Roth v. United States

• Decision Date: 04 December 1923
• Docket Number: 3877.
• Citation: 294 F. 475
• Parties: ROTH v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

294 F. 475

ROTH v. UNITED STATES.

No. 3877.

United States Court of Appeals, Sixth Circuit.

December 4, 1923

P. J Mulligan, of Cleveland, Ohio (Bartholomew, Leeper & McGill of Cleveland, Ohio, on the brief), for plaintiff in error.

M. A McCormack, Asst. U.S. Atty., of Cleveland, Ohio (A. E Bernsteen, U.S. atty., of Cleveland, Ohio, on the brief), for the United States.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

KNAPPEN Circuit Judge.

Plaintiff in error (hereinafter called defendant) was convicted under an indictment charging him, while employed in the United States post office at Cleveland, Ohio, with stealing and removing from a certain letter $3.50 in currency and coin, with intent to convert the same to his own use; the indictment alleging that the letter and its contents had been intrusted to defendant, and had come into his possession as such postal employe, and that it and its contents were intended to be conveyed by mail. The letter was a 'decoy' or test letter, the address being fictitious. The postal officials who prepared the letter, and caused it to be introduced into the post office, did not expect or intend that the letter would be conveyed by mail beyond the Cleveland post office, but intended that it should be by them intercepted therein, if not stolen while in that office.

We think the trial court did not err in overruling the motion, made at the close of the evidence, for directed verdict for defendant, because the addressee was fictitious and the letter not intended to be conveyed beyond the post office. If, as the testimony tended to show, the postal officials had reasonable ground to believe that mail matter was being stolen by a post office employe, the use of a decoy letter to identify the culprit was proper. Grimm v. United States, 156 U.S. 604, 609, 610, 15 Sup.Ct. 470, 39 L.Ed. 550; Montgomery v. United States, 162 U.S. 410, 16 Sup.Ct. 797, 40 L.Ed. 1020; Goldman v. United States (C.C.A. 6) 220 F. 57, 62, 135 C.C.A. 625. However, section 195 of the Penal Code (Comp. St. Sec. 10365), which was in the mind of the one drafting the indictment, provides that:

'Whoever, being a postmaster or other person employed in any department of the postal service, shall unlawfully detain, delay, or open any letter, * * * or mail intrusted to him or which shall come into his possession, and which was intended to be conveyed by mail, * * * or shall steal, abstract, or remove from any such letter, * * * or mail, any article or thing contained therein, shall be' punished, etc.

This section is substantially a re-enactment of R.S. Sec. 5467, except that under that section the offenses of secreting, embezzling or destroying letters, etc., containing inclosures were limited to those intended to be conveyed by mail, etc., while the offense of stealing by an employe from letters or mail was not so limited.

The Supreme Court has held, not only that under the last clause of R.S. Sec. 5467, it was not necessary that the letter whose contents were stolen was intended to be delivered (Goode v. United States, 159 U.S. 663, 16 Sup.Ct. 136, 40 L.Ed. 297; Hall v. United States, 168 U.S. 632, 639, 18 Sup.Ct. 237, 42 L.Ed. 607), but that under the first clause of section 5467, relating to letters intended to be conveyed by mail, the intention to so convey 'is sufficiently proved * * * by evidence of the delivery of a letter into the jurisdiction of the Post Office Department by dropping it in a letter box' (Scott v. United States, 172 U.S. 343, 350, 19 Sup.Ct. 209, 211 (43 L.Ed. 471)). True, in that case the court cited R.S. Sec. 5468, which makes the depositing in any post office or other authorized depository for mail matter 'evidence that the same was 'intended to be conveyed by mail' within the meaning of the two preceding sections,' and section 5468 was repealed and not re-enacted in connection with the adoption of the Penal Code. Act March 4, 1909, c. 321, 35 Stat. 1125. It is perhaps not clear from the Scott Case that without the aid of R.S. Sec. 5468, a letter duly stamped and deposited in the post office, and intended to be conveyed, so far as the employe's duty was concerned, would not be within the first clause of section 5467. In Hall v. United States, supra, 168 U.S.at page 637, 18 Sup.Ct.at page 239 (42 L.Ed. 607), a somewhat similar question was passed as unnecessary to decision. And see Goode v. United States, supra, 159 U.S.at page 671, 16 Sup.Ct.at page 138 (40 L.Ed. 297). The Circuit Court of Appeals of the Eighth Circuit, citing the Supreme Court decisions hereinbefore referred to, and without discussion, has held that decoy letters addressed to fictitious persons, placed in the mails by post office inspectors, so as to be carried over the route of a suspected railway mail clerk, and intended to be removed from the mails at the end of the route without being carried to the place of address, are letters intended to be conveyed by mail, within section 195 of the Penal Code. McShann v. United States, 231 F. 923, 925, 146 C.C.A. 119.

However, R.S. Sec. 5469, which provided a similar punishment for the stealing, secreting, or embezzling of mail matter by any one, was held to apply to a theft by a letter carrier from the mail, and not to require a showing that the letter 'was intended to be conveyed by mail,' etc. Goode v. United States, 159 U.S.at pages 668-671, 16 Sup.Ct.at pages 136, 138 (40 L.Ed. 297). So far as pertinent here, section 194 of the Penal Code (Comp. St. Sec. 10364) is substantially a re-enactment of R.S. Sec. 5469, and of course must receive the same construction given section 5469. The acts charged in the indictment here being sufficient to constitute an offense under section 194, the reference in the indictment to section 195 does not prevent consideration of the case as under section 194. Biskind v. United States (C.C.A. 6) 281 F. 47, 49, 50 (certiorari denied, 260 U.S. 731, 43 Sup.Ct. 93, 67 L.Ed. . . .). The allegation of intent to convey by mail will be regarded as surplusage.

Defendant was first arrested on warrant issued by a United States commissioner; defendant thereupon demanding a preliminary examination and giving bond for appearance thereon. Before the date to which the commissioner's proceeding was adjourned, the indictment here was found by the grand jury, without preliminary action by or hearing before a commissioner. We think the court rightly overruled defendant's motion to quash the indictment because of the facts stated. Defendant could not be held for trial without indictment by grand jury, which had the right to consider the alleged offense and make presentment thereon, notwithstanding the pendency of proceedings before a commissioner, and even if other indictments were pending for the same cause, or even if an indictment had previously been refused. United States v. Thompson, 251 U.S. 407, 412, et seq., 40 Sup.Ct. 289, 64 L.Ed. 333; Hale v. Henkel, 201 U.S. 43, 26 Sup.Ct. 370, 50 L.Ed. 652; Thompson v. United States (C.C.A. 9) 202 F. 411, 120 C.C.A. 575, 47 L.R.A. (N.S.) 206; Blair v. United States, 250 U.S. 273, 39 Sup.Ct. 468, 63 L.Ed. 979. And compare Yaffee v. United States (C.C.A. 6) 276 F. 497.

We think the provision in R.S. Sec. 1014 (Comp. St. Sec. 1674), for an arrest by state judicial officers 'agreeably to the usual mode of process against offenders in such state,' applies only to state procedure for arrest, imprisonment, or bail, and not to procedure in the federal courts, and that defendant obtained no vested right to a preliminary examination before a commissioner. Cf. United States v. Kerr (D.C.) 159 F. 185; United States v. Powlowski (D.C.) 270 F. 285.

We also think no error was committed in the introduction of testimony of a government inspector that losses or tampering with mail matter in the Cleveland post office had been brought to his attention previous to the preparation of the decoy letter, and that such letter was prepared in consequence thereof. Such testimony was relative to the subject of 'entrapment,' whose effect depends largely upon whether or not the officers of the law had reason to believe that a crime was being committed. Partan v. United States (C.C.A. 9) 261 F. 515; Billingsley v. United States (C.C.A. 6) 274 F. 86, 89, and cases there cited. We also think there was no error in permitting the inspector to testify that:

'When the special delivery stamp was removed by me, it left a blot, a blur on the envelope, and I remarked that on several occasions how plain we could follow that letter after seeing it from the lookout down to the case.'

Whether by the word 'remarked' the witness meant 'noticed' or 'commented to others' upon the fact does not appear. We think the expression 'on several occasions' related to the time the inspectors and post office clerk were watching from the lookout, as hereinafter referred to, and such seems to have been the understanding had by the trial judge. It is fundamental that, in confirmation of an alleged occurrence or appearance, a witness may state, not only that he specially observed it at the time, but also that he then called the attention generally of others thereto. But, if our construction of the meaning of the testimony is incorrect, we think no reversible error was committed.

This further statement is necessary to a consideration of the criticisms upon the court's charge: The test letter is said to have contained three $1 bills and a 50-cent silver coin, all marked for identification. According to the Government's testimony, after the superintendent of mails at the Cleveland post office had placed the letter where it would naturally come into defendant's hands, and after the two post office inspectors and a clerk in the Cleveland post office had from the lookout seen...