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United States v. Wynn

decided: May 2, 1988.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
RONALD WYNN, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 85 CR 77--Susan Getzendanner, Judge.

Cudahy, Posner, and Flaum, Circuit Judges.

Author: Flaum

FLAUM, Circuit Judge.

Ronald Wynn appeals from his conviction on one count of embezzling a letter in the course of his job as a postal service employee, in violation of 18 U.S.C. § 1709,*fn1 and one count of knowingly and without authority opening mail not directed to him, in violation of 18 U.S.C. § 1703(b).*fn2 The letter that Wynn improperly opened contained $100 in food stamps. The sole issue on appeal is whether the district court erred under Federal Rule of Evidence 404(b) in admitting certain evidence relating to previous reports of missing food stamps and a prior investigation of Wynn. The defendant, however, failed to raise this objection at trial, and because we conclude that the admission of this evidence did not constitute plain error, we affirm.

I.

A.

Wynn worked as a mailman for the United States Postal Service at the Auburn Park Postal Station in Chicago, Illinois. On February 7, 1985, United States Postal Inspectors Hanson and Sack gave Wynn's supervisor, Malcolm Jeffries, a test letter containing two $50 booklets of food stamps in a standard food stamp mailing envelope. The envelope also contained a transmitter that was programed to emit a slow, steady beep while the letter was sealed, and a faster beep ("alarm mode") once the letter was opened. The test letter was addressed to an address outside of Wynn's delivery route. Jeffries put the test letter in a bundle of twenty-five other letters all of which contained addresses outside of Wynn's postal route; he then placed the bundle in Wynn's mail carrier bag.

If Wynn had followed proper post office procedure, he would have returned the test letter and the twenty-five other "missorts" to a postal clerk for resorting. Although Wynn returned the twenty-five missorted letters for resorting, he took the test letter with him on his delivery route. When Wynn left the postal station he was followed by postal inspectors who monitored the transmitter in the test letter. Shortly after Wynn left the station the beeper went into the alarm mode, signaling that the letter had been opened. The inspectors pursued Wynn, but he refused to stop his mail jeep. Eventually the inspectors stopped Wynn, and they found the opened test letter lying in the snow a few blocks away.

B.

In his opening statement to the jury, Wynn's counsel set forth the defense's theory of the case. He suggested that Jeffries, Wynn's supervisor, had a vindictive score to settle with Wynn and that he "framed" Wynn in order to get him fired. Wynn's counsel specifically mentioned that postal inspectors had conducted an unsuccessful investigation of Wynn less than two weeks before the February 7, 1985 investigation. He also indicated that both of these test letter investigations occurred on days when Jeffries' supervisor was absent and when Jeffries was therefore in charge of the operation of the Auburn Park Station.

In its case-in-chief, the government called Postal Inspector Hanson; he testified in part about the prior unsuccessful investigation of Wynn that he conducted on January 24, 1985. On direct examination, Hanson testified that less than one month before the successful investigation, another "missorted" test letter containing food stamps was placed in Wynn's regular mail. This first test letter, however, did not contain a transmitter. Although the postal inspectors who conducted the first investigation followed Wynn on his delivery route, they were unable to determine what happened to the test letter.

Twice during the government's direct examination of Hanson, Wynn's counsel objected to the admission of this evidence. The defendant first objected that Hanson's testimony about what another postal inspector saw during the surveillance was inadmissible hearsay. The district court overruled this objection because the evidence was not offered to prove the truth of the matter asserted. Wynn does not raise this issue on appeal. Wynn's second objection was that the government had not laid a proper foundation for Hanson's testimony. Once a satisfactory foundation was laid, however, Wynn's lawyer did not raise any other objections to the admission of Hanson's testimony about the earlier investigation.*fn3

On cross-examination Wynn's attorney questioned Hanson extensively about the prior unsuccessful investigation. Wynn's counsel also asked Hanson about his motives for investigating Wynn, and his analysis of prior allegations of missing food stamp letters in the jurisdiction of the Auburn Park Postal Station.*fn4 In response to counsel's questions, Hanson testified that he did not have a specific suspect when he began his general investigation of food stamp letters reported lost from the Auburn Park Station. Upon analyzing these reports, however, Hanson discovered that Wynn's name reappeared several times.

On redirect examination, counsel for the government asked Hanson more specifically about his analysis of the missing food stamp reports. Hanson testified that his analysis revealed that on several occasions food stamps that should have been delivered on Wynn's route were reported ...


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