U.S. v. Dawson, 79-5160

• Decision Date: 26 December 1979
• Docket Number: No. 79-5160,79-5160
• Citation: 608 F.2d 1038
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jerome DAWSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1038

608 F.2d 1038

UNITED STATES of America, Plaintiff-Appellee, v. Jerome DAWSON, Defendant-Appellant.

No. 79-5160.

United States Court of Appeals Fifth Circuit.

Dec. 26, 1979.

Robyn J. Hermann, Asst. Fed. Public Defender, Miami, Fla., for defendant-appellant.

Ralph N. Person, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before COLEMAN, Chief Judge, KRAVITCH and HENDERSON, Circuit Judges.

KRAVITCH, Circuit Judge.

Jerome Dawson was convicted of two counts of possessing stolen mail in violation of 18 U.S.C. § 1708. On appeal Dawson argues that the district court erred in overruling his motion for a judgment of acquittal at the close of the government's case. We find that there was insufficient evidence that the items in question were stolen from the mail; accordingly, we reverse.

The items in question are two American Express money orders which the parties stipulated were properly placed in the United States mails at Rochester, New York on or about March 7, 1978. The addressee was Gray's Drug Store in Homestead, Florida. The manager of the store testified that during a normal business day five employees are in the store. Mail is generally delivered to the cashier who either gives it to the manager or the pharmacist or places it on the manager's desk. The store maintains a log in which the serial numbers of money orders received from American Express are listed. It is undisputed that the money orders in question were never logged in.

The evidence showed that an individual posing as Darrell Barnett used the money orders to purchase two airplane tickets from Air Florida. He presented as identification a City of Opa Locka identification card issued in the name of Darrell Barnett and bearing a photograph. A few weeks later the Air Florida manager who had been on duty at the time of the transaction selected the identification card which had been used for the ticket purchase from a photographic line-up.

In order to support a conviction for a violation of 18 U.S.C. § 1708 there must be proof that: (1) the defendant possessed the item alleged to have been stolen from the mail; (2) the item was stolen from the mail; (3) the defendant knew the item was stolen; and (4) the defendant specifically intended to possess the item unlawfully. United States v. Beechum, 582 F.2d 898, 910 (5th Cir. 1978) (en banc), Cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979). Dawson urges on appeal that there was insufficient evidence (1) that he possessed the items alleged to have been stolen from the mail and (2) that the items were stolen from the mail.

There was no direct testimony that the photograph on Darrell Barnett's City of Opa Locka identification card is a picture of Dawson. Nevertheless, there is sufficient evidence to support a finding that Dawson was the individual who used the money orders to purchase the tickets: (1) the identification card was admitted into evidence; (2) the jury could infer that the photograph on the card was of the person who purchased the tickets; and (3) the jury saw the defendant and thus could decide if the photograph on the card was a photograph of Dawson. Accordingly, we find that there is sufficient evidence that Dawson was in...