United States of America v. Steven G. Marshall

United States Court of Appeals
For the First Circuit
No. 12-2441
UNITED STATES OF AMERICA,
Appellee,
v.
STEVEN G. MARSHALL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Howard, Circuit Judge,
Souter, * Associate Justice,
and Stahl, Circuit Judge.
Todd C. Pomerleau, with whom Chase A. Marshall and Pomerleau
Wood LLP were on brief, for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
June 4, 2014
*Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.

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SOUTER, Associate Justice. Steven Marshall appeals his
conviction for knowingly and willfully obstructing the passage of
mails under 18 U.S.C. § 1701. He challenges the court's definition
of the term "willfully," claims that evidence of willful
obstruction was insufficient, and argues that scheduling
irregularities violated due process. We affirm.
I.
Marshall had 26 years of experience with the United
States Postal Service as a letter carrier, and in the fall of 2009
he was employed at the Greenfield, Massachusetts Postal Service
Annex. Prior to setting out on his route each day, Marshall had to
"case" his mail, sorting it by address and placing it in sequence
for delivery. Postal workers are instructed to discard items that
are addressed to a house or apartment known to be vacant as
"undeliverable," and mail carriers are responsible for keeping a
list of known vacancies on their routes in an "edit book" at their
work stations, to be updated monthly. Commercial items discarded
as undeliverable are placed in a bin marked "undeliverable bulk
business mail," where they are checked by a supervisor and, if
indeed undeliverable, recycled.
Mailings routinely handled on Marshall's route included
"Town Criers," local newspapers featuring advertisements, which
post office customers pay to have delivered, although the
newspapers typically identify the subscriber simply as "Current
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Resident" or "Postal Customer." In October 2009, after being
informed that Marshall was discarding an "excessive" number of Town
Criers, James Lengieza, Marshall's supervisor, told Marshall to
"make sure that all the good Town Criers were being delivered."
Over the next two weeks, Lengieza noticed a dramatic reduction in
the number of Town Criers Marshall left in the discard bin.
In February 2010, Special Agent Kenneth Velazquez of the
Postal Service Office of Inspector General was assigned to
investigate Marshall's performance and began video surveillance of
Marshall casing his mail, focusing on days the Town Criers were to
be delivered. On February 26, Velazquez saw Marshall alternately
casing Town Criers for delivery and discarding them into his bin,
at times at a one-to-one ratio. After Marshall left on his route,
Velazquez and Lengieza checked the bin, which contained 208
discarded Town Criers, to see how many were deliverable.
Velazquez monitored Marshall by video again on March 4
and March 18 and saw that sometimes Marshall checked the address
while sorting the newspapers, but sometimes appeared to discard
them without looking. Lengieza and Velazquez found that Marshall
discarded 183 Town Criers on March 4 and 168 on March 18, and by
checking the discarded mail against the edit book at Marshall's
work station Lengieza determined that 80 to 90 percent of the Town
Criers tossed out on March 4 should have been delivered.
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On March 11, the interim postmaster, Joan Bates, went
with Marshall on a "walk with," traveling the carrier's route to
confirm the number of vacancies and assess how long it takes for
the carrier to complete the route. During that excursion Marshall
delivered more of the Town Criers than he did on either March 4 or
March 18.
On May 27, Velazquez and fellow Special Agents Allison
Glassick and Gerard Fernandez interviewed Marshall, who orally and
in writing admitted his practice of discarding the Town Criers.
Marshall explained that he had treated some of the copies as
undeliverable because the locations addressed were vacant or
because residents had asked him not to deliver them, and he
acknowledged that he delivered more Town Criers on the "walk with"
than usual, but "only to get a street time that was more acceptable
for the route." He remarked that delivering the Town Criers was "a
waste of energy" and although he insisted that he was not aware
that discarding the volume of Town Criers was problematic, he also
admitted that, "I'm not saying there's any excuse for [the non-
delivery]." He promised that henceforth he would "deliver any and
all Town Criers to vacant apartments and multiapartment
deliveries."
Marshall was charged with obstructing the mails in
violation of 18 U.S.C. § 1701, and the magistrate judge set a bench
trial date of October 14. Because no scheduling order was issued,
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the parties communicated informally with the clerk and with each
other about discovery deadlines. Although the Government notified
Marshall prior to trial that it planned to proceed with only two
witnesses, Lengieza and Special Agent Glassick, it was only on the
morning set for trial that Marshall filed four motions in limine:
to exclude anonymous complaints, to exclude testimonial hearsay, to
exclude photocopied Town Criers, and to exclude video of the
surveillance and related testimony. To give the government a
chance to respond, the magistrate judge rescheduled the trial for
October 18, and following further motions for continuance, some by
the Government and at least one by Marshall, she scheduled a final
trial date of March 8, 2011. The judge granted Marshall's motions
to exclude the anonymous complaints and hearsay, but admitted
original evidence of the Town Criers and video surveillance.
On March 8, 2011, the bench trial began before the
magistrate judge, at which the Government called not only Lengieza
and Glassick but also (with three days' notice to Marshall)
Velazquez as a witness to authenticate the video surveillance
evidence. The judge found Marshall guilty of obstructing the mails
under 18 U.S.C. § 1701 and sentenced him to pay a fine of $1,500,
as well as a $25 processing fee and $10 special assessment fee. On
November 9, 2012, the District Court for the District of
Massachusetts affirmed the conviction.
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II.
We review factual findings for clear error and legal
questions, including statutory interpretation and sufficiency of
the evidence, de novo. United States v. McFarland, 445 F.3d 29, 31
(1st Cir. 2006). On a sufficiency challenge, we take the evidence
in the light most favorable to the verdict and reverse only where
"no rational factfinder could have concluded that the evidence
presented at trial, together with all reasonable inferences,
established each element of the crime beyond a reasonable doubt."
United States v. Symonevich, 688 F.3d 12, 23 (1st Cir. 2012).
The statute provides that "[w]hoever knowingly and
willfully obstructs or retards the passage of the mail . . . shall
be fined under this title or imprisoned not more than six months,
or both." 18 U.S.C. § 1701. Marshall says first that the
magistrate judge and the district court applied the wrong
definition of "willfulness" in convicting him under 18 U.S.C.
§ 1701. The court followed the Second Circuit in United States v.
Wooden in taking the position that showing willful action requires
proof only that a defendant had an "illegitimate or improper
intent" to obstruct deliverance of the mail. 61 F.3d 3, 5 (2d Cir.
1995). Marshall, in contrast, suggests that "willfulness" is shown
only when a defendant knew his conduct was unlawful at the time he
engaged in it.
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The statutory term "willfully" is a chameleon, what the
Supreme Court has called "a word of many meanings whose
construction is often dependent on the context in which it
appears." Bryan v. United States, 524 U.S. 184, 191 (1998)
(quoting Spies v. United States, 317 U.S. 492, 497 (1943))
(internal quotation marks omitted); see also United States v.
Ladish Malting Co., 135 F.3d 484, 487 (7th Cir. 1998) ("'Willfully'
is . . . notoriously slippery . . . ."). Although this Circuit has
never explained willfulness under § 1701, the Supreme Court took up
an early version of the statute in United States v. Kirby and read
the phrase "'knowingly and wilfully' obstruct or retard the passage
of the mail" as applying to "those who know that the acts performed
will have that effect, and perform them with the intention that
such shall be their operation." 74 U.S. 482, 485-86 (1868). While
Kirby, to be sure, has an ancient ring to it, its precedential
force is buttressed by the general rule that reenactment of a
statute carries congressional approval of phrases with prior
judicial construction. See Keene Corp. v. United States, 508 U.S.
200, 212 (1993) ("Since . . . these cases represented settled law
when Congress reenacted the [statutory language], we apply the
presumption that Congress was aware of these earlier judicial
interpretations and, in effect, adopted them."). And Kirby's
interpretation has been echoed by other federal courts applying 18
U.S.C. § 1701 in more recent decades, which have read the term
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"willfully" to require some level of intent greater than
"inadverten[ce] or mere[] negligen[ce]." United States v. Johnson,
620 F.2d 413, 415 (4th Cir. 1980); see also Wooden, 61 F.3d at 5
(finding that "an inadvertent or negligent delay of the mail does
not violate [§ 1701]").
Marshall, to be sure, does not argue that the willfulness
requirement of § 1701 requires proof that a defendant was aware of
the specific provision violated, as has been held with respect to
some statutes in the criminal code. See, e.g., Ratzlaf v. United
States, 510 U.S. 135, 149 (1994) (willfully violating financial
anti-structuring laws); Cheek v. United States, 498 U.S. 192, 201
(1991) (willful tax evasion); cf. Trans World Airlines, Inc. v.
Thurston, 469 U.S. 111, 126 (1985) (willfully violating the Age
Discrimination in Employment Act). As the Supreme Court has
explained it, "highly technical statutes" like the Internal Revenue
Code and the currency structuring law present a particular "danger
of ensnaring individuals engaged in apparently innocent conduct."
Bryan, 524 U.S. at 194. To obviate that risk, their specific
intent requirements "carv[e] out . . . exception[s]" to the
"general rule that ignorance of the law or a mistake of law is no
defense to criminal prosecution." Cheek, 498 U.S. at 199-200.
Rather, Marshall's argument that the jury should have
been required to find that the "illegitimate or improper intent"
was unlawful rests on the Supreme Court's suggestion in Bryan
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(dealing with firearms sales by a vendor having no license as
required) that criminal willfulness generally requires knowledge
that the action charged was unlawful, albeit less specific
knowledge than the statutes just mentioned. 524 U.S. at 196. 1
This, as it turns out, was the position taken by the Government in
a recent brief in opposition to certiorari to the Supreme Court in
Russell v. United States, No. 13-7357, involving the construction
of 18 U.S.C. § 1035; on the Government's concession, the Court
vacated the appellate panel's contrary holding and remanded for
reconsideration. 134 S. Ct. 1872 (2014).
We think it is unnecessary to decide whether the
Government's position in Russell should ultimately apply to the
construction of § 1701. Even if we assume in Marshall's favor that
it should, he is not entitled to a reversal here, for the reason
that any error was harmless when assessed under the standard that
instructional error, including omission of an element, is harmless
if it is clear beyond a reasonable doubt that a rational jury would
1 Marshall also cites two First Circuit cases. The first
refutes his own reading, holding that a requirement that false
statements be made "knowingly and willfully . . . means nothing
more in this context than that the defendant knew that his
statement was false when he made it or . . . disregarded or averted
his eyes from its likely falsity." United States v. Gonsalves, 435
F.3d 64, 72 (1st Cir. 2006). The second has been vacated in light
of intervening Supreme Court precedent. United States v. Aversa,
984 F.2d 493 (1st Cir. 1993), vacated sub nom. Donovan v. United
States, 510 U.S. 1069 (1994).
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have found guilt absent the error. Neder v. United States, 527
U.S. 1, 18 (1999).
Marshall, to be sure, testified that he was unaware that
his destruction was unlawful, insisting that his supervisors
"never" addressed the issue with him and that he "was not aware
there was a problem until approached by [investigators]." This
position was consistent with his emphasis, which we will mention
again below, that his discards were not surreptitious, and that for
some period of time his supervisors let him get away with his
practice. Indeed, the trial judge observed that if knowledge of
unlawfulness were a necessary element, this would be a closer case.
But we think the case for guilt would surely have
satisfied a knowledge-of-unlawfulness requirement. When he was
interviewed by the investigators regarding his conduct, Marshall
admitted that he was "not saying there's any excuse for it." The
only way this admission could be squared with his claim of
ignorance of the law would be to assume that he thought that
throwing deliverable mail away was merely a departure from postal
service practice lacking the sanction of law. But this probability
is just too far-fetched. Marshall had to have known that he was
being paid to make good on the responsibility of a national
governmental agency to deliver mail entrusted to it. Since the
agency was not an agent of charity, he must likewise have been
aware that someone had paid money to have the Town Criers
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delivered, so long as they were deliverable. No front-line
employee like him could have believed that the Government's
obligation was not a requirement of the law, let alone that someone
in his position would not be violating the law by taking the
payer's money, in effect, while deliberately refusing to provide
the service paid for. There is no reasonable doubt that a rational
fact-finder would have found Marshall guilty of willfully
"unlawful" conduct.
Next, Marshall contends that, under any definition, the
government has presented insufficient evidence to prove that he
acted "willfully" in violation of 18 U.S.C. § 1701. On the
contrary, however, the government presented ample evidence for a
reasonable fact-finder to conclude that Marshall knowingly and
willfully obstructed the delivery of mail. Marshall does not deny
that he acted "knowingly" under the statute and could hardly do so.
There is no question that he knew that discarding the Town Criers
would result in their failure to be delivered to their intended
recipients. See United States v. Schankowski, 782 F.2d 628, 633
(6th Cir. 1986) ("'[K]nowingly and willfully' as used in § 1701
requires the government to prove beyond a reasonable doubt that the
defendant knew that her acts had this effect."). Nor is there any
question that Marshall intended to prevent the delivery of hundreds
of Town Criers to occupied residences along his route. The sheer
number of discards belies Marshall's claim that he aimed to filter
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out only items he thought genuinely undeliverable, and in fact
Lengieza's comparison of the contents of Marshall's bin against
Marshall's own edit book showed that 80 to 90 percent of the
discarded Criers were deliverable. Were more needed, Lengieza's
admonition to deliver "all the good Town Criers" led to a
substantial, temporary reduction in the amount Marshall discarded.
The evidence demands the conclusion that Marshall knew a
substantial amount of his discarded mail was in fact deliverable,
and meant to prevent its delivery. And, as mentioned before, it is
not credible that Marshall might have thought his admittedly
inexcusable actions were not unlawful.
Nevertheless, in an attempt to show good faith efforts
at delivery, Marshall points out that he never sought to conceal
his discarded mail, his discard bin being there for a supervisor's
review, and that his heightened delivery rate during the walk-with
can be explained by what he chooses to call a legitimate motive.
But even leaving aside the rule that in reviewing a conviction
evidentiary ambiguities are to be resolved in the Government's
favor, see Symonevich, 688 F.3d at 23, neither of these facts
undermines the weight of the preceding evidence. Section 1701 does
not provide that a supervisor's objection or warning is a condition
of liability, and an effort to pad the number of actual stops is
hardly an exculpatory explanation for failing to deliver all he
should have when a supervisor was looking the other way.
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Ultimately, the inference to be drawn from the record is just what
Marshall admitted in his interview: that he found delivering the
Town Criers "a waste of energy" and tried to save all the effort he
thought he could get away with.
Finally, Marshall argues that the magistrate judge denied
him due process by failing to issue a scheduling order and by
delaying the trial after Marshall filed his motions in limine.
These contentions are baseless. Rules of the District Court for
the District of Massachusetts require magistrate judges to issue
scheduling orders only in criminal felony cases, see D. Mass. Mag.
J. R. 7(a)(2), leaving the matter discretionary in a case of petty
offense. While the magistrate judge in this case gave the parties
the option of a formal pretrial order, Marshall neither requested
a scheduling order nor objected to its absence. He lost nothing
under the rule and was denied nothing he asked for.
As to the orders continuing the trial date, trial courts
have "wide discretion to grant or deny a request for continuance,"
and only a serious error of law or judgment can produce the
substantial prejudice to the objecting party that would warrant
appellate relief. West v. United States, 631 F.3d 563, 568 (1st
Cir. 2011) (quoting United States v. Fink, 499 F.3d 81, 89 (1st
Cir. 2007)). Marshall argues that delaying the bench trial until
March 8, 2011, prejudiced his case by allowing the Government to
procure Velazquez to authenticate surveillance evidence
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inadmissible without him. This is an odd argument coming from the
mouth of a defendant whose own dubious decision to surprise the
Government with four motions in limine the morning of the scheduled
trial was the occasion for the first continuance. See Fed. R.
Crim. P. 47(c)(requiring that, absent a scheduling order, written
motions be served at least seven days before the hearing date).
And its strangeness is not mitigated by the fact that the
magistrate judge issued at least one subsequent continuance at
Marshall's own request. In short, by filing motions that were
untimely under the rules, Marshall prompted the first in a series
of continuances, after which the Government had the forethought and
the opportunity to call a witness necessary to introduce probative
evidence that would presumably have been inadmissible without that
witness on the original trial date. Whatever that may say about
Marshall's own tactical planning, it points to no lack of
justification for the first continuance and to nothing more
prejudicial than legitimately incriminating evidence. To the
extent that Marshall may have been caught off-guard by Velazquez's
testimony, the judge offered him additional time to prepare a
cross-examination, which he declined. Thus, the record fails to
lend color to the suggestions that the magistrate judge abused her
discretion in granting the continuances or that Marshall suffered
prejudice distinct from probative evidence as a result.
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III.
The judgment of the district court is affirmed.
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