Unpublished Disposition, 922 F.2d 845 (9th Cir. 1991)

MEMORANDUM^** 

Appellant appeals his conviction for unlawfully detaining and delaying mail as a postal service employee in violation of 18 U.S.C. § 1703(a). Appellant makes three claims of error: 1) that the trial court erred in allowing in evidence that appellant had, prior to the offenses with which he was charged, filled out and mailed a credit card application which was addressed to "Martin T. Climons" and was sent out as a test by postal inspectors, 2) that the trial court erred in excluding testimony by defense witness Donald Barnett as to the practices of postal carriers, and 3) that the trial court erred in admitting an employee address card in appellant's name.

The trial testimony by government's witnesses was that postal inspectors had placed several pieces of "test mail" into appellant's daily allotment to be delivered on his route. The test mail included a letter obviously containing cash on Caesar's Place stationery, a letter obviously containing a credit card addressed to "Martin T. Climons" which contained a beacon transmitter that would sound an alarm if the envelope were opened, and several other letters which appeared to contain valuable material. Some of the letters were addressed to addresses which were not deliverable on appellant's route.

The postal inspectors testified that they watched appellant sorting his mail, and observed that he set aside the test letters, wrapping them in a circular and placing them in his satchel, separate from the regular mail. The inspectors testified that according to postal regulations, appellant should not have separated these letters or taken them out of the station.

The inspectors followed appellant as he went out on his route. When the beacon transmitter in the Climons letter went into alarm mode, the inspectors confronted appellant at his car. The inspectors testified that appellant had the contents of the Climons letter in his lap, and that several other pieces of the test mail, including the Caesar's Palace letter, were open in his satchel. Appellant made a statement to the inspectors that he had opened the Climons letter because he was expecting a credit card in his own name, and thought that the bank had made a mistake. He also stated that he had opened the other letters because he was curious as to their contents, but that he had not intended to steal anything.

At trial, appellant testified that his statement to the inspectors had been made under threats that no one would believe that he had not opened the mail and that he had better admit it so as not to lose his job. He testified that he did not open the Climons letter or the Caesar's Palace letter, but that another letter, the Davis letter, had come open accidentally when it had gotten stuck in the brake pedal of his car. Reporter's Transcript (R.T.) Vol. II, at 69. He explained that he had taken the letters away from the station because he had not had time to sort them before starting on his route.

* Appellant objects to the admission of evidence that he had previously sent in a "pre-approved" credit card application originally addressed to Martin Climons, which was sent out to many routes by postal inspectors as a "blind" test of carriers' integrity. It was on the basis of this test that inspectors focused their attention on appellant and conducted the further test that resulted in his conviction. The district court held that evidence of the blind test could come in to rebut appellant's testimony because it was relevant under Fed.R.Evid. 404(b) to show intent or absence of mistake. We review a district court's decision to admit evidence under Rule 404(b) for abuse of discretion. United States v. Sarault, 840 F.2d 1479, 1485 (9th Cir. 1988).

Appellant argues on appeal that because he denied opening the mail, intent was not at issue in the case, and the evidence should not have been admitted. Appellant relies on United States v. Powell, 587 F.2d 443 (9th Cir. 1978), which held that prior convictions for distributing marijuana were not relevant to show intent to distribute where the defendant did not dispute that the marijuana was intended for distribution, but instead argued that he was not the one who had supplied the marijuana.

Powell is inapposite. In this case, the inspectors testified that they found the contents of the Martin Climons test letter in appellant's lap when they confronted him. Appellant testified that he did not open that letter. The evidence that appellant had previously sent in a credit card application addressed to Martin Climons makes it less likely that the test letter opened accidentally, and fits with appellant's early admission that he had opened the letter because he had ordered a credit card and thought a mistake had been made. The evidence was clearly relevant to show absence of mistake or accident. The trial court did not abuse its discretion in admitting this evidence.

II

Appellant also contends that the district court erred in keeping out the testimony of Donald Barnett. Mr. Barnett was a postal employee from another station who sought to testify that it was not unusual for postal carriers to take mail with them that seemed to be undeliverable to sort during the day, especially if they were hurried. This testimony rebutted that of the postal inspectors, who testified that taking undeliverable mail out of the station was against regulations, and that in their experience, it was not done. R.T.Vol. I, at 99, 109-10, 119-21.

The district court stopped defense counsel's examination of this witness in the middle, and held that the testimony was irrelevant because Mr. Barnett did not work at the same station as appellant did. Decisions regarding the relevance of evidence are reviewed for abuse of discretion. United States v. Kessi, 868 F.2d 1097, 1107 (9th Cir. 1989).

Although defense counsel was not able to finish direct examination of Mr. Barnett, Mr. Barnett did testify that he and other postal employees sometimes take undeliverable mail with them to sort on their lunch hour when the mail load is particularly heavy. R.T.Vol. II, at 109-110. Defense counsel argued this testimony in her closing argument. R.T.Vol. III, at 42-43. The judge did not order his testimony stricken or order the jury not to consider it. Under these circumstances, any error in keeping out his further testimony was harmless.

III

Finally, appellant argues that the employee information card should have been excluded. The government sought to introduce this information card to show that appellant had put a non-existent address in his employee file which would be routed to his postal route. Appellant had used this same address in filling out the blind test credit card application, and the Martin Climons test mail credit card containing the alarm was sent to that address.

Appellant argues that the prosecutor failed to establish a proper foundation for the admission of this evidence. The prosecution's witness testified only that this information card was found at the station, kept in the normal course of business, and was used to provide the post office with emergency information about its employees. R.T.Vol. I, at 117-18. The witness failed to establish that this card was found in appellant's employee file, or that appellant had filled it out. Therefore, appellant argues that it was not relevant to prove that appellant had given the post office this false address.

This flaw in the foundation, however, was harmless. See United States v. Makhlouta, 790 F.2d 1400, 1402 (9th Cir. 1986). The information card only bolstered the evidence that appellant was looking for the Martin Climons letter because he had previously filled out a credit card application giving that address. The information card was not critical evidence needed to establish appellant's guilt, given ample other evidence that he was caught red-handed and confessed.

AFFIRMED.