     Case: 12-40108     Document: 00512009919         Page: 1     Date Filed: 10/04/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          October 4, 2012
                                     No. 12-40108
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

STEVEN DELANE ESTILL,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:10-CR-226-1


Before DeMOSS, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Steven Delane Estill, a rural mail carrier in Plano, Texas, was convicted
after a jury trial of possession of stolen mail in violation of 18 U.S.C. § 1708. The
district court sentenced Estill to two years of probation and home detention for
a period not to exceed 180 days and ordered, inter alia, that he repay the costs
of prosecution in the amount of $14,308.
        Estill contends that the evidence presented at trial was insufficient to
support his conviction. He preserved this challenge by moving for a judgment

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 12-40108

of acquittal under Federal Rule of Criminal Procedure 29 after the Government
presented its case and at the close of all of the evidence. Accordingly, we review
the district court’s denial of Estill’s Rule 29 motion de novo and will uphold the
jury’s verdict if a reasonable trier of fact could conclude from the evidence that
the elements of the offense were established beyond a reasonable doubt. United
States v. Anderson, 174 F.3d 515, 522 (5th Cir. 1999); Jackson v. Virginia, 443
U.S. 307, 319 (1979). We “view[ ] the evidence in the light most favorable to the
verdict and draw[ ] all reasonable inferences from the evidence to support the
verdict.” United States v. Percel, 553 F.3d 903, 910 (5th Cir. 2008) (internal
quotation marks and citation omitted).
      To be convicted of an offense under § 1708, the Government was required
to prove beyond a reasonable doubt (1) that Estill unlawfully possessed the item
stated in the indictment; (2) that the item had been stolen from the mail; (3) that
Estill knew that the item was stolen; and (4) that Estill had the specific intent
to possess the item unlawfully. See United States v. Hall, 845 F.2d 1281, 1284
(5th Cir. 1988) (citation omitted). Estill argues that there was no evidence that
he knowingly intended to possess stolen mail because he did not understand that
the undeliverable bulk business mail (UBBM) that he admitted to taking for his
personal use constituted mail; Estill contends that he believed that the UBBM
– i.e., 34 promotional gift cards from Wal-Mart – was trash because it could not
be delivered and ultimately would be discarded or recycled.
      The trial evidence demonstrated that Estill knowingly intended to possess
the gift cards unlawfully. The evidence established that Estill was instructed
through employment training not to take mail regardless of its worth and was
otherwise aware that United States Postal Service (USPS) policy barred him
from removing mail – even if it was undeliverable – for his personal use. The
evidence also showed that documents that Estill received and executed during
his employment delineated USPS policy against taking all mail matter and set
forth the possible criminal penalties for mail theft. In addition, in statements

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                                   No. 12-40108

that he provided to USPS investigators, Estill effectively acknowledged that he
attempted to conceal his removal of the gift cards and that he knew that taking
the gift cards from UBBM was improper. Accordingly, construing the evidence
in the light most favorable to the verdict, that there was adequate evidence that
Estill knew that taking the gift cards was unauthorized and potentially criminal.
      Furthermore, the trial evidence supported that UBBM constitutes mail.
The evidence included testimony from multiple USPS employees asserting that
UBBM is treated as mail and is considered to be “live” until it is removed from
the post office for processing and recycling. There also was evidence that UBBM
has use or benefit to others even if it is not deliverable to the intended recipients
and that USPS workers knew that USPS had an interest in, and retained control
over, UBBM even after it was determined to be undeliverable. In fact, there was
evidence that Estill volitionally conceded to investigators that UBBM could be
viewed as mail. Estill points to no evidence showing that UBBM should not be
regarded as mail merely because it was destined for destruction or recycling. See
generally United States v. Davis, 461 F.2d 83, 89-90 (5th Cir. 1972) (suggesting
that postal matter continues to be mail until its ultimate intended disposition).
Therefore, the evidence was sufficient to support Estill’s conviction under § 1708.
      Estill also argues that the district court wrongly ordered him to pay the
costs of prosecution. He contends that the portion of his judgment assessing the
costs of prosecution should be vacated, and the case should be remanded. The
Government concedes that the district court erred by ordering Estill to pay the
costs of USPS’s investigation into his misconduct, which were assessed as a cost
of prosecution.
      Estill generally objected at sentencing to the imposition of costs. Although
it is not clear whether Estill’s objection properly preserved his instant challenge,
we need not resolve whether Estill’s arguments should be reviewed for an abuse
of discretion or under the plain error standard. Compare Migis v. Pearle Vision,
Inc., 135 F.3d 1041, 1049 (5th Cir. 1998) (reviewing assessment of costs for abuse

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of discretion) (civil case) with United States v. Villegas, 404 F.3d 355, 358 (5th
Cir. 2005) (reviewing unpreserved challenges for plain error only). Because the
district court had no authority to order Estill to pay the costs of investigation
and imposed an invalid sentence, Estill would be entitled to relief regardless of
which standard of review applied. See United States v. Rodriguez, 523 F.3d 519,
525 (5th Cir. 2008).
      The district court is authorized to assess costs against a criminal
defendant in non-capital cases pursuant to 28 U.S.C. § 1918(b). The exclusive
definition of the items that may be taxed as costs, unless provided by some other
explicit statutory or contractual authority, is set forth in 28 U.S.C. § 1920. See
Gagnon v. United Technisource, Inc., 607 F.3d 1036, 1045 (5th Cir. 2010) (civil
case). The costs of investigation are not delineated as a permissible cost of
prosecution under § 1918 and § 1920, and no other statutory or contractual
authority would permit the district court to impose the costs of investigation in
this case. See Gagnon, Inc., 607 F.3d at 1045; FED. R. CRIM. P. 57(b). Thus, the
district court lacked authority to impose as costs of prosecution the costs of
investigation. Accordingly, we vacate the taxation of costs against Estill and
remand the case to the district court for further proceedings in accordance with
this opinion. See United States v. Deas, 413 F.2d 1371, 1372-73 (5th Cir. 1969).
      AFFIRM IN PART; VACATE AND REMAND IN PART.




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