USA v. Hunt

• Decision Date: 08 May 2000
• Docket Number: No. 99-1120,99-1120
• Citation: 212 F.3d 539
• Parties: (10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellant, v. ALLEN HUNT and MICHELLE D. JONES, Defendants-Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 539

212 F.3d 539 (10th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellant, v. ALLEN HUNT and MICHELLE D. JONES, Defendants-Appellees.

No. 99-1120

UNITED STATES COURT OF APPEALS, TENTH CIRCUIT

May 8, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 98-CR-380-WM)

[Copyrighted Material Omitted] Sean Connelly, Attorney, United States Department of Justice, Denver, Colorado (Thomas L. Strickland, United States Attorney, and Sheilah M. Rogers, Assistant United States Attorney, Denver, Colorado, were on the brief) for Plaintiff-Appellant.

Charles Szekely, Assistant Federal Public Defender, Denver, Colorado (Peter Schild, Boulder, Colorado and Michael G. Katz, Federal Public Defender, Denver, Colorado, with him on the brief) for Defendants-Appellees.

Before TACHA, HOLLOWAY and BRORBY, Circuit Judges.

HOLLOWAY, Circuit Judge.

A grand jury indicted Defendants-Appellees Allen Hunt and Michelle Jones (Defendants) on 16 counts of theft from the mail in violation of 18 U.S.C. 1708. During a bench trial, the district judge entered a judgment stating: "I find and conclude that the defendants are not guilty under the indictment as charged." As part of the judgment the district judge concluded that (1) the indictment alleged a theft from CTC Distributor's (CTC); (2) CTC was not part of the "mail" as required for a violation of 18 U.S.C. 1708; and (3) the indictment failed to allege any other theft from the "mail," as had been suggested by the government. The government timely appeals . Defendants argue that the Double Jeopardy Clause bars the appeal. For reasons that follow, we agree. We therefore dismiss the government's appeal.

I

As the district court observed, the facts are essentially undisputed. Cf. Appendix A to Appellant's Brief-in-Chief at 1. In 1998, Defendants worked at a CTC warehouse in Denver, Colorado. See id. at 2. CTC collects items being shipped by merchandisers to customers. Before delivering the items to CTC, a merchandiser places "mailing indicia" on the packages. CTC then sorts the packages and delivers them to the United States Postal Service's (Postal Service) bulk mailing center, which is located off CTC's premises. See id.

The Postal Service also operates a facility at CTC's warehouse, called a detached mailing unit. See id. A Postal Service employee maintains exclusive control over the detached mailing unit and randomly samples and verifies postage and sortation before CTC sends packages to the bulk mailing center. See id. Although CTC houses the unit, CTC is not itself part of the unit. See id.

In early 1998, Defendants began using an "over-labeling" scheme to steal packages that were processed at CTC. See id. As part of the scheme, Defendants placed handwritten labels addressed to themselves over the pre-existing mailing indicia provided by the merchandiser. See id at 2-3. CTC then delivered the over-labeled packages to the bulk mail center and the Postal Service ultimately delivered the packages to Defendants. See id. at 3. "Other than the implied potential that the relevant packages might have been randomly sampled by the [Postal Service] at the [detached mailing unit], the government failed to present evidence that the packages were subject to control and regulation or otherwise accepted as mail by the [Postal Service] at the time the over-labeling occurred." Id.

On December 1, 1998, the grand jury returned a superseding indictment against Defendants alleging 16 counts of theft from the mail in violation of 18 U.S.C. 1708. See I App. Item 30 at 1. Each count of the indictment was almost identical and alleged:

On or about [a date in 1998], in the State and District of Colorado, [Defendants], did steal, take and abstract, and by fraud and deception obtain, from and out of any mail, mail route, and authorized depository for mail matter, a package and things contained therein . . . from CTC distributors, a Detached Mailing Unit that works as a contractor between major mailing companies and corporations and the United States Postal Service, in violation of Title 18, United States Code, Section 1708.¹

See id. Defendants waived their right to a jury trial and, instead, opted for a bench trial. See, e.g., I App. Item 51 at 3. After the trial had begun, Defendants moved for acquittal. See id. at 6. According to Defendants the indictment alleged only one theft: theft from CTC. See id. at 6,10. The evidence, however, demonstrated that CTC was not part of the mail. See, e.g., id. Defendants argued that the government could not constructively amend the indictment to allege that the theft occurred instead when Defendants received the packages from the Postal Service. See id. Therefore, Defendants said they were entitled to an acquittal. See id. at 13.

The district court agreed. The court held that the indictment "language charges theft from CTC Distributors, a Detached Mailing Unit." See Appendix A to Appellant's Brief-in-Chief at 5. "The plain language of the indictment indicates that the Grand Jury concluded that the defendants stole from CTC Distributors and not at some later time." Id. "That conclusion is buttressed by the 'on or about' date of each count being tied to the date of 'over-labeling' rather than the later delivery." Id. The district court therefore held that the indictment alleged only theft from CTC.

"The government did not prove beyond a reasonable doubt that the CTC was the United States mail, a mail route, or an authorized depository when the over-labeling occurred" nor was CTC a detached mailing unit. Id. at 7. Indeed, "[t]he proof . . . does not eliminate doubt . . . that the packages did not reach the mail until they were delivered to the [Postal Service] Bulk Mailing Center." Id. Accordingly, the district court granted a judgment which it entitled "JUDGMENT OF ACQUITTAL." I App. Item 54. That judgment stated that "[t]he trial having proceeded to conclusion, and pursuant to the Decision, entered February 12, 1999, the Court rendered its verdict of finding the defendants, Allen Christopher Hunt and Michele Denise Jones not guilty of the charges contained in the superseding indictment." I App. Item 54.

II

Title 18 U.S.C. 3731 authorizes the government to appeal, inter alia, in these terms:

from a decision, judgment, or order of a district court dismissing an indictment or information or granting a new trial after verdict or judgment, as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.

Congress intended for this section "to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit." United States v. Scott, 437 U.S. 82, 85 (1978) (citation and internal quotation marks omitted); see also United States v. Wilson, 420 U.S. 332, 337 (1975) (stating the same principle). Therefore, pursuant to 18 U.S.C. 3731, our question is whether the Double Jeopardy Clause bars this appeal.²

"The development of the Double Jeopardy Clause from its common-law origins thus suggests that it was directed at the threat of multiple prosecutions, not at Government appeals, at least where those appeals would not require a new trial." Wilson, 420 U.S. at 342. However, it is now well-settled that the Double Jeopardy Clause bars some government appeals: "A judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal." Scott, 437 U.S. at 91 (omitting footnote); see also Smalis v. Pennsylvania, 476 U.S. 140, 145-46 (1986) (agreeing with ruling below that "the Double Jeopardy Clause bars a postacquittal appeal by the prosecution not only when it might result in a second trial, but if reversal would translate into further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged.") (citation and internal quotation marks omitted). Accordingly, the Double Jeopardy Clause bars this appeal if: (1) there was in effect an acquittal below, and (2) if reversal would require such a second fact-finding proceeding on remand as comes within the Smalis parameters.

A

We turn first to the question whether there was in effect an acquittal below in this case. As stated above, the district court labeled its decision an "acquittal." I App. Item 54. That label, however, is not determinative: "what constitutes an 'acquittal' is not to be controlled by the form of the judge's action." United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977). Instead, "we must determine whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged." Id.; see also Scott, 437 U.S. at 97 (stating the same principle); United States v. Appawoo, 553 F.2d 1242, 1244 (10th Cir. 1977) (same).

The district court's ruling satisfies that requirement. "Title 18 U.S.C. 1708 punishes the theft of mail as well as the possession of stolen mail " United States v. Watson, 423 U.S. 411, 413 n.2 (1976). Proof that an item was stolen from the "mail" is an essential element of any 18 U.S.C. 1708 violation. United States v. Ashford, 924 F.2d 1416, 1423 (7th Cir. 1991); see also United States v. Roglieri, 700 F.2d 883, 885 (2nd Cir. 1983) ("In order to establish a violation of 18 U.S.C. 1708, the government must prove that matter was stolen from the mail. . . ."); United States v. Douglas, 668 F.2d 459, 461 (10th Cir. 1982) (similar). Here, the district court made a factual finding in the Defendants' favor on that "essential element," concluding that the government had not proven that the packages were in the "mail" when the theft at CTC occurred.³ We are persuaded that factual finding bars this...