In the Matter of the Withholding                              )
of Mail Addressed to                                              )
                                                                               )
MARIO BUCHDID                                                    )
P. O. Box 1971                                                       )
                                                                               )
             at                                                               )
                                                                               )
Cathedral City, CA 92235-1971                             )  P.S. Docket No. WM 96-404

APPEARANCE FOR PETITIONER:                            Mario Buchdid
                                                                                P.O. Box 1971
                                                                                Cathedral City, CA 92235-1971

APPEARANCE FOR RESPONDENT:                        Wendy A. Hocking, Esq.
                                                                                Civil Practice Section
                                                                                United States Postal Service
                                                                                475 L'Enfant Plaza, SW
                                                                                Washington, DC 20260-1127

DECISION ON MOTION FOR SUMMARY JUDGMENT

On November 7, 1996, the Postal Inspector in Charge for the Los Angeles, California Division sent a Notice of Withholding Mail to Petitioner at the above address, advising Petitioner that mail addressed to any and all names at that address would be withheld from delivery, pursuant to 39 U.S.C. §3003 and/or §3004. Mr. Buchdid submitted a letter on November 25, 1996, with a copy of the Notice attached. That letter, which seems to be a denial of any wrongdoing, has been treated as a petition.

Respondent, the United States Postal Service, filed its Answer on December 6, 1996. The Answer alleges that mail addressed to people other than Petitioner or his daughter is being diverted to P.O. Box 1971 through the use of false change-of-address orders. The Answer further states that the Postal Service is not questioning the identity of Petitioner or his daughter, but is challenging their right to receive mail addressed to other people at P.O. Box 1971. The Answer, which included a sworn Declaration from Postal Inspector Steven Ice, also stated that Petitioner claimed to have been out of the country for some time, and that he wished to meet with Inspector Ice to discuss this matter. The Answer then asked for a postponement of the scheduled hearing until after that meeting. The Answer also stated that neither Respondent's attorney nor Inspector Ice had any way to reach Petitioner and would have to wait to hear from him. Accordingly, the scheduled hearing was canceled, and Respondent was directed to submit periodic status reports.

On February 21, 1997, Respondent reported that Inspector Ice had not heard from Petitioner, but that Petitioner had recently been arrested in Palm Springs, California, and that Inspector Ice would attempt to meet with him. On May 13, 1997, Respondent reported that Petitioner refused to participate in any discussion with Inspector Ice. With that status report, Respondent filed a Motion for Summary Judgment, arguing that Petitioner has never presented anything to show that he is entitled to the mail being withheld, and that there are no issues of material fact raised by the Petition or the Answer. Petitioner has not replied to the motion.

FINDINGS OF FACT

1. The Notice that was sent to Mr. Buchdid on November 7, 1996 advised that mail was being withheld because postal authorities believed false or fictitious names or addresses were being used in connection with activities that violated mail fraud statutes, 18 U.S.C. §§1341 and 1342.

2. 39 U.S.C. §3003 provides, in pertinent part:

(a) Upon evidence satisfactory to the Postal Service that any person is using a fictitious, false, or assumed name, title, or address in conducting, promoting, or carrying on or assisting therein, by means of the postal services of the United States, an activity in violation of sections 1302, 1341, and 1342 of title 18, it may --

(1) withhold mail so addressed from delivery; and

(2) require the party claiming the mail to furnish proof to it of the claimant's identity and right to receive the mail.

3. The pertinent sections of Title 18, United States Code, provide as follows:

§1341. Frauds and swindles

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, . . ., for the purpose of executing such scheme . . ., places in any post office or authorized depository for mail matter, any matter . . . to be sent or delivered by the Postal Service, . . ., shall be fined . . . or imprisoned for not more than four years, . . .

§1342. Fictitious name or address

Whoever, for the purpose of conducting, promoting, or carrying on by means of the Postal Service, any scheme or device mentioned in section 1341, . . ., uses or assumes, . . ., any fictitious, . . ., name, . . . or receives from any post office or authorized depository of mail matter, any letter, . . ., or other mail matter addressed to any such fictitious, . . ., name, . . ., shall be fined . . . or imprisoned for not more than five years, . . . .

4. The Postal Service action in this case is based on information obtained by Postal Inspector Ice in October and November 1996. On October 22, 1996, Dr. Max Schneck, of Palm Springs, California told Inspector Ice that someone had submitted a false change-of-address order, directing that his mail be forwarded to P.O. Box 684, Palm Desert, California. Records at the Portola Postal Station in Palm Desert show that Box 684 had been opened on October 15, 1996 by Mario Buchdid. The application listed Max Schneck as also authorized to receive mail at that box. On October 28, 1996, Dr. Schneck told Inspector Ice that, although he had never applied for a Shell MasterCard, he received a letter from Shell asking for information. This letter listed his address as P.O. Box 1971, Cathedral City, California. Records at the Cathedral City Post Office show that P.O. Box 1971 was opened by Mario Buchdid on January 16, 1996. On November 18, 1996, the postmaster at the Cathedral City Post Office informed Inspector Ice that Mr. Buchdid had submitted update sheets for Box 1971 at least four times in 1996, adding at least one new name to the list of authorized mail recipients each time.

5. On April 16, 1997, Petitioner pleaded guilty in Superior Court, Desert Judicial District, to burglary and acquiring access to credit card account information without the consent of the cardholder. Certain other charges were dismissed. Petitioner was sentenced to two years in California State Prison.

6. Petitioner has submitted nothing in this case since his original letter. That letter offered nothing to establish his right to receive mail addressed to Dr. Schneck, or any person other than himself.

CONCLUSIONS OF LAW

1. A grant of summary judgment is proper when there are no issues of material fact in dispute and when, as a matter of law, the moving party is entitled to judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party has the burden of establishing the absence of a genuine issue of fact and, if that burden is met, the opposing party must counter with something more than "mere denials or conclusory statements." Mingus Contractors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987); see also Adickes v. S.H. Kress Co., 398 U.S. 144, 157-59; Fed. R. Civ. P. 56(e).

2. By the sworn Declaration of Inspector Ice, Respondent has carried its burden to establish the absence of any genuine issue of fact concerning the allegation that Petitioner is using false names and/or addresses in carrying out a scheme that violates 18 U.S.C. §§1341 and 1342. Petitioner has submitted no contradictory evidence. Once the Postal Service has established that the mail it intends to withhold is covered by 39 U.S.C. §3003, the burden of going forward with evidence to show a claimant's identity and right to receive that mail is on the Petitioner. Petitioner in this case has presented no such evidence, either in response to the November 7, 1996 Notice of Withholding Mail, or since he submitted his petition. In addition, he declined to meet with Inspector Ice to discuss the matter.

3. The November 7, 1996 Notice stated that all mail addressed to P.O. Box 1971 was to be withheld, but Respondent's Answer makes clear the Postal Service seeks an order directing only that mail addressed to persons other than Mr. Buchdid and his daughter, Shannon Buchdid, be returned to sender. Accordingly, the determination to withhold mail addressed to any and all names, other than Mario Buchdid and Shannon Buchdid, at P.O. Box 1971, Cathedral City, California is upheld. Summary Judgment in favor of Respondent is granted and the attached Order directing disposition of mail under 39 U.S.C. §3003(b) should be issued.

Bruce R. Houston
Chief Administrative Law Judge