Saturday, June 18, 2011

Legal Office Memorandum

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OFFICE MEMORANDUM


I. Facts


Victor Holt, son of Mary Ann Holt, is currently residing at 100 S. Second Street, Columbus, BK 4. On August 7, 00 Mr. Holt was arrested and indicted for stealing mail delivered to his apartment building. The piece of mail in question was addressed to a Todd Thielen, 100 S. Second Street, Apartment #, Columbus, BK 4. Mr. Thielen had resided at this address previous to Mr. Holt. The piece of mail had been sent by Discover card and contained a renewal Discover credit card with Todd Thielen’s name on it. Mr. Thielen had not submitted a change of address with the Post Office. Upon arrest the Columbus Police Department took into evidence the Discover card in question. The card was found on the dining room table of Mr. Holt’s residence.


II. Is the letter and credit card from Discover misaddressed or misdelivered mail as it applies to 18 U.S.C § 1708?


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A. “Mail”


In Palmer, Defendant Mildred Palmer had moved into a new home and after approximately a month of occupancy received three envelopes addressed to the previous tenant. Instead of returning the envelopes to the Postal Service, Ms. Palmer opened them finding three state checks. Ms. Palmer kept the check and in cahoots with a Mr. Morrison negotiated the checks with a fake endorsement. According to Palmer an item is “mail” within the custody of the postal system until it is delivered to the proper addressee. Therefore, Ms. Palmer was guilty of possession of checks stolen from the mail under 18 U.S.C. § 1708. U.S. v. Palmer 864 F.d 54.


Mr. Holt’s situation is very similar. Mr. Thielen moved from his apartment and Mr. Holt was the next tenant to occupy the apartment. A very short time after moving into the apartment Mr. Holt received a letter addressed to Mr. Thielen with an out-dated address. Mr. Holt opened the piece of mail and kept the contents even though it would be apparent, if not by the address on front, the contents of the envelope, that the mail was not intended for him. Since the mail had not been delivered to the proper addressee the credit card letter was still “mail” within the custody of the postal system.


In Lavin, the court found that the “passage of mail” means the transmission of mail matter from the time the same is deposited in a place designated by law or by the rules of the post office department up to the time the same is delivered to the person to whom it is addressed. The court went on to say that under 18 U.S.C. § 1708, postal matter remains in the custody of the postal system and is ‘mail’, until the material is returned to the sender or delivered to the address specified by the sender. Based on these findings the court found that misdelivered mail was still mail since it’s delivery had not been successfully completed and seems to indicate that if the mail were misaddressed it too would fall under the realm of 18 U.S.C. § 1708 due to a lack of completion of the intended delivery. U.S. v. Lavin, 567 F.d 57.


Mr. Holt was not the proper addressee of the mail nor did he return thus leading to the conclusion that the mailing from Discover card was still material in the custody of the postal system. That the credit card letter was still ‘mail’ for purposes of § 1708.


B. Misaddressed


In Coleman, the court held that the language of § 1708 provides no basis for distinguishing between misdelivered and misaddressed mail. Misdelivered mail covers mail the Postal Service has accidentally delivered to an address other than the one on the envelope. Misaddressed mail is mail that is delivered to the address on the envelope but to a person other than the specified recipient. Both misdelivered and misaddressed mail kept by the person who receives it by mistake is subject to § 1708 sanctions. U.S. v. Coleman 16 F.d 8.


The credit card statement in the Coleman case was addressed to Ms. Bosch at her prior address, an apartment then occupied by Coleman and was found to be in the category of misaddressed mail. In our case, Mr. Holt currently occupies the apartment previously occupied by Mr. Thielen and has received a mailing from a credit card company intended for Mr. Thielen but delivered to Mr. Holt. The address on the letter is Mr. Holt’s current address. According to Coleman this mail is misaddressed mail and falls under the scope of § 1708. U.S. v. Coleman 16 F.d 8.


III. Did Mr. Holt have the requisite criminal intent necessary to be in violation of 18 U.S.C. § 1708?


Coleman sets up an almost identical fact pattern as Mr. Holt’s situation. Mr. Coleman received a credit card statement and Mr. Holt received a renewal credit card, both addressed to former tenants and both having out-dated addresses. Mr. Coleman kept the credit card statement in his possession for approximately three months and shipped it with his belongings when he moved to yet another home. Mr. Holt had the Discover card with Mr. Thielen’s name on it for approximately two months before it was confiscated by the police. Neither men attempted to return the misaddressed mail to the sender or have it delivered to the appropriate addressee. In Coleman the court stated that someone who receives misaddressed mail and keeps it or disposes of it but does not do so with a bad purpose would lack the criminal intent necessary to be in violation of 18 U.S.C. § 1708. U.S. v. Coleman 16 F.d 8.


The Coleman case does not outline what Mr. Coleman did with the credit card statement that made the court find there was the requisite intent or “bad purpose.” In Mr. Holt’s situation we will need to talk with Mr. Holt to find out what he did with the credit card (i.e. purchase something, throw it in a pile to discard of once he realized it wasn’t his?). In Coleman, length of possession was implied to have played a part in the decision that Mr. Coleman knew he was in possession of property that didn’t belong to him. Our client has had the credit card in his possession for approximately two months which would seem a considerable amount of time to have realized that the credit card did not belong to him. U.S. v. Coleman 16 F.d 8.


IV. Conclusion


The Sixth Circuit will find the Discover card mailing to be covered by 18 U.S.C. § 1708. The prosecution will have to prove criminal intent to commit theft by Mr. Holt to obtain a conviction on count II dealing with the credit card. If Mr. Holt did not purchase anything on the credit card we will have an argument that the requisite intent was not there, however, the fact that the tennis shoes were also in his possession will not help our argument even if no purchases were made on the credit card. There is a strong showing of a pattern in his obtaining misdirected mail that can lead to a finding of criminal intent. It is very likely that the prosecution will be able to get a conviction based on the information we currently have.





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