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April 24, 1991

J. WILLIAM OLDENBURG, et al., Defendants

The opinion of the court was delivered by: LYNCH



 Defendants have properly motioned for a judgment of acquittal, pursuant to Fed. R. Crim. P. 29, on count seven of the indictment after the close of all evidence and prior to submission to the jury. For the reasons set forth herein, defendants' motion is granted.


 The standard governing motions for judgment of acquittal is familiar. The district court is required to determine whether, viewing the evidence in the light most favorable to the government, there was sufficient evidence from which a jury could rationally conclude beyond a reasonable doubt that the defendant was guilty of the count charged. U.S. v. Toomey, 764 F.2d 678, 680 (9th Cir. 1985), cert. denied, 474 U.S. 1069, 88 L. Ed. 2d 799, 106 S. Ct. 828 (1986). If the court does not so find as to each element of the offense charged, a judgment of acquittal must be entered.


 In count seven, the government has alleged that the defendants engaged in a "scheme and artifice to defraud" in that they "did knowingly cause to be placed in an authorized depository for mail . . . a letter dated April 24, 1984, addressed to John E. Morris, Supervisory Agent, Federal Home Loan Bank Board . . .," in violation of 18 U.S.C. section 1341, which proscribes mail fraud. In order to obtain conviction on this count, the government must sustain its burden of proof to show: (1) the existence of a scheme to defraud; (2) the participation by the defendant in the particular scheme charged with the specific intent to defraud; and (3) the use of the U.S. Postal Service to execute the scheme. United States v. Pearlstein, 576 F.2d 531 (3d Cir. 1978). Defendants argue that there is insufficient evidence from which any rational jury could find beyond a reasonable doubt that the letter at issue dated April 24, 1984, was mailed via the U.S. Postal Service and thus that the U.S. Postal Service was used to execute the fraudulent scheme.

 At trial, the government introduced testimony of one of the co-defendants, Mr. Mandel, from his prior criminal trial in 1989. Mr. Mandel stated that he received a letter from Mr. Morris on or after April 19, 1984. In response to that letter, Mr. Mandel conceded that he did "send" a letter to Mr. Morris on April 24, 1984. *fn1" When asked if his usual mechanism for transmitting letters at that time was overnight federal express, Mandel responded, "No, I wouldn't say that." However, when asked if his usual mechanism was the U.S. mails, Mandel stated "I think it depended upon perception of the speed with which I wanted to have something communicated." Mandel's testimony is the soul of equivocation with respect to whether the April 24th letter was sent by private mail service or the U.S. Postal Service. Indeed, Mandel was not asked whether the April 24 letter was one requiring or not requiring a speedy transmittal.

 The other relevant evidence was the trial testimony of Mr. Morris, the Supervisory Agent at the Federal Home Loan Bank Board (hereinafter "FHLBB"). He testified that he received the letter of April 24th from Mr. Mandel. When questioned with respect to the manner, he stated "I believe I received it in our Mail Room." He noted that the letter had a date stamp, applied in the mail room, of April 27th, which signified "that we received it in the U.S. mail in our mail room."

 On cross-examination, however, Mr. Morris retreated from this position and admitted that he had no knowledge of how the letter actually got into the mail room. Upon examination by the Court, he explained that hand-delivered, private courier mail would not normally go to the mail room, the locus of the date-stamping machine, but rather was delivered directly to the individual person. When asked if hand-delivered mailed is stamped the day of receipt, he stated, "not unless a person makes an effort to go down to the mail room and have them stamp it." When questioned whether if it was a practice to stamp hand-delivered, private-courier items, Mr. Morris at first stated "No," but contradicted himself within the same answer, stating that "if . . . something came into our office on the 18th floor, you would have to physically walk down [to the mail room] and do it [date stamp it], which I did all the time." Finally, when asked if the date-stamp indicated that the letter was either hand-delivered to the mail room or mailed to it, Morris responded "Yes." *fn2"

 The prosecution relies upon several decisions of the Ninth Circuit in support of its position that the evidence is sufficient to establish the U.S. mails element of section 1341. However, those decisions, which touch briefly upon this question, enunciate only general propositions, indicating an awareness that each case must turn upon its particular facts. For example, the prosecution cites U.S. v. Brackenridge, 590 F.2d 810 (9th Cir. 1979), cert. denied, 440 U.S. 985, 60 L. Ed. 2d 248, 99 S. Ct. 1801 (1979), for the proposition, now well-settled, that direct proof of mailing is not required to establish the use of mails. The progeny of Brackenridge have construed it to mean that evidence of routine custom and practice can be sufficient to support an inference that something was mailed. U.S. v. Green, 745 F.2d 1205, 1208-09 (9th Cir. 1984), cert. denied, 474 U.S. 925, 88 L. Ed. 2d 266, 106 S. Ct. 259 (1985). In Brackenridge, an employee initialed a cross-country withdrawal request received in a saving fund's "bank-by-mail" department. The department's manager testified that the routine custom and practice of such cross-country withdrawal requests would result in a mailing. The court found that this circumstantial evidence was sufficient to establish the mails element under section 1341.

 The instant case is distinguishable from Brackenridge in one critical respect - it fails to establish a routine custom sufficient to support an inference that the letter at issue was transmitted via the U.S. mail. In Brackenridge, the mail department manager testified that the letter was received by the "bank-by-mail" department and that such letters customarily had been mailed. *fn3" In the case at bar, the critical witness testified that the letter's date-stamp indicated to him it was received by U.S. mail in the mail room. However, he conceded that he did not know how the letter actually got to the mail room, that hand-delivered mail was delivered to the person, and that such mail might be date stamped if taken down to the mail room, which he did "all the time." Thus, Mr. Morris' testimony fails to establish that the date-stamp mark routinely or customarily was placed upon only U.S. mail. Rather, it establishes only that such a mark indicates that the letter eventually made its way to the mail room, after either having been mailed or hand-delivered. *fn4"

 A later Ninth Circuit decision, U.S. v. Green, 745 F.2d 1205 (9th Cir. 1984), is inapposite for similar reasons. There, the court found that evidence that an employee placed the letter in question in the "outgoing" basket, and that mail so placed was routinely picked up and placed in the U.S. mail, was sufficient to establish the mail element. Here, by contrast, Mr. Morris testimony established that letters by U.S. mail were date-stamped in the mail room, but he also conceded that he would take privately-delivered mail as well to the room and have it date-stamped. In short, Mr. Morris' testimony does not ...

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