United States v. Steven Estill , 494 F. App'x 425 ( 2012 )


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  •      Case: 12-40108     Document: 00512009919         Page: 1     Date Filed: 10/04/2012
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    October 4, 2012
    No. 12-40108
    Summary Calendar                        Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    STEVEN DELANE ESTILL,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Eastern District of Texas
    USDC No. 4:10-CR-226-1
    Before DeMOSS, PRADO, and OWEN, Circuit Judges.
    PER CURIAM:*
    Steven Delane Estill, a rural mail carrier in Plano, Texas, was convicted
    after a jury trial of possession of stolen mail in violation of 
    18 U.S.C. § 1708
    . The
    district court sentenced Estill to two years of probation and home detention for
    a period not to exceed 180 days and ordered, inter alia, that he repay the costs
    of prosecution in the amount of $14,308.
    Estill contends that the evidence presented at trial was insufficient to
    support his conviction. He preserved this challenge by moving for a judgment
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
    R. 47.5.4.
    Case: 12-40108    Document: 00512009919      Page: 2   Date Filed: 10/04/2012
    No. 12-40108
    of acquittal under Federal Rule of Criminal Procedure 29 after the Government
    presented its case and at the close of all of the evidence. Accordingly, we review
    the district court’s denial of Estill’s Rule 29 motion de novo and will uphold the
    jury’s verdict if a reasonable trier of fact could conclude from the evidence that
    the elements of the offense were established beyond a reasonable doubt. United
    States v. Anderson, 
    174 F.3d 515
    , 522 (5th Cir. 1999); Jackson v. Virginia, 
    443 U.S. 307
    , 319 (1979). We “view[ ] the evidence in the light most favorable to the
    verdict and draw[ ] all reasonable inferences from the evidence to support the
    verdict.” United States v. Percel, 
    553 F.3d 903
    , 910 (5th Cir. 2008) (internal
    quotation marks and citation omitted).
    To be convicted of an offense under § 1708, the Government was required
    to prove beyond a reasonable doubt (1) that Estill unlawfully possessed the item
    stated in the indictment; (2) that the item had been stolen from the mail; (3) that
    Estill knew that the item was stolen; and (4) that Estill had the specific intent
    to possess the item unlawfully. See United States v. Hall, 
    845 F.2d 1281
    , 1284
    (5th Cir. 1988) (citation omitted). Estill argues that there was no evidence that
    he knowingly intended to possess stolen mail because he did not understand that
    the undeliverable bulk business mail (UBBM) that he admitted to taking for his
    personal use constituted mail; Estill contends that he believed that the UBBM
    – i.e., 34 promotional gift cards from Wal-Mart – was trash because it could not
    be delivered and ultimately would be discarded or recycled.
    The trial evidence demonstrated that Estill knowingly intended to possess
    the gift cards unlawfully. The evidence established that Estill was instructed
    through employment training not to take mail regardless of its worth and was
    otherwise aware that United States Postal Service (USPS) policy barred him
    from removing mail – even if it was undeliverable – for his personal use. The
    evidence also showed that documents that Estill received and executed during
    his employment delineated USPS policy against taking all mail matter and set
    forth the possible criminal penalties for mail theft. In addition, in statements
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    No. 12-40108
    that he provided to USPS investigators, Estill effectively acknowledged that he
    attempted to conceal his removal of the gift cards and that he knew that taking
    the gift cards from UBBM was improper. Accordingly, construing the evidence
    in the light most favorable to the verdict, that there was adequate evidence that
    Estill knew that taking the gift cards was unauthorized and potentially criminal.
    Furthermore, the trial evidence supported that UBBM constitutes mail.
    The evidence included testimony from multiple USPS employees asserting that
    UBBM is treated as mail and is considered to be “live” until it is removed from
    the post office for processing and recycling. There also was evidence that UBBM
    has use or benefit to others even if it is not deliverable to the intended recipients
    and that USPS workers knew that USPS had an interest in, and retained control
    over, UBBM even after it was determined to be undeliverable. In fact, there was
    evidence that Estill volitionally conceded to investigators that UBBM could be
    viewed as mail. Estill points to no evidence showing that UBBM should not be
    regarded as mail merely because it was destined for destruction or recycling. See
    generally United States v. Davis, 
    461 F.2d 83
    , 89-90 (5th Cir. 1972) (suggesting
    that postal matter continues to be mail until its ultimate intended disposition).
    Therefore, the evidence was sufficient to support Estill’s conviction under § 1708.
    Estill also argues that the district court wrongly ordered him to pay the
    costs of prosecution. He contends that the portion of his judgment assessing the
    costs of prosecution should be vacated, and the case should be remanded. The
    Government concedes that the district court erred by ordering Estill to pay the
    costs of USPS’s investigation into his misconduct, which were assessed as a cost
    of prosecution.
    Estill generally objected at sentencing to the imposition of costs. Although
    it is not clear whether Estill’s objection properly preserved his instant challenge,
    we need not resolve whether Estill’s arguments should be reviewed for an abuse
    of discretion or under the plain error standard. Compare Migis v. Pearle Vision,
    Inc., 
    135 F.3d 1041
    , 1049 (5th Cir. 1998) (reviewing assessment of costs for abuse
    3
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    No. 12-40108
    of discretion) (civil case) with United States v. Villegas, 
    404 F.3d 355
    , 358 (5th
    Cir. 2005) (reviewing unpreserved challenges for plain error only). Because the
    district court had no authority to order Estill to pay the costs of investigation
    and imposed an invalid sentence, Estill would be entitled to relief regardless of
    which standard of review applied. See United States v. Rodriguez, 
    523 F.3d 519
    ,
    525 (5th Cir. 2008).
    The district court is authorized to assess costs against a criminal
    defendant in non-capital cases pursuant to 
    28 U.S.C. § 1918
    (b). The exclusive
    definition of the items that may be taxed as costs, unless provided by some other
    explicit statutory or contractual authority, is set forth in 
    28 U.S.C. § 1920
    . See
    Gagnon v. United Technisource, Inc., 
    607 F.3d 1036
    , 1045 (5th Cir. 2010) (civil
    case). The costs of investigation are not delineated as a permissible cost of
    prosecution under § 1918 and § 1920, and no other statutory or contractual
    authority would permit the district court to impose the costs of investigation in
    this case. See Gagnon, Inc., 
    607 F.3d at 1045
    ; FED. R. CRIM. P. 57(b). Thus, the
    district court lacked authority to impose as costs of prosecution the costs of
    investigation. Accordingly, we vacate the taxation of costs against Estill and
    remand the case to the district court for further proceedings in accordance with
    this opinion. See United States v. Deas, 
    413 F.2d 1371
    , 1372-73 (5th Cir. 1969).
    AFFIRM IN PART; VACATE AND REMAND IN PART.
    4