United States v. Del Monte, Crim. No. 78-00483-C.

• Decision Date: 21 May 1979
• Docket Number: Crim. No. 78-00483-C.
• Citation: 470 F. Supp. 248
• Parties: UNITED STATES of America, Plaintiff, v. Michael R. DEL MONTE, Defendant.
• Court: U.S. District Court — District of Massachusetts

470 F. Supp. 248

UNITED STATES of America, Plaintiff, v. Michael R. DEL MONTE, Defendant.

Crim. No. 78-00483-C.

United States District Court, D. Massachusetts.

May 21, 1979.

John W. Laymon, Asst. U. S. Atty., Boston, Mass., for plaintiff.

Stephen R. Domesick, Boston, Mass., for defendant.

MEMORANDUM AND ORDER

CAFFREY, Chief Judge.

This matter came before the court for hearing on an appeal from an order of the United States Magistrate denying portions of defendant's motion for discovery and on defendant's motion to dismiss the information. Del Monte was charged in a criminal information with retarding the passage of mail in violation of 18 U.S.C. § 1701.

Defendant seeks to have the information dismissed on the ground that the piece of mail alleged to have been retarded is nonmailable matter, and therefore, defendant contends, the information does not set forth facts sufficient to constitute an offense against the United States. He also challenges the information on the basis that it fails to allege any actual delay or retardation of the mail.

On a motion to dismiss, an information must be tested by its sufficiency to charge an offense. See United States v. Sampson, 371 U.S. 75, 76, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962). The elements of 18 U.S.C. § 1701 are (1) retarding (2) the passage of mail (3) willfully and knowingly. United States v. Fleming, 479 F.2d 56, 57 (10th Cir. 1973). See also, United States v. Lavin, 567 F.2d 579, 581 (3rd Cir. 1977); United States v. Takacs, 344 F.Supp. 947 (W.D.Okl.1972). Here, the information charged that the defendant did "knowingly and willfully retard the passage of mail, to wit: he retarded the passage of a piece of mail addressed to William W. Award, 325 East Street, South Hadley, Massachusetts" in violation of 18 U.S.C. § 1701. Upon consideration of the requisite elements of 18 U.S.C. § 1701 and the information, I rule that the allegations in the information, if proved, would show that a willful and knowing retardation of the passage of mail had in fact occurred.

Defendant urges this court to consider on a Fed.R.Crim.P. 12(b) motion to dismiss that the item retarded was not mail and thus was never in the passage of mail. He predicates this contention on 39 U.S.C. § 3001(a) which declares that "matter the deposit of which in the mails is punishable under section . . . 1461 . . . of Title 18 . . . is nonmailable" and 39 U.S.C. § 3001(b) which authorizes the disposal thereof and on 18 U.S.C. § 1461 which also declares obscene materials to be nonmailable and proscribes the mailing thereof. In addition, defendant bases his argument on another part of 18 U.S.C. § 1461 which declares that nonmailable matter shall not be conveyed in the mails. Simply put defendant seeks a ruling that a piece of mail determined to be obscene and therefore rendered nonmailable under 39 U.S.C. § 3001(a) and 18 U.S.C. § 1461 cannot provide a basis for a prosecution under 18 U.S.C. § 1701.

Defendant presents a novel claim, analogous to the impossibility defense raised in the law of criminal attempt. Resolution of this question at this juncture of the case is premature. I cannot now dismiss the information on the defense's prediction that it will show that the piece of mail alleged to have been retarded was obscene and therefore not in the passage of mail. Fed.R. Crim.P. 12(b) provides "any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion." In United States v. Covington, 395 U.S. 57, 60, 89 S.Ct. 1559, 1561, 23 L.Ed.2d 94 (1969), the Supreme Court stated that "a defense is thus `capable of determination' if the trial of facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense."

Here, the defense's claimed infirmity in the prosecution involves initially determination of facts surrounding the alleged offense which should be developed at trial. The government will have to prove as part of its case that the subject item was in the passage of mail. That phrase has been construed to mean "the transmission of mail matter from the time the same is deposited in a place designated by law or by the rules of the post office department up to the time the same is delivered to the person to whom it is addressed. U. S. v. Claypool, 14 F. 127 (W.D.Mo.1882)." United States v. Takacs, supra. Accord, United States v. Lavin, supra at 581; United States v. Fleming, supra. The government neither concedes that the piece of mail is obscene nor that even if it were it could not be mail matter. The government has not briefed this issue. However, in support of its position, the government presumably argues that the question of obscenity is...