UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 95-5879

HERMAN L. HARDY,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
J. Calvitt Clarke, Jr., Senior District Judge.
(CR-95-60)

Argued: May 9, 1996

Decided: July 17, 1996

Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge, and
NORTON, United States District Judge for the District
of South Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Danny Shelton Shipley, Norfolk, Virginia, for Appellant.
Janet S. Reincke, Assistant United States Attorney, Norfolk, Virginia,
for Appellee. ON BRIEF: Helen F. Fahey, United States Attorney,
Norfolk, Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Herman L. Hardy was convicted of theft of mail and destroying
mail by a Postal Service employee in 1995. He raises three challenges
to his convictions. Hardy contends that the evidence was insufficient
to support a conviction, the district court allowed inadmissible evi-
dence into trial, and that his sentence was improperly enhanced by
two points. We reject each of these claims and affirm the judgment
of the district court.

I.

Appellant Herman Hardy was a letter carrier for the U.S. Postal
Service at the time he was charged with one count of theft of mail in
violation of 18 U.S.C. § 1709 and one count of destroying mail in vio-
lation of 18 U.S.C. § 1703(a). At trial, four other Postal Service
employees testified against Hardy.

Cleophus Williams, Hardy's supervisor at the station, testified that
he first became suspicious of Hardy on February 15, 1995, when he
discovered three torn envelopes. Each envelope was addressed to a
mailbox on route 419, the route that Hardy was working that day.
Williams testified that he bound the three envelopes with a rubber
band and placed them on Hardy's sorting ledge. When Hardy twice
failed to follow the proper procedure for dealing with torn mail, Wil-
liams became suspicious, retrieved the letters and called the postal
inspector, Carl Hunter. The government offered these three torn let-
ters, exhibits 1, 2, and 3, into evidence over Hardy's objection.

Postal Inspector Carl Hunter testified that after receiving the call
from Williams, he prepared a pilot card and two test letters. The pilot
card and one of the test letters were addressed to a mailbox on route
419, while the third was addressed to another part of the city. The two

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test letters were greeting cards in brightly colored envelopes. One test
letter contained paper money, while the other test letter contained a
coin set and paper money. Hunter testified that he marked each coin
and bill, and also recorded the serial numbers of the bills. On Febru-
ary 27, a day Hardy was scheduled to work the 419 route again, the
pilot card and test letters were placed in Hardy's letter tray. Hunter
testified that he and another postal inspector, Karl Kromer, observed
Hardy sorting the mail. Hardy separated out the two test letters from
the rest of his mail and placed them on the bottom of a stack. The test
letter which was addressed to a location not on route 419 was not
placed with the misfiled mail as it should have been.

Postal Inspector Karl Kromer followed Hardy on his mail route and
observed him deliver mail to the cluster of mail boxes to which the
pilot card and first test letter should have been delivered. Upon open-
ing the back of that mailbox cluster after the delivery, Kroner discov-
ered that the test letter had not been delivered.

When Hardy returned from delivering the mail on his route on Feb-
ruary 27, the postal inspectors questioned and searched him. They
found the marked coin set in a plastic grocery bag Hardy was carry-
ing, two of the marked bills in Hardy's wallet, and an additional letter
from the route torn open. Edward Dillon, Station Manager at the
Postal Station where Hardy worked, testified that Hardy claimed he
had found the coin set and dollar bills in the bottom of his mail tray.
The two test letters were later found in the station the next day. They
had been opened, relieved of their coins and bills, resealed, and
placed in postal service plastic bags.

Hardy did not testify or offer any evidence. The jury found him
guilty on both charges. After hearing argument on the issue, the dis-
trict judge enhanced Hardy's sentence by two points for more than
minimal planning, sentencing him to 10 months imprisonment and
three years of supervised release.

II.

A.

Hardy first argues that the evidence in his case was circumstantial,
and insufficient to allow a jury to convict beyond a reasonable doubt.

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We disagree. We are bound to uphold the conviction if, "after viewing
the evidence in the light most favorable to the prosecution, any ratio-
nal trier of fact could have found the essential elements of the crime
beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319
(1979) (emphasis in original).

The evidence in this case clearly suffices. The jury was told that
Inspector Kromer opened the mailboxes on Hardy's route and found
Hardy did not deliver the test letter that was addressed to that mail-
box. Inspector Hunter found the marked coin set in a bag Hardy was
carrying and two of the marked bills in Hardy's wallet. Inspectors
Hunter and Kromer watched Hardy separate the test letters from the
other mail, placing them in the incorrect location for proper delivery.
The two letters were later found opened and resealed absent the cur-
rency and coins that had been in them.

B.

Hardy's second claim is that the judge allowed admission of exhib-
its 1, 2, and 3--the torn letters that aroused William's suspicion.
Hardy contends that these exhibits related to uncharged conduct and
that they prejudiced the jury against him. But evidence offered to
complete the story of a crime or to furnish the context of the crime
for which a defendant is being tried is admissible so long as its proba-
tive value outweighs its prejudicial effect. United States v. Kennedy,
32 F.3d 876, 885-886 (4th Cir. 1994), cert. denied, 115 S.Ct. 939
(1995); United States v. Mark, 943 F.2d 444, 447-448 (4th Cir. 1991).

The government explained to the trial judge that it was offering the
first three torn letters not to demonstrate Hardy's guilt in opening
these letters, but rather as context evidence along with William's tes-
timony to explain why William's suspicions were initially aroused.
The trial judge agreed with the government that the letters provided
relevant context evidence, and we find no abuse of discretion in its
ruling. Martin v. Deiriggi, 985 F.2d 129, 137 (4th Cir. 1992).

C.

Finally, Hardy challenges the two point sentencing enhancement he
received for more than minimal planning. U.S.S.G.§ 2B1.1(b)(4)(A).

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In this case, the court found that Hardy made an analysis of envelopes
to determine which were likely to contain funds, he deliberately put
certain envelopes out of order for easy access, he withheld items of
mail from delivery, and he opened envelopes. These steps all involve
planning. The trial court is in the best position to make factual deter-
minations about the amount of planning undertaken by a defendant,
and the judge's finding on this point was not clearly erroneous.
United States v. Singh, 54 F.3d 1182, 1190 (4th Cir. 1995).

III.

For the foregoing reasons, we affirm the judgment of the district
court.

AFFIRMED

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