Before BAZELON, LEVENTHAL and ROBINSON, Circuit Judges.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
Appeal from the United States District Court for the District of Columbia (D.C. Criminal No. 76-651).
Opinion for the Court filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE ROBINSON
This appeal challenges a conviction for obstruction of mailed matter, *fn1 one of two crimes for which appellant was tried. Reversal is sought principally on two grounds. He contends that the Government's proof did not conform to the allegations of the indictment charging that offense. He also asserts that he was deprived of a fair trial by the admission of evidence of other criminal activity, or at least by the District Court's failure to instruct the jury on the limited use to which that evidence might properly have been put. We affirm. I
An employee of County Decorators, Inc., drew a check payable to George F. Warner & Company, a concern located at 101 Q Street, Northeast, in the District of Columbia. The check was placed in an envelope erroneously addressed, however, to 101 Q Street, Northwest, and mailed. Apparently it was delivered by the postal service to an apartment at the Northwest address wherein appellant and several others reside. *fn2
Just who may have brought the misaddressed item into the apartment from its mailbox is unclear. But about a month after the mailing, so Officer Patrick J. Lilly of the Metropolitan Police Department was to testify, appellant came to the second-story loft of a warehouse wherein law enforcement officers were posing in an operation that became known as "Sting" as organized criminals interested in purchasing stolen property and other contraband. There, said the officer, appellant tendered for sale several credit cards and two checks, one of which was that issued by County Decorators. Officer Lilly avowed that he purchased the lot from appellant for $100, and made him a loan of $25 more. *fn3
On cross-examination, defense counsel *fn4 asked the officer whether he had expected appellant to repay the loan, to which the reply was that appellant "said he would be back." *fn5 On redirect examination, the prosecutor inquired as to whether appellant ever returned to the loft and, after an answer in the affirmative, whether he did so to repay the loan. Officer Lilly responded "(t)hat, and to sell me some other items." *fn6
In addition to this testimony, the District Court allowed the introduction, over defense objection, of a videotape of the transaction in which the County Decorators check was bought. *fn7 The videotape had recorded appellant's entry into the loft and his production of the credit cards and checks for Officer Lilly's inspection. Two checks appeared on the videotape but their markings were not clearly discernible, and nothing in the accompanying conversation identified either as the County Decorators check. No exchange of money was shown because, it was explained, the recorder ran out of tape before that event occurred.
At the close of the evidence, the District Court granted appellant's motion for a judgment of acquittal on a count of the indictment charging appellant with unlawful possession of stolen mail. *fn8 The ground of this ruling was that the evidence failed to establish that he was the one who actually took the misaddressed envelope and the enclosed check from the apartment mailbox into which it seemingly had been delivered. The court, however, denied appellant's motion seeking the same disposition of the remaining count, which set forth the obstruction charge. *fn9 As we have noted, the jury convicted on this count. II
Reminding us that the count on which he was found guilty alleged that he took the envelope and the enclosed County Decorators check "with the design to obstruct the correspondence of the letter," *fn10 and deeming this charge the statutory analogue of common law larceny, appellant contends that the Government's proof at best disclosed nothing more than embezzlement. The thrust of the argument is that, absent evidence as to who removed the check-bearing envelope from the apartment's mailbox, the Government could not establish that appellant was responsible for the initial trespassory taking from the mail. This, says appellant, left the Government with evidence only of a crime not charged, and resultantly his conviction must be overturned. *fn11
This theory ignores the plain language of the indictment, which asserts that appellant "did take" a letter which "Had been in an authorized depository for mail matter . . ." before delivery to the addressee. *fn12 The averment thus was, not that appellant had removed the letter from the mailbox, but that he appropriated the letter, which at some prior time had been in an authorized depository, "before the same had been delivered to the person to whom it was directed." *fn13
We thus are unable to discern any variance between the charge specified in the indictment and the Government's proof at trial. The evidence demonstrated beyond peradventure that the County Decorators check had been introduced into the mail in the misaddressed envelope and that the addressee had never received it. *fn14 The videotape of appellant's visit to the warehouse loft had captured his declarations to Officer Lilly that the check had been delivered to his residence and that he had come by it ...