United States v. Rayfield

[308] Opinion of the Court George W. Latimer, Judge: Tried by general court-martial, accused pleaded not guilty but was convicted for a violation of Article 108, Uniform Code of Military Justice, 10 USC § 908, and two mail offenses, contrary to Article 134 of the Code, 10 USC § 934. He was sentenced to be separated from the service with a bad-conduct discharge. Intermediate appellate authorities affirmed and thereafter, apparently in view of our recent decision in United States v Manausa, 12 USCMA 37, 30 CMR 37, The Judge Advocate General of the Air Force certified the case to this Court under the provisions of Article 67(b)(2), Uniform Code of Military Justice, 10 USC § 867, asking us to resolve three questions. The issues concern only the mail offenses, so we may confine our discussion to them. I Each of those two specifications allege, pertinently, that on given dates accused, with intent to obstruct correspondence, wrongfully took a certain letter addressed to his commander from an official mail channel before delivery to the addressee. Clearly, each states a mail offense. See United States v Lorenzen, 6 USCMA 612, 20 CMR 228; United States v Scioli, 7 USCMA 502, 22 CMR 292; United States v Peoples, 7 USCMA 534, 22 CMR 324; United States v Phillips, 7 USCMA 737, 23 CMR 201. ■ The record shows that accused, who was first sergeant of his squadron, was indebted to a certain finance company and was delinquent in payments on his account. The manager of the company had attempted to work out satisfactory arrangements but was unable to do so and, after many unkept promises by accused, the former wrote accused’s squadron commander requesting assistance. Not receiving any acknowledgment, some three months later he posted a similar letter to the same officer. Prescribed procedures required that the latter, upon receipt of such correspondence, forward to a higher headquarters a copy thereof and of the reply he sent to the creditor. The manager, becoming aggrieved at the silence, subsequently wrote to the base commander. This letter came to the attention of accused’s squadron commander through military channels. Because it referred to two previous letters purportedly addressed to him, which he had not received in the mail, he was concerned. And, since the inquiries pertained to accused, he suspected that delivery may have been interrupted by him. Consequently, he called accused in, warned him appropriately, and broached the matter. Accused admitted he had intercepted the two letters and, when his superior requested them, they were produced. Thereafter, accused was interrogated by an agent of the Office of Special Investigations. After proper warning pursuant to Article 81, Uniform Code of Military Justice, 10 USC § 831, he admitted he had received the two letters at the . squadron orderly room and opened the envelopes. Seeing that the correspondence pertained to his indebtedness and not wishing his commanding officer to see the letters until he had straightened out his financial affairs, he discarded the envelopes and retained the letters in his desk until a later date, when he took them to his living quarters. Thereafter, when confronted by his squadron commander, he turned the letters over to him. Accused took the stand as a witness in his own behalf at trial, and his testimony is in substantial accord with the above evidence. He did contend, though, as he had when confronted by his commander, that he had no intent to obstruct his superior’s correspondence, for he believed the latter preferred him, as first sergeant, to handle matters of this nature so that the commanding officer would not become involved. The Government presented evidence to the contrary, however, and that issue was submitted to the court-martial under an appropriate instruction and it was resolved adversely to accused. [309] Thus, the important inquiry certified by The Judge Advocate General requests us to determine whether the letters were in official military mail channels at the time they were abstracted by accused. See United States v Manausa, supra. For if they were, it is crystal clear that he was properly convicted for these two offenses. The facts bearing on that question are these. It was stipulated by the parties that the squadron orderly room was an official agency for the transmission of communications. The letters in question were addressed to accused’s commander and came in with the squadron mail. As first sergeant of his organization, accused had access to the official mail. Among his duties was the receipt of incoming letters addressed to his commanding officer. Most of the mail was enclosed in envelopes and, to facilitate its delivery, he was authorized to open it, evaluate it, and distribute it to the proper agency in the squadron for action. Where correspondence required action by the commander, accused was obligated to deliver it to him. Appellate defense counsel acknowledge that the orderly room was stipulated to be a mail channel, but assert the record does not reflect how communications were received there, handled, and transmitted to other squadron agencies. Thus, they urge, if all incoming mail was picked up by a clerk whose duty was to deliver it to the addressees or their agents, he obviously would be an official mail conduit. Hence, letters so handled would continue to remain mail matter until they were so delivered. But, it is argued, delivery of the instant letters to accused, who was authorized to receive, open, evaluate, and distribute correspondence addressed to the commanding officer, terminated the mail fun. In short, relying on the Manausa case, supra, they urge that accused was his squadron commander’s alter ego, and that upon delivery to him as agent for his superior the letters ceased to be mail matter. Counsel for appellant make a laudable effort to bring their client within the sweep of our decision in Manausa, but as the board of review pointed out, a critical analysis of that opinion dictates that the defense attempt is abortive. In that case we held that delivery of letters to the addressee or his duly authorized representative terminated the mail run and removed the letters from the protection accorded by the military proscription against interference with the mails. And under the facts there before us, that rule compelled the conclusion that the accused had not unlawfully opened letters which were entitled to the preferred protection accorded communications in official mail channels. But, as we pointed out, in that instance the accused was charged with interference with personal mail and the underlying predicate for our conclusion was that he had no official responsibility for personal mail but acted upon the written authorization of the addressee merely for the latter’s personal convenience as his agent “much as if the holder of a post office box gave another the key and instructions to pick up his mail.” 12 USCMA at page 41. We were careful to distinguish Manausa’s status in receiving his victim’s mail from his official duties, for the evidence showed him to be responsible as a conduit for official mail to be distributed through the orderly room. Thus the holding in United States v Manausa, supra, is not apposite to the factual situation before us in the case at bar. Here accused was first sergeant of the squadron and worked in the orderly room which was stipulated to be an official mail channel. He served not as a personal agent of his commanding officer for the latter’s convenience, but rather had the official military duty as his subordinate to further transmit correspondence to the proper office. He was, in fact, mainly a diversion point where official communications could be routed to the proper terminus. And in this instance, since the two letters were directed to the squadron commander in his official capacity and would require his action, accused’s duty was to course the correspondence in regular channels so it would reach his superior. True it is that accused in most in [310] stances had to open letters in order to determine the action headquarters and thus comply with his official duty to continue them on their way. But that should not be surprising to those familiar with the transmission of military communications. It is well known that much official correspondence falling within the protection of the military proscriptions against interference with mail matter is addressed generally to a commanding officer of a unit or organization. The truth of that statement is demonstrated by the record in the case at bar, for it was testified that most mail coming in to the squadron orderly room was in envelopes addressed to the commander. There had to be a clearing house, and this was manned by the accused. He could, by noting the contents, ascertain the intended recipient of correspondence, but it was contrary to his trust to interfere with the flow of letters in channels by abstracting them for his personal purposes. Here, the subject matter of the letters informed him that they had not reached the addressee, and he had a duty to make certain they were delivered to the commanding officer in person. The very nature of the military system for transmitting and delivering correspondence requires that designated personnel act as conduits for delivery of mail. In that regard, accused’s authority was no different than that of a regular postal clerk who opens and peers in a mailbag and ascertains the true addressees to expedite delivery. Both individuals have the affirmative and official duty to transmit the mail to the person for whom it is ultimately intended. And although either may be considered, in a general sense, to be an “agent” of the ultimate recipient, certainly neither has any authority whatever to act in that person’s stead to accept terminal delivery of the mail. Rather both are simply official instrumentalities through which the mail must move in order to reach the party for whom it is intended. It should be emphasized that we are not here concerned with a doctrine of agency as it applies to personal correspondence. Clearly the actions of a private messenger are to be distinguished from those of an official public agent. As the board of review pointed out in its decision upon reconsideration, distinguishing Manausa from the instant case: “. . . It was of no consequence, therefore, that accused [Manausa] as a private agent of the addressee did not adhere to specific instructions, for as long as he acted within the scope of his general authority he bound his principal (see Whiteside v U. S. 93 U. S. 247, 23 L. Ed. 882). “Here, however, accused was an employee and an official agent insofar as official mail was concerned, and as with a public agent a different rule obtained. As was pointed out by the Supreme Court in the Whiteside case, supra: 'Different rules prevail in respect to the acts and declarations of public agents from those which ordinarily govern in the case of mere private agents. Principals, in the latter category, are in many cases bound by the acts and declarations of their agents, even where the act or declaration was done or made without any authority, if it appear that the act was done or declaration was made by the agent in the course of his regular employment; but the government or public authority is not bound in such a case, unless it manifestly appears that the agent was acting within the scope of his authority, or that he had been held out as having authority to do the act, or was employed in his capacity as a public agent to do the act or make the declaration for the government.’ (and see Wolf case, supra, citing Story on Agency, pp. 552-553). “To paraphrase the language of Judge Latimer, accused was here a mail conduit for the official mail of the squadron. He had no personal relationship with his commander with respect to the official mail received by him but on the contrary had an official responsibility to both his commander and the United States Air Force. Accordingly, as a conduit, delivery to him could not constitute delivery to his commander. He, as [311] an agent or employee was part and parcel of the military postal system, and his wrongful abstraction of the letters could not constitute in legal effect delivery to the addressee or in any wise bind the Government so as to constitute authorized terminal receipt of such correspondence. “In this regard the language of the Court in United States v Dorsey, 40 Fed. 752 is quite pertinent: '. . . The purpose of the statute is that all mailable matter intrusted to any of the employes, officers, or agents in the postal service, shall, without any interference with it, save that required in its necessary transportation, be conveyed from the place where it is delivered to the officers, agents, and employes of the mail service to the point of destination, by the first practicable means; and any unauthorized interference with such mail matter, and its safe and speedy transportation, is a gross breach of trust, if done by any such employes or agents, and to prevent which was the purpose of congress in the enactment of the statute. . . .’ “The aegis of protection ensured the sanctity of these communications until they reached their intended destination, i.e., the hands of the addressee, accused’s commander. Opening the letters albeit with his authority did not empower accused to take or obstruct the delivery of the same or thereby remove such letters from their previous status as military mail, but on the contrary constituted a gross breach of trust (see Ennis v U. S. 154 Fed. 842).” Accordingly, we conclude under the facts of the case at bar that accused was part of the military postal system. His assigned duties were within and not without that service, and his misconduct necessarily interfered with the letters reaching the addressee. His limited authority to open, evaluate, and distribute official mail did not, when the letters reached him, effect terminal delivery to the person to whom they were addressed within the meaning of the military prohibition against interference with the mails. The first certified question, therefore, must be resolved adversely to accused and is answered in the affirmative. , II The second certified question inquires whether the evidence establishes that accused committed the of-enses of taking mail matter before delivery to the addressee with design to obstruct his correspondence. The previous discussion is largely dispositive of this issue, for accused admitted he took the letters because he did not wish the adverse information concerning him to reach his commanding officer until he had cleared up his financial difficulties. And other evidence in the record showing that he importuned another airman to hold back correspondence concerning him while he was absent from the base points in that same direction. As we have previously seen, authority to open, which was necessary to the proper discharge of accused’s duties, is not authority to take and withhold. Thus, since the court-martial rejected accused’s assertion that he believed his commander desired him to handle letters for creditors requesting assistance, it is crystal clear the evidence supports accused’s convictions for the mentioned military mail offense. Accordingly, the second certified question is answered in the affirmative. III The foregoing answers render it unnecessary to reach the third issue. For the above-stated reasons, the decision of the board of review is affirmed. Chief Judge Quinn concurs.