

   
   
   
   U.S. v. Fox



United States, Appellee
v.
Rae J. FOX, Corporal
U.S. Marine Corps, Appellant
 
No. 98-0498
Crim. App. No. 96-0361
 
United States Court of Appeals for the Armed
Forces
Argued January 13, 1999
Decided June 25, 1999
EFFRON, J., delivered the opinion of the
Court, in which COX, C.J., and SULLIVAN, CRAWFORD, and GIERKE, JJ., joined.
Counsel
For Appellant: Captain Curtis M. Allen,
USMC (argued); Lieutenant Syed N. Ahmad, JAGC, USNR (on brief).
For Appellees: Lieutenant James E. Grimes,
JAGC, USNR (argued); Colonel Kevin M. Sandkuhler, USMC, and Commander
Eugene E. Irvin, JAGC, USN (on brief); Colonel Charles Wm. Dorman,
USMC, and Commander D. H. Myers, JAGC, USN.
Military Judge: R. G. Sokoloski
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.

Judge EFFRON delivered the opinion of the Court.
Appellant was tried by a special court-martial
composed of military judge alone. In accordance with her pleas, she was
convicted of forgery (2 specifications), and of stealing mail matter (1
specification), in violation of Articles 123 and 134, Uniform Code
of Military Justice, 10 USC §§ 923 and 934, respectively. Appellant
was sentenced to a bad-conduct discharge, confinement for 120 days, a fine
of $1,600.00, and reduction to the lowest enlisted grade. The convening
authority approved the sentence but, pursuant to a pretrial agreement,
suspended all confinement for a period of 12 months. The Court of Criminal
Appeals affirmed. 48 MJ 518 (1998).
On appellants petition, we granted review
of the following issue:



WHETHER MISADDRESSED MAIL IS MAIL MATTER
FOR PURPOSES OF ARTICLE 134, UNIFORM CODE OF MILITARY JUSTICE.



We hold that the theft of misaddressed mail is
included within the offense of stealing mail under Article 134 of the Uniform
Code of Military Justice.

I. BACKGROUND
Appellant received an item of mail at her off-base
residence. The address on the envelope apparently listed appellant's place
of residence, but the addressee on the envelope was a different person,
Mr. David S. Cogdill.*
According to appellant, she opened the envelope without realizing that
it had been addressed to a different person, found a check made out to
Mr. David S. Cogdill, and subsequently cashed the check.
Appellant was charged under Article 134 with
theft of mail matter. The specification, to which she pleaded guilty, alleged
that she wrongfully had stolen "certain mail matter," that is, a check
"addressed to David S. COGDILL, before said check was delivered to the
addressee." Appellant asks us to hold that her activity did not constitute
theft of mail matter, contending that as a matter of law an item in the
mail loses its quality as "mail matter" once it is delivered to the place
listed on the envelope, even if the named addressee is not located at that
place. We disagree with appellant's view of the law.

II. DISCUSSION
Appellant was charged with violating Article
134, which contains three clauses proscribing three classes of offenses:
(1) "disorders and neglects to the prejudice of good order and discipline
in the armed forces"; "(2) conduct of a nature to bring discredit upon
the armed forces"; and (3) certain "noncapital crimes" and
offenses arising under federal law. See para. 60c(1), Part IV,
Manual for Courts-Martial, United States (1998 edition). The President,
in the Manual for Courts-Martial (para. 93), has set forth a specific offense
under clauses (1) and (2) entitled "Mail: taking, opening, secreting, destroying,
or stealing." See generally Parker v. Levy, 417 U.S.
733 (1974).
With respect to the present appeal, the pertinent
element of the offense is that "the mail matter was . . . stolen by the
accused before it was delivered to or received by the addressee." Para.
93b(2)(c). Under this provision, "mail matter" is defined as "any matter
deposited in a postal system of any government or any authorized depository
thereof or in official mail channels of the United States or an agency
thereof including the armed forces." Para. 93c.
On appeal, appellant contends that because
the envelope was addressed to her residence, it ceased to be "mail matter"
once the postal service delivered it to her house. Appellant's contention
relies upon the mail theft statute under the federal criminal code, 18
USC § 1708, which provides:



Whoever steals, takes, or abstracts, or by
fraud or deception obtains, or attempts so to obtain, from or out of any
mail, post office, or station thereof, letter box, mail receptacle, or
any mail route or other authorized depository for mail matter, or from
a letter or mail carrier, any letter, postal card, package, bag, or mail,
or abstracts or removes from any such letter, package, bag, or mail, any
article or thing contained therein, or secretes, embezzles, or destroys
any such letter, postal card, package, bag, or mail, or any article or
thing contained therein;

* * *
Shall be fined under this title or imprisoned
not more than five years, or both.



As noted by appellant, there is a split among
the federal circuits as to how this statute should be interpreted. Several
courts have interpreted the legislation as drawing a distinction between
"misaddressed" and "misdelivered" mail, holding that where the sender places
the name of a third person on the envelope but uses the defendant's address,
the item ceases to be "mail matter" once it has been delivered to the place
listed on the envelope, even if the addressee is not at that address. See,
e.g.,
United States v. Lavin, 567 F.2d 579, 581 n.6 (3d Cir. 1977); United
States v. Anton, 547 F.2d 493, 495 (9th Cir. 1976); and
United States v. Davis, 461 F.2d 83, 88-89 (5th
Cir.), cert. denied, 409 U.S. 921 (1972). Under that view,
although it is permissible to prosecute a defendant for stealing from a
letter addressed to another location that has been misdelivered to the
defendant's address, a defendant cannot be prosecuted for stealing from
an envelope that contains the defendant's address, even if a third party
is the named addressee. Other circuits have taken the view that a person
may be prosecuted for mail theft for stealing mail addressed to another
person, regardless whether it is misdelivered or misaddressed.
See,
e.g., United States v. Palmer, 864 F.2d 524 (7th
Cir. 1988), cert. denied, 490 U.S. 1110 (1989); United
States v. Douglas, 668 F.2d 459 (10th Cir.), cert. denied,
457 U.S. 1108 (1982).
As tempting as it may be to join the fray and
add our voice to the dispute among the circuits, it is unnecessary for
us to do so. Although cases interpreting the federal criminal code and
state statutes may provide useful guidance when civilian and military offenses
employ similar terminology, this is not such a case.
Appellant was charged with mail theft under
a provision of the Manual that makes it an offense to steal an item "before
it was delivered to or received by the addressee." No such language appears
in 18 USC § 1708. Cf. 18 USC § 1702. Whether the absence
of such language should be interpreted as limiting the scope of §
1708 is a matter we need not address in the absence of a prosecution in
our jurisdiction under that statute.
The President could have omitted any reference
to mail theft in the Manual for Courts-Martial, relying entirely on the
third clause of Article 134 to incorporate 18 USC § 1708. The Manual,
however, reflects the President's decision not to depend on title 18, but
to delineate a separate offense in the Manual for Courts-Martial applicable
to members of the armed forces. Under the provision in the Manual, the
offense of mail theft applies from the point that an item is "deposited
in a postal system" until it is "delivered to or received by the addressee."
Para. 93c and b(2)(c); see Drafters Analysis, Manual, supra
at A23-20 (citing United States v. Manausa, 12 USCMA 37,
30 CMR 37 (1960)).
Appellant acknowledged in the providence inquiry
that she received an item of mail on which another person was the named
addressee and that she stole material from that item of mail before it
was delivered to the addressee. Under those circumstances, we hold that
she providently pleaded guilty to the offense of stealing mail as set out
in the Manual for Courts-Martial.

III.
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTE:
* See 48 MJ 518, 520 n.2.

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