U.S. v. Brownlee

• Decision Date: 23 July 1991
• Docket Number: No. 90-1624,90-1624
• Citation: 937 F.2d 1248
• Parties: 33 Fed. R. Evid. Serv. 1488 UNITED STATES of America, Plaintiff-Appellee, v. Charles E. BROWNLEE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1248

937 F.2d 1248

33 Fed. R. Evid. Serv. 1488

UNITED STATES of America, Plaintiff-Appellee, v. Charles E. BROWNLEE, Defendant-Appellant.

No. 90-1624.

United States Court of Appeals Seventh Circuit.

Argued Jan. 9, 1991.

Decided July 23, 1991.

Philip A. Guentert, Office of the U.S. Atty., Crim. Div., Barry R. Elden, Asst. U.S. Atty., Office of the U.S. Atty., Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Jeffrey H. Haas, Peoples Law Office, Chicago, Ill., for defendant-appellant.

Before WOOD, COFFEY and MANION, Circuit Judges.

COFFEY, Circuit Judge.

Charles E. Brownlee, a former postal employee, appeals his conviction for delaying and opening mail entrusted to him to deliver in violation of 18 U.S.C. Sec. 1703(a). We affirm.

I.

On September 28, 1989, Charles Brownlee was working as a letter carrier at the Garfield Park Post Office in Chicago, Illinois. A postal inspector as part of an ongoing investigation of Charles Brownlee had constructed a "test letter" which contained $140.00 in food stamps and a white address card. Concealed within the food stamps was a radio transmitting device which allowed the letter to be traced through emitting a slow beep when unopened and transmitting a fast beep when opened. The "test letter" was addressed to an individual at an address on the route of a carrier other than Brownlee. The envelope containing the test letter was one of the Department of Public Aid's envelopes used in the distribution of food stamps. At the postal inspector's request, Brownlee's supervisor placed the "test letter" in the tray of mail for Brownlee's postal route prior to Brownlee's commencement of work on September 28, 1989.

Before delivering their mail, letter carriers at the Garfield Park Post Office sort the mail in their tray by address. When a letter carrier encounters an item for an address that is not on his mail route, he is either to place it on one side of the tray for pick-up and proper direction by a responsible postal official or place it in a "hot case" where misdirected mail is deposited for redirection to the proper carrier route. Postal inspectors were stationed in a "lookout gallery" above the Post Office workroom floor observing Brownlee sorting mail. While sorting his mail on the morning of September 28, Brownlee conversed with the mail carrier on whose route the address of the food stamp letter was located and was told that a change of address had been filed for the letter's addressee. Surveillance agents observed Brownlee make two trips to place misdirected mail in the "hot case," and noticed that he failed to place the envelope containing the food stamps in the "hot tray," but rather placed the test letter containing the food stamps in his mail pouch in a compartment normally used for certified, registered, C.O.D. letters and other valuable items. With the letter in his mail bag, Brownlee proceeded to leave the Post Office to deliver his mail.

While Brownlee was delivering mail, he was being followed by postal inspectors in automobiles who received a "slow beep" on radio transmitters, signifying that Brownlee was in possession of the unopened test letter. When Brownlee returned to the Post Office after the completion of the mail route, another surveillance agent stationed in the lookout gallery in the Post Office was unable to hear the slow beep, thus, indicating that the letter was not located in Brownlee's mail pouch upon his return to the Post Office. Brownlee completed his shift, departed from the Post Office and was observed as he drove around the Post Office block and stopped at a nearby restaurant. When he arrived at the restaurant's parking lot he opened both the hood and trunk of his car and was observed removing a letter from the trunk. As the envelope was removed, surveillance agents began to receive a slow beep, demonstrating that the article was the "test letter." At this time Brownlee entered the front seat of his car and surveillance agents began to receive a rapid beeping pattern triggered by the opening of the envelope. The postal inspectors converged on Brownlee and arrested him. The opened test letter was recovered on the front seat of his automobile.

Brownlee was charged with delaying and opening mail entrusted to him in violation of 18 U.S.C. Sec. 1703(a), as a result of the September 28, 1989, incident. At trial, in order to establish Brownlee's intent, the government introduced "other acts" evidence to the effect that on August 8, 1989, postal inspectors constructed a prior test letter which contained food stamps but did not contain a transmitter. This letter also was placed on Brownlee's tray for sorting and was addressed to an individual at an address not on Brownlee's route. As in the September 28, 1989 incident, the letter was not placed in the "hot case" and was not received at the address where it was directed. There is nothing in the record to demonstrate that the letter was ever recovered or returned, but on September 12, 1989, Postal Inspector Paul Busscher recovered the food stamp coupons that had been included in the August 8th test letter from the United States Department of Agriculture. He testified that the food coupons had been negotiated or cashed at various establishments in the Chicago area.

During trial Brownlee attempted to establish that he had a drinking problem to support an intoxication defense. He introduced the testimony of a witness who had met Brownlee when the two were in a hospital drug and alcohol rehabilitation program and who stated that he and Brownlee drank a fifth of whiskey in the witness' automobile on September 28, 1989, between 1:00 and 2:00 p.m. The record further established that during the course of his mail route on September 28, 1989, (prior to opening the envelope) Brownlee was observed entering two taverns for a short period of time, and when Brownlee was arrested, a nearly full pint of liquor was found in his car. Nevertheless, the record fails to substantiate Brownlee's claim of intoxication. A postal inspector who observed Brownlee between 1:15 p.m. when Brownlee left the Post Office and 2:25 p.m. on the same date when he returned testified that Brownlee did not enter anyone else's car during this time period. Furthermore, another surveillance agent who observed Brownlee delivering mail between 11:00 a.m. and 2:00 p.m. on September 28 testified that Brownlee did not have any difficulty operating a motor vehicle, obeyed traffic laws, travelled at a speed within the speed limit, and had no difficulty maintaining his balance or walking. The same agent stated that at the time of Brownlee's arrest, Brownlee had no odor of alcohol on his breath, had no difficulty maintaining his balance and spoke understandably and responded intelligently and coherently to the questions asked of him. In addition, two of Brownlee's co-workers testified concerning Brownlee's alertness during the time he was sorting mail in the early morning of September 28. One co-worker testified that Brownlee was able to converse clearly with him. Another co-worker testified that he noticed nothing unusual in Brownlee's sorting of mail on the morning of September 28, that he had no difficulty understanding Brownlee and that Brownlee appeared to have no trouble understanding him.

After the jury convicted Brownlee, the court suspended sentence and ordered that the defendant serve three years of probation, including a condition that he undergo drug and alcohol treatment. Brownlee was fined $500.00 and ordered to pay $50.00 in court costs as well as $150.00 in restitution. In addition, Brownlee was required to pay the cost of supervision by the Probation Office, in the amount of $1,100.00 per year. ¹

II. ISSUES PRESENTED

This appeal presents the following questions: (1) Was the evidence sufficient to sustain Brownlee's conviction of unlawfully delaying and opening mail entrusted to him in violation of 18 U.S.C. Sec. 1703(a); (2) Did the trial court properly admit evidence of the alleged August 1989 mail theft incident for the purpose of demonstrating intent under Federal Rule of Evidence 404(b); and (3) Did the district court violate Brownlee's sixth amendment rights when it excluded testimony concerning the defendant's alleged alcohol-induced misconduct on the day prior to his delay and opening of the test letter?

III. SUFFICIENCY OF THE EVIDENCE

Brownlee makes two challenges to the sufficiency of the evidence for his conviction of violating 18 U.S.C. Sec. 1703(a). ² Brownlee initially alleges that because he did not open the letter until after he had left work and after the letter had, thus, been removed from the stream of commerce, 18 U.S.C. Sec. 1703(a) does not proscribe his conduct. Secondly, Brownlee argues that his alleged intoxication on the day that he opened the "test letter" precludes a jury finding that he had the intent necessary to violate 18 U.S.C. Sec. 1703(a).

"In evaluating the defendant's sufficiency of the evidence challenge, we note that he bears a heavy burden. Initially, we 'review all the evidence and the reasonable inferences that can be drawn from the evidence in the light most favorable to the government.' " United States v. Nesbitt, 852 F.2d 1502, 1509 (7th Cir.1988) (quoting United States v. Pritchard, 745 F.2d 1112, 1122 (7th Cir.1984)), cert. denied, 488 U.S. 1015, 109 S.Ct. 808, 102 L.Ed.2d 798 (1988). "The test is whether after viewing the evidence in the light most favorable to the government, 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " Pritchard, 745 F.2d at 1122 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original)). "A verdict will withstand a sufficiency of the evidence challenge unless there is no evidence from which the jury could find guilt beyond a reasonable doubt." United States v. Caudill, 915 F.2d 294, 297 (7th Cir.1990). "...