FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-50206
Plaintiff-Appellee,
v. D.C. No.
2:06-cr-00860-R
HENRY LEE MONDAY,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted
August 4, 2009—Pasadena, California
Filed August 2, 2010
Before: William C. Canby, Jr., Kim McLane Wardlaw and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Canby
11155
UNITED STATES v. MONDAY 11157
COUNSEL
Christine S. Bautista, Assistant United States Attorney, Santa
Ana, California, for the plaintiff-appellee.
Gia Kim, Deputy Federal Public Defender, Los Angeles, Cali-
fornia, for the defendant-appellant.
OPINION
CANBY, Circuit Judge:
Henry Lee Monday appeals his conviction by a jury of vio-
lating 18 U.S.C. § 1709, which, in pertinent part, provides fel-
ony penalties for a United States Postal Service employee
entrusted with mail who “steals, abstracts, or removes from
any such letter, package, bag, or mail, any article or thing
11158 UNITED STATES v. MONDAY
contained therein . . . .” Monday does not dispute the essential
facts of the case, which establish that, while delivering mail
as a Postal Service letter carrier, he opened a letter containing
a birthday card, removed $40 in cash from the card, and used
a portion of those funds to purchase snack food from a liquor
store. Monday’s sole contention is that the district court erred
in refusing to instruct the jury that, to convict, the government
was required to prove that Monday had the specific intent per-
manently to deprive the owner of the money that he removed.
We conclude that the statute, in prohibiting Postal Employees
from removing contents from mailed items, contains no such
specific intent requirement. We therefore affirm Monday’s
conviction.
BACKGROUND
A factual twist in this case is that the incriminating letter
was a “test letter” placed in the mail by postal inspectors who
were conducting an investigation of Monday for mail theft. At
trial, Monday attempted to turn this fact to his advantage by
testifying that he “knew the letter was a ‘plant’ ” but opened
it “because [he] had a lot of things on [his] mind that [he] had
wanted to discuss with the postal inspectors, and [he] figured
at that time that they would come and arrest [him] or do what
they had to do so [he] could talk to them.” He stated that he
did not intend to steal the money. Had the district court
instructed the jury that conviction required proof beyond a
reasonable doubt that Monday “intended to permanently
deprive” the Government of its money, as Monday proposed,
this rather novel defense might at least have made theoretical
sense. Under the instruction actually given by the court, how-
ever, the only mental element that the Government had to
prove was that Monday took the money “knowing that it
belonged to someone else,” a fact to which Monday had
already attested.
DISCUSSION
We have jurisdiction over the appeal pursuant to 28 U.S.C.
§ 1291. Because the district court’s refusal to give the
UNITED STATES v. MONDAY 11159
requested instruction raises a question of law, we view the
district court’s ruling de novo. United States v. Hairston, 64
F.3d 491, 493-94 (9th Cir. 1995).
[1] In determining whether 18 U.S.C. § 1709 includes as
an element of the crime a specific intent permanently to
deprive the owner of its property, we begin, as always, with
the language of the statute. See Consumer Prod. Safety
Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980).
“Absent a clearly expressed legislative intention to the con-
trary, that language must ordinarily be regarded as conclu-
sive.” Id. Section 1709 provides in relevant part:
Whoever, being a Postal Service officer or
employee, . . . steals, abstracts, or removes from any
. . . letter, package, bag, or mail, any article or thing
contained therein, [entrusted to him or which comes
into his possession intended to be conveyed by
mail,] shall be fined under this title or imprisoned
not more than five years, or both.
We note first that there is no explicit requirement of specific
intent. Although that omission is not necessarily determina-
tive when terms are used that traditionally are associated with
specific intent, see United States v. Lilly, 512 F.2d 1259, 1261
(9th Cir. 1975) (holding that robbery as predicate for felony
murder includes element of specific intent), we are not con-
vinced that any such associated term controls here. Where, as
here, a statute leaves its words undefined, “words will be
interpreted as taking their ordinary, contemporary, common
meaning.” Perrin v. United States, 444 U.S. 37, 42 (1979).
We, therefore, look to the ordinary meanings of the key words
of the statute that were applied to this case, namely, “steals,
abstracts, or removes.” 18 U.S.C. § 1709.
[2] Monday and the Government tussle over the meanings
of the words “steal” and “abstract,” which, depending on the
dictionary one consults, may or may not incorporate some ele-
11160 UNITED STATES v. MONDAY
ment of intent. Compare Black’s Law Dictionary 1453 (8th
ed. 2004) (“steal” includes element of specific intent) with
Webster’s Third New International Dictionary 2232 (3d ed.
1976) (“steal” means “to take the property of another”). We
need not resolve this question, however, because the terms
“steals, abstracts, or removes” are phrased in the disjunctive;
“the statute creates a single statutory offense that can be com-
mitted by alternative means.” United States v. Gonzales, 456
F.3d 1178, 1181 (10th Cir. 2006). It is sufficient for convic-
tion if Monday “removed” money from the envelope in the
mail. “ ‘Remove’ . . . has no accepted common law meaning.
We therefore construe the term in accord with its ordinary
meaning.” Id. at 1182 n.4. The common meaning of the word
“removes,” no matter what dictionary one consults, uniformly
lacks any connotation of intent. See, e.g., 13 Oxford English
Dictionary 602 (2d ed. 1989) (“To take or convey away from
a place”); Webster’s Third New International Dictionary 1921
(3d ed. 1976) (“[T]o move by lifting, pushing aside, or taking
away or off”). Monday comes close to admitting as much in
his brief, observing that “the ordinary meaning of ‘remove’
may not . . . connote criminal intent,” and he otherwise fails
to define the word. We conclude, therefore, that Monday was
properly convicted of removing money from a mailed letter
without any need for the jury to find that he specifically
intended permanently to deprive the Government of its
money.
Monday mounts a raft of arguments for reading a specific
intent requirement into the word “remove” in particular and
§ 1709 in general. They include: the doctrine of noscitur a
sociis; a “sparse and unilluminating” legislative history; a
need to maintain consistency with the title of the statute,
which includes the phrase “Theft of Mail”; an Eighth Circuit
opinion interpreting a predecessor statute as of 1915; and the
rule of lenity. Some or possibly all of these arguments might
be availing, or at least relevant, if the language of the statute
were ambiguous. But it is not. One way of violating § 1709
is to “remove” an article from a mailed letter, which Monday
UNITED STATES v. MONDAY 11161
assuredly did. We decline to read a specific intent requirement
into that unambiguous term.
[3] We are also convinced that reading a specific intent
requirement into § 1709’s prohibition on removing contents
from mailed articles would be at odds with the statutory
scheme of Chapter 83 of Title 18 of the United States Code
relating to the mail. For example, § 1703 makes it a crime for
a postal employee to secrete, destroy, detain, delay, or open
any letter or parcel in the mail, and imposes for those mis-
deeds the same penalty as § 1709. It does not seem reasonable
to assume that Congress intended to make it a crime for a
postal employee to open a piece of mail with no specific
intent, but to require specific intent to constitute a crime when
such an employee removes the contents from a piece of mail.
Thus the statutory scheme supports our adoption of the plain
meaning of “removes,” to include no element of specific
intent.
We are buttressed in our conclusion by decisions of two
other circuits. Most on point is the decision of the Tenth Cir-
cuit in Gonzales, a case on all fours with ours. There the
Tenth Circuit came to the same conclusion we reach today:
that “to sustain a conviction under § 1709 for removing the
contents of mail, the government is not required to prove a
defendant possessed the specific intent to convert the contents
to her own use.” Gonzales, 456 F.3d at 1183. It was accord-
ingly not error in that case to deny a specific intent instruc-
tion. Id. The Fourth Circuit also affirmed by a brief per
curiam opinion a decision of a district court holding that an
indictment charging a violation of the “steals, abstracts, or
removes” clause of § 1709 need not allege an element of spe-
cific intent. United States v. Greene, 468 F.2d 920 (4th Cir.
1972) (per curiam) (affirming United States v. Greene, 349 F.
Supp. 1112 (D. Md. 1971)). The circuits are accordingly
unanimous in the position we adopt today.1
1
Two district courts have come to a contrary conclusion. See United
States v. Rush, 551 F. Supp. 148, 151 (S.D. Iowa 1982); United States v.
Jordan, 284 F. Supp. 758, 760 (D. Mass. 1968).
11162 UNITED STATES v. MONDAY
CONCLUSION
[4] Monday was properly convicted of removing money
from a mailed letter in violation of 18 U.S.C. § 1709. That
offense does not include an element of specific intent perma-
nently to deprive the owner of the money of its property. The
district court accordingly did not err in refusing to instruct the
jury on that element. The judgment of the district court is
AFFIRMED.