making any such trip. Finally, there were several other contradictions on collateral matters from which the jury might also have discredited defendant's testimony.

Defendant's work jacket was found to contain two rubber bands and a piece of paper which glowed under the investigators' fluorescent lamp. An expert witness testified that the fluorescent detection dye found on these objects was identical in type to the dye injected into the stolen package. An employee of the Geneva, Switzerland, jeweler who had sent the package identified the slip of paper with her handwriting on it as the same paper she had wrapped into the package. Articles of clothing found in defendant's home also glowed green under ...

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