INITIAL DECISION

Petitioner, Timothy L. McWilliams, filed a petition, as provided in 39 C.F.R. Part 966, for review of the Postal Inspection Service's (Respondent) final determination, after Petitioner's request for reconsideration had been considered, that Petitioner is indebted to Respondent in the amount of $331,307. Respondent based its claim on Appellant's alleged thefts of post office bank deposits from registered mail pouches while he worked as a registry clerk for Respondent.

A hearing was held in Los Angeles.

FINDINGS OF FACT

1. During the period 1991 through 1993, post offices in the Van Nuys area sent their daily receipts, which included cash and customers' checks, to the bank via the Van Nuys, California Processing and Distribution Center ("P&DC"). The receipts were sent to the P&DC by registered mail, in locked pouches. (Transcript of Hearing ("Tr.") 16; Respondent's Answer, Attachment ("RA") 10).

2. During 1991 and through April 16, 1993, Petitioner worked as a registry clerk at the Van Nuys P&DC. His duties included retrieving the registered pouches when they arrived at the P&DC dock, taking the pouches to the registry cage, opening the locked pouches with a special key and logging the individual registered mail items in each pouch. The registered items containing post office bank deposits were to be stored in the secured registry cage until the next day when they were picked up by the bank. (Tr. 17; 230; RA 10).

3. Although Petitioner's duties included retrieving the registered pouches from the dock, he was not the only one that could have had access to them (Tr. 228-232; Petitioner's Exhibit 3).

4. Beginning in September 1991, a number of the registered pouches containing post office bank deposits sent to Van Nuys disappeared before they were logged in by the registry clerk. From September 6, 1991, to April 15, 1993, thirty-three pouches containing post office bank deposits disappeared. Those deposits totaled $336,112 in cash and $237,663.65 in checks. (RA 7).

5. Petitioner was on duty when each of the bank deposits disappeared, except for a deposit that disappeared on February 20, 1993, which contained $2,408.09 in checks and $5,770 in cash. (Tr. 19; RA 7).

6. Petitioner lived within one-half block of the P&DC and often returned to his apartment during his working hours. (Tr. 19, 25, 79).

7. Petitioner's friend, Carla Clark, told him in August of 1991 that she had a student loan debt of $4000 that was overdue. In September 1991, Petitioner sent her $4000 in cash, which she received shortly before September 16 and used to pay off the loan. In October 1991, Petitioner told Ms. Clark that he had stolen the money. (Tr. 86-89, 118-119). A post office bank deposit containing $6,041 in cash disappeared from the Van Nuys P&DC on September 6, 1991 (Tr. 37-39; RA 7).

8. In 1992, Petitioner's personal financial practices changed. His use of checks dwindled as he began conducting most of his financial transactions using cash or money orders he purchased with cash. He began paying his rent with money orders and paid his credit card bills when due using money orders. While in 1991 he had frequently (at least 78 times) withdrawn cash from ATMs, he made only two cash withdrawals from bank accounts in 1992. He apparently paid cash for personal expenses such as food and utilities because he did not use checks or charge cards for these purchases in 1992. He had cash expenditures and cash deposits to bank accounts through 1992 that substantially exceeded his income from the Postal Service, which was his only employment during the period. (Tr. 31, 41, 58, 61, 93, 133, 136-147, 155, 159, 151-157; Respondent's Exhibit ("RX") 5).

9. In late December 1991, Petitioner showed Ms. Clark a large amount of cash in a box in his apartment. He told her that the amount was between $35,000 and $50,000, and that he had stolen the money from registered mail pouches containing post office bank deposits. The cash losses from missing bank deposits at the P&DC from early November through mid-December 1991, were $47,455. In May 1992, Petitioner told Ms. Clark that he had a nest egg of $75,000 for their intended marriage and admitted that he had stolen the money. (Tr. 88-90, 92-93, 118-119, 123-124; RA 7; contra 212-213). Ms. Clark told relatives of these occurrences in May of 1992 and reported them to a postal inspector on February 17, 1993 (Tr. 94; RA 10 Exhibits 3, 10).

10. On April 15, 1993, Petitioner was observed stealing a registered pouch from the dock that contained a post office bank deposit of $9,637.34 in cash and checks. A search of Petitioner's apartment on April 16 yielded over $7,000 in cash, much of it bundled by denomination. The number of ones (125), fives (24), tens (7), fifties (7) and hundreds (27) matched exactly the number of each denomination that had been in the deposit stolen on April 15. Petitioner had more twenties in his apartment than had been in the April 15 deposit. (Tr. 29, 33-34; 46-47, 74-77, 81; RA 8, 10).

11. Petitioner was convicted of theft of the April 15 bank deposit based on his guilty plea and stipulated facts on which the plea was based, namely that he stole the registered packet on April 15 and took it to his apartment with the intent to possess the money for his own use. The cash seized at his home on April 16 and retained by Respondent plus restitution ordered as part of Petitioner's sentence, which Petitioner paid, totaled $9,637.34, the full amount stolen on April 15. (Tr. 48-49; Petitioner's Exhibit 1; RA 3, exhibits B-E; RA 8).

12. The September 1994 plea agreement entered into between Petitioner and the United States Attorney's Office provided,

"This agreement is limited to the United States Attorney's Office for the Central District of California and cannot bind any other federal, state or local prosecuting, administrative or regulatory authorities."

The agreement continued, in paragraph 11,

"Except as expressly set forth herein, there are no additional promises, understandings or agreements between the government and you or your counsel concerning any other criminal prosecution, civil litigation or administrative proceeding relating to any other federal, state or local charges that may now be pending or hereafter brought against you, or the sentence that might be imposed as a result of your guilty plea pursuant to this Agreement. Nor may any additional agreement, understanding or condition be entered into unless in writing and signed by all parties." (RA 8).

13. Petitioner did not work at the Van Nuys P&DC after April 16, 1993, and there have been no losses of registered pouches sent to Van Nuys after that date (Tr. 54, 67-68).

14. The amount in Petitioner's retirement account is $25,003.54. (RA 9).

15. By letter dated January 9, 1995, Respondent demanded that Petitioner pay $331,307, based on alleged thefts from registered mail pouches (RA 6).

16. Petitioner requested reconsideration of the claim (RA 5), and on March 8, 1995, Respondent advised that after reconsideration its position had not changed and that it continued to demand payment of $331,307 (RA 4). Petitioner filed his petition in response to that final demand (RA 3).

POSITIONS OF THE PARTIES

Respondent argues that it has demonstrated that Petitioner stole all of the bank deposits that were lost from registered mail at the Van Nuys P&DC between September 1991 and April 16, 1993. It argues that Petitioner is liable to Respondent for repayment of $331,307, and that it is entitled to recover from Petitioner's retirement account any amounts up to that total.

Petitioner denies stealing any bank deposits, including that of April 15, 1993. Additionally, Petitioner argues that his criminal plea agreement bars Respondent from pursuing collection of any amount in excess of the restitution Petitioner was ordered to pay, and did pay, as part of his sentence. He also argues that Respondent's collection of this debt would further punish Petitioner for conduct that was already addressed in his conviction and sentence, and would thus violate the double jeopardy protections of the Fifth Amendment.

CONCLUSIONS OF LAW

1. Respondent has established a prima facie case that Petitioner stole from the mail a substantial amount of cash belonging to Respondent. Petitioner correctly notes that no one testified to seeing the thefts other than that of April 15, 1993, but the circumstantial evidence that he stole some or all of the deposits is overwhelming. The registered pouches containing the bank deposits were addressed by the post offices to a bank, and the ordinary course of their handling would bring them to the registry section at the P&DC. The unrebutted inference is that the pouches reached the P&DC. See Elmore v. United States, 465 F.2d 1232 (4th Cir. 1972); Boerner v. United States, 30 F. Supp. 635, aff'd 117 F.2d 387 (2d Cir. 1941) cert. denied 313 U.S. 587. Petitioner had access to the pouches,⁽¹⁾ and his trips to his apartment during working hours provided a method of disposing of the proceeds, the method used to dispose of the April 15, 1993 pouch (Finding 11). In September 1991, he gave Ms. Clark $4000 in cash only days after a bank deposit containing $6,000 in cash had disappeared from the P&DC (Finding 7). In December 1991, Petitioner had shown Ms. Clark what he said was $35,000 to $50,000 in cash in his apartment, and the losses of bank deposits from November through mid-December 1991 were $47,455 (Finding 9). In 1992, while large sums of cash were disappearing from registered pouches containing post office deposits, Petitioner began conducting the bulk of his personal financial transactions with cash, and had cash expenditures substantially in excess of what could have been supported by his income from Respondent (Finding 8). Additionally, he admitted to Ms. Clark that he had stolen post office bank deposits from his work (Findings 7, 9). This is ample evidence that Petitioner stole bank deposits containing substantial sums of cash. See Elmore v. United States, 465 F.2d 1232 (4th Cir. 1972); Boerner v. United States, 30 F. Supp. 635, affirmed 117 F.2d 387 (2d Cir. 1941) cert. denied 313 U.S. 587.

Furthermore, on April 15, 1993, Appellant stole a post office bank deposit from a registered mail pouch, admitted doing so and pled guilty to the theft. That proven theft confirms the availability of a method to remove registered pouches from Respondent's premises and Petitioner's willingness to do so.

2. The evidence Petitioner offered is not sufficient to rebut Respondent's prima facie case. Petitioner denied taking any of the registered pouches and denied telling Ms. Clark that he had stolen from the post office. He admitted to having large sums of cash and conducting his financial transactions using cash in 1992 but contended that the source of the cash was his sale of collectible toys, games and baseball cards during the early 1980s. He testified that he kept the approximately $50,000 realized from those sales in a box in his apartment from 1986 through 1992, when he started spending it. His explanations have not been accepted.

3. Where factual determinations necessary to this decision have turned on credibility determinations between Petitioner and Ms. Clark, they have been resolved against Petitioner. Ms. Clark was a credible witness, and her statement of the events was consistent with what she had reported to Respondent and others before Petitioner was apprehended. Petitioner's version of the events and explanation of his cash financial transactions was improbable and unbelievable. To support his contention that his increased cash in 1992 came from earlier sales of collectibles, Petitioner offered what he contended was a detailed listing of the items allegedly sold and their prices that he had prepared from memory in conjunction with his criminal defense. In cross examination at the hearing, Petitioner could not state from memory the price of a single item from that multiple-page listing. Additionally, even if he had realized almost $50,000 from such sales, it would be extremely unlikely that Petitioner would have kept that amount in cash in his apartment from the mid-1980s until 1992. Petitioner's demeanor and the improbable aspects to his testimony gave me no confidence in the veracity of his testimony, and his evidence was not sufficient to overcome Respondent's prima facie case.⁽²⁾ See Elmore v. United States, 465 F.2d 1232 (4th Cir. 1972).

4. Additionally, Petitioner's insistence that he did not steal the deposit on April 15, 1993, notwithstanding the evidence to the contrary, his guilty plea and written admission that was a part of the plea agreement and the ensuing conviction, raises serious doubts regarding the truthfulness of the remainder of his testimony.

5. The facts establishing Respondent's prima facie case here are stronger than those considered in Teressa E. James, P.S. Docket No. AO-2, Initial Decision, August 9, 1990 and Postal Service Decision, March 14, 1991, in which the former employee was found not to be liable for thefts from registered mail. However, the main distinction between this case and Teressa E. James is that the hearing official in James found credible the petitioner's testimony that she had not stolen from registered mail and that she had not decided to steal the one parcel she had been observed taking from the registry cage but which she had not removed from the post office. I have not similarly credited Petitioner's denials, and I find that under these circumstances Petitioner has not rebutted Respondent's prima facie case.

6. While imposition of punitive civil sanctions after criminal prosecution based on the same conduct may implicate the double jeopardy protections of the Fifth Amendment, United States v. Halper, 490 U.S. 435, 448 (1989), those issues are not present in this case. First, Respondent does not seek recovery for the stolen deposit of April 15, 1993. Respondent's recovery of amounts stolen on other occasions raises no double jeopardy issue because the same conduct addressed in the criminal prosecution is not at issue. See United States v. Halper, 490 U.S. at 450. Second, there is no punitive aspect to Respondent's effort to collect from Petitioner only what was stolen from it. Halper and the other cases cited by Petitioner involved imposition of civil penalties for conduct that had been the basis of criminal prosecution. See United States v. Halper, 490 U.S. at 448. No penalties are involved in this proceeding.

7. The plea agreement and subsequent conviction did not bind Respondent to accept Petitioner's guilty plea and restitution in full satisfaction of all losses that were attributable to Petitioner's conduct. The terms of the plea agreement (Finding 12) make it clear that the parties addressed only the theft of April 15, 1993, which was specifically identified in the indictment and which was admitted as a part of the plea agreement. The agreement specifically provides that it does not bind the government in other administrative proceedings relating to losses other than the one of April 15, 1995.

8. Respondent is not precluded from collecting for losses other than that of April 15, 1993, by principles of res judicata or collateral estoppel stemming from the criminal conviction and sentencing. The subject of this proceeding--recovery of losses other than that of April 15, 1993--differs from that of the criminal prosecution, and therefore Respondent does not seek to relitigate the same facts and issues or pursue the same "cause of action" addressed in the criminal proceeding. See Kevin Kay, P.S. Docket No. AO-20, Initial Decision, February 18, 1992, and Final Decision, March 30, 1992.

9. On the evidence presented, I find that Petitioner stole post office bank deposits containing cash in excess of $25,003.54.⁽³⁾ Therefore, Respondent is entitled to collect by offset the full amount of Petitioner's contributions to his retirement fund. The petition is denied.

Norman D. Menegat
Administrative Judge

1. Petitioner was on duty when each of the thefts occurred but one. Respondent suggested that Petitioner's ease of access to the dock and the proximity of his apartment to the P&DC would have made it possible for him to have stolen even that last one, but we make no finding in regards to the deposit that disappeared on February 20, 1993, a day when Petitioner was not on duty.

2. Petitioner submitted the declaration of Stephanie Blighton in which Ms. Blighton characterizes Ms. Clark as obsessive and unstable. Ms. Blighton's statements are not admissible to challenge Ms. Clark's credibility as they do not address Ms. Clark's reputation for truthfulness (Federal Rules of Evidence, Rule 608), although they suggest a possible motivation for Ms. Clark to fabricate testimony harmful to Petitioner. Nevertheless, Ms. Blighton's declaration does not overcome my assessment of Ms. Clark as a credible witness. Insofar as Ms. Blighton's statements tended to corroborate Petitioner's testimony, they did not change my assessment of his testimony on issues material to this decision.

3. Petitioner pointed out that others could also have stolen the bank deposits, and Respondent has not eliminated that possibility. That the thefts stopped when Petitioner was apprehended does not prove that only he was stealing because if there were others stealing registered pouches, they would likely have stopped once word of Petitioner's apprehension spread. See Teressa E. James, supra. Nevertheless, I am satisfied that Petitioner stole at least the amount Respondent seeks to offset against Petitioner's retirement account, and for purposes of this proceeding I need not determine with precision what amount Petitioner stole over and above the total in his retirement account.