U.S. v. Anderson

• Decision Date: 28 June 1988
• Docket Number: No. 86-3173,86-3173
• Citation: 850 F.2d 563
• Parties: 26 Fed. R. Evid. Serv. 96 UNITED STATES of America, Plaintiff-Appellee, v. Mae C. ANDERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 563

850 F.2d 563

26 Fed. R. Evid. Serv. 96

UNITED STATES of America, Plaintiff-Appellee, v. Mae C. ANDERSON, Defendant-Appellant.

No. 86-3173.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 3, 1988.

Decided June 28, 1988.

Joseph Schlesinger, Asst. Federal Public Defender, Seattle, Wash., for defendant-appellant.

Andrew R. Hamilton, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.

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

Before WRIGHT and CANBY, Circuit Judges, and VUKASIN, ^* District Judge.

EUGENE A. WRIGHT, Circuit Judge:

We consider three issues in this appeal by Mae C. Anderson from convictions of unlawful delay and embezzlement of mail: (1) errors in the admission of evidence, (2) ineffective assistance of counsel, and (3) errors in imposition of sentence. Only the third issue has merit. We affirm the convictions and remand for resentencing.

Anderson, a mail carrier, had a motor vehicle accident in 1985 when her postal truck collided with a boy on a bicycle. Anderson failed to report the accident to her superiors. The boy's mother, Susan Lucich, did so and Postmaster Andritch ordered an investigation which resulted in Anderson's discharge.

She was later reinstated but harassed the Lucich children, failed to deliver the Lucich mail, and was transferred to another mail route. Ms. Lucich then began to receive harassing telephone calls, one of which was traced to Anderson. When confronted by law enforcement persons, Anderson agreed that the calls would stop, which they did. In state court, she pleaded guilty to a charge of making harassing calls.

But trouble with delivery of mail to Ms. Lucich continued and she complained. The Postal Service suspected Anderson and gave her intentionally missorted mail, including two items for Ms. Lucich, one with cash and the other a treasury check. She secreted the two envelopes and admitted that she had removed them intentionally from the post office.

Upon her conviction of delaying, 18 U.S.C. Sec. 1703(a), and embezzling mail, 18 U.S.C. Sec. 1709, she was given concurrent sentences to one year imprisonment, suspended on condition that she serve 60 days in jail. She was also given three years probation and fines of $50 on each count.

I. Testimony Concerning Harassing Telephone Calls

The court admitted evidence of the harassing telephone calls. Anderson contends that it erred because the government did not establish a prerequisite for admitting evidence of prior criminal conduct, Fed.R.Evid. 404(b), and the danger of unfair prejudice outweighed the probative value, Fed.R.Evid. 403.

A. Rule 404(b)

Anderson concedes that the evidence was offered for the proper purpose. She argues that one judicially mandated prerequisite for admitting evidence of other crimes was absent: clear and convincing proof of the crimes. See United States v. Bailleaux, 685 F.2d 1105, 1109-10 (9th Cir.1982).

Only one call, made in December, was linked to Anderson by direct evidence. Lucich testified that the other calls were the same as the December call, and that the calls stopped after Anderson was called by the police. When confronted by the Sheriff, Anderson said the calls would stop. The record contains clear and convincing proof, albeit circumstantial, that Anderson made the other calls.

B. Rule 403

Anderson offered to stipulate to making one harassing call. She argues that evidence of the others should have been excluded because the danger of unfair prejudice outweighed the probative value.

She admitted that she removed the letters intentionally. The dispositive issue was criminal intent. The harassing calls were probative to show that Anderson's possession of the letters was not by mistake or accident.

Judge Tanner did not provide an analysis for the admission of the evidence over Anderson's objection. Although we have asked district judges to provide an explicit statement of the balancing process, we have not required it when the record indicates implicitly that the weighing process was conducted. See, e.g., United States v. Johnson, 820 F.2d 1065, 1069 & n. 2 (9th Cir.1987). Because evidence of the other calls merely reinforced other evidence of animosity toward Lucich, the prejudice was minimal. We are satisfied that the court conducted a proper balancing under Rule 403, and did not abuse its discretion.

II. Ineffective Assistance of Counsel

Anderson argues that her counsel was ineffective because he failed to request an instruction supporting the theory of her defense: that she was not guilty of embezzlement because she intended to return the letters. ¹

Counsel's performance is constitutionally infirm if it falls below an objective standard of reasonableness and there is a reasonable probability that, but for the inadequate representation, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 690-91, 104 S.Ct. 2052, 2065-66, 80 L.Ed.2d 674 (1984); United States v. Schaflander, 743 F.2d 714, 717-18 (9th Cir.1984), cert. denied, 470 U.S. 1058, 105 S.Ct. 1772, 84 L.Ed.2d 832 (1985).

The instruction advanced by Anderson on appeal is contrary to law. The rule is:

The intent to permanently deprive the owner of his property is not an element of the crime of embezzlement. Rather, cases indicate that the 'felonious' intent with which embezzlement is committed consists of the intent to appropriate or convert the property of the owner; the simultaneous intent to return the property or to make restitution does not make the offense any less embezzlement.

United States v. Waronek, 582 F.2d 1158, 1161 n. 4 (7th Cir.1978); see United States v. Faulkner, 638 F.2d 129, 130 (9th Cir.1981) (citing Waronek ). The instructions offered at trial, and used by the court, reflect accurately the required proof of embezzlement. Counsel's performance was not unreasonable in failing to request an instruction that is contrary to law.

III. Sentencing on Both Counts

Anderson contends that she was punished twice for the same criminal conduct. ² She argues that the convictions for delay and embezzlement arose from a single criminal act, and that Congress did not intend multiple punishments.

The government argues that the convictions arose from distinct transactions: delay of mail when Anderson concealed and failed to follow proper procedures for missorted mail, and embezzlement when she appropriated the letters and removed them from the post office some five hours after the concealment.

Multiple punishments for a single act or transaction that constitutes more than one offense are permissible if Congress so intended. See Prince v. United States, 352 U.S. 322, 328-29, 77 S.Ct. 403, 406-07, 1 L.Ed.2d 370 (1957); Albernaz v. United States, 450 U.S. 333, 336-37, 101 S.Ct. 1137, 1140-41, 67 L.Ed.2d 275 (1981); United States v. Wylie, 625 F.2d 1371, 1381 (9th Cir.1980), cert. denied, 449 U.S. 1080, 101 S.Ct. 863, 66 L.Ed.2d 804 (1981).

The analytic framework for determining congressional intent differs somewhat from ordinary statutory interpretation. A clear indication of legislative intent on the statutes' face or in the legislative history is of course dispositive. See Garrett v. United States, 471 U.S. 773, 779, 105 S.Ct. 2407, 2411, 85 L.Ed.2d 764 (1985); United States v. Stafford, 831 F.2d 1479, 1480-81 (9th Cir.1987). In the absence of a sufficient indication, courts rely on the presumptive test for congressional intent articulated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). Stafford, 831 F.2d at 1481. Should the inquiry into congressional intent reveal an ambiguity, the punishment provisions are to be construed in favor of lenity. See Albernaz, 450 U.S. at 342, 101 S.Ct. at 1144.

A. Single or Separate Criminal Transactions

The government's argument rests on the mistaken notion that the embezzlement was not committed until Anderson removed the mail from the post office. Mail matter need not be removed from the post office to make a conversion. See Kelley v. United States, 166 F.2d 343, 346 (9th Cir.1948). In Kelley, we ruled that the conversion took place when an employee removed packages from the mail handling area and concealed them unlawfully. Id.

The government has not argued that Anderson lacked the mens rea for conversion at the time she concealed the letters. The necessary act for both crimes was committed at the time she first concealed the letters. These convictions arose from a single criminal transaction.

B. Congressional Intent

1. The Statutory Provisions

Anderson was convicted under section 1703(a):

Whoever, being a Postal Service officer or employee, unlawfully secretes, destroys, detains, delays, or opens any letter, postal card, package, bag, or mail ... shall be fined not more than $500 or imprisoned not more than five years, or both.

18 U.S.C. Sec. 1703(a) (1982) (emphasis added), and section 1709:

Whoever, being a Postal Service officer or employee, embezzles any letter, postal card, package, bag, or mail, ... or steals, abstracts, or removes ... any article or thing contained therein, shall be fined not more than $2,000 or imprisoned not more than five years, or both.

Id. Sec. 1709 (emphasis added). These provisions are unambiguous on their face, the offenses are embodied in separate sections of the code, and the punishments are somewhat different. This alone, however, is not a sufficient indication of congressional intent to conclude our analysis. See Albernaz v. United States, 450 U.S. at 336, 101 S.Ct. at 1140.

2. Legislative History

Prior to 1909, a single statutory section made it unlawful for a postal employee to unlawfully detain, delay, or open mail, or secret, embezzle, or destroy mail. ³ Rev.Stat. Sec. 3891. A major revision to Title 18 in 1909 consolidated existing offenses by postal employees into a single section, and imposed a longer term of imprisonment. ⁴ The Reviser's Notes...