Appeals from the United States District Court for the Central District of Illinois, Danville Division. Nos. 88 CR 20001 and 20002--Harold A. Baker, Chief Judge.
Bauer, Chief Judge, and Cummings and Easterbrook, Circuit Judges.
EASTERBROOK, Circuit Judge.
About a month after settling into a house, Mildred Palmer found in her mailbox three envelopes addressed to Clifton Powell, Jr., the former occupant. Instead of returning the envelopes to the Postal Service, Palmer opened them. She found three checks (technically, warrants on Illinois's treasury)--no surprise, for the envelopes in which Illinois mails checks are distinctive. The district court described what happened next:
Richard Morrison was present when Palmer brought the mail into the house and knew she had received the state warrants. Palmer and Morrison discussed negotiating the warrants and getting the proceeds. Someone endorsed Clifton Powell, Jr.'s name without his authority on the reverse side of each warrant. The warrants were then delivered by Morrison to a man named Lawrence Armour, Sr. Armour had something which neither Palmer nor Morrison had: a bank account. For a fee Armour negotiated the three state warrants through his bank account and returned the balance of the proceeds to Morrison who shared them with Palmer.
The United States charged Palmer and Morrison with possession of checks stolen from the mails, in violation of 18 U.S.C. § 1708. The jury found them guilty; the judge suspended imposition of sentence and placed each on five years' probation. We must decide whether converting the contents of an envelope violates § 1708 when the envelope was delivered to an outdated address.
Section 1708 provides in part:
Whoever steals . . . from or out of any mail, post office, or station thereof, letter box, mail receptacle, or any mail route or other authorized depository for mail matter, or from a letter or mail carrier, any letter, . . . or abstracts or removes from any such letter . . . any article or thing contained therein . . . [or] has in his possession, any letter . . . or any article or thing contained therein, which has been so stolen, . . . knowing the same to have been stolen, . . . [s]hall be fined not more than $2,000 or imprisoned not more than five years, or both.
The prosecutor believes that the three envelopes were stolen from the "mail" because they had not been delivered to Powell. The defendants emphasize that the envelopes had been delivered to the address they bore and that when Palmer took the envelopes out of the mail box, she did not intend to steal them--for she reasonably believed that everything in the mailbox was hers. When Palmer discovered that the envelopes were not, she purloined their contents, but by then the envelopes were no longer part of the mail. If the checks had been addressed to Palmer and had been stolen from her on the way to the bank, the theft would not have violated § 1708; no more does her larceny, she insists.
Palmer and Morrison were not charged with stealing out of a "letter box [or] mail receptacle", which would make Palmer's intent at the time of the withdrawal pertinent. They were charged with stealing out of the "mail". The parties agree that "mail" means the postal system, not a piece of mail. How far does the postal system extend? One might say that it begins when the envelope is dropped into a depository and ends when the letter carrier puts it in a mailbox. There is substantial support for the conclusion that when the postal carrier delivers an envelope to the current residence of the addressee, the "mail" is at an end. A good example is United States v. Logwood, 360 F.2d 905 (7th Cir. 1966), in which the postal carrier delivered to the landlady the mail for all tenants of a building that lacked letter boxes. The landlady regularly distributed the mail to the tenants, or they retrieved the mail from her apartment. One day the landlady's son filched an envelope from her window sill. We concluded that this theft did not violate § 1708 because the postal system had delivered the mail to the right person at the right address; the "mail" ended when the Postal Service finished its job.
What happens, however, when the mail miscarries? Suppose the mail is misdelivered--is left at an address other than the one on the envelope? Or suppose the mail is misaddressed-bears an address other than the residence of the person to whom it was sent? In either case the postal system's job is not done. If the envelope is handed back (as it should be), the postal system will deliver it to the correct address without new postage; if it does not know the proper address, it will return the envelope to the sender. The unintended recipient may not keep or open the envelope in either event, because
Whoever takes any letter . . . which has been in any post office or authorized depository, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed, . . . or opens, secretes, embezzles, or destroys the same, shall be fined not more than $2,000 or imprisoned not more than five years, or both.
18 U.S.C. § 1702. Palmer opened a letter that had been in the custody of the postal system, before it had been delivered to Powell, and so violated § 1702. See United States v. Ashford, 530 F.2d 792, 795-96 (8th Cir. 1976). But she was charged with violating § 1708, not § 1702, and the application of § 1708 to misaddressed mail is not so clear.
Courts routinely hold that § 1708 forbids the conversion of misdelivered mail. E.g., United States v. Lavin, 567 F.2d 579 (3d Cir. 1977); United States v. Anton, 547 F.2d 493 (9th Cir. 1976); United States v. Davis, 461 F.2d 83 (5th Cir. 1972). These courts observe that misdelivery by the postal system is an error that the system is obliged to correct; until it has done so, the item remains in the mail for purposes of § 1708. These three courts believe, however, that misaddressed mail is a different matter. Lavin, 567 F.2d at 581 n.6 (dictum); Anton, 547 F.2d at 495 n.2 (dictum); Allen v. United States, 387 F.2d 641 (5th Cir. 1968); Goodman v. United States, 341 F.2d 272 (5th Cir. 1965). See also Ashford (to the same effect by implication). The Ninth Circuit said in Anton that if the former resident filed a change-of-address form, then the envelope remains part of the mail notwithstanding its delivery to the former address, while if the addressee did not file the form, then delivery to the address is the end of the "mail" for ...