In
the Matter of the Withholding of Mail Addressed to:
THE
SURNAME RICHARDS
Post
Office Box 248307
at
P.S. Docket No. WM 04-80
APPEARANCE FOR PETITIONER:
Paul R. Hairston, Jr.
APPEARANCE FOR RESPONDENT:
J. James Perkins, Esq.
Consumer Protection Law
United States Postal Service
475 L'Enfant Plaza SW, Room 6102
INITIAL DECISION
The Petitioner in this case is Paul Richard Hairston, Jr. On April 23, 2004, the Assistant Postal Inspector in Charge for the Cincinnati Field Office notified Petitioner that he had directed the Columbus, Ohio Postmaster to withhold delivery of mail addressed to “the surname Richards” at P.O. Box 248307, Columbus, OH 43224-8307. This notice was addressed to “Box Holder,” and informed him 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. Mr. Hairston submitted a letter to this office that has been treated as a Petition.
Respondent, the United States Postal Service, filed an Answer on July 2, 2004, 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 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 Almaguer and an attached search warrant affidavit previously prepared by Inspector Almaguer. By Order dated July 14, 2004, Petitioner was directed to reply to the Answer if he disputed any of the facts asserted by Respondent, and also to state whether he wished to have an oral hearing or preferred that this case be decided on the written record.
Petitioner replied, stating that the case should be resolved “with documentation with no need for a hearing.” He also asked for additional time to make a further reply to Inspector Almaguer’s statements. That request was granted and Petitioner filed two additional submissions. Respondent filed nothing further. The following findings of fact are based on all the material submitted by the parties.
FINDINGS
OF FACT
1. Petitioner operates businesses known as “Platinum Lending,” “American Home Loans,” “Pro-Team Property Management,” “Profund Property Management,” and “Dollar King Store,” and also uses the names, “Rick Hairston,” and “Mr. Richards.” (Petition; Almaguer Affidavit ¶¶14 and 22 (Attachment to Answer, Ex. 2)).
2.
Petitioner opened P.O. Box 248307 in Columbus, Ohio on August 13, 2002
for use by at least some of the business names listed above. (Almaguer Affidavit ¶¶22 and 28).
3. A part of Petitioner’s business is summarized
as follows: Petitioner obtains names and addresses of owners of homes that are
in the process of mortgage foreclosure; Petitioner sends solicitations through
the mail to those homeowners, promising to save them from foreclosure; he
promises to purchase the home from the mortgage company and rent the home back
to the client, also promising that the client can re-purchase the home after
one year; he charges the client an up-front fee and also monthly rent; Petitioner
does not assume the mortgage or make any payments on the mortgage, but keeps
the fee and the rental payments for his own use. (Almaguer Affidavit ¶15).[1]
4. In furtherance of the above practice,
Petitioner uses the U.S. mail to send solicitations to prospective clients, receive
rental payments, and send other related correspondence. (Almaguer Affidavit ¶16).
5. The Notice that was sent to Petitioner on April 23, 2004, 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, and that mail was being sent to an address that was not the residence or business address of the person for whom the mail was intended, to enable that person to escape identification.
6.
During a telephone call to Inspector Almaguer after receiving the above
Notice, Petitioner told Inspector Almaguer that he used the name “Richards” to
avoid detection by an Ohio Sheriff’s Office that was investigating the
operation described in paragraph 3, above.
(Almaguer Declaration ¶¶4 and 5).
7. 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.
8. 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.
9. 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
replies to the Answer complain that Inspector Almaguer has not provided certain
information asked for by Petitioner, and also challenges the lawfulness of
search warrants executed by the Postal Inspection Service and Ohio police
agencies. He has submitted nothing to
dispute the facts asserted in Inspector Almaguer’s Declaration or the Affidavit
that is incorporated in the Declaration.
I find, therefore, that there are no material issues of fact that
require an evidentiary hearing or the submission of further documentary
evidence.
By
the sworn Declaration of Inspector Almaguer and the affidavit incorporated
therein, Respondent’s evidence is sufficient to establish that “Mr. Richards”
is a false or fictitious name and that Petitioner is using that name in
conducting a scheme that violates 18 U.S.C. §§1341 and 1342.
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 demonstrate his right to receive the withheld mail. Accordingly, the determination to withhold mail addressed to “the surname Richards” at P.O. Box 248307, Columbus, OH 43224-8307 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
[1] Inspector Almaguer’s Affidavit gives details of
specific examples of Petitioner’s operation of this scheme. (Almaguer Affidavit ¶¶17-20).