United States v. Victor Roglieri

700 F.2d 883, 1983 U.S. App. LEXIS 30485
CourtCourt of Appeals for the Second Circuit
DecidedFebruary 15, 1983
Docket321, Docket 82-1225
StatusPublished
Cited by13 cases

This text of 700 F.2d 883 (United States v. Victor Roglieri) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Victor Roglieri, 700 F.2d 883, 1983 U.S. App. LEXIS 30485 (2d Cir. 1983).

Opinions

WINTER, Circuit Judge:

Victor Roglieri appeals from a judgment of the United States District Court for the Southern District of New York, Judge Milton S. Pollack, sentencing him to two concurrent three-year prison terms and a $4,000 fine after his conviction by a jury of two counts of possessing checks stolen from the mail in violation of 18 U.S.C. § 1708 (1976).1 On appeal, Roglieri argues that the [885]*885evidence was insufficient to prove the checks were stolen from the mail and that the trial judge incorrectly instructed the jury on the elements of the crime, including aiding and abetting.

We affirm.

BACKGROUND

On September 21,1981, M & T Chemicals of Rahway, New Jersey, issued a check for $14,355.21 to Amax Copper, Inc. (“Amax”), addressed to P.O. Box # 12038, Church Street Station, New York, New York 10049. On September 25, 1981, Fritzche Dodge 01-cott, Inc. issued a check for $52,601.98 to Monsanto Co., addressed to Box 8495, Church Street Station, New York, New York 10049. Neither check was received by the intended recipient.

On October 7 and 9, 1981, respectively, the two checks were deposited in Roglieri’s account at the Poughkeepsie Savings Bank. Each was visibly altered with the name “Edward Lynch” typed above the payee company in a different typeface, and each was endorsed by Edward Lynch and Victor Roglieri. Roglieri had opened the account on September 9, 1981, and, until the deposits in question, had kept only a few hundred dollars in it.

Roglieri claimed to have received the checks in question from a man named Edward Lynch, whom he had met a few times over drinks at a Poughkeepsie bar. Although he barely knew Lynch, his address or even his telephone number, Roglieri testified that he agreed to cash the checks in return for some of the proceeds. He then took the checks and deposited them in his own account, and, at Lynch’s direction, withdrew portions of the proceeds in cash, which he gave to Lynch.

DISCUSSION

Sufficiency of Evidence

In order to establish a violation of 18 U.S.C. § 1708 (1976), the government must prove that matter was stolen from the mail and that the defendant possessed or received it knowing it had been stolen. However, it is not necessary to prove that the defendant knew the matter was stolen from the mail. United States v. Hines, 256 F.2d 561, 563 (2d Cir.1958).

Roglieri concedes the evidence proved that he knowingly possessed stolen cheeks. He asserts, however, that the evidence was insufficient to establish that the checks were stolen from the mail. In addressing this argument, we must assess the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).

The government may meet its burden as to the element of theft from the mail by proving that an item in a defendant’s possession was mailed to but never received by the addressee. As we said in United States v. Lopez, 457 F.2d 396, 398 (2d Cir.), cert. denied, 409 U.S. 866, 93 S.Ct. 162, 34 L.Ed.2d 114 (1972):

[A] letter shown to have been “properly mailed and never received by the addressee, but found in quite improper and misusing hands, can be found to have been stolen from the mails in the absence of any other explanation being proffered.”. . . When such facts are established it is reasonable to assume that the letter was stolen rather than inadvertently lost or misplaced by postal officials.

In the present case, the corporate cashier of M & T Chemicals, John Abbruzzese, identified the Amax check and testified that the check as issued did not bear the name of Edward Lynch. Abbruzzese also testified [886]*886that his practice after he received a check from his company’s computer room was to pass it to other employees for signature and mailing. Similarly, Edward Cohen, the accounting manager of Fritizche Dodge, testified that the practice of his company is to mail checks such as that issued to Monsanto. There was no particularized evidence of the mailing of either check.

Evidence of non-receipt was provided by officials of the banks which maintained post office lock boxes for the payee corporations at the Church Street Station. John McKay of Amax’s bank described his firm’s practice of retrieving checks from the post office by messenger. He testified that his bank never received the Amax check because it did not bear a stamp indicating such receipt. Nancy Van Ness, vice-president of the bank which collected checks for Monsanto from the Church Street Station, testified about her firm’s practice of retrieval by messenger and stated that the absence of a receipt stamp indicated that her bank also had never received the Monsanto check. Each bank uses its own employees as messengers to retrieve mail from its Church Street Station lock box.

The evidence both as to mailing and non-receipt of the checks in question proved only the routine practice of the issuer and intended recipients. It did not include direct testimony by someone with personal knowledge of the mailing or non-receipt of the particular checks. Where checks issued by sizeable firms to other similar firms or banks are involved, the existence of evidence other than routine practice would be exceptional. We are not prepared to say that such evidence, which is subject to cross-examination on both the usual procedures and the frequency of lost checks within the particular firm, does not go a long way to proving both the mailing and non-receipt of particular items. Cf. United States v. Huber, 603 F.2d 387, 399 (2d Cir. 1979) (absent evidence to the contrary, ordinary practice sufficient to prove mailing for purposes of mail fraud where receipt is conceded), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 758 (1980); United States v. Toliver, 541 F.2d 958, 966 (2d Cir.1976) (same).

Nevertheless, we are also reluctant to go beyond existing precedent and hold that evidence of routine practice alone proves beyond a reasonable doubt that a particular item was stolen from the mail where large commercial firms are involved at each end of a transaction. None of our prior decisions have gone that far. For example, while Lopez held that evidence of mailing and non-receipt would support a finding of theft from the mail, there was direct evidence in the case concerning the mailing and non-receipt of the particular item. Similarly, in United States v. Indelicato, 611 F.2d 376 (1st Cir.1979), 68 Treasury checks made out to individual payees were stipulated to have been mailed but not received. Since individuals usually receive mail directly from the Postal Service, evidence of its non-receipt is by its nature particularized. Lopez, supra.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Doscher v. Sea Port Group Securities, LLC
832 F.3d 372 (Second Circuit, 2016)
United States v. John Natale
719 F.3d 719 (Seventh Circuit, 2013)
United States v. Hunt
212 F.3d 539 (Tenth Circuit, 2000)
United States v. Isaac Coleman
196 F.3d 83 (Second Circuit, 1999)
United States v. George Lindemann, Jr.
85 F.3d 1232 (Seventh Circuit, 1996)
Meyer v. Fidelity Savings
944 F.2d 562 (Ninth Circuit, 1991)
United States v. Biasucci
786 F.2d 504 (Second Circuit, 1986)
United States v. Ramon Falu
776 F.2d 46 (Second Circuit, 1985)
United States v. Gary Graves
736 F.2d 850 (Second Circuit, 1984)
United States v. Victor Roglieri
700 F.2d 883 (Second Circuit, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
700 F.2d 883, 1983 U.S. App. LEXIS 30485, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-victor-roglieri-ca2-1983.