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United States v. Graves

June 6, 1984

UNITED STATES OF AMERICA, APPELLEE,
v.
GARY GRAVES, DEFENDANT-APPELLANT



Appeal from a judgment of the District Court for the Southern District of New York (Milton Pollack, Judge) convicting defendant, after a jury trial, of possession of checks stolen from the mail, in violation of 18 U.S.C. §§ 1708 and 2 (1982). Affirmed.

Newman, and Winter, Circuit Judges, and MacMahon, District Judge.*fn*

Author: Newman

JON O. NEWMAN, Circuit Judge:

Gary Graves appeals from a judgment entered in the District Court for the Southern District of New York (Milton Pollack, Judge), after a jury trial, convicting him on two counts of possession of checks stolen from the mail, in violation of 18 U.S.C. §§ 1708 and 2(1982). On appeal, Graves principally contends that the evidence presented at trial was insufficient to prove that the checks were stolen from the mail. For reasons that follow, we disagree and affirm the judgment of conviction.

Facts

The Government's evidence at trial concerning the theft of the checks was based primarily on a stipulation. According to that stipulation, if called as a witness, a security officer for the Mountain Bell Telephone Company of Denver, Colorado, would testify that, according to Mountain Bell's business records, on June 31, 1981, Mountain Bell placed in the United States mail a check in the amount of $508.07 ("Mountain Bell check"). The check was made payable to the Western Electric Company and was addressed to Western Electric's office at 222 Broadway, New York City. The stipulation also stated that, if called as a witness, a security manager for the Western Electric Company would testify that he had reviewed the company's business records and "determined that a check expected in the mail from Mountain Bell in July or August, 1981, in the amount of $508.07, was never received nor deposited by Western Electric."

The stipulation also reflected that, if called to testify, a controller of SSC&B, Inc. of New York City would testify that he reviewed SSC&B's business records and determined that on September 11, 1981, SSC&B deposited into the mail a check in the amount of $8,457.50, which was payable and addressed to Pitman Learning Center, 530 University Avenue, Palo Alto, California ("SSC&B check"). Evidence of non-receipt was also based on the stipulation; if called to testify, a division controller for the Pitman Learning Center would testify that he reviewed the business records and "determined that a check expected in the mail from SSC&B, Inc., in the amount of $8,457.50 in September, 1981, was never received nor deposited and that SSC&B, Inc., sent a replacement check in Decmeber, 1981, after the first check was reported lost."

Graves' connection with the two checks was based primarily on the testimony of handwriting experts and evidence of alteration and negotiation of the stolen checks. As to the SSC&B check, the name of the payee was visibly altered to read "Theresa Gentile," and the face amount was altered from $508.07 to $8,508.07. On September 24, 1981, the SSC&B check was deposited, together with a deposit slip, in an account in the name of "Theresa Gentile" at a Lincoln Savings Bank branch in New York City. Handwriting experts identified the handwriting on the deposit slip as that of Graves. This identification testimony was corroborated by Beatrice Smith, a friend of Graves, who recognized Graves' handwriting on the deposit slip.

The name of the payee on the Mountain Bell check was altered to read "Rita Holt Summers," and on August 27, 1981, the altered check was deposited, together with a deposit slip, into the account of Rita Holt Summers at a Chemical Bank branch in Queens, New York. The handwriting experts testified that the handwriting on the deposit slip and the Mountain Bell check was Graves'. Beatrice Smith gave similar identification testimony.

The evidence also included a tape-recorded telephone conversation between Graves and Beatrice Smith, three weeks before the trial, in which Graves encouraged Smith to perjure herself at trial.

Discussion

To establish a violation of 18 U.S.C. § 1708 (1982) the Government must prove that the checks were stolen from the mail and that the defendant possessed or received them knowing that they had been stolen. United States v. Hines, 256 F.2d 561, 563 (2d Cir. 1958). The Government does not have to prove that the defendant knew the checks were stolen from the mail. Barnes v. United States, 412 U.S. 837, 847, 37 L. Ed. 2d 380, 93 S. Ct. 2357 (1973).

Direct evidence of theft from the mail is rarely available. Here the Government used a stipulation based on business record entries showing mailing and non-receipt in order to rely on the usual inference that "a letter 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 proferred." United States v. Hines, supra, 256 F.2d at 564; accord, United States v. Lopez, 457 F.2d 396, 398 (2d Cir.), cert. denied, 409 U.S. 866, 34 L. Ed. 2d 114, 93 S. Ct. 162 (1972).

Graves contends, however, that in light of our recent decision in United States v. Roglieri, 700 F.2d 883 (2d Cir. 1983), an inference of theft from the mail cannot rest solely on proof of mailing and non-receipt when the recipient is a large commercial firm. Graves argues that while such an inference is proper when evidence of non-receipt is based on the personal recollections of non-commercial addressees, see, e.g., United States v. Hall, 632 F.2d 500 (5th Cir. 1980); United States v. Lopez, supra, the absence of an entry indicating receipt in the business records of a large commercial firm is insufficient to prove non-receipt for purposes of the inference.*fn1 In essence, he maintains that evidence tending to show that the corporate employee who normally logs incoming mail did not make an entry is insufficient for the jury reasonably to rule out the possibility of theft after the matter leaves the mail, i.e., theft somewhere in the sequence from the time some corporate employee receives the mail until the mail moves internally to the employee who records receipt in business records. See United States v. Dawson, 608 F.2d 1038, 1040 (5th Cir. 1979) ("Because the evidence did not show that mail is logged in immediately upon ...


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