INITIAL DECISION

Petitioner, Tommy H. Ingram, filed a Petition, as provided in 39 C.F.R. Part 966, for review of the Postal Inspection Service's (Respondent) final determination that he is indebted to the Postal Service in the amount of $17,486.50. The Postal Inspection Service based its claim on Petitioner's alleged theft of a registered mail pouch while he worked as a distribution clerk at the Marietta, Georgia Post Office.

A hearing was held in Marietta and Trion, Georgia.

FINDINGS OF FACT

1. On the morning of November 1, 1990, a pouch⁽¹⁾ of registered mail bound for the Marietta Post Office was dispatched from the Atlanta Airport Mail Facility (Stipulation filed March 4, 1997 ("Stip."), ¶ 1; Respondent's Exhibit ("RX") 4, p.1).

2. Among the individual registered mail items included in the registered pouch was the bank deposit for the Windy Hill Branch Post Office, which consisted of $12,484 in cash (Stip. ¶¶ 4, 10 and Attachment 1). The manager of the Windy Hill Branch had banded the currency and round-dated and put his initials on the bands (RX 4, p. 2). The pouch also included separate registered mailings of Air Force documents, Borden stock and 15 unfinished 14k gold ring castings (Transcript of Hearing, Page ("Tr.") 14; RX 4, Exh. 1; Stip. Attachment 1).

3. The registered pouch was red and was closed with a metal band or seal bearing the number 28378560 (Tr. 62, 73, 83, 121; Stip. ¶ 1). The registered pouch was placed in a BMC container with other mail bound for the Marietta Post Office.⁽²⁾ (RX 3, p.5 and Exhibit 1; RX 4, p.1).

4. The truck containing the registered pouch was due to arrive at the Marietta Post Office at about 7 or 7:30 a.m. on November 1, 1990 (Tr. 76, 95), after making intervening stops on its way (Stip. ¶ 1; RX 4, p.1). The BMC container reached Marietta, but the registered pouch was never delivered to the registry cage or recovered by the Postal Service. (Tr. 73-74, 76; RX 4, p.1; Stip. ¶ 3). The loss to Respondent resulting from the disappearance of the registered pouch was $17,486.50 (Stipulation at Tr. 4-5).

5. The correct procedure for receiving registered mail at Marietta was for the truck driver to remove the registered mail from the truck and take it directly to the registry cage and deliver it to an authorized postal employee (Tr. 38, 61-63, 73, 84, 88, 93, 102, 121-122). However, during the period including November 1, 1990, a new Postal Service facility was being integrated into the delivery scheme in the Marietta area, causing some disruption to regular procedures. During that period, registered mail was not always handled correctly at the Marietta Post Office, with some drivers leaving the registered pouches on the dock, and distribution clerks or others eventually bringing the mail to the registry cage. (Tr. 73, 84, 86-89).

6. Petitioner was working at the Marietta Post Office the morning of November 1, 1990--he clocked in at 5:01 a.m. and out at 11:01 a.m.--and his duties as a distribution clerk required him to be on the dock a good deal of the time (Tr. 14, 76, 121; RX 4, p.1; Stip. ¶ 5). In fact, of those working in the post office, Petitioner was probably on the dock more than any other clerk (Tr. 76-77, 87). However, there were many other distribution clerks (10 to 15) on the dock at various times, and all of the letter carriers (70 to 75) arrived for work in the morning and entered the post office through the dock (Tr. 77-78, 89, 96-97, 123-126). Additionally, employees of certain Postal Service customers had access to the dock to pick up and deliver mail and commonly made pickups during the morning hours (Tr. 79-80, 89, 99, 127). Petitioner's duties did not include handling registered mail (Tr. 76, 102, 122, 125).

7. In November 1990, Petitioner told his wife, Elizabeth Crane, that he had stolen a registered pouch that came to the Marietta Post Office unaccounted for in a BMC container and that the pouch contained the Windy Hill Branch bank deposit, Air Force documents and Borden stock (Tr. 34-35, 39, 61, 67; RX 4, Exh. 2). He told her that he burned the Air Force documents and Borden stock in the back yard of their home (Tr. 61). Petitioner showed his wife a bundle of cash, which he told her amounted to $10,000, that was banded and bore the initials of the Windy Hill Branch Manager and the round-date stamp used by the Windy Hill Branch (Tr. 39; RX 4, Exhibit 2; contra Tr. 147). On November 1, 1990, Petitioner took his wife to a number of pawn shops where Petitioner bought with cash items with a total cost of over $1,000 (Tr. 37, 40; RX 4, Exh. 2, 6; contra Tr. 144-145, 147). Petitioner's wife did not report any of this information regarding the theft of registered mail to Postal Service or law enforcement authorities until several months later (Tr. 41-42).

8. Petitioner's wife had previously worked at the Marietta Post Office, including for a time in the registry cage (Tr. 37-38, 54-55, 62; Stip. ¶ 12). However, she had not worked since May 28, 1989, due to a claimed back injury (Tr. 37, 53-54; RX 3, Exh. 6; Stip. ¶ 12), and she had not remained friends with any of her former co-workers (Tr. 55).

9. In early February 1991, Petitioner and his wife were involved in a bitter divorce proceeding, and Petitioner moved out of the house on February 4, 1991, in accordance with a court order enforced by a deputy sheriff (Tr. 48, 50; Petitioner's Exhibit 1). At the time he left, Petitioner was given only 15 minutes to pick up a few belongings before he was escorted off the premises (Tr. 18, 20, 50-51, 56-57, 107-109, 118-119, 128-130; Petitioner's Exhibit 1). He was not able to return to pick up the remainder of his things until two months later (Tr. 119, 129; Petitioner's Exhibit 1).

10. On March 20, 1991, Ms. Crane reported to the Postal Inspection Service what Petitioner had revealed to her in November 1990 about the theft (Tr. 15, 37, 45; RX 4, p. 1 and Exh. 2).

11. On March 21, 1991, with Ms. Crane's consent, a search was conducted of the home she and Petitioner had shared, although Petitioner no longer resided there (Tr. 15-16, 19, 48; Stip. ¶ 6). The search produced a box buried in the back yard that contained an unfinished 14k gold ring casting that had been in the registered pouch lost on November 1, 1990 (Tr. 16, 29-31; RX 4, p.2, 4; Stip. ¶¶ 7-9). In August 1991, Ms. Crane gave the postal inspectors a similar ring casting that Petitioner had given her in November 1990, that had also been in the lost registered pouch (Tr. 15-17, 31, 47; RX 4, p. 4).

12. Petitioner filed his Petition for a hearing after receiving the Postal Inspection Service's final debt determination asserting a claim for $17,494.02 against Petitioner (Tr. 13; RX 2).

13. Ms. Crane received no special consideration or benefit from the government in exchange for her cooperation in Respondent's case (Tr. 22). She was aware that she could have been prosecuted for her failure to report the information regarding the mail theft (Tr. 42).

POSITIONS OF THE PARTIES

Respondent argues that it has shown that Petitioner stole register number 28378560 from the Marietta Post Office and that it is entitled to recover from Petitioner's retirement account the $17,494.02 loss to the Postal Service resulting from the theft.

Petitioner denies stealing the pouch. He argues that Respondent has not proven that the pouch ever reached the Marietta Post Office and that, even assuming it did, many other persons were present on the dock the morning the pouch disappeared, and they had the same opportunity to steal the pouch that he did. Petitioner points out that all of the evidence against him originated with his ex-wife, and he contends that she is not to be believed because she did not come forward immediately when she allegedly became aware of Petitioner's actions and that her testimony is part of her effort to harm Petitioner because of the bitter divorce between them.

DECISION

Petitioner was present on the dock when the pouch likely arrived at the Marietta Post Office, and, thus, would have had an opportunity to take it, but Petitioner correctly points out that Respondent has produced no witness who saw him steal the pouch and that there are other possible explanations for the loss, including that it never reached the Marietta Post Office or that one of the many other persons on the Marietta dock took it (see Finding 6). However, if Ms. Crane's testimony is believed, it is very unlikely that someone other than Petitioner took the pouch. Resolution of this case, therefore, turns on whether the testimony of Petitioner or Ms. Crane is believed. For the reasons discussed below, I have accepted Ms. Crane's testimony, and, where inconsistent, I have rejected Petitioner's. From observation of Ms. Crane's demeanor at the hearing and reviewing her testimony and previous statements, I have concluded that Ms. Crane was a credible witness. Her testimony at the hearing was internally consistent and was consistent with the statements she had given to the postal inspectors in 1991.

Moreover, Petitioner's suggestion that someone else stole the pouch does not square with Ms. Crane's knowledge regarding the theft. Acceptance of Petitioner's testimony that he knew nothing about the missing registered pouch would require that Ms. Crane have obtained her detailed information about the contents of the pouch from someone other than Petitioner. Ms. Crane had not worked at the post office for more than a year before the theft (Finding 8), and Petitioner has not offered any evidence that she retained any connection to the post office other than through Petitioner. Thus, that she could have acquired this information in any way other than from Petitioner is only speculation, and the more likely circumstance is that Petitioner revealed the information to her as she testified.

In his testimony, Petitioner denied taking the registered pouch and showing Ms. Crane a bundle of cash, but, even though he had heard Ms. Crane's testimony earlier in the hearing, Petitioner did not specifically deny telling her that he had taken the pouch and that it had contained the Windy Hill bank deposit, Air Force documents and Borden stock. He did not deny giving Ms. Crane the ring casting she supplied to the postal inspectors (Finding 11). He admitted burning paper trash in his yard and did not deny burning Air Force documents and Borden stock as Ms. Crane testified he did.

Petitioner contends that the ring recovered in the search of his home does not support Respondent's case against him because at the time of the search, March 21, 1991, he had been out of the house for more than six weeks. However, when he was ordered out of the house, he was given only a few minutes to collect his things (Finding 9), certainly not long enough to retrieve anything buried in the back yard (Finding 11). Therefore, while there is always the possibility that someone else buried the ring in the back yard, that he was no longer living in the house at the time of the search does not mean that the box buried in the back yard and its contents were not his.

Finally, I do not find persuasive Petitioner's argument that Ms. Crane's testimony should be rejected because, according to Petitioner, her production of evidence against him regarding the theft of registered mail was strikingly similar to her assistance to the prosecution regarding a criminal charge brought against Petitioner for sexual misconduct. He contended at the hearing that in both cases he was innocent and that false evidence was produced against him by his wife out of her bitterness toward him. However, after a trial on the sexual misconduct charge, Petitioner was convicted and was at the time of the hearing serving a sentence in the Georgia prison system. Thus, the claim that Ms. Crane is framing him in this proceeding as she framed him in the criminal proceeding is not helpful to his cause as the outcome of the Georgia court criminal trial is conclusive on the issue of whether he committed the crime charged in that case.

Respondent has not eliminated all possibility that others were responsible for the theft, but I find by a preponderance of the evidence that Petitioner stole the registered pouch. Therefore, Respondent is entitled to recover the stipulated loss of $17,494.02 from funds, including retirement funds, otherwise owed Petitioner.

The Petition is denied.

Norman D. Menegat
Administrative Judge

1. The record does not reflect the size or form of the registered container. Registered mail could be dispatched, depending on the size of the mailing, in anything from pouches or sacks to 40 or 80 pound hampers (Tr. 81-84, 121). However, judging from the list of the contents of the mailing and from the fact that the registered parcel was placed inside a BMC container (Finding 3), I find that it was something smaller than a hamper, probably a sack or pouch.

2. A BMC container is a large, metal, upright, wheeled container used for transporting mail (RX 3, p.5).