Unpublished Disposition, 845 F.2d 329 (9th Cir. 1986)

No. 87-5022.

United States Court of Appeals, Ninth Circuit.

Before FARRIS, REINHARDT, Circuit Judges and HOWARD McKIBBEN, District Judge^** 

MEMORANDUM^* 

Fred M. Alcazar appeals his conviction under 18 U.S.C. § 1703 for unlawful delay of mail. We affirm.

Alcazar was originally indicted on three counts stemming from his mail handling activities.¹  The superseding indictment charged him with two counts of unlawful delay of mail, 18 U.S.C. § 1703(a), on two separate occasions (March 13 and April 30, 1986). Alcazar contends that the superseding indictment should have been dismissed as the product of vindictive prosecution.

Bringing additional charges against Alcazar in the superseding indictment because he did not accept a plea bargain is within the range of permissible prosecutorial discretion. United States v. Stewart, 770 F.2d 825, 829 (9th Cir. 1985), cert. denied, 474 U.S. 1103 (1986); see also Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). At the pre-trial stage, prosecutors are entitled to great leeway in their reasons for seeking a superseding indictment. United States v. Goodwin, 457 U.S. 386, 381 (1982); United States v. Gallegos-Curiel, 681 F.2d 1164, 1168 (9th Cir. 1982). Vindictiveness cannot be inferred from the prosecutor's actions simply because it followed Alcazar's motion to exclude evidence. Gallegos-Curiel, 681 F.2d at 1168; see also Goodwin, 457 U.S. at 380-81 (1982); United States v. Martinez, 785 F.2d 663, 669 (9th Cir. 1986).

Alcazar has also failed to show actual vindictiveness.²  To the extent that the motive for the superseding indictment was the prosecutor's desire to place Alcazar in the position of presenting inconsistent defenses, his motive was a legitimate tactical one and did not cause the prosecution to be "vindictive." See Gallegos-Curiel, 681 F.2d at 1168-69. Even if some part of the prosecutor's motives could be construed as improper, the fact that he changed the March 13th incident because the evidence on it was stronger justified the superseding indictment. Id. at 1169 (a charging decision not improper unless it results solely from exercise of a protected legal right). In sum, the prosecutor's actions in seeking the superseding indictment were not improper, and do not rise to the level of vindictive prosecution.

2. Unlawful delay and theft or embezzlement are not mutually exclusive

Alcazar contends that he cannot be convicted of delay of mail if the delay was part of, or ripened into, a theft or embezzlement and that the district court should have instructed the jury on the distinction between theft and unlawful delay, instead of telling it that theft was a type of delay. He further argues that, on the facts of this case, the jury could have found him either guilty of theft or innocent, but that no reasonable jury could have found him guilty of unlawful delay of mail.

It is possible for a mail carrier to both unlawfully delay and steal the same piece of mail. He could first interfere with its reaching its intended destination on some temporary basis, thereby unlawfully delaying it. He could then continue to hold the item and permanently appropriate it, thereby causing the delay to ripen into theft or embezzlement. Even though the carrier would then be guilty of theft, he would also be guilty of the initial act of unlawful delay. There are many situations where a defendant's conduct violates more than one statute. The government is free in such situations to prosecute under either or both statutes. See United States v. Palafox, 764 F.2d 558, 561 (9th Cir. 1895); United States v. Brown, 482 F.2d 1359, 1360 (9th Cir. 1973); United States v. Davis, 484 F. Supp. 26, 28 (E.D. Mich. 1979).³ 

Alcazar does not cite to the parts of the record where the courts supposedly erred in instructing the jury that theft was a type of delay. The record cited to us shows only that the court in its instructions defined unlawful delay as meaning:

that the detention must be for an unlawful purpose and with some guilty intent; in other words the person who delays must intend to do something unlawful with the mail which is delayed.

The court went on to instruct that

[i]f you find that the defendant delayed the mail item because he wanted to steal it ... then you must find the defendant delayed the mail unlawfully.

The court's instructions to the jury do not support Alcazar's argument that the court equated theft and delay, or that it instructed that a theft automatically means that the mail was delayed. While the district court may not have fully explained the distinction between theft and delay, the instruction was an adequate one that contains no error of law. The availability of a better instruction does not provide a ground for reversal. United States v. Bustillo, 789 F.2d 1364, 1368 (9th Cir. 1986). In addition, Alcazar's proposed jury instruction on the distinction between theft and unlawful delay was clearly erroneous. It stated that " [m]ail which is stolen cannot also be unlawfully delayed, because mail once stolen can no longer be delayed within the mail system." As stated above, a postal employee could both unlawfully delay and steal the same piece of mail. The district court has broad discretion in formulating jury instructions, and the court is not required to give an instruction in the language proposed by the defendant. United States v. Hayes, 794 F.2d 1348, 1351 (9th Cir. 1986), cert. denied, 107 S. Ct. 1289 (1987).

A defendant is entitled to a jury instruction on a defense theory if the theory has a basis in law and in the record. Hayes, 794 F.2d at 1350-51; United States v. Escobar-DeBright, 742 F.2d 1196, 1201 (9th Cir. 1984) (failure to give instructions regarding defendant's theory of the case is reversible error if the theory is legally sound and evidence in the case makes it applicable). Alcazar's proposed instruction was an incorrect statement of the law. It was not error for the court to refuse that instruction. Hayes, 794 F.2d at 1351.

Alcazar also argues that no reasonable jury could have found him guilty of unlawful delay of the mail because the evidence supported either theft of mail or innocence. There is sufficient evidence to support a conviction if, reviewing the evidence in the light most favorable to the prosecution, any rational jury could have found the essential elements of the crime beyond a reasonable doubt. United States v. Marabelles, 724 F.2d 1374, 1377 (9th Cir. 1984).

The evidence at trial established that the Postal Inspection Service mailed on Alcazar's mail route a five-dollar check and a 50-cent piece to an individual who did not live at the address on the envelope. The mailing was part of a large scale Postal Service program testing the integrity of postal employees. The envelope was not returned to the Postal Service as undeliverable through the mails, as required by postal regulations. Instead, the check was cashed and returned to the Postal Service through the banking system. The check had been endorsed by Alcazar's wife. Alcazar testified that he had found the redemption coupon on his route without any envelope or address, and had given it to his wife.

The evidence does not clearly show that Alcazar intended to steal the redemption coupon at the time it was removed from the mails. The evidence is consistent with the crime of "unlawful delay" of the mail. Circumstantial evidence and inferences drawn therefrom may be sufficient to sustain a conviction. See United States v. Talbert, 710 F.2d 528, 530 (9th Cir. 1983) (per curiam), cert. denied, 464 U.S. 1052 (1984). Given the above evidence a reasonable jury could have found Alcazar guilty beyond a reasonable doubt of unlawful delay of the mail. See United States v. Douglass, 780 F.2d 1472, 1476 (9th Cir. 1986).

AFFIRMED.