United States v. Marshall

• Citation: 753 F.3d 341
• Decision Date: 04 June 2014
• Docket Number: No. 12–2441.,12–2441.
• Parties: UNITED STATES of America, Appellee, v. Steven G. MARSHALL, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

753 F.3d 341

UNITED STATES of America, Appellee,

v.Steven G. MARSHALL, Defendant, Appellant.

No. 12–2441.

United States Court of Appeals,First Circuit.

June 4, 2014.

Todd C. Pomerleau, with whom Chase A. Marshall and Pomerleau Wood LLP were on brief, for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before HOWARD, Circuit Judge, SOUTER,^* Associate Justice, and STAHL, Circuit Judge.

SOUTER, Associate Justice.

Steven Marshall appeals his conviction for knowingly and willfully obstructing the passage of mails under 18 U.S.C. § 1701. He challenges the court's definition of the term “willfully,” claims that evidence of willful obstruction was insufficient, and argues that scheduling irregularities violated due process. We affirm.

I.

Marshall had 26 years of experience with the United States Postal Service as a letter carrier, and in the fall of 2009 he was employed at the Greenfield, Massachusetts Postal Service Annex. Prior to setting out on his route each day, Marshall had to “case” his mail, sorting it by address and placing it in sequence for delivery. Postal workers are instructed to discard items that are addressed to a house or apartment known to be vacant as “undeliverable,” and mail carriers are responsible for keeping a list of known vacancies on their routes in an “edit book” at their work stations, to be updated monthly. Commercial items discarded as undeliverable are placed in a bin marked “undeliverable bulk business mail,” where they are checked by a supervisor and, if indeed undeliverable, recycled.

Mailings routinely handled on Marshall's route included “Town Criers,” local newspapers featuring advertisements, which post office customers pay to have delivered, although the newspapers typically identify the subscriber simply as “Current Resident” or “Postal Customer.” In October 2009, after being informed that Marshall was discarding an “excessive” number of Town Criers, James Lengieza, Marshall's supervisor, told Marshall to “make sure that all the good Town Criers were being delivered.” Over the next two weeks, Lengieza noticed a dramatic reduction in the number of Town Criers Marshall left in the discard bin.

In February 2010, Special Agent Kenneth Velazquez of the Postal Service Office of Inspector General was assigned to investigate Marshall's performance and began video surveillance of Marshall casing his mail, focusing on days the Town Criers were to be delivered. On February 26, Velazquez saw Marshall alternately casing Town Criers for delivery and discarding them into his bin, at times at a one-to-one ratio. After Marshall left on his route, Velazquez and Lengieza checked the bin, which contained 208 discarded Town Criers, to see how many were deliverable.

Velazquez monitored Marshall by video again on March 4 and March 18 and saw that sometimes Marshall checked the address while sorting the newspapers, but sometimes appeared to discard them without looking. Lengieza and Velazquez found that Marshall discarded 183 Town Criers on March 4 and 168 on March 18, and by checking the discarded mail against the edit book at Marshall's work station Lengieza determined that 80 to 90 percent of the Town Criers tossed out on March 4 should have been delivered.

On March 11, the interim postmaster, Joan Bates, went with Marshall on a “walk with,” traveling the carrier's route to confirm the number of vacancies and assess how long it takes for the carrier to complete the route. During that excursion Marshall delivered more of the Town Criers than he did on either March 4 or March 18.

On May 27, Velazquez and fellow Special Agents Allison Glassick and Gerard Fernandez interviewed Marshall, who orally and in writing admitted his practice of discarding the Town Criers. Marshall explained that he had treated some of the copies as undeliverable because the locations addressed were vacant or because residents had asked him not to deliver them, and he acknowledged that he delivered more Town Criers on the “walk with” than usual, but “only to get a street time that was more acceptable for the route.” He remarked that delivering the Town Criers was “a waste of energy” and although he insisted that he was not aware that discarding the volume of Town Criers was problematic, he also admitted that, “I'm not saying there's any excuse for [ the nondelivery].” He promised that henceforth he would “deliver any and all Town Criers to vacant apartments and multiapartment deliveries.”

Marshall was charged with obstructing the mails in violation of 18 U.S.C. § 1701, and the magistrate judge set a bench trial date of October 14. Because no scheduling order was issued, the parties communicated informally with the clerk and with each other about discovery deadlines. Although the Government notified Marshall prior to trial that it planned to proceed with only two witnesses, Lengieza and Special Agent Glassick, it was only on the morning set for trial that Marshall filed four motions in limine: to exclude anonymous complaints, to exclude testimonial hearsay, to exclude photocopied Town Criers, and to exclude video of the surveillance and related testimony. To give the government a chance to respond, the magistrate judge rescheduled the trial for October 18, and following further motions for continuance, some by the Government and at least one by Marshall, she scheduled a final trial date of March 8, 2011. The judge granted Marshall's motions to exclude the anonymous complaints and hearsay, but admitted original evidence of the Town Criers and video surveillance.

On March 8, 2011, the bench trial began before the magistrate judge, at which the Government called not only Lengieza and Glassick but also (with three days' notice to Marshall) Velazquez as a witness to authenticate the video surveillance evidence. The judge found Marshall guilty of obstructing the mails under 18 U.S.C. § 1701 and sentenced him to pay a fine of $1,500, as well as a $25 processing fee and $10 special assessment fee. On November 9, 2012, the District Court for the District of Massachusetts affirmed the conviction.

II.

We review factual findings for clear error and legal questions, including statutory interpretation and sufficiency of the evidence, de novo. United States v. McFarland, 445 F.3d 29, 31 (1st Cir.2006). On a sufficiency challenge, we take the evidence in the light most favorable to the verdict and reverse only where “no rational factfinder could have concluded that the evidence presented at trial, together with all reasonable inferences, established each element of the crime beyond a reasonable doubt.” United States v. Symonevich, 688 F.3d 12, 23 (1st Cir.2012).

The statute provides that “[w]hoever knowingly and willfully obstructs or retards the passage of the mail ... shall be fined under this title or imprisoned not more than six months, or both.” 18 U.S.C. § 1701. Marshall says first that the magistratejudge and the district court applied the wrong definition of “willfulness” in convicting him under 18 U.S.C. § 1701. The court followed the Second Circuit in United States v. Wooden in taking the position that showing willful action requires proof only that a defendant had an “illegitimate or improper intent” to obstruct deliverance of the mail. 61 F.3d 3, 5 (2d Cir.1995). Marshall, in contrast, suggests that “willfulness” is shown only when a defendant knew his conduct was unlawful at the time he engaged in it.

The statutory term “willfully” is a chameleon, what the Supreme Court has called “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, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998) (quoting Spies v. United States, 317 U.S. 492, 497, 63 S.Ct. 364, 87 L.Ed. 418 (1943)) (internal quotation marks omitted); see also United States v. Ladish Malting Co., 135 F.3d 484, 487 (7th Cir.1998) (“ ‘Willfully’ is ... notoriously slippery....”). Although this Circuit has never explained willfulness under § 1701, the Supreme Court took up an early version of the statute in United States v. Kirby and read the phrase “ ‘knowingly and wilfully’ obstruct or retard the passage of the mail” as applying to “those who know that the acts performed will have that effect, and perform them with the intention that such shall be their operation.” 74 U.S. 482, 485–86, 7 Wall. 482, 19 L.Ed. 278 (1868). While Kirby, to be sure, has an ancient ring to it, its precedential force is buttressed by the general rule that reenactment of a statute carries congressional approval of phrases with prior judicial construction. See Keene Corp. v. United States, 508 U.S. 200, 212, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993) (“Since ... these cases represented settled law when Congress reenacted the [statutory language], we apply the presumption that Congress was aware of these earlier judicial interpretations and, in effect, adopted them.”). And Kirby's interpretation has been echoed by other federal courts applying 18 U.S.C. § 1701 in more recent decades, which have read the term “willfully” to require some level of intent greater than “inadverten[ce] or mere[ ] negligen[ce].” United States v. Johnson, 620 F.2d 413, 415 (4th Cir.1980); see also Wooden, 61 F.3d at 5 (finding that “an inadvertent or negligent delay of the mail does not violate [§ 1701]”).

Marshall, to be sure, does not argue that the willfulness requirement of § 1701 requires proof that a defendant was aware of the specific provision violated, as has been held with respect to some statutes in the criminal code. See, e.g., Ratzlaf v. United States, 510 U.S. 135, 149, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994) (willfully violating financial anti-structuring laws); Cheek v. United States, 498 U.S. 192, 201, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991) (willful tax evasion); cf. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 126, 105...