U.S. v. Allen, 82-5013

• Citation: 683 F.2d 114
• Decision Date: 21 July 1982
• Docket Number: No. 82-5013,82-5013
• Parties: UNITED STATES of America, Appellee, v. Herbert Windell ALLEN, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 114

683 F.2d 114

UNITED STATES of America, Appellee, v. Herbert Windell ALLEN, Appellant.

No. 82-5013.

United States Court of Appeals,

Fourth Circuit.

Argued June 10, 1982.

Decided July 21, 1982.

Danny T. Ferguson, Winston Salem, N. C., for appellant.

John W. Stone, Jr., Asst. U. S. Atty., Greensboro, N. C. (Kenneth W. McAllister, U. S. Atty., Greensboro, N. C., on brief), for appellee.

Before BRYAN, Senior Circuit Judge, and BUTZNER and RUSSELL, Circuit Judges.

ALBERT V. BRYAN, Senior Circuit Judge:

Convicted of violating 18 U.S.C. § 1709 by removing letters from the United States mail, ¹ Herbert Windell Allen assigns numerous trial errors. With none of them necessitating a reversal, we affirm.

I

In the Summer of 1981, postal authorities in the Winston-Salem, North Carolina, area began an investigation into the disappearance of cash contributions to charitable organizations that had been placed in the mails. This inquiry led them to suspect Allen.

To determine whether Allen was responsible for the disappearing mail, a test was devised. Four "test letters" were prepared; each was addressed to a fictitious charity and contained currency treated with an invisible powder which glowed under black light. Upon sealing, each was examined to insure that none of the fluorescent powder had escaped. On September 9, 1981, inspectors placed two of the test letters in each of two mailboxes along Allen's route. A "pilot," a letter or paper simply addressed to an ordinary street address, was also placed in each mailbox. Although inspectors witnessed Allen removing the contents from each mailbox, none of the test letters reached the Post Office at the conclusion of his rounds. The pilots, however, were delivered. The test was duplicated the following day by depositing two more test letters in another mailbox on Allen's route; again, the test letters were not delivered to the Post Office, yet the pilot was.

Upon Allen's return to the Post Office on September 10, a postal supervisor was sent to ask Allen to change a five-dollar bill. The five one-dollar bills thus obtained were examined under black light. Although none of these bills were among those planted in the test letters, they disclosed traces of the fluorescent powder. With this evidence in hand, the postal authorities placed Allen under arrest and, in a search incident to this arrest, obtained his billfold and its contents. When these items were examined, the powder was found again, but the actual test bills were not.

Indicted in six counts charging him with violating section 1709, Allen was declared guilty on every count. The District Court, however, consolidated the six counts into three; rather than allow the taking of each letter to constitute a separate offense, the Court reduced the number of offenses to the number of mailboxes which were baited with test letters. ² Allen was sentenced to three concurrent prison terms of eighteen months each.

Allen's chief assignment of error is that the District Court erred by admitting the contents of his wallet into evidence....