Appendix — Bradford v. United States

United States Court of Appeals

FOR THE SEVENTH CIRCUIT

Chicago, Illinois 60604

March 28, 1974

Before

Hon. Joun S. Hastines, Senior Circuit Judge

Hon. Tuomas E. Farrcutp, Circuit Judge

Hon. Wizsvr F. Pew, Jr, Circuit Judge

Unirep States or America,

Plaintiff-Appellee,) Appeal from the

United States Dis-

trict Court for the

Southern District

of Indiana.

No. 73-1412 v.

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AntHony Seymour Braprorp,

Defendant-A ppellant.)

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Southern District of Indiana, and was argued by counsel.

On consideration whereof, it is ordered and adjudged

by this court that the judgment of conviction of the said

District Court in this cause appealed from be, and the

same is hereby, AFFIRMED, in accordance with the opinion

of this Court filed this day.

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EE

IN THE

United States Court of Appeals

FOR THE SEVENTH CIRCUIT

SEPTEMBER TERM, 1973 SEPTEMBER Session, 1973

Appeal from the

Untrep States or AMERICA, ) United States Dis-

Plaintiff-Appellee,) trict Court for the

Southern District

of Indiana.

No. IP 73-CR-14

No. 73-1412 v.

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AntHuony Seymour Braprorp, —_

Defendant-Appellant.) S. Hugh Diu,

Judge.

ArcvEep Ocroser 26, 1973— Decmpep Marcu 28, 1974

Before Hastines, Senior Circuit Judge, and Fatrcuttp

and Pet, Circuit Judges.

Pett, Circuit Judge. Defendant Anthony Bradford

appeals from a jury conviction for obstructing cor-

respondence in violation of 18 U.S.C. § 1702. Bradford

had taken a package of printed checks addressed and

mailed to his mother after the package was delivered

to her home by the postal carrier. The package, mailed

by the printing company as fourth class mail, contained

a nonpersonalized message to the customer along with the

checks.

The sole issue on appeal is whether fourth class mail

is covered by the-provisions-of §1702. Section 1702 pro-

vides, in pertinent part, that :

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Prem ee pe es coe

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‘*Whoever takes any letter, postal card, or package

.. . from any letter or mail carrier . . . before it has

been delivered to the person to whom it was directed,

with design to obstruct the correspondence . . . shall

be fined not more than $2,000 or imprisoned not more

than five years, or both.’’ (Emphasis added.)

Bradford, while admitting that the box of checks was

obviously a ‘‘package,’’ contends that the package was

not ‘‘correspondence,’’ and, therefore, there was no viola-

tion of § 1702. ‘‘Correspondence,’’ defendant argues, is

defined by Webster’s Third New International Dictionary,

as ‘‘communication between persons by an exchange of

letters.’ As the next step in his reasoning, defendant

equates ‘‘communication between persons’’ with ‘‘ personal

correspondence.’’? The upshot of defendant’s reasoning,

thus, is to interpret ‘‘correspondence’’ as used in § 1702

as ‘‘personal correspondence.’’ And, since fourth class

mail, defendant concludes, can never be a violation of

§ 1702. Rather, according to defense analysis, § 1702 ap-

plies exclusively to obstruction of first class mail, as this

is the only means of sending personal correspondence.’

The taking of someone else’s second, third, or fourth class

mail, it is argued, is covered by 18 U.S.C. § 1708? and

not by §1702.

Under 39 U.S.C. $4351, and § 4451, personal correspon-

dence cannot be sent by second or third class mail, respectively.

* § 1708 provides in pertinent part:

“Whoever steals, takes, or abstracts, or by fraud or de-

ception obtains or attempts so to obtain, from or out of

any mail, post office, or station thereof, letter box or

other authorized depository for mail matter, or from a

letter or mail carrier, any letter, postal card, package, bag,

or mail, or abstracts or removes ... any article... or

secretes, embezzles, or destroys any such letter, postal card,

package, bag, or mail, or any article or thing contained

therein. .. .” (Emphasis added.)

on

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In our opinion, Bradford’s argument has a faulty

premise in that he assumes that all communications be-

tween persons are equivalent to ‘‘ personal correspondence’’

and, therefore, must travel by first class mail. This ap-

proach ignores the fact that words, symbols, or objects

may be communicative without being personal correspond-

ence. Vast amounts of nonpersonal communication travel

through the mails in second, third, and fourth class—but

it is all communication nonetheless. Newspapers and peri-

odicals, for instance, are clearly forms of communication

but yet are not personal in nature, as that term is defined

by Bradford, and, therefore, can be sent as second class

mail. Similarly, mass-mailed brochures, advertisements,

and solicitations (colloquially and, in some instances, at

least, correctly, termed ‘‘junk mail’’) with which ‘‘occu-

pants’? as well as named addresses are inundated are

forms of nonpersonal communication and can travel by

third or fourth class mail.

Thus, even if we assume arguendo that Webster’s dic-

tionary definition of ‘‘correspondence’’ as ‘‘communica-

tion between persons’’ has some relevance in construing

§ 1702, defendant’s argument, nevertheless, fails to exclude

the many forms of nonpersonal communication which can

travel second, third, or fourth class. The box of printed

checks in the present case, in fact, contained a nonpersonal

message to the customer and, thus, was clearly within the

provisions of 1702.

Even more important, however, Bradford erred in his

basic approach of interpreting 4 1702. The precise diction-

ary meaning of a word may well be, and here is, less

relevant in construing a statute than is the use of the

word in a particular context. When §1702 is read as a

whole, the most reasonable interpretation of ‘‘correspond-

ence’’ is that the term was meant to encompass mailed

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matter of the type here involved, regardless of class. The

statute refers to the taking of letters, postal cards, and

packages, with no indication that the contents of such items

are determinative of whether there is a violation. Given

the careful distinctions drawn regarding the content of

the mail in defining the different classes, 39 U.S.C. § 4251

et seq., if content were equally decisive for the purposes

of § 1702, we think Congress would have indicated this

directly.

Other courts, while not dealing specifically with the

issue presented here, have also interpreted § 1702 broadly

as applying to anything transferred by means of the postal

service. In Maxwell v. United States, 235 F.2d 930, 932

(8th Cir. 1956), cert. denied, 352 U.S. 943, for instance,

the court stated:

‘*(T he plain language of the statute discloses a clear

intent on the part of Congress to extend federal pro-

tection over mail matter from the time it enters the

mails until it reaches the addressee or his authorized

agent.’’ (Emphasis added.)

See also McCowan v. United States, 376 F.2d 122, 124

(9th Cir. 1967) cert. dented, 389 U.S. 839; Ross v. United

States, 374 F.2d 97, 103 (8th Cir. 1967), cert. denied, 389

U.S. 882.

We also note that § 1702 has been successfully used in

cases involving the taking of credit cards, United States

v. Marlow, 423 F.2d 1064 (5th Cir. 1970), and government

checks, United States v. Owens, 424 F.2d 266 (6th Cir.

1970), cert. denied, 400 U.S. 844; Ross v. United States,

supra. In none of these eases was there any indication

that personal correspondence was enclosed with the check

or credit ecard.

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Defendant relies on the statement in United States v.

Grieco, 25 F.R.D. 58, 59 (S.D.N.Y. 1960), that:

‘The statute [§1702] contemplates the existence of

correspondence—the sending of &a letter to the ad-

dressee. Unless the defendant has a design to obstruct

that corrsspondence—not correspondence in general

but ‘the’ correspondence—no crime has been com-

mitted.’”

_

Defendant’s reliance on this statement is misplaced. In

making this observation, the court in .Grieco was not

addressing the issue presented here, that is, whether

§ 1702 is restricted to first class mail. Rather, the court

in Greico was concerned with the intent necessary to convict

under § 1702. According to Grieco, § 1702 requires that

the defendant have a design to obstruct a particular item

of correspondence, not correspondence in general.

Defendant’s contention that § 1702 is restricted to first

class mail while § 1708 is directed to mail in general is

also without merit. Section 1702 prohibits the taking of

mails, the ‘‘intermeddling with correspondence transmitted

by mail it has been delivered to the person to whom it was

directed.’’? United States v. McCready, 11 F. 225, 233 (6th

Cir. 1882). Section 1708, on the other hand, prohibits the

theft or embezzlement of mail. - -

‘‘The nature of the offenses created by the two sec-

tions differs in essential particulars. Section 5469

[now section 1708] is concerned more especially with

thefts and embezzlements from the mails for~purposes

of gain. Section 3892 [now section 1702] deals with

unauthorized meddling with the mails for the purpose

of gratifying mere malice or a prying curiosity.”’

United States v. Davis, 33 F. 865, 867 (6th Cir. 1888).

The two sections, thus, cover two different crimes affecting

the mails, not two different classifications of mail. Sec-

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tions 1702 and 1708 are coextensive in the type of mailed

mater covered.

Accordingly, the judgment of conviction is affirmed.

AFFIRMED.

A True Copy:

Teste:

ee

Clerk uf the United States Court of

A peals for the Seventh Circuit.