## Facts

- Calvin A. Selwyn was a U.S. Postal Service employee at the downtown Minneapolis post office, working as a maintenance control clerk.
- His job involved maintenance-department paperwork; he had no authority or responsibility to handle, process, or deliver mail.
- During a night shift in January 1992, Selwyn went to a loading dock area near his office and removed a package from the mail without authorization.
- The package contained a cocktail dress that a customer was returning to a downtown Minneapolis store.
- A few days later, Selwyn brought the dress to the store and attempted to return it for a cash refund, stating his wife received it as a gift and did not want it.
- Because he lacked a receipt, store employees did not provide an immediate refund, became suspicious, investigated, and the matter led to Selwyn’s arrest.
- The government indicted Selwyn under 18 U.S.C. § 1709 on an embezzlement theory, and a jury convicted him. Selwyn appealed after the district court denied his motion for judgment of acquittal.

## Issues

1. Whether the evidence was sufficient to convict Selwyn of embezzlement under the first clause of 18 U.S.C. § 1709 when the government proved only an unauthorized taking from the mail and did not prove that Selwyn first obtained lawful possession of the package.
2. Whether a conviction may stand when the indictment charged only embezzlement under § 1709 but the trial proof showed, at most, stealing, creating a variance from the indictment.

## Decision

- The Eighth Circuit reversed Selwyn’s conviction.
- The court held that embezzlement under § 1709 requires proof that the defendant lawfully possessed the mail item before converting it.
- Because the government proved only that Selwyn removed the package from the mails without authority—and the indictment charged only embezzlement—the proof did not match the charged offense and could not sustain the conviction.

## Legal Principles

- 18 U.S.C. § 1709 sets out distinct postal-theft offenses, including (1) embezzlement of mail by a postal employee and (2) stealing mail or its contents; the charged statutory alternative controls the required elements at trial.
- Embezzlement requires prior lawful possession followed by wrongful conversion; stealing does not require lawful possession.
- Mere access to mail, or proximity to mail-handling areas, is not the same as lawful possession or authority over the mail.
- When an indictment charges one statutory alternative but the government proves another, the mismatch can violate the indictment’s notice and charge-limiting functions (as reflected in variance doctrine, including Stirone v. United States).
- If the government elects to charge embezzlement, it must prove each element of embezzlement; it cannot rely on proof that fits only the stealing alternative.

## Conclusion

Selwyn’s conviction was reversed because the government indicted him only for embezzlement under 18 U.S.C. § 1709 but failed to prove that he ever lawfully possessed the package; the evidence showed an unauthorized taking from the mail, which fits stealing rather than embezzlement, and that variance from the indictment could not sustain the verdict.


United States v. Selwyn, 998 F.2d 556 (1993)