United States v. Oscar Trevino , 491 F.2d 74 ( 1974 )

BELL, Circuit Judge:

Appellant, a Postal Service employee, was convicted of violating Title 18, U.S. C.A. § 1709. This statute delineates two offenses. The question presented is whether appellant was charged with an offense under the statute. We reverse and remand, holding that the indictment failed to state an offense.

The indictment was challenged prior to trial as required by Rule 12(b)(2), F.R.Crim.P.¹ Moreover, under the terms of the rule, an indictment may be challenged at any time if no offense is charged in the indictment. Walker v. United States, 5 Cir., 1965, 342 F.2d 22, 26; United States v. Beard, 3 Cir., 1969, 414 F.2d 1014, 1017.

The statute charges two crimes as follows:

Whoever, being a Postal Service officer or employee, embezzles any letter, postal card, package, bag, or mail, or any article or thing contained therein entrusted to him or which comes into his possession intended to be conveyed by mail, or carried or delivered by any carrier, messenger, agent, or other person employed in any department of the Postal Service, or forwarded through or delivered from any post office or station thereof established by authority of the Postmaster General or of the Postal Service; or steals, abstracts, or removes from any such letter, package, bag, or mail, any article or thing contained therein, shall be fined not more than $2,000 or imprisoned not more than five years, or both.

See Hall v. United States, 1898, 168 U.S. 632, 18 S.Ct. 237, 42 L.Ed. 607, for a statement of the two offenses. See United States v. Lucarz, 9 Cir., 1970, 430 F.2d 1051, 1053, Fn. 1., for the statutory history.

The indictment here charged:

“That on or about January 21, 1972, at Alice, Texas, in the Southern District of Texas, and within the jurisdiction of this Court, OSCAR TREVINO, being a Postal Service employee, did unlawfully steal, abstract and remove a first-class letter addressed to Miss Sandy Simms, c/o Americana Motel, Alice, Texas 78332, bearing the return address of 102 W. Rampart Street, Apt. Q-206, San Antonio, Texas 78216, postmarked San Antonio, Texas, A.M., January 11, 1972; which said letter had theretofore been intrusted to him and which had come into his possession intended to be conveyed by mail.”

It is to be noted that the first offense under the statute is that of embezzlement and includes (1) letters or (2) articles contained therein. The second offense is that of stealing articles removed from any such letter as distinguished from the letter itself. The indictment here charged the stealing of a letter and not of an article contained in the letter.

The only possible means of validating the indictment would be to equate stealing with embezzlement. This is not possible for the reason that we would thereby coalesce the two separate offenses into one. Congress, by the statutory language, has provided that a letter or its contents may be embezzled but has included only the contents of the letter under the stealing provision.

There is a difference between the crimes of embezzlement and stealing. The crimes are inconsistent. Embezzlement presupposes lawful possession and theft does not. Bernhardt v. United States, 6 Cir., 1948, 169 F.2d 983, 985. See II Wharton’s Criminal Law and Procedure (Anderson Ed.), § 523, p. 205. We cannot write off the portion of the statute having to do with stealing nor can we expand it to include letters.

As the government points out, it is true that in a prior decision we permitted the importation of the entrustment element into the part of the statute having tc do with stealing. United States v. Coleman, 5 Cir., 1971, 449 F.2d 772. The offense charged was stealing, abstracting, and removing one watch from-a parcel post package entrusted to the defendant.' While we concluded that the indictment was valid, we were not asked to decide, and did not decide, the effect of importing the unnecessary entrustment element. In any case, it is plain that the charge in that case was in the terms of the second offense under the statute, and that the indictment tracked the statute except for including, and thereby placing on the government the additional burden of proving the entrustment element.

Here the problem is not the entrustment element. Appellant was charged with stealing a letter and the statute does not embrace such a charge. The proof was clear that appellant removed a letter from the mail. There were eyewitnesses to his act and he was apprehended in possession of the letter. The district court charged the jury in terms of the indictment and his conviction followed. However, the indictment failed to state an offense and must be dismissed.²

In the interest of judicial economy, we have considered the assignments of error (1) that prejudicial testimony was admitted against appellant during the trial and (2) that he was denied a speedy trial. There is no merit whatever in these assignments of error.

Reversed and remanded with direction that the indictment be dismissed.

1 . Defenses and objections based on defects in the institution of the j)roseeution or in the indictment or information other than that it fails to show jurisdiction in the court or to charge an offense may be raised only by motion before trial. The motion shall include all such defenses and objections then available to the defendant. Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver. Lack of jurisdiction or the failure of the indictment or information to charge an offense shall be noticed by the court at any time during the pendency of the proceeding.

2 . Whether appellant is now to be indicted and tried for the crime of embezzlement under the statute is a matter that addresses itself to the Department of Justice. See United States v. Beard, supra, 414 F.2d at 1017.