Appeal from the United States District Court for the Northern District of Illinois. No. 82 CR 139-1 -- Susan Getzendanner, Judge.
Cudahy and Posner, Circuit Judges, and Rosenn, Senior Circuit Judge.*fn*
ROSENN, Senior Circuit Judge.
Earline Brown, a former employee of the United States Postal Service, was convicted following a bench trial in the United States District Court on one count of an indictment alleging that she converted to her own use and failed to account for and turn over postal funds, in violation of 18 U.S.C. § 1711.*fn1 The trial court imposed on the defendant a fine of $394.18, the amount of the peculation, and sentenced her to a three year probationary period conditioned on participation in a work-release program for six months. She appeals her conviction on the ground that the district court's finding of guilt was not supported by the evidence. We vacate the judgment and remand for further proceedings.
Defendant Brown was employed by the United States Postal Service and its predecessor agency for over seventeen years. At the time of the events giving rise to the government's prosecution, she served as a window clerk and as chief stamp clerk at the Pilsen post office station in Chicago, Illinois. In this capacity she was responsible for maintaining the unit reserve, an inventory of stamps for the entire station. She also held the position of close out clerk, which required her to assemble each day's receipts and to prepare a consolidated report of all the day's business at the Pilsen station, including a report of her individual postal transactions.
Defendant's conviction arose out of a customer transaction she handled on July 7, 1981, involving the Dominican Fathers' Shrine of St. Jude Thaddeus (St. Jude's). An employee of St. Jude's, John Moore, tendered to defendant a check in the amount of $394.18 to pay for postage due mail received by St. Jude's. The government contends that defendant misappropriated a sum equal to the amount of this check.
As always, on appeal from a conviction, the evidence must be viewed in the light most favorable to the government, the prevailing party. The evidence presented at trial showed that on July 7, 1981, sometime between 9:30 A.M. and 11:00 A.M., John Moore went to the Pilsen station to pick up a load of business reply mail that the post office was holding for St. Jude's. A postal employee, Delores Aceves, was serving as postage due clerk that day. Moore gave Aceves the $394.18 check to pay the postage due, and Aceves began to prepare a receipt for St. Jude's as required by postal regulations. According to these regulations, this receipt was to be prepared by use of a postage meter capable of printing amounts in dollars and cents on a gummed label. The postal clerk would affix several of these labels to a Form 3582, as necessary to add up to the amount of the check, and would give the Form 3582 to the customer as a receipt. An internal counter would automatically record the meter usage, and each employee would be held accountable for his or her meter usage during a given day.
When Aceves began to prepare the receipt for St. Jude's, she realized that she was working that day with a meter that could only print meter strips up to $9.99. She determined that there would not be enough space on Form 3582 to affix the forty meter strips that would be necessary to issue St. Jude's a receipt in the amount of the check. Aceves testified that she asked defendant Brown for a longer version of Form 3582, but defendant responded that she did not know where the long forms were kept. Defendant then volunteered to prepare the receipt for St. Jude's herself since her meter could print meter strips up to $99.99, and thus only four meter strips would be necessary to issue a receipt in the amount of $394.18. Accordingly, Aceves gave the St. Jude's check to the defendant, who put it in her drawer. A few minutes later, after Moore had left with the St. Jude's mail, Aceves asked defendant if she had given Moore his receipt. Defendant replied that she had not, but that Moore was returning later for the receipt. That afternoon, as she was about to leave the station for the day, Aceves again asked defendant about the St. Jude's receipt, and defendant said that she had taken care of it.
Early the next morning, Aceves went to the vault where the meters were kept, intending to use the $99.99 meter that day. She immediately noticed that the previous day's total was less than $15.00, and realized that defendant Brown could not possibly have used the meter to issue a receipt for the $394.18 St. Jude's transaction. Aceves asked Brown about the transaction, but defendant refused to provide any explanation, telling Aceves to call St. Jude's if she was concerned. Aceves then informed Pilsen post office station manager Oscar Washington about the incident. After talking to defendant Brown and inquiring with St. Jude's about the transaction, Washington was unsatisfied with defendant's explanation and he reported the incident to the postal inspectors. Postal Inspector James Hannah conducted an investigation in mid-July 1981 that resulted in defendant's indictment.
The government prosecuted defendant Brown on the theory that she had failed to issue a receipt to St. Jude's in order to conceal her pocketing of the amount of the check. Defendant's explanation for the transaction in question was that she did indeed issue a receipt to Moore, but a receipt containing ordinary postage stamps instead of meter strips. She claimed that, after having offered to prepare the St. Jude's receipt using the $99.99 meter, she discovered that the previous day's meter settings had not been verified by a supervisor. Because no supervisor was available to verify the meter setting at that time, she stated that she was unable to use the meter. As a result, she claimed, she prepared a three page receipt for St. Jude's using $394.18 worth of ordinary postage stamps, which she cancelled by hand.*fn2 She then put the receipt in an envelope and gave it to Moore at about noon that day. The use of ordinary postage stamps would have been improper under postal regulations, as well as cumbersome and highly unusual.
There was considerable testimony, however, that cast serious doubt on defendant's explanation of the St. Jude's transaction. Moore testified that, although he believed he had received a receipt on the day in question, he was certain that he had never received one for postage due mail with cancelled stamps on it. Moreover, the next day St. Jude's was unable to locate the receipt defendant allegedly provided. All of the postage due receipts in St. Jude's possession bore meter strips rather than cancelled postage stamps. In addition, Inspector Hannah's audit of defendant's stamp account on July 16, 1981 revealed that she had twenty-eight more two dollar stamps in her stock than would have been possible if she had performed the July 7 St. Jude's transaction as she described. Finally, defendant predicated her explanation of the St. Jude's transaction on her inability to use the meter because it had not been validated, but supervisor William Hill testified that he always verified all the postal meters between 5:00 A.M. and 5:30 A.M. each day of his employment and could not recall ever verifying one later than that for defendant. Moreover, Hannah testified there were other employees who under the regulations could have verified the meter if in fact Hill was unavailable.
The district court found the defendant guilty of one count of conversion arising out of the July 7, 1981 St. Jude's transaction. In reaching this judgment, and in denying defendant's motion for judgment of acquittal, the district court issued no ...