The appellant, Selwyn, worked at the post office as a maintenance control clerk. He had no responsibility for handling mail. While working a night shift the appellant entered a loading dock area near his office and removed a package which contained a dress being returned by mail to a store. The appellant brought the dress to the store and sought to return it for a cash refund.
The US Court of Appeals vacated the judgment of the initial trial court as well as remanded the case with instructions to enter a judgment of acquittal.
18 U.S.C.S. § 1709 prescribes criminal liability to any officer or other employees of the postal service who (a) embezzles any letter, postal card, package, bag, or mail, or any article or thing contained therein entrusted to him or which comes into his possession intended to be conveyed or carried by mail, or (b) steals, abstracts, or removes from any such letter, package, bag, or mail, any article or thing contained therein.
Whether the government’s evidence on one of the elements of the crime was sufficient to convict the appellant of embezzlement.
The appellate court held that lawful possession of an item is not created by mere access to it. Therefore, it stated that there was an error to deny the motion for judgment of acquittal because the prosecution failed to produce any evidence that the suspect had any authority over the mail. Insofar as the government did not raise charge of stealing the mail, proof of the appellant guilt “was at variance with the indictment and could not support his conviction”.