FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 08-50206 Plaintiff-Appellee,

D.C. No.

v.  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

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COUNSEL

Christine S. Bautista, Assistant United States Attorney, Santa

Ana, California, for the plaintiff-appellee.

Gia Kim, Deputy Federal Public Defender, Los Angeles, California, for the defendant-appellant.

OPINION

CANBY, Circuit Judge:

Henry Lee Monday appeals his conviction by a jury of violating 18 U.S.C. § 1709, which, in pertinent part, provides felony 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

UNITED STATES v. MONDAY 11157
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 permanently 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, however, 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

11158 UNITED STATES v. MONDAY
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 contrary, that language must ordinarily be regarded as conclusive.” 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 determinative 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 convinced 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 eleUNITED STATES v. MONDAY 11159
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 committed by alternative means.” United States v. Gonzales, 456

F.3d 1178, 1181 (10th Cir. 2006). It is sufficient for conviction 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

11160 UNITED STATES v. MONDAY
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 misdeeds 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 Circuit 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 accordingly not error in that case to deny a specific intent instruction. 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 specific 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

1Two 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). 

UNITED STATES v. MONDAY 11161
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 permanently 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.

11162 UNITED STATES v. MONDAY