In the Matter of the Petition by: 

 INTERGALACTIC TELEPHONICS,
 P.O. Box 100
 at
 Wilmerding, PA  15148-0100

 P.S. Docket No. WM-96

 03/20/90

 Mason, Randolph D., Administrative Law Judge

 APPEARANCE FOR PETITIONER:  Keith Maydak, pro se, P.O.  
 Box B, Wilmerding, PA 15148-9991  

 APPEARANCE FOR RESPONDENT:  Wendy A. Hocking, Esq., Consumer  
 Protection Division, Law Department, United States Postal Service,  
 Washington, DC 20260-1144  

This proceeding arises out of a Petition filed on November 2, 1989, by Keith E. Maydak ("Petitioner"), opposing 24 Notices of Withholding Mail ("Notices") issued on October 26, 1989, by the Office of the Inspector in Charge, Pittsburgh, PA. The Notices are addressed to various individual or company names (other than Keith E. Maydak) which Respondent contends are fictitious, at six Post Office Boxes opened by Petitioner. These addressees are set forth in Finding of Fact No. 3, infra. Each Notice states that mail addressed to the named addressee has been withheld from delivery pursuant to 39 U.S.C. § 3003 and 3004, and gives the addressee 14 days to (1) provide the Postal Inspector with proof of his identity and right to claim the mail in question, or (2) file a petition for administrative review under 39 CFR § 964.3 opposing the Notice.

In his Petition, Mr. Maydak asserts that each of the P.O. Boxes in question is used to receive mail intended for a different branch (e.g., accounts payable, customer service) of his "firm." By subsequent letter dated October 31, 1989, Petitioner denies using fictitious names, and asserts that he needs to receive his mail to continue in business.

In a timely filed Answer, the Postal Service ("Respondent") alleges that the mail in question is being properly detained and should be returned to sender under 39 U.S.C. § 3003 and 3004. In response thereto, Petitioner admits having no physical location for his business other than the boxes. Petitioner also contends that the Postal Service lacks jurisdiction because he did not use the mail to place orders. The latter argument is rejected since he clearly used the mail to receive merchandise.

A hearing was held by the undersigned Administrative Law Judge on December 14, 1989, in Washington, DC. Respondent was represented by counsel, but Petitioner did not appear. Respondent presented the testimony of Postal Inspector G. K. Quon and introduced documentary evidence. After the hearing both parties filed proposed findings of fact and conclusions of law which have been duly considered. Respondent also filed a Motion to Amend its proposed findings and conclusions to include proposed orders. For good cause shown, and to the extent the Application for Final Orders relates to Notices of Withholding Mail opposed in the Petition, that Motion is granted.

Respondent filed a Motion to Reopen the record for the admission into evidence of an Affidavit executed by Petitioner on January 23, 1990. Petitioner objected. By order dated February 13, 1990, the Motion to Reopen was granted and the document was received into evidence as Respondent's Exhibit 4. Although afforded an opportunity to do so, no further arguments were made by the parties.

To the extent indicated below, proposed findings and conclusions have been adopted; otherwise, they have been rejected as irrelevant or contrary to the evidence. Based on the entire record herein, including my observation of the witness and his demeanor, the exhibits, and other relevant evidence adduced at the hearing, I make the following findings of fact and conclusions of law:

1. Petitioner Keith Maydak opened six Post Office Boxes during 1988-1989 (Exh. 1(a)-(g); Tr. 8-9). These boxes are listed in FOF 3, infra.

2. Petitioner's listing of a large number of names on his box applications, together with his receipt of large quantities of merchandise (compact discs) addressed to a variety of names prompted an investigation by Postal Inspector G. K. Quon (Tr. 7, 9-10).

3. On October 26, 1989, Notices of Withholding Mail were sent by the Inspector in Charge, Pittsburgh, PA, a delegate of the Chief Postal Inspector, to the names (other than Keith E. Maydak) listed on the P.O. Box applications for the P.O. Boxes. A Notice was sent to each of the following addressees n1 at the P.O. Box indicated:

n1 This list does not include the addressees of 17 additional Notices of Withholding Mail sent to five of these P.O. Boxes for which no petition was filed. Pursuant to Respondent's application, the Judicial Officer issued a final order on February 22, 1990, with respect to mail described in the latter Notices.

Vogon Response Hdgs; Vogon, Inc.; VRH, Inc.; R. Jones; B. Milliway; R. Nacko; K. Begian.

Kirk E. Begian; Kirken Research.

Larimer Telephone; Vogon Response Holdings of America; Intergalactic Telephonics; VRH, Inc.

Kirk E. Begian; Intergalactic Holdings, Inc.; IGT, Inc.

Tangent Consumer Union of PA

George Kmetz; Ardara Investigations; IGT, Inc.; Kirk Begian; IGT of PA; George Kipple; Intergalactic Telephone.

4. Each Notice determined that mail addressed to the named addressee should be withheld from delivery under 39 U.S.C. § 3003 and § 3004, upon reason to believe that:

"

(1) you are using a fictitious, false or assumed name, title or address in violating 18 U.S.C. 1341, Mail Fraud or 1342, Use of Fictitious Name; and (2) that letters 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 that person(s) to escape identification."

Each Notice required the addressee to either (1) furnish proof within 14 days of his or her identity and right to claim the mail in question, or (2) file a petition for administrative review of the determination to withhold mail under 39 CFR Part 964. The instant Petition was filed on November 2, 1989.

5. At a meeting with the Postal Inspector on November 14, 1989, Petitioner first stated that he was entitled to the mail because the individuals named on the application forms were his "employees." Later, when asked how to locate these individuals, he changed his story and referred to them as "friends" who had given him permission to receive their mail (Tr. 24). However, he refused to provide their telephone numbers, addresses, or any other information as to how they could be located (Tr. 12). Also, he failed to provide the Postal Inspector with any documentary evidence showing that he is entitled to receive the mail withheld from delivery (Tr. 13-14). Petitioner is the only person who has attempted to claim any of the mail being withheld (Tr. 14).

6. Petitioner told the Postal Inspector that each of the company names are divisions of Intergalactic Telephonics or Vogon Response Holdings, and that as chief executive officer he is entitled to the mail (Tr. 17-18). However, he presented no documentary evidence, other than that which he generated himself, showing that these are real entities (Tr. 18). He allegedly opened each of the P.O. Boxes in a different city in the name of each of his company divisions as a means of "sorting" or "organizing his company mail" (Tr. 16). However, he admitted that the companies had no physical location, no employees, no inventory, no suppliers, and no customers (Tr. 17). As set forth below, the boxes were being used simply for the receipt of merchandise - compact discs - from Columbia House or CBS Records addressed to a variety of different names (Tr. 18-19).

7. Between August and October 1989, 329 compact discs worth $4,939 were sent by Columbia House to a variety of names at Petitioner's P.O. Boxes, and only $5.58 has been paid for this merchandise (P.S. Exh. 2(a)). For example, nine or 11 compact discs were sent to each of the following names at the boxes indicated (asterisk indicates order was received but not filled):

P.O. Box 12: Sean Q. Keenan; Albert Kivak; John Mellinger; Larry Campoon; Ralph Lamboo; Krissy Starke; Kenny J. Milke; Jim B. Mellinger; Wendy K. Zimmer; Samantha Knox; Jason Kislak; Herbert Logrin; Joan L. Melinger; Mary S. Thomas*; Jason R. Kovask*; Anita Monk*.

P.O. Box 88: Keith Modak; Keith Masdak*

P.O. Box 44: Kirk Mayda [sic]

P.O. Box 241: Keil Malydak; Keith Mayok; Kel Maydak*

8. After the hearing, Petitioner executed an Affidavit admitting that he used false names, such as "Kirk Begian", to obtain merchandise through the mails. However, even if the affidavit were not in evidence, it is clear from other evidence of record that the Petitioner was using false names for this purpose. This is exemplified by his choice of many clearly fictitious names similar to his own when placing orders, and the failure to pay for the merchandise. Also, he opened his boxes at the same time that his friend Sean Kovak opened boxes, and the latter has admitted conducting the same scheme using fictitious names (Tr. 34). Mr. Kovak stated that the companies did not exist and that the boxes were opened solely to order merchandise (Tr. 35). Petitioner admitted that he and Mr. Kovak were associates of Vogon Response Holdings and all its divisions, and that they were the only two people involved (Tr. 35).

9. It is concluded that Petitioner was conducting a "failure- to-pay" scheme to defraud companies by ordering merchandise using fictitious or false names and making false promises to pay for the merchandise (Tr. 19-20). Accordingly, the mail in question was covered by 39 U.S.C. § 3003(a) since Petitioner was using fictitious names to obtain merchandise through the mail in violation of 18 U.S.C. § 1341 (mail fraud) and § 1342 (fictitious names) (Tr. 14, 21-22).

1. Petitioner claims entitlement to receive the mail described in the Notices of Withholding Mail attached to the Petition. The General Counsel contends that the mail was properly withheld from delivery under 39 U.S.C. § 3003 and 3004 and that it should be returned to sender under § 3003(b).

2. Section 3003 provides as follows:

(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.

(b) The Postal Service may issue an order directing that mail, covered by subsection (a) of this section, be forwarded to a dead letter office as fictitious matter, or be returned to sender when --

(1) the party claiming the mail fails to furnish proof of his identity and right to receive the mail; or

(2) the Postal Service determines that the mail is addressed to a fictitious, false, or assumed name, title, or address.

3. The first issue is whether the mail that has been withheld from delivery is covered by subsection (a) of § 3003. In this regard, the General Counsel has presented satisfactory evidence that Petitioner was conducting a "failure-to-pay" scheme to defraud companies by ordering merchandise using fictitious or false names and making false promises to pay (Tr. 19-20). The latter activity violates 18 U.S.C. § 1341, which prohibits use of the mail for false representation schemes, and § 1342, which prohibits the use of fictitious names in conducting such schemes. Accordingly, the delegate of the Chief Postal Inspector properly concluded that Petitioner violated subsection (a) of § 3003 by using fictitious names to obtain merchandise through the mail in violation of 18 U.S.C. § 1341-1342 (Tr. 14, 21-22).

4. In view of the fact that the mail being withheld is covered by subsection (a) of § 3003, the Postal Service was authorized by § 3003(a)(1) to withhold the mail addressed to fictitious names from delivery. In view of this conclusion, it is not necessary to decide whether 39 U.S.C. § 3004 also provides a proper basis for withholding the mail in issue.

5. In a proceeding for administrative review under § 3003 before an Administrative Law Judge, once the General Counsel establishes that the mail is covered by § 3003(a), subparagraph (a)(2) places upon the petitioner the burden of going forward with evidence of the claimant's identity and right to receive the mail. Petitioner has failed to carry this burden. Although he had previously furnished proof of his identity to the Postal Service, he has failed to furnish proof of his right to receive the mail in question. He did not appear at the hearing and has presented no evidence. Moreover, his pre-hearing statements to the Postal Inspector on this subject were evasive, inconsistent, and incredible.

6. Since Petitioner has failed to furnish proof of his right to receive the mail in issue, the attached Order should be issued under § 3003(b)(1) directing that the mail be returned to the sender. If the outside of the mail fails to contain information necessary to permit return of the mail to sender, the mail should be disposed of under the postal regulations applicable to undeliverable matter.