Appeal from a judgment of conviction entered by the United States District Court for the Southern District of New York (Milton Pollack, Judge), after a jury trial, for possessing checks stolen from the mail, in violation of 18 U.S.C. § 1708 (1976).
Kearse, Cardamone and Winter, Circuit Judges. Judge Cardamone concurs in a separate opinion.
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).*fn1 On appeal, Roglieri argues that the evidence 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.
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 Olcott, 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.
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 checks. 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, 86 L. Ed. 680, 62 S. Ct. 457 (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.), ...