In the Matter of the Petition by: 



 GENESIS RODRIGUEZ CUSTODIO,

 3982 Coldwell Lane

 at

 San Diego, CA  92154-2511



 P.S. Docket No. AO-4



 03/07/90



 Grant, Quentin E., Chief Administrative Law Judge



 APPEARANCE FOR UNITED STATES POSTAL SERVICE:  Zane M. Hill, 

 Inspector-Attorney, United States Postal Service, Washington, DC 

 20260-2100 



 APPEARANCE FOR PETITIONER:  Genesis Rodriguez Custodio, Pro 

 Se, 3982 Coldwell Lane, San Diego, CA  92154-2511 

On February 1, 1989, the Office of the Inspector in Charge, United States Postal Service, San Diego, CA issued to Genesis Custodio a demand for payment of $1800.00 representing losses sustained by the Postal Service as a result of theft of mail by him while employed by the Postal Service. The demand letter advised Mr. Custodio that he should pay by check or draft and that unless his remittance was received within 30 days the Postal Service would request the Office of Personnel Management to set off the amount of the indebtedness against Mr. Custodio's contributions to the retirement fund or annuity. Mr. Custodio's request for reconsideration of the demand was denied by the Office of the Regional Chief Inspector on March 8, 1989, but the amount of the demand was corrected and reduced to $1300.00. By letter dated March 23, 1989, to the Regional Chief Inspector, Mr. Custodio requested a de novo evidentiary hearing on the Postal Service's demand. This request was docketed by the Recorder on October 6, 1989, as a petition for hearing under 39 CFR Part 966 (Rules of Practice in Proceedings Relative to Administrative Offsets) initiating this proceeding.

As the designated hearing official for this case, I examined the record submitted by the Postal Inspection Service and Mr. Custodio's petition, with its supporting documents. On October 19, 1989, I ordered the Postal Service to supplement the record with certain documents and information which have been supplied. In the same order, I directed Mr. Custodio to comply with § 966.4(6)and (7) of the Rules in furnishing by November 9, 1989, (a) a statement of all grounds upon which he objects to the Postal Service's determination of, and proposal to collect, the $1300.00 debt involved and (b) a statement describing the evidence Mr. Custodio would produce at an oral hearing. Mr. Custodio did not comply with the October 19 order. By order dated December 12, 1989, I extended his time for compliance to January 2, 1990, and also ordered him to file by that date any supplemental information he wishes to be considered. The order contained a paragraph advising the parties that on the basis of the record as it then stood, it did not appear that an oral hearing would be necessary but that a determination relative to such a hearing would be made following Mr. Custodio's compliance with my October 19 and December 12 orders. To date Mr. Custodio has not complied with either order.

Mr. Custodio's petition does not deny the loss to the Postal Service in the amount of $1300.00 on which this proceeding is based or that such loss was caused by him. His only defense to the proceeding is that the $1300.00 is included as restitution in the $2000.00 fine imposed on him by the U.S. District Court (SD CA) in the related criminal action which he is to pay at the rate of $50.00 a month on his release from prison. The Postal Service asserts that the fine does not include restitution. The fine/ restitution issue is the only issue contested in this proceeding. The written record is adequate for reaching a decision thereon. No oral hearing is required. The request for an oral hearing is denied.

1. On September 17, 1987, Petitioner Genesis Rodriguez Custodio, a Postal Service letter carrier at the Old Town Station, San Diego, CA, sold nine credit cards, contained in first-class mail stolen by him (in violation of 18 U.S.C. § 1708 and 1709) to an undercover Postal Inspector for $1300.00. This amount was paid from funds used by the Postal Inspection Service for investigative purposes.

2. Petitioner, on a plea of guilty entered on September 6, 1988, in the U.S. District Court for the Southern District of California, was convicted of theft of mail by a postal employee in violation of 18 U.S.C. § 1709 and a related charge. The stolen mail was that from which Mr. Custodio removed the nine credit cards mentioned above.

3. Part of the punishment imposed by the Court in its judgment, in addition to a 24-month sentence, was a fine in the amount of $2000.00.

4. The judgment of conviction made no provision for restitution of the $1300.00 to the Postal Service as part of the $2000.00 fine or otherwise.

5. Petitioner has not repaid to the Postal Service any part of the $1300.00 received by him in the sale of the stolen credit cards.

6. The Postal Inspection Service has correctly determined the existence and amount of the debt.

1. Petitioner Genesis Rodriguez Custodio owes the Postal Service the sum of $1300.00, representing Postal Service funds received by him for credit cards stolen from the mail as described in findings of fact numbered 1, above. No part of this indebtedness is covered by the $2000.00 fine imposed on Mr. Custodio in the related criminal action.

2. The Postal Inspection Service has properly determined the existence and amount of the indebtedness and demanded repayment thereof.

3. Mr. Custodio has failed to repay the indebtedness or any part thereof.

4. The Postal Service may pursue the appropriate administrative offset procedures to recover the amount of the indebtedness.