United States v. Gardner, No. 26495.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: PER CURIAM
• Citation: 454 F.2d 534
• Docket Number: No. 26495.
• Decision Date: 15 March 1972
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Clinton GARDNER, Defendant-Appellant.

454 F.2d 534 (1972)

UNITED STATES of America, Plaintiff-Appellee,
v.
William Clinton GARDNER, Defendant-Appellant.

No. 26495.

United States Court of Appeals, Ninth Circuit.

January 10, 1972.

Rehearing Denied March 15, 1972.

454 F.2d 535

William Hawes, Los Angeles, Cal., for defendant-appellant.

Robert L. Meyer, U. S. Atty., David R. Nissen, Asst. U. S. Atty. & Chief, Crim. Div., Thomas E. Kotoske, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Before HAMLEY, BROWNING and ELY, Circuit Judges.

PER CURIAM:

This is an appeal of a conviction for violation of 18 U.S.C. § 1708, possession of stolen mail. We affirm.

On the morning of June 11, 1969, Mrs. Sterling Pillsbury placed in her mailbox for pickup by the postman a Home Savings & Loan Association pre-addressed, postage prepaid, "save-by-mail" envelope containing a passbook, a deposit slip, and two endorsed checks. The following morning appellant appeared at Home Savings, deposited the two checks to the Pillsbury account, and withdrew $7,500—$500 in cash and a $7,000 check. Later that day he returned, stated that he was Dr. Pillsbury, and attempted to cash the $7,000 check. He was asked to wait while the manager, who knew Dr. Pillsbury, was summoned. After waiting a few moments, appellant "rushed" from the bank, leaving the check behind. His apprehension, indictment, and conviction followed.

Appellant argues that the evidence was insufficient to establish that he knew the matter he possessed was stolen from the mails, relying on Allen v. United States, 387 F.2d 641, 642 (5th Cir. 1968), and Webb v. United States, 347 F.2d 363, 364 (10th Cir. 1965). The government argues that it is not required to prove that appellant knew the items were stolen from the mails but only that appellant knew they were stolen, citing Smith v. United States, 343 F.2d 539, 543 (5th Cir. 1964), and United States v. Hines, 256 F.2d 561, 563 (2d Cir. 1958).

The government's view seems to us correct. The statutory requirement that the matter be stolen from the mails simply provides the basis for federal jurisdiction. Absent a contrary legislative intention, knowledge of a strictly jurisdictional element of a federal offense is not prerequisite to conviction. See United States v. Roselli, 432 F.2d 879, 891 n. 17 (9th Cir. 1971); United States v. Howey, 427 F.2d 1017, 1018 (9th Cir. 1970).

The legislative history of section 1708 makes it unequivocally clear that the government need only prove that appellant knew the matter was stolen. See United States v. Hines, supra, 256 F.2d at 563, and Smith v. United States, supra, 343 F.2d at 543. 18 U.S.C. § 317 (1940), the predecessor to section 1708, did require proof that a defendant knew the matter he possessed was stolen from the mails. In Brandenburg v. United States, 78 F.2d 811 (3d Cir. 1935), the Third Circuit reversed a conviction under section 317 because the government failed to establish such knowledge. In response to Brandenburg, Congress amended section 317 to delete this element of the knowledge requirement. See Sen.Rep. No. 864, 76th Cong., 1st Sess. 1939; H.R.Rep. No. 734, 76th Cong., 1st Sess. 1939.¹

454 F.2d 536

Appellant asserts that the evidence is inadequate in another respect. He claims that it does not establish that the stolen matter was in fact stolen from the mails, relying on United States v. Logwood, 360 F.2d 905, 907 (7th Cir. 1966). Of several other possible inferences from the evidence suggested by appellant, one...