U.S. v. Alonzo, 81-1286

• Decision Date: 04 August 1982
• Docket Number: No. 81-1286,81-1286
• Citation: 681 F.2d 997
• Parties: 11 Fed. R. Evid. Serv. 437 UNITED STATES of America, Plaintiff-Appellee, v. Albert ALONZO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 997

681 F.2d 997

11 Fed. R. Evid. Serv. 437

UNITED STATES of America, Plaintiff-Appellee, v. Albert ALONZO, Defendant-Appellant.

No. 81-1286.

United States Court of Appeals Fifth Circuit.

Aug. 4, 1982.

James H. Pearl, San Antonio, Tex. (Court-appointed), for defendant-appellant.

Sidney Powell, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before WISDOM, POLITZ and TATE, Circuit Judges.

POLITZ, Circuit Judge:

Convicted by a jury of eleven counts of misappropriating postal service funds in violation of 18 U.S.C. § 1711, ¹ Albert Alonzo appeals, maintaining that the evidence was insufficient to support the convictions and that the trial court erred in its instructions to the jury and in reading some testimony to the jury after deliberations began. Finding no merit to these contentions, we affirm.

Background Facts

Alonzo began employment with the United States Postal Service in 1964. In 1970 he was assigned as a window clerk at a station in San Antonio, Texas, a position he maintained until 1973 when he was transferred because of a $2,000 shortage in the funds for which he was responsible. In 1975 he requested and was allowed to return to the window clerk position, an assignment he continued until his termination in January 1980. Alonzo was indicted on eight counts of converting postal money orders to his own use, and three counts of converting other postal service funds to his own use.

Postal window clerks routinely sell money orders, which are issued to them in numerically sequenced blocks of 100. Each money order is composed of the original and two copies. When a customer purchases a money order, the clerk, using an imprinter, prints the amount, date, number of the issuing post office, the issuing clerk's personal validation markings and a dollar limitation figure on the money order. The customer receives the original and one copy in return for payment of the face amount plus the money order fee. The clerk retains the second copy, the voucher, for post office records.

At the close of business, each clerk gathers the voucher copies, runs an adding machine tape of the face amounts of money orders issued, together with the associated fees, and transcribes and attests this information on a daily financial report known as a Form 1412. The vouchers, tape and Form 1412 are then turned in with the day's cash receipts. The daily financial report includes all money collected from regular stamp transactions, postage due fees, philatelic stamp sales, if applicable, and other postal charges. Alonzo occasionally worked as a back-up philatelic clerk.

Count 1 charged Alonzo with converting a $50 money order dated March 16, 1978. The evidence includes the original money order, bearing Alonzo's validating plate imprint and initials, the Form 1412, and the adding machine tape Alonzo submitted for that date. The $50 is not listed on either the financial report or the tape. The voucher copy was not turned in. The money order was made payable to Linda Ortiz, identified as Alonzo's girlfriend. Count 2 charges conversion of a $20 money order issued March 22, 1978. This money order, bearing Alonzo's personal validation, also was made payable to Ortiz, and not reported on the Form 1412. The daily tape reveals no notation of this amount, the voucher copy is missing.

Alonzo testified that he put the cash for these money orders in his drawer and overlooked reporting the figures. Consistent with this explanation, one would expect a subsequent audit to reflect an overage of $71.40 (the face value of the money orders plus fees). The routine audit made reflected an overage of $1.52.

Count 3 charges conversion of a $150 money order, dated October 10, 1978, payable to Modesta Martinez and cashed in Mexico. The voucher was never turned in, the amount was not listed on the tape or reported on the daily Form 1412, and the money order bears Alonzo's validation. Again, a subsequent audit did not reflect the overage which would have been expected had the cash been turned in. The subsequent audit reflected a shortage of $20.89.

Count 4 relates to a $42 money order issued by Alonzo on February 14, 1979, payable to Town & Country Charge. Alonzo testified that this money order was used to pay his personal account. He paid for the money order after an audit revealed the shortage. In an explanatory note written contemporaneously with the late payment, Alonzo said that he had sold this money order and one other to Ortiz, but had failed to collect the money. Alonzo asserted that he had given Ortiz the funds to pay for this money order but that during the transaction they had had a "spat," she failed to make payment, and he overlooked her omission.

Count 7 involved a money order for $200, issued by Alonzo on December 14, 1979, to Manuel Valdez, whom Alonzo had known since high school. The voucher was not detached, the sum was not listed on the tape or reported on the daily Form 1412, and Alonzo could not recall what happened. The money order bore Alonzo's validation imprint.

Count 8 charged conversion of a $400 money order, issued by Alonzo to Ortiz on December 26, 1979, payable to Alonzo's roommate, Alejandro L. Anderson. Alonzo failed to detach the voucher. The Form 1412 and the tape omit reference to the sum. Alonzo cashed the money order on December 28, 1979. Alonzo testified he gave Ortiz the money to buy the money order for his roommate and subsequently exchanged the money order for the cash.

Count 9 charged conversion of a $126 money order issued by Alonzo to Ortiz on October 23, 1979. This money order was payable to Farmers Texas County Mutual Insurance Company, and was used to pay Alonzo's auto insurance premiums. The voucher was not turned in and the tape and financial report contain no reference to this transaction.

Count 10 involves a $400 money order issued by Alonzo on October 25, 1979. The voucher was not included with that day's group of vouchers, and no reference to this amount is found in the daily tape or Form 1412. Alonzo offered no explanation.

The remaining three counts deal with audit shortages. Count 5 is based on a routine audit conducted by Alonzo's supervisor on October 19, 1979, which revealed a shortage of $1,135.90. After a count and re-count confirmed this deficiency, Alonzo requested time to research his records. He left for lunch and did not return that day; he called in sick. Subsequently, Alonzo brought to the supervisor, 550 two-dollar stamps, reportedly found in a drawer. This $1,100 "find" reduced the shortage to $35.90, within acceptable audit limits. Testimony at trial brought into question Alonzo's explanation. It appears that during the prior audit Alonzo's stamp stock included only 385 two-dollar stamps, 368 of which Alonzo subsequently turned in as "spoiled stock." He did not requisition any additional two-dollar stamps during the interim and had only two left when the supervisor first checked his stock. The appearance of the 550 two-dollar stamps caused the supervisor to make a written report to postal system examiners.

Count 6 grows out of a surprise audit on November 8 and 9, 1979, thirteen working days after the routine audit. This examination disclosed a shortage of $3,512.03. Alonzo claimed this deficit resulted from large transactions with stamp collectors. He declined to identify any collector. He obliquely referred to trading in stamps with collectors and other clerks. No meaningful details of these transactions were provided.

Count 11 is the product of another unannounced audit, conducted January 10, 1980, which revealed a shortage of $1,870.52. Alonzo blamed this loss on the disappearance of some of his stamp inventory during the Christmas season rush.

Sufficiency of the Evidence

Viewing the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), and accepting all credibility choices made that tend to support the jury's verdict, United States v. Allison, 616 F.2d 779 (5th Cir. 1980), cert. denied, 449 U.S. 857, 101 S.Ct. 156, 66 L.Ed.2d 72 (1981), a reversal is in order only if we conclude that a reasonable jury was bound to resolve that guilt was not proven beyond a reasonable doubt. United States v. Khamis, 674 F.2d 390 (5th Cir. 1982); United States v. Rodriguez, 654 F.2d 315 (5th Cir. 1981).

Alonzo's challenge to the sufficiency of the evidence is based principally on our recent decision in United States v. Rodriguez, 654 F.2d 315 (5th Cir. 1981). Rodriguez was employed at the same San Antonio post office as Alonzo until his indictment for conversion of postal funds in violation of 18 U.S.C. § 1711. The indictment specifically charged conversion of $109.89, $102.33 and $118.80. These sums were paid, on three different dates, as pre-arranged postage due charges, under surveillance, to test Rodriguez. Rodriguez failed to give cancelled stamps or a postage meter strip for the amounts received. Rodriguez was indicted after an audit of his account a few days after these observed transactions reflected a shortage of $534.77.

As we noted in our opinion, the government's theory of Rodriguez's conversions was based on his failure to disburse either cancelled stamps or meter strips equal to the postage due monies received, ostensibly enabling him to pocket these funds undetected. However, the government also introduced evidence of a shortage, reflected by the audit, of $534.77, as further proof of the conversion. Confronted with this inherent conflict we observed:

Standing alone, either the theory of Rodriguez' conduct or the shortage of Rodriguez' account would be appropriate considerations concerning the possibility of conversion of postal monies. But standing together the theory of conduct...