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UNITED STATES v. WOODEN

October 4, 1993

UNITED STATES OF AMERICA,
v.
ANTHONY WOODEN, Defendant.


SWEET


The opinion of the court was delivered by: ROBERT W. SWEET

Sweet, D. J.

 Defendant Anthony Wooden has appealed, pursuant to Fed. R. Crim. Proc. 58(g)(2)(B) and 18 U.S.C. § 3402, from the December 31, 1992 judgment of United States Magistrate Judge Kathleen A. Roberts for the Southern District of New York. For the reasons set forth below, the judgment is affirmed and the appeal dismissed.

 Information 92 Cr. 712 was filed on August 22, 1992, charging defendant Anthony Wooden ("Wooden") with unlawfully, wilfully, and knowingly obstructing and retarding the passage of mail, in violation of Title 18 U.S.C. § 1701.

 A nonjury trial commenced on December 21, 1992, and concluded on December 23, 1992. On December 31, 1992, in a written opinion, Magistrate Roberts found Wooden guilty. On March 12, 1992, Magistrate Roberts sentenced Wooden to two years of probation, 150 hours of community service, and a special assessment of $ 10.00. Notice of Appeal was filed on March 16, 1993, and the appeal heard on September 8, 1993.

 Facts

 Anthony Wooden, a letter carrier at the Fordham Station in the Bronx, was assigned to Route 15 from September 1991 through March 1992. On February 24, 1993, Wooden became sick and left work early. A co-worker, Wayne Moshensky ("Moshensky"), was directed to finish delivering the mail on Wooden's route. In the course of completing Wooden's route, Moshensky picked up two bags of mail at the relay box at 2875 Bainbridge Avenue. Moshensky delivered the mail in the first bag, but returned to Fordham station upon discovering the second bag's mail was improperly sequenced for delivery. Moshensky turned the bag over to Larry Passiatore ("Passiatore"), the manager of the Fordham Station Post Office. Another postal worker, Rafael Ruiz ("Ruiz"), also returned with a bag of undelivered mail from Wooden's mail route.

 Passiatore, upon discovering that the mail was old and unsorted, reported Wooden to the Postal Inspection Service. The next day, February 25, 1992, Postal Inspector Andrew O'Shaughnessy ("O'Shaughnessy") went to investigate the situation at Fordham Station. Inside the relay bags, O'Shaughnessy found mail with postmarks from September through November, 1991 and several parcels with postmarks from December, 1991. The next day, O'Shaughnessy found still more stale mail in relay boxes along Wooden's route. All told, between February 24 and 26, 1992, approximately 950 pieces of variously classed mail were discovered in relay boxes on Wooden's mail route dating as far back as September, 1991. Many pieces were either unsorted, unsequenced for delivery or old.

 On March 3, 1992, O'Shaughnessy questioned Wooden about the undelivered mail. According to O'Shaughnessy, Wooden stated that he "took the mail and put it in relay boxes," believing that he would "eventually" be able to "deliver it to addresses, return it or, you know, whatever it required." (Appellant Br. at 6). Wooden wrote out and signed a statement that he had been "unable to handle [his] volume of mail properly" and "would put the mail in relay boxes on [his] route with the intention of delivering it at a later time, but as days went by the situation became worse." Id.

 At trial, testimony concerning mismanagement of the Fordham Post Office was entered into the record. Mr. Humberto Montalbo ("Montalbo"), one of Wooden's co-workers, testified that Wooden's desk was always backed up with work and that he often heard arguments between Wooden and the station's management about his workload. Both Montalbo and Mr. Nieves, a Fordham Post Office delivery driver, testified that management had previously directed postal workers to drive backlogged mail around during postal inspections. Further, Passiatore admitted that he personally had requested postal workers to load mail into trucks and drive it around during scheduled postal inspections. Nevertheless, Passiatore testified that he never told Wooden to put mail in relay boxes rather than deliver it to the public. Passiatore acknowledged that Wooden complained about the volume of mail on his route and that his predecessor worked "off the clock" in order to keep up with the route's heavy volume. Accordingly, Passiatore assigned other mail workers to assist Wooden with his work load.

 Discussion

 Rule 58 of the Federal Rules of Criminal Procedure provides for the following scope of appeal from a Magistrate's judgment:

 
The defendant shall not be entitled to a trial de novo by a judge of the district court. The scope of the appeal shall be the same as an appeal from a judgment ...

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