Felony embezzlement and theft charges lodged against a Rapid City postal carrier last summer were recently dismissed by a federal judge on a legal technicality a day before his trial was scheduled to start.
The U.S. Attorney’s Office on June 19 indicted U.S. Postal Service employee Daniel Newman on a felony theft of mail charge, accusing him of embezzling letters, post cards, packages, bags and other mail and stealing money and gift cards between November 2014 and March 2015.
The charges had been leveled against Newman after a Rapid City woman, Dennyce Korb, refused to give up when she discovered that birthday wishes containing gift cards she had mailed in January to a daughter in Minneapolis and a son-in-law in Birmingham, Ala., never arrived at their intended destinations.
With assistance from the Rapid City Police Department and a bit of amateur sleuthing, Korb, a 60-year-old retired paralegal, uncovered the theft and discovered the gift cards she had purchased had been used at several local businesses, some of which had video surveillance on premises. Korb said she mailed two gift cards at Boyds Drug Mart in Baken Park, but they were stolen and never reached their intended destination.
U.S. Postal Service inspectors later credited the tenacity of Korb, who had been named national paralegal of the year in 2013 while working for the Johnson Eisland Law Offices, with doing half the legwork that led to the felony charge against Newman.
But, five months after charges were filed and a week before the scheduled Nov. 17 trial, Newman’s court-appointed attorney filed a motion to dismiss the indictment lodged against his client because it was “duplicitous.” In his motion, Assistant Federal Public Defender Stephen Demik argued that the prosecution had erred in filing charges by “joining in a single count,” two separate and distinct offenses — embezzlement and theft.
“Offenses of embezzlement and stealing (theft) in the context of U.S.C. 1709 are inconsistent,” Demik stated in his Nov. 10 motion. “These offenses can not (sic) both be brought based on the same act or conduct in a single one count indictment.”
On Nov. 16, U.S. District Court Judge Jeffrey L. Viken agreed with Demik’s assertion. After listening to 20 minutes of oral arguments from the prosecution and defense, Viken recessed court, then returned to the bench and granted the defense motion for dismissal, according to court records.
Judge Viken dismissed the indictment against Newman “without prejudice,” meaning new charges could be refiled in the case. As of Friday afternoon, electronic records indicated the prosecution had not refiled the charges.
When contacted recently about the apparent prosecutorial error, a spokesman for the U.S. Attorney’s Office in Rapid City asked that questions be submitted in writing.
The Journal submitted 10 questions including whether Assistant U.S. Attorney Eric Kelderman had erred in the filing of the original indictment, whether charges against Newman would be refiled in the case and, if so, when that was likely to occur.
“Thank you for the inquiry, but we respectfully have no comment on the case,” Public Information Officer Ace Crawford stated in an email response. In a subsequent phone call, Greg Peterman, the supervisor of the Rapid City office of the U.S. Attorney, said U.S. Department of Justice regulations precluded any DOJ employee from discussing a pending case.
Phone calls to the Assistant Federal Public Defender’s Office in Rapid City seeking comment were referred to U.S. Federal Public Defender Neal Fulton in Pierre, who did not return phone calls.
Korb, the victim who had been subpoenaed to testify at the trial, was informed by the U.S. Attorney’s Office the day before its scheduled start, “that the defense had found a problem with the indictment, and that Judge Viken had dismissed the case without prejudice, meaning they could refile charges and that they planned to re-indict soon,” she said. “I haven’t heard from them since.”
Regardless of whether charges are refiled against Newman, a U.S. Postal Service spokesman said it was doubtful the former Rapid City postal worker would ever carry mail again.
“I would decline to comment on the prosecution itself,” USPS spokesman Peter J. Nowacki said from his Minneapolis office. “This employee resigned from his position effective July 20 and would not be rehired due to the circumstances under which he resigned. I have nothing more to add.”
For her part, Korb said her greatest fear was that the U.S. Attorney’s Office would decide to not refile charges in the case and fail to hold Newman accountable for his actions. She said she pursued the mystery of her missing mail with such vigor because local, regional and national postal customer service personnel seemed so indifferent to her complaints that someone in their midst was stealing mail.
“This has touched a nerve with a lot of people,” Korb said, noting that after her story appeared in print July 4, she had received emails, telephone calls and letters of support from strangers scattered across the U.S. “I think the government is serious about pursuing it and I have no reason to believe they aren’t.
“But people are going to be upset if nothing is done with this,” she added. “I would be really disappointed if they just let it go away.”