In the Matter of the Withholding
of Mail Addressed to

MARC TROPIA
P.O. Box 462264

         at

Escondido, CA 92046-2264

P.S. Docket No. WM 01-86

APPEARANCE FOR PETITIONER:
Marc Tropia
1495 Via Salerno
Escondido, CA 92026-2252

APPEARANCE FOR RESPONDENT:
Catherine A. Green, Esq.
Civil Practice Section
United States Postal Service
475 L’Enfant Plaza, SW, Room 6403
Washington, DC 20260-1127

INITIAL DECISION

On February 26, 2001, the Postal Inspector in Charge for the Southern California Division directed the Escondido, California Postmaster to withhold delivery of mail addressed to "Marc Tropia," and/or "Homestyle Corp.," at P.O. Box 462264, Escondido, CA 92046-2264. A Notice of Withholding Mail was sent to Mr. Tropia on that same date. This Notice advised Mr. Tropia that he had fourteen days to contact the postal inspector assigned to the case and provide satisfactory proof of his identity and his right to receive the withheld mail, or to file a petition with the Judicial Officer Department. Petitioner submitted a letter to this office on March 12, 2001, which has been treated as a Petition.

At Petitioner's request, it was ordered on April 9, 2001 that this case would be decided on written submissions. Respondent, the United States Postal Service, filed an Answer on April 9, 2001, arguing that the Petition should be denied because Petitioner is in violation of 39 U.S.C. §§3003 and 3004 by using a fictitious name and a false address as part of a scheme to obtain money through the mail by fraudulent means. In support of this argument Respondent filed a sworn declaration from Postal Inspector Cory F. Dudley. By Order dated April 12, 2001, the parties were given until May 3, 2001 to file additional evidence and argument and until May 24, 2001 to file rebuttal evidence and argument. Petitioner filed a statement in reply to the Answer on May 3, 2001. Neither party filed anything further. The following findings of fact are based on all the material submitted by the parties.

FINDINGS OF FACT

1. Petitioner originally rented P.O. Box 462264 at the Escondido Post Office sometime prior to 1999. On October 5, 1999, Postal Inspector Neve issued a mail withholding order for mail addressed to Marc Tropia, Tara Tropia, and J. Golsteen at Box 462264, based on a fraud complaint and a determination that the residence address listed on the box application (PS Form 1093) was false. (Petition; Dudley Declaration).

2. On receipt of the withholding notice, Petitioner submitted an updated PS Form 1093 on October 5, 1999, listing 1495 Via Salerno, Escondido, CA 92026-2252 as his residence. The Form 1093 named Tara and Marc Tropia, and/or Tara Forrester, and Homestyle as applicants. (PS Form 1093, attached to both the Petition and Respondent's Answer).

3. On October 15, 1999, based on the updated Form 1093 with the new address, Inspector Neve rescinded the withholding order. (Dudley Declaration; Neve letter, attached to Petition).

4. In February 2001, Inspector Dudley received information that stolen scripts from the television show "X Files", and "prop" drivers licenses depicting the actors, were being auctioned on Ebay. He opened an investigation, which included making undercover purchases of these items, and received an Email directing that payment be mailed to Marc Tropia at P.O. Box 462264, Escondido, CA 92046-2264. One solicitation requested that payment be made to Homestyle Corp. Inspector Dudley also learned that Petitioner had opened thirteen different accounts with Stamps.com to purchase postage. (Dudley Declaration).

5. Inspector Dudley obtained a copy of the PS Form 1093 for P.O. Box 462264, dated October 5, 1999. On February 22, 2001, he talked to the supervisor in charge of mail delivery to 1495 Via Salerno, Escondido, CA 92026-2252, who told him that Marc Tropia had moved from that address approximately three and a half years ago. (Dudley Declaration).

6. Further investigation by Inspector Dudley, including discussion with Inspector Neve, revealed that Marc Tropia resided in an apartment at 819 Nordahl Road, San Marcos, CA 92069. Inspector Neve had obtained information from the apartment manager that Mr. Tropia had lived there for several years. The mail carrier for that address reported that Petitioner had been receiving mail at that address for five or six years and that he "gets mail from motion picture types of business." (Dudley Declaration).

7. The Notice that was sent to Petitioner on February 26, 2001, advised that mail was being withheld because postal authorities believed that Petitioner was using false or fictitious names or addresses in connection with activities that violated mail fraud statutes, 18 U.S.C. §§1341 and 1342, or that mail was being sent to an address that was not the residence or business address of the person(s) for whom the mail was intended, to enable that person(s) to escape identification.

8. 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.

9. 39 U.S.C. §3004 provides:

Whenever the Postal Service determines that letters or parcels sent in the mail are addressed to places not the residence or regular business address of the person for whom they are intended, to enable the person to escape identification, the Postal Service may deliver the mail only upon identification of the person so addressed.

10. 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 address . . . or receives from any post office or authorized depository of mail matter, any letter, . . ., or other mail matter addressed to any such fictitious, . . ., name, or address . . ., shall be fined . . . or imprisoned for not more than five years, . . . .

DECISION

Petitioner's reply to the Answer contains a general denial of any fraudulent activity, and a statement that the Via Salerno address is "true." He does not say that he resides there, and he presents no evidence or statements to dispute the specific material facts contained in Inspector Dudley's Declaration. Therefore, Respondent's evidence is sufficient to establish a prima facie case that Petitioner is selling stolen property, i.e., the TV scripts, via the internet and is using the mail to receive payment, and that he is using a false address in connection with that activity. Some of the other allegations in Inspector Dudley's Declaration, e.g., that Petitioner also sells "prop" drivers licenses, that he has several Stamps.com accounts, or that he receives mail related to the motion picture business, are insufficient to establish a violation of the pertinent statutes. The issue here is whether selling stolen property through the mail violates 18 U.S.C. §1341 by constituting a "scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses." I conclude that it does.

Once the Postal Service has established that the withheld mail 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 the mail is on the Petitioner. In this case, Petitioner's identity is not in issue, but Petitioner has not presented anything to cast doubt on the factual assertions made by Respondent that Petitioner is selling stolen property and that he used a false address on his application for post office box service. Therefore, Petitioner has not demonstrated his right to receive the withheld mail. Accordingly, the determination to withhold mail addressed to Marc Tropia and/or Homestyle Corp. at P.O. Box 462264, Escondido, CA 92046-2264, is upheld. The attached Order directing disposition of the mail under 39 U.S.C. §3003(b) should be issued.

Bruce R. Houston
Chief Administrative Law Judge

PROPOSED ORDER - NOT ENFORCEABLE UNTIL DATED AND
SIGNED BY THE JUDICIAL OFFICER

WITHHOLDING OF MAIL ORDER NO.

TO THE POSTMASTER AT: ESCONDIDO, CA 92025-9998

Satisfactory evidence has been presented to the Postal Service in Postal Service Docket No. WM 01-86 that mail addressed to "Marc Tropia" and/or "Homestyle Corp.," at the following address:

P.O. Box 462264
Escondido, CA 92046-2264

is covered by 39 U.S.C. §3003(a) and is being properly detained. Although afforded an opportunity to do so, the party claiming the mail has failed to furnish proof of the claimant's right to receive the mail addressed to the above address.

Now, therefore, pursuant to authority vested in the United States Postal Service, and by it designated to me, I hereby order that all mail addressed to the above names at the above address be returned to sender marked "RETURNED TO SENDER DUE TO ADDRESSEE'S VIOLATION OF POSTAL FICTITIOUS NAME OR ADDRESS LAW." If the outside of the mail fails to contain information necessary to permit return of the mail to sender, the mail shall be disposed of under the postal regulations applicable to undeliverable mail.

Judicial Officer

PROPOSED ORDER - NOT ENFORCEABLE UNTIL DATED AND
SIGNED BY THE JUDICIAL OFFICER