U.S. v. Comer

• Decision Date: 23 August 1996
• Docket Number: No. 95-5884,95-5884
• Citation: 93 F.3d 1271
• Parties: 20 Employee Benefits Cas. 1780, 45 Fed. R. Evid. Serv. 473 UNITED STATES of America, Plaintiff-Appellee, v. Jack Curtis COMER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1271

93 F.3d 1271

20 Employee Benefits Cas. 1780, 45 Fed. R.

Evid. Serv. 473

UNITED STATES of America, Plaintiff-Appellee, v. Jack Curtis COMER, Defendant-Appellant.

No. 95-5884.

United States Court of Appeals, Sixth Circuit.

Argued March 26, 1996.

Decided Aug. 23, 1996.

Thomas L. Parker, Asst. U.S. Attorney (argued and briefed), Memphis, TN, for Plaintiff-Appellee.

Kathryn M. Swisher (argued and briefed), Memphis, TN, for Defendant-Appellant.

Before: KENNEDY and MOORE, Circuit Judges; WELLS, District Judge. ^*

MOORE, Circuit Judge.

Between September 1993 and March 1994, Appellant Jack Curtis Comer, who was employed by the U.S. Postal Service as a supervisor at the Memphis Bulk Mail Center ("MBMC"), repeatedly stole articles of mail from registered parcels that were mistakenly delivered to the MBMC rather than to the Memphis General Mail Facility. Comer stole jewelry from several parcels, and in July 1994, he stole five $5,000 bearer bonds from a registered parcel. After taking the bonds, Comer solicited the assistance of co-defendant James Hillman to redeem them.

Comer was charged in a seven-count indictment. Counts One through Four charged him with unlawfully and willfully embezzling articles from registered mail pouches in violation of 18 U.S.C. § 1709. Count Five charged Comer and Hillman with the knowing and unlawful possession of five bonds which had been stolen from the mail, and with aiding and abetting the same, in violation of 18 U.S.C. § 1708 and § 2. Counts Six and Seven charged Comer and Hillman with unlawfully transporting stolen securities and money, and aiding and abetting the same, under 18 U.S.C. § 2314 and § 2. The jury convicted Comer of all counts except Count Two.

Comer appeals several aspects of his conviction and sentence. He challenges the sufficiency of the evidence and the admission under Federal Rule of Evidence 404(b) of testimony regarding uncharged sales of jewelry at the MBMC at or near the time of the indicted conduct. With respect to his sentence, Comer contends that the district court erred by imposing a restitution order based in part on uncharged conduct and charges of which he was acquitted. He also argues that the district court violated the ERISA anti-alienation provision, ERISA § 206(d), 29 U.S.C. § 1056(d), by ordering him to apply for his pension benefits to satisfy the restitution order. Finally, Comer claims that the district court erred by including uncharged and acquitted conduct in determining the amount of the loss and by imposing enhancements under the Sentencing Guidelines for more than minimal planning and obstruction of justice.

We vacate Comer's sentence and remand for resentencing because the district court erred in determining the amount of the loss and by imposing a restitution order based in part on uncharged conduct and charges of which the defendant was acquitted. See Hughey v. United States, 495 U.S. 411, 420, 110 S.Ct. 1979, 1984-85, 109 L.Ed.2d 408 (1990). ¹ However, we affirm Comer's conviction and sentence in all other respects.

I. SUFFICIENCY OF THE EVIDENCE

Comer argues that the evidence presented at trial was insufficient to sustain his convictions on Count One and Counts Three through Seven of the indictment. The standard of review for claims of insufficient evidence is " 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Evans, 883 F.2d 496, 501 (6th Cir.1989) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original)). Moreover, we defer to the fact finder on issues of credibility. See United States v. Ashworth, 836 F.2d 260, 266 (6th Cir.1988) ("The court of appeals ... does not sit as a 'thirteenth juror' to judge the credibility of witnesses [nor] do we reweigh the evidence.").

Comer challenges the sufficiency of the evidence relating to Counts One, Three, and Four because there was no proof that anyone actually saw the defendant with particular stolen parcels of mail. However, the government need not prove the elements of an offense by direct evidence; circumstantial evidence is equally valid. See Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137-38, 99 L.Ed. 150 (1954); United States v. Ingrao, 844 F.2d 314, 315 (6th Cir.1988). Several witnesses testified about purchasing jewelry from the defendant and/or pawning transactions involving jewelry shown to be stolen from the mail. Counts One and Three charged Comer with violations of 18 U.S.C. § 1709, which subjects to criminal penalties any "Postal Service officer or employee" who

embezzles any letter, postal card, package, bag, or mail, or any article or thing contained therein entrusted to him or which comes into his possession intended to be conveyed by mail, or carried or delivered by any carrier, messenger, agent, or other person employed in any department of the Postal Service, or forwarded through or delivered from any post office or station thereof established by authority of the Postmaster General or of the Postal Service; or steals, abstracts, or removes from any such letter, package, bag, or mail, any article or thing contained therein....

18 U.S.C. § 1709.

With respect to Count One, Benita Tate, who worked with Comer at the MBMC, purchased a necklace with a lion pendant and some miscellaneous rings from Comer. J.A. at 503-06. Postal patron Grace McShan identified the lion necklace as having been included in a registered mail package she sent from a post office in Greenwood, Mississippi on December 31, 1993, which never reached its destination. J.A. at 412-14. The date of McShan's mailing and the receipt numbers of the registered mail packages (R642125995 and R642125996) correspond with the charge in Count One. J.A. at 11, 483-84. As to Count Three, Janice Lyles, who also worked at the MBMC, purchased a heart-shaped pendant from Comer. J.A. at 378-79. This item was identified by postal patron Vincent Miles of EZ Central Jewelry Processing as an article sent by registered mail on February 4, 1994 from Austin, Texas to William Boiko of EZ Pawn in Memphis, Tennessee, but never delivered. J.A. at 198-200, 424-26. The mailing date for this item corresponds with Count Three, charging Comer with stealing from a registered mail pouch "on or about February 6, 1994." J.A. at 13. Thus, the government presented sufficient evidence linking Comer to the theft of the registered mail packages referred to in Counts One and Three.

Counts Four through Seven involved the stealing, possession, and redemption of the bearer bonds Comer stole from a registered mail package. With respect to Count Four, which charged Comer with violating 18 U.S.C. § 1709, Betty Ledet testified that she took five bearer bonds worth $5,000 each to be mailed by Premier Bank in Louisiana on July 27, 1994. J.A. at 375-77. Charlotte Townsend from Premier Bank testified that she had the bonds mailed on July 27, 1994 by registered mail, receipt number R650857279, which corresponds to the receipt number identified in Count Four. J.A. at 14, 515-16.

Count Five charged Comer and Hillman with possession of articles stolen from the mail, in violation of 18 U.S.C. §§ 1708 ² and 2. ³ J.A. at 15. Comer argues that there was insufficient evidence on Count Five because the government did not prove that he knew the bonds were stolen from the mail. This argument must fail. To prove possession of stolen mail under 18 U.S.C. § 1708, the government must prove that: (1) "the defendant possessed material stolen from the mail;" (2) "knowing same to be stolen;" (3) "with intent to possess the material unlawfully." United States v. Sanders, 639 F.2d 268, 270 (5th Cir.1981). See also United States v. Daughtry, 639 F.2d 818, 821 (D.C.Cir.1981) ("The crime of possession of stolen mail under section 1708 requires proof that the checks had been stolen from the mail, that the accused intended to possess the checks, and that the accused knew the checks were stolen."); United States v. Makres, 598 F.2d 1072, 1079 (7th Cir.1979) (same). There is no requirement that the government show that the defendant knew that the items were stolen from the mail; rather, the government need only show that the defendant knew the items were stolen. Barnes v. United States, 412 U.S. 837, 847, 93 S.Ct. 2357, 2363-64, 37 L.Ed.2d 380 (1973) (stating that the legislative history for the 1939 amendment to the statute precluding possession of stolen mail "conclusively refutes" the argument that the government must prove specifically that the defendant knew the property was stolen from the mail). Moreover, the circumstantial evidence showed that Comer must have known that the items were stolen from the mail because he stole the bonds himself. See id. at 845-46, 93 S.Ct. at 2362-63 (holding that a jury may infer the existence of knowledge from the defendant's unexplained possession of recently stolen mail where there was no plausible explanation for possession that was consistent with innocence).

Counts Six and Seven charged Comer and Hillman with transporting stolen bonds and transporting a stolen check in interstate commerce, respectively, both in violation of 18 U.S.C. §§ 2314 ⁴ and 2. J.A. at 16-17. The government presented sufficient evidence on Counts Six and Seven: Hillman testified that Comer supplied the bonds to him and that, at Comer's request, Hillman brought the bonds to The Commercial National Bank in Jackson, Mississippi to redeem them. In exchange, Comer offered to pay Hillman $5,000 plus the taxes owed on the total value of the bonds. J.A. at 313-19. Comer gave several different explanations for his possession of the bonds. At trial, he testified that he found them lying next to his truck at an Amoco station. J.A. at 217-18. Hillman testified that Comer told him that a bookie who owed Comer money had given him...