United States v. Marshall
| Decision Date | 09 November 2012 |
| Docket Number | CRIMINAL NO. 11-CR-10160-PBS |
| Parties | UNITED STATES, Appellee, v. STEVEN G. MARSHALL, Appellant |
| Court | U.S. District Court — District of Massachusetts |
Steven Marshall, a Vietnam War veteran and a letter carrier with 26 years of experience, appeals the magistrate judge's judgment of conviction for obstruction of mails, under 18 U.S.C. § 1701. He has appealed pursuant to 18 U.S.C. § 3402. After hearing, and a review of the evidence, the Court AFFIRMS.
The government produced evidence to support the following facts.
Marshall was employed as a mail carrier at the Greenfield, Massachusetts Postal Service Annex. Prior to leaving the Annexevery day to deliver the mail on his route, he had to "case" his mail, a process of sorting the mail by address and then sequencing it for delivery. The postal worker is instructed to discard undeliverable mail during the casing process, placing it into a bin to be marked "undeliverable bulk business mail," which is sometimes referred to as "no value mail" or "NOVM." The discarded mail is then supposed to be checked by a supervisor, and, if it is indeed undeliverable, it is recycled.
Mail is deemed undeliverable if the home or apartment of the addressee is vacant. Mail carriers maintain a list of vacant homes in "edit books" that are kept at their work stations at the Annex. Residential vacancies are determined by the mail carrier delivering to the homes on each mail delivery route. Carriers are required to update their "edit books" with vacancies monthly.
In 2009 and 2010, James Lengieza was a supervisor at the Greenfield Postal Annex. In October 2009, Lengieza was informed that there was an "excessive amount" of Town Criers being discarded at Defendant's work station. (Tr. 84). The Town Criers are town newspapers that have advertisements in them for residents within a town. A post office customer pays to have them delivered. The Town Criers typically identified the receiving party as "Current Resident." Lengieza spoke with Defendant about the issue, telling him to "make sure" all thedeliverable Town Criers were delivered. (Tr. 85). He monitored Defendant for the next two weeks and noticed a dramatic reduction in the number of Town Criers discarded by Defendant. (Id.) He thought the problem had been resolved.
In February 2010, Special Agent Kenneth Velazquez, of the Postal Service Office of Inspector General, began video surveillance of Defendant at the Greenfield Postal Annex and monitored him "casing" his mail. Velazquez focused on days the Town Criers were to be delivered. On February 26, 2010, he observed Defendant, via closed circuit television, sorting the Town Criers. Marshall was both casing the Town Criers and discarding them into his NOVM bin. At times he would do so at a one to one ratio. After the mail carriers left the building, Special Agent Velazquez and Supervisor Lengieza retrieved the NOVM bin from Defendant's work station to determine if the Town Criers discarded by Defendant actually were deliverable. The bin contained 208 discarded Town Criers.
Special Agent Velazquez again monitored Marshall via video surveillance on March 4 and March 18, 2010. (Tr. 33). He followed the same procedure on both days, emerging to count the NOVM mail with Supervisor Lengieza. On March 4, Defendant discarded 183 Town Criers, and on March 18, he discarded 168 Town Criers. While casing and discarding the Town Criers, Defendant would look at the address at times and then not look at theaddress at other times. However, he never took the whole stack of Town Criers and throw them in the NOVM bucket.
On each day that he observed Marshall, Supervisor Lengieza pulled Defendant's "edit book" and compared the Town Criers that Defendant had discarded with the vacant addresses in Defendant's edit book. Supervisor Lengieza determined 80 to 90 percent of the Town Criers discarded by Defendant on March 4 were deliverable.
A "walk with" is a procedure where a postmaster or supervisor walks a mail carrier's route with the carrier to determine if there are any vacancies on the route and to get an accurate assessment of the time it takes for the mail carrier to deliver the route. In this case, the "walk with" was conducted as part of the investigation of Marshall to determine if the discarded Town Criers were deliverable. Defendant conducted his "walk with"--not knowing it was part of an investigation--with interim postmaster Joan Bates. The "walk with" was conducted on March 11, 2010. That date was chosen so that there would be a record of Defendant discarding deliverable mail both before and after the "walk with." During the "walk with," Defendant threw out fewer of the Town Criers than he did on either March 4 or March 18. (Tr. 120).
On May 27, 2010, Special Agents Velazquez, Allison Glassick, and Gerard Fernandez interviewed Defendant in an office at the Greenfield Postal Annex. Defendant, both verbally and in writing, admitted to discarding the Town Criers. In his statement, Defendant said he wasn't aware that discarding the Town Criers was a problem, that he "did deliver them when [he] was walked with, but only to get a street time that was more acceptable for the route," and that from that point on he would "deliver any and all Town Criers to vacant apartments and multi-apartment deliveries." (Tr. 53-54). Defendant further stated that, "I'm not saying there's any excuse for it." (Tr. 119). He also said that he deemed some of the Town Criers undeliverable because apartments were vacant and because residents requested that he not deliver them. For example, Defendant indicated that a maintenance man in one building said that he did not want them delivered to the building. Furthermore, Defendant stated that it was "a waste of energy" to deliver them. (Tr. 118).
The Court "must affirm [the conviction] unless the evidence, viewed in the light most favorable to the government, could not have persuaded any trier of fact of the defendant's guilt beyond a reasonable doubt." United States v. Hernandez, 218 F.3d 58, 64 (1st Cir. 2000)(internal quotations omitted). "In assessing thesufficiency of evidence, credibility determinations must be resolved in favor of the verdict." United States v. Soto-Beniquez, 356 F.3d 1, 44 (1st Cir. 2003).
Marshall claims that the government presented insufficient evidence to establish that he "knowingly and willfully obstruct[ed] . . . the passage of the mail." 18 U.S.C. § 1701. To convict a defendant of obstruction of mail, 18 U.S.C. § 1701, the government must prove that the defendant is guilty of (1) willfully and knowingly; (2) obstructing or retarding; (3) the passage of the mail. United States v. Upshaw, 895 F.2d 109, 110 (3d Cir. 1990); see United States v. Schankowski, 782 F.2d 628, 631 (6th Cir. 1986); United States v. Del Monte, 470 F. Supp. 248, 249 (D. Mass. 1979). Section 1701 requires a showing that the defendant knew that the effect of her actions would be to obstruct the mail. Upshaw, 859 F. 2d at 110. While the First Circuit has not addressed the precise issue of the meaning of "willfulness" under § 1701, the Second Circuit has held that for a mail carrier to "willfully" obstruct the mail, he must have an "illegitimate or improper intent . . . and that an inadvertent or negligent delay of the mail does not violate [the statute]." United States v. Wooden, 61 F.3d 3, 5 (2d Cir. 1995) ().
Marshall argues that to be found guilty of "willfully" obstructing the mail, he must have been aware that his conduct was unlawful when discarding the deliverable mail. The Supreme Court has described the word "willfully" as "a word of many meanings whose construction is often dependent on the context in which it appears." Bryan v. United States, 524 U.S. 184, 191 (1998) (internal quotations omitted) (involving a charge of "willfully" dealing in firearms without a license). In Bryan, the Supreme Court held that while "a 'willful' act is one undertaken with a 'bad purpose' . . . the willfulness requirement [in the licensing statute] does not carve out an exception to the traditional rule that ignorance of the law is no excuse; knowledge that the conduct is unlawful is all that is required." Id. at 191, 196.
The First Circuit has provided different meanings of "willfulness" in various contexts. See, e.g., United States v. Allen, 670 F.3d 12, 18 (1st Cir. 2012)( the tax evasion context, willfulness requires "knowledge by the defendant that the conduct is illegal or at least wrongful"); United States v. Gonsalves, 435 F.3d 64, 72 (1st Cir. 2006)( the context of false statement counts "[w]illfulness . . . means nothing more . . . than that the defendant knew that his statement was falsewhen he made it or . . . consciously disregarded or averted his eyes from its likely falsity"); United States v. Bailey, 405 F.3d 102, 110 (1st Cir. 2005)( the aiding and abetting context, "[p]articipation in a crime is willful if action is taken voluntarily and intentionally, or, in the case of a failure to act, with the specific intent to fail to do something the law requires to be done"); see also United States v. Pitrone, 115 F.3d 1, 6 (1st Cir. 1997)("'[W]illfully' . . . sometimes has been construed to require a showing that the defendant knew his behavior transgressed the law."). In the context of § 1701, the caselaw provides that the government had to prove that Defendant had the illegitimate or improper intent to obstruct deliverance of the mail. See Wooden, 61 F.3d at 5.
Marshall claims that he did not have an improper intent when discarding hundreds of Town Criers. Instead of throwing the Town Criers in the trash, Marshall says he placed...
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