Feinberg and Timbers, Circuit Judges, and Thomsen, District Judge.*fn*
Defendant Edward Lopez appeals from a judgment of conviction, after a non-jury trial in the United States District Court for the Southern District of New York before Lloyd F. MacMahon, J., on two counts of possession of the contents of stolen mail in violation of 18 U.S.C. § 1708.*fn1 The sole issue on appeal is whether the district court should have granted appellant's motion to dismiss both counts of the indictment on the ground that the Government's evidence failed to establish that the letters, whose contents defendant allegedly had in his possession, were stolen from the mails. We find that the district judge properly denied the motion and affirm the conviction.
The Government's proof on the first count established that on April 21, 1971 Eutimio Vitullo mailed a check, drawn payable to "Travel Agenda" for the sum of $120, to Travel Agenda, 119 West 57 Street, Suite 1008, New York City. On the morning of April 23, 1971, a letter carrier brought a bundle of between 10 to 15 pieces of mail to that address. When he found the door to Suite 1008 locked, he left the bundle of mail on the floor of the hallway in front of the door. Travel Agenda, however, received no mail that morning and never received the letter from Vitullo. On April 28, 1971, defendant cashed the Vitullo check at a bank in New York City where he had previously opened an account under an assumed name.
On the second count the Government submitted evidence that on May 11, 1971, Mary Grace placed a letter in a "mail receptable" or a "bin" in the lobby of 116 John Street, New York City. The letter, containing a check payable to Luis Anthony Levine for $90, was addressed to Laurie Levine, c/o Leonard Goldberg, 853 Seventh Avenue, New York City. The addressee, however, never received the letter. On May 19, 1971, defendant was arrested while attempting to cash the Levine check at another bank in New York City where he had also opened an account under an assumed name.
Appellant argues that the Government's evidence failed to establish that either the Vitullo or the Levine check was the contents of stolen mail within the meaning of 18 U.S.C. § 1708. Under that statute such a showing was necessary before defendant could be convicted of illegal possession of the two checks. We consider below appellant's arguments with respect to each check.
Appellant's argument as to the first count presents an issue of statutory construction -- whether a letter stolen after a postman has left it in front of the addressee's door is stolen mail under section 1708. The Government contends that section 1708 does reach such conduct, but it also argues that we need not decide that statutory question in this case. It claims that on the evidence submitted the district judge could properly have concluded that the Vitullo check was stolen before the letter carrier delivered the bundle of letters to Travel Agenda's front door. In support of this argument the Government relies on United States v. Hines, 256 F.2d 561 (2d Cir. 1958). There we held that a letter shown to have been "properly mailed and never received by the addressee, but found in quite improper and misusing hands, can be found to have been stolen from the mails in the absence of any other explanation being proffered." 256 F.2d at 564. When such facts are established it is reasonable to assume that the letter was stolen rather than inadvertently lost or misplaced by postal officials. But the Government's proof here, unlike that in Hines, showed not only that the letter was stolen but also that it might have been taken along with the other pieces of mail left outside Travel Agenda's door on April 23. Thus, while it might be possible to affirm on the basis of Hines, we have enough doubt about the correctness of doing so to go on to consider whether a letter left at the door would still be under the protection of federal law.
To resolve that question we must turn to the statute itself, which provides in relevant part as follows:
Whoever steals . . . from or out of any mail, post office, or station thereof, letter box, mail receptacle, or any mail route or other authorized depository for mail matter, or from a letter or mail carrier, any letter . . or . . .
Whoever . . . unlawfully has in his possession, any letter . . . or any article or thing contained therein, which has been so stolen . . . ...