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Even in those cases where probable cause exists to believe there is contraband in first-class mail, for example, damaged mail exposing contraband or other reliable information, a search warrant must be obtained without causing an unreasonable delay to the suspect mail.
Section 159.7 of title 39, Code of Federal Regulations, defines dead mail as matter deposited in the mail which is or becomes undeliverable, or is unmailable, and which cannot be returned to the sender. At dead letter branches, dead first-class letters are opened in an attempt to determine the name and address of the sender so that his property may be returned. Only those employees especially designated to open dead letters are allowed to open such matter and then only under proper supervision. Letters which contain correspondence only and which are without sufficient information to enable a return to the sender or delivery to the addressee are destroyed; and the numbers of these letters run into the millions per annum.
Second-, third-, and fourth-class mail are subject to postal inspection by authorized postal employees. Payment of postage at the rates established for these classes of mail is considered consent by the sender to examination of the mail contents since the sender is free to choose the greater privacy of first-class mail. The courts have perceived no constitutional impediment to warrantless searches of these classes of mail.
Although second-, third-, and fourth-class mail may be opened for inspection, if such inspection discloses contraband, a search warrant must be obtained prior to the seizure of the item or withdrawal from the mails for use as evidence against the sender in a criminal proceeding.
Pursuant to customs laws, mail of foreign origin is subject to customs inspections. Postal regulations recognize such foreign mail is subject to customs inspections without regard to class.
That concludes my preliminary comments, Mr. Chairman, and I'm available to respond to your questions.
Mr. KASTENMEIER. Thank you, Mr. Cotter, for your very informative presentation.
Before beginning questioning I will state that pursuant to a recommendation from Congressman Drinan, each member will question for 5 minutes, and if there are additional questions there will be an opportunity for additional questioning later on.
Inspector Cotter, the Postal Service grants mail covers to law enforcement agencies. Would you explain how some of the agencies that your report indicates are granted mail covers, fall into this category, such as the Departments of Agriculture and Labor, the Department of Commerce, or local real estate commissions?
Mr. COTTER. In the regulations pertaining to mail covers there is a provision describing law enforcement agencies, and it reads as follows:
Law enforcement agency is any authority of the Federal Government or any authority of a State or local government one of whose functions is to investigate the commission or attempted commission of acts constituting a crime.
Now, if I might, Mr. Chairman, give you a few examples of these peculiar sounding organizations, and how they come into the picture. For example-that is no reflection on the organization when I say "peculiar sounding", I mean in the context of fitting into this discussion. For example, here is one, Employment Development Department
of California. This investigation pertains to alleged registering of fictitious employers and fictitious earnings in violation of the California Penal Code, section 182, conspiracy, section 470, forgery, and so forth; a penalty of up to 10 years in the state prison.
Real Estate Commission of Colorado. An investigation by the enforcement staff of that particular commission into charges of fraudulently selling the same land twice, a violation of the Colorado Revised Statute, 1963, imprisonment up to 10 years and fines up to $30,000.
Mr. KASTENMEIER. Do you determine in advance whether these. various governmental organizations are qualified as having law enforcement functions?
Mr. COTTER. The approval of this type of mail cover would be made out in the field; that is a responsibility delegated to the inspector in charge, for example, or to his designee.
Certainly our inspector in charge in Denver, Colo., in this real estate commission mail cover, or something like that, it's incumbent upon him to determine that it is indeed an organization which fits the criteria as described in our regulations.
Mr. KASTENMEIER. Do your people in the field ever require agencies requesting mail cover to provide any sample evidence of the possible commission of a crime?
Mr. COTTER. Yes.
Mr. KASTEN MEIER. And you take that at face value.
Mr. COTTER. Indeed, they do. And they go back, I'm quite sure, regularly, and turn down requests if they don't satisfy the requirements.
Mr. KASTENMEIER. Basically, what are the requirements?
Mr. COTTER. Well, it would be for the three basic reasons. One purpose of the mail cover is to assist in the location of a fugitive. A fugitive would be a person who committed a felony and had fled.
In national security, that is a broad and sweeping category. And the third category would be to develop evidence pertaining to the commission of a crime or attempted commission of a crime; and there again, it would be a felony offense, a serious offense.
Mr. KASTEN MEIER. Now, I take it in granting a national security mail cover, that is something handled through your office, rather than the field. What criteria do you use in granting national security coverage?
Mr. COTTER. Well, here again it is, you would agree, a broad area, without specific definition. I would make a judgment, and my staff would make a judgment, based upon the information provided by the agency requesting the national security mail cover. For example, an agency comes in and says we have a suspect and very strong belief, there is evidence to suggest the fact that he is committing treason, is in contact with representatives of X-Y-Z country; we have reason to believe that he is passing information to that country, and so on. They suggest that a mail cover would be most desirable to see the extent of his contacts, and we would undoubtedly agree to that request. They might come in and say that this individual is a very active member in a particular organization, and here we come to a problem. I have to make a judgment as to what kind of an organization it is. We have no listing any more; we have no Attorney General's list; if there ever was a profound, solid list, we have nothing like that.
We do indeed go back to the requesting organization. Regarding the ABC Army, we have never heard of it before; and they come back to us and attest to us that they are engaged in such and such a thing, they are planning on blowing up this, or that, or the other thing. So, on the basis of the information that comes back from the organization, I make a judgment.
Now, if it came from the FBI as the primary internal security organization of the United States, or if I receive a request from another Federal agency on national security, I might well check with the FBI to get the view of the FBI as to whether the organization is potentially dangerous to this Nation and its security.
Mr. KASTENMEIER. In other words, your criteria would be more or less consistent with that of the Federal Bureau of Investigation.
Mr. COTTER. That is correct.
Mr. KASTENMEIER. Are subjects of mail cover ever informed of the fact that their mail is monitored?
Mr. COTTER. Not unless they initiate action under a discovery proceeding in a court case and get the results. Generally, we don't volunteer the information that for a particular period of time their mail has been subject to a mail cover.
Mr. KASTENMEIER. I will yield to the gentleman from Illinois, Mr. Railsback.
Mr. RAILSBACK. Mr. Cotter, have the mail covers during your terni borne fruit?
Mr. COTTER. Yes; they have.
Mr. RAILSBACK. Can you just generally explain, give us some examples?
Mr. COTTER. One that very quickly comes to my mind, Mr. Railsback, happened in December 1969. I had been Chief Postal Inspector for only a few months, when we had a truck held up here in Washington, D.C.-around Christmastime-and $382,000 were stolen from this truck; it was the largest holdup in the history of Washington.
We started an investigation and came up with some suspects, and so on. And we did apprehend a fellow in California and a fellow here; it was a local group. We had one outstanding suspect, and he also had in addition to his true name some alias he went by. We did place a mail cover on his family's residence, and 2 days later we had a letter to that address from Ottawa, Canada, addressed to his other name; and in conjunction with the Canadian police, we arrested him a few days later. That was a fugitive case.
About 2 years ago, there was an advertisement placed in the TV Guide. Participate in a contest, and if you win, you will get a free holiday in Acapulco, something like that, send in this card. So, a lot of people sent in the card, and as a consequence-oh, there were many winners, everybody won, in fact. You have won, and you will be going on this trip to Acapulco; however, you have to send in $25, which will be reimbursed to you at the time you depart.
Very early, maybe the first day this mailing went out by two fellows-two fellows, by the way, who had immigrated from Germany and started this business in a hurry.
But anyway, fortunately two of the winners were neighbors, both won. They invited it to the attention of a postal inspector because they thought there was something wrong. We moved in on that case,
and it was obvious to us there was something going on. We put a mail cover on the fellows to see the extent of their mail. And then we contacted some additional people and found everybody was a
We went to our administrative law judge and had a hearing under section 3005, of title 39, USC, and the administrative law judge agreed to halt delivery of the mail. Prior to that proceeding, we had gone into court and had obtained a temporary restraining order under section 3007. As a consequence of that mail cover and the prompt action taken, we saved the customers, the American people, perhaps $150,000 very, very quickly by use of that mail cover.
As you notice from the statistics, the greatest user of the mail cover is the Postal Inspection Service itself. How in the world, do we have more fugitives than anybody else? No indeed, we don't; the greatest utilization in the Postal Service is in mail fraud cases.
Mr. RAILSBACK. Are you personally aware of any illegal opening of first-class mail-not illegal, but are you aware of any opening of firstclass mail?
Mr. COTTER. Yes; with court order.
Mr. RAILSBACK. Unauthorized?
Mr. COTTER. Other than Mr. Colby's observation, no.
Mr. RAILSBACK. I am advised I am in a sensitive area, so I will just thank you.
Mr. KASTEN MEIER. The gentleman from California, Mr. Danielson. Mr. DANIELSON. Thank you, Mr. Chairman.
While listening, I have been going through your schedules attached to the letters on mail covers in 1973 and 1974. There are a few in that breakdown that I would like to review just very quickly. I don't want to consume a whole lot of time. The Interstate Commerce Commission is listed; what sort of case would they be involved in to require a mail cover?
Mr. COTTER. This might be it, the Department of Commerce; it involved illegal procurement and export in violation of the Export Administration Act of 1969, as amended, 5 years or a $20,000 fine.
Mr. DANIELSON. Some type of export control. The Agriculture Department, just briefly, what would that be?
Mr. COTTER. Anything, it could have to do with food stamps, that's one area. However, this one, some Treasury checks were deposited in the accounts of employees of the Federal City College. Offense, conspiracy to defraud the U.S. Government; 5 years, up to a $10,000 fine. Mr. DANIELSON. I see. Now, U.S. marshal, you had a few from the U.S. marshal, when did they start investigating, what kind of case would that be?
Mr. COTTER. That might well be a fugitive case.
Mr. DANIELSON. Well, normally they don't investigate, they are simply jailers.
Mr. COTTER. That is true, but I wonder, if the prisoner was in their custody and fled.
Mr. DANIELSON. Well, then the FBI would investigate. Who is NIS? I don't know NIS.
Mr. COTTER. That is Naval Intelligence Service.
Mr. DANIELSON. Is that something different from ONI?
Mr. COTTER. Yes, sir. These are investigative elements of the Navy, for example, on contract people.
Mr. DANIELSON. In other words, it is some sort of a Venell Corp., in the Scotland Yard field.
Mr. COTTER. Probably so.
Mr. DANIELSON. I have never heard of that. I think you'd better expand on that. You mean the Navy employs a private
Mr. COTTER. No, sir. It is the Naval Intelligence Service, as I understand it. The Air Force has OSI, which conducts background investigations, and so forth; and DIA
Mr. DANIELSON. Let's get back to this one.
Mr. COTTER. NIS, as I understand and I may be way off on this, Congressman-is an investigative element of the Navy which conducts investigations, background investigations, and also here is a request from that organization:
Mr. Doe, an employee of the U.S. Navy is currently under investigation by this service, predicated upon his contact with foreign nationals whose intentions are suspect. His duties involve access to classified information regarding the national defense.
Mr. DANIELSON. I get the picture, they decided to become their own FBI. I get the point, thank you.
Now, lastly, or next to lastly, I don't think the public yet fully understands, or that you stated clearly, the difference between a mail cover and mail opening. Mail cover-correct me if I'm wrong-mail cover consists of making a record of the return address, the sender of the mail, his address, the postmark including date, the addressee, and any other information that appears on the outer surface of a piece of mail. Is that correct?
Mr. COTTER. That is correct.
Mr. DANIELSON. And mail opening means just what it says. You open the mail and look on the inside.
Are there any circumstances under which the Postal Service uses opening of mail, other than pursuant to a warrant issued by the court? Mr. COTTER. Yes; the dead letter branch.
Mr. DANIELSON. Except for the dead letter office, is there any other circumstance?
Mr. COTTER. First-class mail, no, sir.
Mr. DANIELSON. So, any opening of first-class mail within the Postal Service, not pursuant to a court warrant, would be an unauthorized opening as far as you are concerned.
Mr. COTTER. Yes, sir.
Mr. DANIELSON. Do you find mail covers to be a valuable investigative tool? I have done a good deal of investigating in my life, and I found it an invaluable source in locating fugitives; I don't recall ever having used it for any other purpose. But in locating fugitives it is highly valuable, and I can see how it would be in mail fraud. Do you concur in these feelings?
Mr. COTTER. I wholeheartedly concur, Mr. Danielson. That brings me way back when I first started in the investigative business with the FBI in 1947, and the first apprehension I made was a result of a mail cover. I was out in Oregon, they sent me the results of a mail cover