The opinion of the court was delivered by: BRAZIL
In this case the government elected to charge defendant Alexander R. Almendral, in a one count misdemeanor Information filed September 30, 1996, with violating Section 1701 of Title 18, United States Code. That Section reads as follows:
Whoever knowingly and willfully obstructs or retards the passage of the mail, or any carrier or conveyance carrying the mail, shall be fined under this title or imprisoned not more than six months, or both.
The case was tried to the court on March 24th and 25th, 1997. When the government rested, after having called eleven witnesses, defendant moved for judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure. That Rule commands the court to enter the requested judgment "after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses." Thus the court is required to enter the judgment of acquittal if the evidence presented by the government is not sufficient to sustain a conviction of Mr. Almendral under 18 U.S.C. § 1701. For the reasons set forth below, the court concludes that the evidence presented by the government is not sufficient to convict Mr. Almendral under this statute.
During the trial of this matter the government introduced substantial evidence in support of the following facts. On April 26, 1996, a Postal Service letter carrier named Venson Laxa was unable to deliver a certified letter that was addressed to Leonard Curcuruto, who, like defendant, is a Postal Service employee who works out of the Antioch Post Office. Mr. Laxa could not deliver the certified letter because no one was home at Mr. Curcuruto's residence when the delivery was attempted. The letter was from the Postal Service's EEO unit. Mr. Laxa left a notice of attempted delivery at Mr. Curcuruto's residence, but he took the letter itself back to the Antioch Post Office, where he gave custody of it, still sealed, to Juan Murillo in the "Registry Cage." Mr. Murillo kept the letter in that Cage until about 6:30 p.m., when he deposited it, still sealed, in one of the open slots of the "Notice Left Certified Case." Up to this point, appropriate Postal Service procedures had been followed and the letter was being processed in the normal course or flow dictated by those procedures.
The government introduced substantial evidence that it was Mr. Almendral who broke the seal of the letter and looked at its contents. Most notably, the government introduced a statement that Mr. Almendral wrote (in his own handwriting) and signed, after a long interview by a Postal Inspector, in which Mr. Almendral stated: "It was a moment of weakness on my part that curiosity got me to open and look at Lenny's letter from EEO. I'm sorry for the trouble I've caused." .(Gov.'s Ex. 12.) The government also produced three witnesses who, a few minutes later, heard Mr. Almendral confess in substantially the same terms over the phone to his Postmaster. In addition, the government introduced testimony by Dan Diaz that Mr. Almendral had been his supervisor that night, had worked in close proximity to the "Notice Left Certified Case," and had remained in the Antioch Post Office until at least 7:00 p.m.
Most significant for purposes of ruling on the defendant's motion, however, is the fact that the government failed, clearly, to introduce evidence that would be sufficient to support a finding, beyond a reasonable doubt (or even by a preponderance of the evidence), either (1) that Mr. Almendral intended, when he broke the seal of the letter and looked at it, to obstruct or retard the passage of the mail, or (2) that, in opening the letter and looking at it, he in fact obstructed its progress through the postal system or retarded its delivery.
There is no evidentiary basis for an inference that the letter would have reached Mr. Curcuruto any earlier if Mr. Almendral had not opened it. And while it is possible that Mr. Almendral took the letter to some other location within the Antioch Post Office to open and examine it, there is no evidence that he did. Under the evidence, it is comparably likely that he actually had the letter in his hands for no more than a minute or so and looked at it right in front of the "Notice Left Certified Case" (which the government pointed out several times is blocked from view from other parts of the office).
At first blush, it would appear that the absence of evidence that Mr. Almendral intended, when he opened the letter, to obstruct or retard the mail would be fatal to the government's case under section 1701. After all, that statute, by its terms, requires proof that the person charged "knowingly and willfully" obstructed or retarded the passage of the mail. As the seminal opinion from the Supreme Court about this statute declared, this law applies "to those who know that the acts performed will have [the] effect [of obstructing or retarding the passage of the mail], and perform them with the intention that such shall be their operation." United States v. Kirby, 74 U.S. 482, 484-86, 19 L. Ed. 278 (1868). In its next sentence, however, the Kirby court proceeded to announce that "when the acts which create the obstruction are in themselves unlawful, the intention to obstruct will be imputed to their author, although the attainment of other ends may have been his primary object." Id.1 Because it appears that at least two other statutes would make Mr. Almendral's opening of the letter in these circumstances unlawful (18 U.S.C. § 1702 and 18 U.S.C. § 1703), the government's failure to prove that he intended to obstruct or retard the passage of the mail is not fatal to the prosecution under this statute. For reasons explained below, however, I have concluded that the government's failure to prove that Mr. Almendral in fact had the specific intent to obstruct or retard the passage of the mail is material to disposition of the defendant's motion under Rule 29.
We turn now to consider the legal significance of the government's failure to prove that by opening and looking at the letter Mr. Almendral delayed or in any other way impeded or interfered with its delivery to Mr. Curcuruto (the addressee). This failure of proof is most obviously relevant to the essential element of the offense that ...