Appeal from a judgment of conviction entered in the United States District Court for the Southern District of New York, David N. Edelstein, J., after a jury trial, on four counts for theft of mail by an officer. Held, erroneous exclusion of background evidence that defendant had never before been arrested was harmless. Affirmed.
Oakes and Newman, Circuit Judges, and Keenan, District Judge.*fn*
Michael Blackwell appeals from a judgment of conviction in the United States District Court for the Southern District of New York on July 7, 1987 after a jury trial before the Honorable David N. Edelstein, United States District Judge. Appellant was convicted of four counts of theft of mail by an officer in violation of 18 U.S.C. § 1709. On Counts 1-3 he was sentenced to concurrent prison terms of two years; on count 4 he received a two-year suspended sentence and probation. Special assessments totalling $200 were imposed.
On appeal, Blackwell claims that the District Court erred in excluding his testimony that he had no prior arrests or convictions. Although we believe that the District Court should have permitted such testimony, we affirm because the proof of guilt here was overwhelming and any error was harmless.
Michael Blackwell was a truck driver for the United States Postal Service who drove the route from Stadium Station, located on 161st Street and Gerard Avenue in the Bronx, near Yankee Stadium, to Highbridge Station, eight blocks north of Stadium Station. On December 8, 1986, appellant made the noon pickup at about 12:20 p.m. Earlier that day, four pieces of certified mail had been mailed at Stadium Station. They were:
(1) a letter from Frances Gonzales containing a gold bracelet and a $10 bill;
(2) a letter from Carmen Lopez to her landlord;
(3) a Christmas card from Donald Fields containing $350 (three $100 bills and one $50 bill); and
(4) a letter from Sor Montenegro containing an airline ticket and a money order.
Appellant arrived at Highbridge Station thirty-five minutes later, although the trip should usually take only about ten minutes. At Highbridge, appellant unloaded and picked up mail, all in front of the station manager, who had also placed some "test letters" in the packages picked up by appellant.
From Highbridge Station, Blackwell's daily assignment called for him to return his mail truck directly to the Bronx General Post Office by a certain route. After leaving Highbridge, he was followed by postal inspectors who saw Blackwell deviate from the required route to the General Post Office to visit a video store. Blackwell deviated a second time to a small park where the inspectors saw Blackwell dump the contents of a white tray into a trashcan.
A postal inspector recovered six letters from the trashcan, four of which were the four certified letters mailed earlier that day. The $10 bill and note were missing from the Gonzales envelope and the three $100 ...