Smith v. United States

• Citation: 343 F.2d 539
• Decision Date: 02 April 1965
• Docket Number: No. 20727.,20727.
• Parties: Robert Thomas SMITH, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

343 F.2d 539 (1965)

Robert Thomas SMITH, Appellant, v. UNITED STATES of America, Appellee.

No. 20727.

United States Court of Appeals Fifth Circuit.

February 26, 1965.

Rehearings Denied April 2, 1965.

Tully R. Florey, III, Mount Pleasant, Tex., J. M. Donald, Jacksboro, Tex., for appellant.

Charles D. Cabaniss, Asst. U. S. Atty., William L. Hughes, Jr., Asst. U. S. Atty., Fort Worth, Tex., Barefoot Sanders, U. S. Atty., B. H. Timmins, Jr., Asst. U. S. Atty., Wadsworth, for appellee.

Before BROWN and WISDOM, Circuit Judges, and ESTES, District Judge.

WISDOM, Circuit Judge:

Robert T. Smith and two other defendants, Welch and Henderson, in a multi-count indictment, were charged with stealing social security checks from the United States mail, possessing material stolen from the United States mail knowing it to have been stolen, forging the payees' endorsements, and passing the forged instruments with intent to defraud the United States. The payees lived at the Gilmore Hotel in Fort Worth, Texas. They failed to receive their social security checks for the month of October 1962. The chief evidence linking Smith to the crime was the testimony of his co-defendants, Welch and Henderson, who pleaded guilty and testified for the prosecution. Smith pleaded not guilty. Welch testified that he stole the checks from the Gilmore Hotel mailbox, showed them to Smith, told him that they were stolen, and that Smith forged some or all of the endorsements on the checks. Welch and Henderson then "uttered" the checks and shared the proceeds with Smith. Smith was convicted of possessing stolen mail, in violation of 18 U.S.C. § 1708, and convicted of forging endorsements on social security checks with intent to obtain money from the United States, in violation of 18 U.S.C. § 495. We affirm.

I.

Smith was represented on this appeal by an able court-appointed attorney, Mr. Tully R. Florey, who has briefed and argued the case as thoroughly and as strongly as could be wished for by any appellant. In addition, Mr. J. M. Donald, a "friend of the family", a local attorney who was not in the United States at the time of Smith's arrest or trial has, as "a friend of the court", filed a brief and several affidavits in Smith's behalf. The Court permitted Mr. Donald to file his brief and affidavits and to make oral argument.

The Court considers it unnecessary to discuss in this opinion all of the questions the appellant's appointed counsel and the amicus have raised. We have, however, carefully considered all of the questions counsel have properly raised.

The Court must decline to consider the merits of issues based on new evidence furnished for the first time on appeal in the form of affidavits presented by the amicus. For example, relying on Escobedo v. State of Illinois, 1964, 378 U. S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, the amicus contends that police officers interrogating Smith refused to let him see a lawyer until he confessed. Sitting as a reviewing court, the Court of Appeals cannot go behind the record. Roberts v. United States, 5 Cir. 1963, 325 F.2d 290; United States v. Chesapeake & Ohio Ry. Co., 4 Cir. 1960, 281 F.2d 698; cf. Chicago & Eastern Illinois R. Co. v. Southern Ry. Co., 7 Cir. 1958, 261 F.2d 394, 402; Drake v. General Finance Corporation of Louisiana, Inc., 5 Cir. 1941, 119 F.2d 588. Nor can the Court consider the new factual material included in the brief of the amicus. Chesapeake & Ohio Ry. Co. v. Greenup County, Kentucky, 6 Cir. 1949, 175 F.2d 169. However, our decision not to consider the questions raised by the affidavits is without prejudice to the appellant's right to raise these questions in collateral proceedings. Cf. Townsend v. Sain, 1963, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770.

The amicus points out that the trial judge admitted certain hearsay evidence. We assume, without deciding, that some of the testimony of the postal inspector, the secret service agent, and the manager of the hotel was hearsay. The defendant's trial attorney did not object to the admission of this evidence. Smith does not complain that the failure to object was attributable to the attorney's inexperience or incompetence. See Waltz, "Inadequacy of Trial Defense Representation as a Ground for Post-Conviction Relief in Criminal Cases," 59 N.W.U.L.Rev. 289, 319ff (1964). If there is no timely objection to hearsay, the jury may consider it for whatever probative value it may have. Newsom v. United States, 5 Cir. 1964, 335 F.2d 237. The courts, however, may still reverse a conviction based on hearsay evidence if there has been a plain error affecting substantial rights of the accused. Federal Rules of Criminal Procedure, Rule 52(b); Glenn v. United States, 6 Cir. 1959, 271 F.2d 880. Here there was no plain error affecting the substantial rights of the appellant. Even if we exclude all possible hearsay, we are left with the testimony of Welch, corroborated by Henderson's testimony and the testimony of the payees of the checks; this was sufficient evidence to justify the verdict.

II.

We deal in this case with substantive federal crimes of great antiquity.¹ Originally the prevention of these crimes served the needs of a postal system, the most serious problems of which were the depredations of highwaymen. The anonymity of the modern postal system creates new problems of proof. Congress has helped in some respects with wise amendments of the statutes;² judicial appraisal of the realities of delivering and receiving mail in a modern urban environment must do the rest.

A. Appellant argues ingeniously, and somewhat metaphysically, that his conviction for possessing stolen mail cannot stand, because the mail was not in the custody of the United States when it was taken. He points out that the mail was often left in the hallway of the Gilmore Hotel or in the custody of an employee rather than in the mailbox. The metal box was not locked, and any passerby had access to it since it was at street level, just inside the front door of the hotel. See generally Taylor, Postal Frauds and Crimes, Ch. 3 §§ 4 & 5 at 17-19 for the older law.

There was ample evidence that the mail was in the hotel mailbox when Welch took it. Welch so testified. The question is whether the hotel mailbox was a "letter box * * * or other authorized depository for mail matter."³ The Postmaster General has power to promulgate regulations defining a "letter box * * * or other authorized depository for mail matter." 5 U.S.C. § 22; 39 U.S.C. §§ 501, 6001-6003; Rosen v. United States, 1917, 245 U.S. 467, 38 S. Ct. 148, 62 L.Ed. 406. The regulation states that "every letter box * * * used for the receipt or delivery of mail" is an authorized depository within the meaning of the mail theft statutes.⁴ The regulation plainly includes private, unlocked mailboxes, in homes and business establishments, used for delivery but not primarily for collection of mail. Rosen v. United States.⁵ The regulation is a valid exercise of the authority of the Postmaster General. Rosen v. United States.

There is nothing to distinguish the Gilmore Hotel mailbox from the mailbox in millions of private homes and places of business throughout the nation. All of the cases on which the appellant relies involve an obvious factual distinction.⁶ The only distinguishing feature of this case is that the mail of many addressees was delivered to the same box. If anything, this fact seems to cut against the appellant; it shows that the mail in the box was still in the custody of the United States, since it had not yet been delivered to any one addressee.

B. The appellant contends that the evidence is insufficient to show that he knew that the checks were stolen from the United States mail. The Government, however, must prove only that the possessor knew it was stolen. Congress has amended the statute to remove the impossible burden of proving knowledge that the matter was stolen from the United States mail. United States v. Hines, 2 Cir. 1958, 256 F.2d 561. Welch testified that he told the appellant the checks were stolen; Henderson testified that he first learned from Smith's wife that the checks were stolen. Their testimony was not inherently incredible; it was sufficient to show the knowledge requisite to support the jury's verdict.

C. Smith contends that there was insufficient evidence to show that he forged the endorsements with intent to defraud the United States. Here again the testimony of Welch and Henderson provides enough evidence of appellant's intent; both testified that they shared the proceeds of the checks with Smith. There was ample circumstantial and testimonial evidence to prove intent to defraud.

D. The amicus argues that there is no evidence that the letters containing the Social Security checks were ever mailed; no one directly testified that he had mailed the letters. The older cases support the amicus. See Beck v. United States, 8 Cir. 1929, 33 F.2d 107; Taylor, Postal Frauds and Crimes, Ch. 21 § 8 at 216-217. Here again, however, the law has moved in the direction of more liberal rules of proof and inference. This Court holds that the "use of the mails may be established, like most other facts, by circumstantial evidence", even if the jury might draw other reasonable inferences from the circumstantial evidence. Stevens v. United States, 5 Cir. 1962, 306 F.2d 834, 836. We follow Stevens.

Sufficient circumstantial evidence supports the inference that the letters were mailed. The payees testified that previously they had always received their checks by mail, and Welch testified that he took the checks from the Gilmore mailbox. Postal regulations prohibit the use of mailboxes for matters other than United States mail. 39 Code of Federal Regulations § 43.7(b). This evidence does not negative every reasonable inference of innocence, but from evidence of past examples and the custom of transmitting social security checks by mail, a jury could conclude beyond a reasonable doubt that...