UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4894

MARCUS A. STEWART,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Malcolm J. Howard, District Judge.

(CR-93-27-H)

Submitted: July 31, 1997

Decided: October 21, 1997

Before MURNAGHAN and NIEMEYER, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

G. Alan DuBois, Assistant Federal Public Defender, Raleigh, North

Carolina, for Appellant. Cynthia Tompkins, OFFICE OF THE

UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Marcus A. Stewart was convicted by a jury of embezzling mail as

a postal employee in violation of 18 U.S.C. § 1709 (1994). Stewart

filed a timely appeal, and his counsel filed a formal brief pursuant to

Anders v. California, 386 U.S. 738 (1967), in which he certified that

there were no meritorious issues for appeal. Nonetheless, he presented

one issue: whether sufficient evidence supported the jury's conviction. The time for filing a supplemental brief has passed, and Stewart

has not responded. Finding that the prosecution presented sufficient

evidence to convict Stewart of the crime charged, we affirm.

This court reviews sufficiency of the evidence deferentially, sustaining the verdict if the evidence, viewed in the light most favorable

to the government, is such that a rational trier of fact could find guilt

beyond a reasonable doubt. Glasser v. United States, 315 U.S. 60, 80

(1942). "[A]n appellate court's reversal of a conviction on grounds of

insufficient evidence should be `confined to cases where the prosecution's failure is clear.'" United States v. Jones, 735 F.2d 785, 791 (4th

Cir. 1984) (quoting Burks v. United States, 437 U.S. 1, 17 (1978)).

Circumstantial as well as direct evidence is considered, and the government is given the benefit of all reasonable inferences from the

facts proved to the facts sought to be established. United States v.

Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).

To establish that Stewart violated § 1709, the prosecution must

show that: (1) Stewart was an employee of the United States Postal

Service; (2) he embezzled a letter that came into his possession as a

result of his employment; and (3) the letter was intended to be conveyed by mail.

The evidence here easily satisfied the Glasser test of sufficiency as

to each of the elements. Testimony at Stewart's trial disclosed that he

 2
began working as a mail carrier for the United States Postal Service

in 1984. Stewart handled five different mail routes and would cover

a different route on each day of the week. As a mail carrier, Stewart

was required to sort and deliver all the mail going to the homes on

his route and to pick up any outgoing mail. In May 1991, Stewart left

an automobile at an auto shop. In August 1991, after Stewart had

failed to pick up the automobile, an auto mechanic searched the car

and inventoried its contents. The auto mechanic found several pieces

of mail not addressed to Stewart and notified the United States Postal

Inspector (the Inspector).

The Inspector went to the auto shop and recovered sixteen identifiable pieces of mail from the trunk of the automobile. All of the pieces

of mail had been opened. At least some of the mail was addressed to

residences on Stewart's delivery routes. Inside one of the packages,

the Inspector found a piece of paper on which Stewart's fingerprint

was later discovered. A jury found Stewart guilty, and he was sentenced to eight months incarceration.

From this evidence, a jury could reasonably infer that Stewart

intended to embezzle the pieces of mail found in the automobile and

could find that the prosecution established the elements of the charged

offense beyond a reasonable doubt. Although the prosecution did not

provide direct evidence of Stewart's guilt, circumstantial evidence is

sufficient to support his conviction. Tresvant , 677 F.2d at 1021. Furthermore, it is not necessary for circumstantial evidence to exclude

every reasonable hypothesis of innocence. United States v. Jackson,

863 F.2d 1168, 1173 (4th Cir. 1989); United States v. Bobo, 477 F.2d

974, 989 (4th Cir. 1973). There is evidence from which a reasonable

trier of fact could have found Stewart guilty beyond a reasonable

doubt. Tresvant, 677 F.2d at 1021.

Therefore, we affirm Stewart's conviction. This court requires that

counsel inform his client, in writing, of his right to petition the

Supreme Court of the United States for further review. If the client

requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave

to withdraw from representation. Counsel's motion must state that a

copy thereof was served on his client. We dispense with oral argument because the facts and legal contentions are adequately presented

 3
in the materials before the court and argument would not aid the decisional process.

AFFIRMED

 4