Post-Offense Mail-Inspection Videos Are Admissible Under Rule 404(b); Broad Relevant-Conduct Loss Attribution (Including Acquitted Conduct under pre-2024 Guidelines) Upheld — United States v. Glover

Court: U.S. Court of Appeals for the Eleventh Circuit (Non-Argument Calendar; Not for Publication)
Date: October 21, 2025
Docket No.: 24-13514
Panel: Newsom, Grant, and Marcus, Circuit Judges (per curiam)

Introduction

This unpublished Eleventh Circuit decision affirms the convictions and sentence of James Glover, a U.S. Postal Service carrier convicted of postal theft by an employee and multiple counts of mail fraud arising from a check-stealing and check-altering scheme centered on two car dealerships in Montgomery, Alabama (Reinhardt Toyota and Jack Ingram Automotive). The appeal challenged three rulings:

• Sufficiency of the evidence supporting convictions for postal theft (18 U.S.C. § 1709) and mail fraud (18 U.S.C. § 1341).
• Admission of two December 2022 videos showing Glover opening packages in his mail truck as Rule 404(b) “other acts” evidence.
• A six-level loss enhancement under U.S.S.G. § 2B1.1(b)(1)(D), premised on an $83,753.17 loss figure the defense argued was overinflated.

Against a factual backdrop including surveillance video, fingerprint evidence on a stolen check, route and GPS data, and inculpatory text messages, the Eleventh Circuit affirmed across the board. Although unpublished and therefore nonprecedential, the opinion supplies a clear application of several recurring doctrines: the permissibility of post-offense conduct as 404(b) evidence to prove intent, plan, and absence of mistake; loss calculation principles under § 2B1.1 (including reliance on intended loss and acquitted conduct for pre-amendment sentencings); and the breadth of relevant conduct under § 1B1.3 in fraud schemes.

Summary of the Opinion

The Eleventh Circuit affirmed Glover’s convictions and 24-month sentence. The court held:

• Sufficiency of the evidence: Substantial circumstantial evidence—including surveillance of Glover placing mail into a personal backpack, later publication of the stolen checks, fingerprint evidence on a stolen check linked to his route, GPS/scanner data, and messages discussing “slips” (checks) and a “scheme”—supported the postal theft and mail fraud convictions.
• Rule 404(b) videos: Two videos showing Glover opening packages months after the charged conduct were admissible as other-acts evidence to show intent, motive, plan, and absence of mistake; any prejudicial effect was not unfair, particularly given other admitted evidence of similar behavior. Review was for plain error, and none was found.
• Loss calculation: The district court did not clearly err in attributing $83,753.17 in loss to Glover and applying the six-level enhancement under § 2B1.1(b)(1)(D) (> $40,000 and < $95,000). The court endorsed using intended loss (consistently with Eleventh Circuit precedent reading that concept into the Guideline’s text) and allowed consideration of acquitted conduct because Glover was sentenced under pre-amendment Guidelines that permitted it.

Analysis

A. Precedents Cited and Their Influence

• Sufficiency review and standards:
  • United States v. Gamory, 635 F.3d 480 (11th Cir. 2011): De novo review of sufficiency; evidence viewed favorably to the verdict.
  • United States v. Hunt, 526 F.3d 739 (11th Cir. 2008): Jury may choose among reasonable conclusions; evidence need not exclude every hypothesis but guilt.
  • United States v. Martin, 803 F.3d 581 (11th Cir. 2015): Circumstantial evidence can suffice; inferences must be reasonable, not speculative.
  • United States v. Jiminez, 564 F.3d 1280 (11th Cir. 2009): Appellate courts assume the jury resolved credibility in favor of the verdict.
  • United States v. Williams, 390 F.3d 1319 (11th Cir. 2004): If a defendant testifies and the jury disbelieves him, it may infer the opposite of his testimony.
  • United States v. Bell, 112 F.4th 1318 (11th Cir. 2024): Reiterates that guilt beyond a reasonable doubt does not require excluding every reasonable hypothesis of innocence.
  These cases framed the generous lens through which the panel evaluated the government’s largely circumstantial case, allowing the jury to infer intent and participation from videos, fingerprints, route data, and messages.
• Rule 404(b) and Rule 403 admission:
  • United States v. Brown, 665 F.3d 1239 (11th Cir. 2011): Failure to renew a motion in limine objection yields plain-error review.
  • United States v. Edouard, 485 F.3d 1324 (11th Cir. 2007): Three-part 404(b) test: relevance to a non-character issue; sufficient proof of the other act; probative value not substantially outweighed by unfair prejudice. Also instructs courts to maximize probative value/minimize undue prejudice in Rule 403 balancing.
  • United States v. Matthews, 431 F.3d 1296 (11th Cir. 2005): Temporal remoteness is case-specific; even an eight-year-old conviction can be admissible depending on context.
  These authorities supported admitting the December videos as probative of intent, plan, and absence of mistake and rejecting the “too dissimilar/too remote” objections.
• Loss calculation and relevant conduct:
  • United States v. Woodard, 459 F.3d 1078 (11th Cir. 2006): Clear-error review of loss findings.
  • United States v. Rodriguez-Lopez, 363 F.3d 1134 (11th Cir. 2004): “Definite and firm conviction” standard for clear error.
  • United States v. Dabbs, 134 F.3d 1071 (11th Cir. 1998): Government must prove loss by a preponderance of the evidence.
  • United States v. Beckles, 565 F.3d 832 (11th Cir. 2009): Unobjected-to PSI facts are deemed admitted.
  • U.S.S.G. § 1B1.3(a)(1)(B): Relevant-conduct joint-activity test: scope, furtherance, and foreseeability.
  • United States v. Wheeler, 16 F.4th 805 (11th Cir. 2021): Defendants may be liable for the total loss of a conspiracy when actively furthering its objective.
  These provided the analytical framework that allowed attribution of checks not recovered from Glover but tied through route, fingerprint, and scheme evidence.
• Intended loss and the role of commentary:
  • United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc): Courts may not defer to commentary where text is unambiguous.
  • United States v. Horn, 129 F.4th 1275 (11th Cir. 2025): Interprets § 2B1.1(b)(1)’s “loss” to include intended loss on the face of the Guideline, without reliance on commentary.
  • United States v. Jews, 74 F.4th 1325 (11th Cir. 2023): Notes where commentary’s validity wasn’t contested.
  The panel did not have to rely on commentary; it invoked Horn to confirm that intended loss is included in § 2B1.1(b)(1)’s text, neatly aligning with Dupree’s instruction to prioritize the Guideline’s text.
• Acquitted conduct at sentencing (pre-amendment):
  • United States v. Watts, 519 U.S. 148 (1997): Acquitted conduct may be considered at sentencing if proved by a preponderance of the evidence.
  • United States v. Cavallo, 790 F.3d 1202 (11th Cir. 2015): Reiterates Eleventh Circuit’s adherence to Watts.
  • United States v. Maddox, 803 F.3d 1215 (11th Cir. 2015): An acquittal reflects failure to prove beyond a reasonable doubt; it is not a factual finding of innocence.
  These precedents allowed the district court to include loss from a check linked to counts on which Glover was acquitted (because his sentencing predated the later Guidelines amendment restricting use of acquitted conduct).

B. The Court’s Legal Reasoning

1) Sufficiency of the Evidence

The court applied the deferential sufficiency standard, emphasizing reasonable inferences and credibility choices favoring the verdict. Key pillars supporting the convictions included:

• Postal theft (Count 1):
  • Reinhardt mailed three specific checks on September 16 to identify any thief; surveillance captured Glover placing mail into his personal backpack during that pick-up; and altered versions of those checks later posted to a bank.
  • Employer payroll records and Glover’s mail-scanner data confirmed he, not another carrier, worked that route that day.
  • The jury was entitled to disbelieve Glover’s “innocent” explanations (e.g., that his backpack contained items from another job) and infer the opposite.
• Mail fraud (Counts 3, 5, 6):
  • Evidence of a scheme and Glover’s intentional participation came from: two prior offers by co-schemer Keldric Jones to pay Glover to steal checks; Glover’s partial fingerprints on a Jack Ingram check seized from Keldric and associated with Glover’s route; multiple instances of Glover examining/photographing mail (including checks) while on route; and incriminating messages referencing “slips” (checks), big payouts, and concerns about people posting about “that scheme.”
  • Even if the October 3 and 6 checks he examined were not ultimately stolen, his conduct on those dates supported that he was acting in furtherance of an ongoing scheme to defraud using the mails.

2) Rule 404(b) Admission of December Videos

Glover did not renew his pretrial motion to exclude the December videos at trial, triggering plain-error review. The videos showed him opening multiple packages in his mail truck and inspecting their contents before resealing one package using its original tape. The panel held:

• Proper non-character purpose: The videos were probative of intent, motive, plan, and absence of mistake (e.g., rebutting the defense theory that he only examined mail to discard junk for customers).
• Sufficient proof: The videos themselves documented the conduct.
• Rule 403 balance: The probative value was not substantially outweighed by unfair prejudice; the jury had already seen similar evidence (e.g., videos of Glover holding mail to light, placing mail in a backpack, photographing checks), reducing risk of undue prejudice.
• Dissimilarity/temporal arguments rejected: Distinctions between packages and letters did not negate relevance; both involved improper inspection of mail to identify valuable contents. The few-month gap was not problematic under Eleventh Circuit caselaw that treats remoteness as context-dependent (see Matthews).

3) Loss Calculation and the Six-Level Enhancement

Applying clear-error review and deference to the district court’s reasonable estimate, the panel upheld an $83,753.17 loss finding supporting the six-level enhancement under § 2B1.1(b)(1)(D):

• Guiding principles:
  • Loss is the greater of actual or intended loss; under Horn, intended loss is within § 2B1.1’s text (no need to rely on commentary post-Dupree).
  • Relevant-conduct rules (§ 1B1.3) authorize attributing jointly undertaken acts within scope, in furtherance, and reasonably foreseeable.
  • Unobjected PSI facts are deemed admitted (Beckles).
  • Acquitted conduct may be considered for pre-amendment sentencings if proven by a preponderance of the evidence (Watts, Cavallo, Maddox).
• Components of loss attribution:
  • Reinhardt checks from Sept. 16: $10,090.49 — planned “test mail,” surveillance of Glover placing mail in his backpack, later bank publication of altered checks.
  • Jack Ingram check 108261: $5,487.26 — two partial fingerprints of Glover; associated with his route; recovered from Keldric’s car. The court permitted inclusion notwithstanding acquittal on counts involving that check because the sentencing predated the Guidelines amendment limiting acquitted conduct.
  • Three other Jack Ingram checks (108241, 108243, 108260): $12,130.83 — recovered from Keldric’s car, tied to Glover’s route, reasonably foreseeable and within scope of the scheme given his repeated mail inspection behavior and incriminating communications.
  • Remaining stolen Jack Ingram checks on Glover’s route: $46,725.66 — attributed based on the pattern (fingerprint tie to one check, route linkage, observed mail-inspection conduct, and messages about “slips” and the “scheme”).
• Harmlessness of any disputed items: Even excluding certain items Glover questioned (e.g., check 109572 for $9,930.00 and two August Reinhardt checks for $2,081.93 and $7,237.00), the total would still exceed the $40,000 threshold for the six-level enhancement.

C. Impact and Forward-Looking Implications

• 404(b) scope in mail-theft/fraud cases: The case illustrates that post-offense conduct—here, later package-opening captured on video—can be powerful 404(b) evidence to prove intent, plan, and absence of mistake, even when different forms of mail are involved. Distinctions between letters and parcels will not defeat admissibility where the core behavior is the same: exploiting access to mail to identify items worth stealing.
• Preservation matters: Defense counsel should renew in-limine objections at trial to preserve ordinary abuse-of-discretion review; failure to do so shifts the standard to plain error, making reversal much more difficult.
• Loss and relevant conduct remain expansive: The decision underscores that loss may be built from multiple, circumstantially linked sources—fingerprints on one check, route overlap, scheme-related messages, co-schemer possession of checks—so long as the estimate is reasonable and grounded in preponderant evidence.
• Intended loss without commentary: In the Eleventh Circuit, Horn now supplies a textual basis to include intended loss under § 2B1.1(b)(1), reducing litigation about commentary deference after Dupree.
• Acquitted conduct transition: The panel applied longstanding Supreme Court and circuit precedent permitting consideration of acquitted conduct at sentencing because Glover was sentenced before the Sentencing Commission’s amendment restricting such use. Going forward, for sentencings under the amended Guidelines, courts within the Eleventh Circuit will need to adhere to the new limitations, likely reducing the government’s ability to rely on acquitted counts to increase the guideline range.
• Nonprecedential but instructive: Although “not for publication,” the decision is persuasive authority within the circuit and provides a practical roadmap for prosecutors and defense counsel in postal theft and mail fraud cases.

Complex Concepts Simplified

• Postal theft by an employee (18 U.S.C. § 1709): The government must prove the defendant was a USPS employee, had mail in his custody, and knowingly stole or embezzled it.
• Mail fraud (18 U.S.C. § 1341): Requires (1) an intentional scheme to defraud and (2) use of the mails to execute or further that scheme. It may be proven through circumstantial evidence.
• Sufficiency of the evidence: On appeal, the court asks whether any reasonable jury could have found guilt beyond a reasonable doubt, viewing the evidence in the government’s favor.
• Rule 404(b) (other-acts evidence): Evidence of other acts cannot be used to show “bad character,” but can be used to prove intent, plan, motive, knowledge, identity, or absence of mistake.
• Rule 403 balancing: Even relevant evidence can be excluded if its probative value is substantially outweighed by a danger of unfair prejudice.
• Plain error: A tough standard of review applied when an objection wasn’t properly preserved; the appellant must show an obvious error that affected substantial rights and seriously affected the fairness of proceedings.
• Loss under § 2B1.1: The Guidelines use the higher of actual or intended loss. After Eleventh Circuit’s Horn, “intended loss” is recognized in the Guideline’s text (no need to rely on commentary). Courts make a reasonable estimate and receive deference.
• Relevant conduct (§ 1B1.3): In jointly undertaken criminal activity, a defendant can be held responsible for acts of others that were within the scheme’s scope, furthered it, and were reasonably foreseeable.
• Acquitted conduct at sentencing: Historically permissible if proven by a preponderance; however, a recent Guidelines amendment (effective after Glover’s sentencing) restricts its use. The court applied the rules in effect at Glover’s sentencing.
• Unpublished opinion: Not binding precedent in the Eleventh Circuit but may be cited as persuasive authority.

Conclusion

United States v. Glover is a comprehensive affirmation of a fraud and theft conviction anchored in circumstantial evidence and careful digital forensics (videos, route data, and messages). The court’s analysis reinforces several practical points:

• Post-offense conduct can be admissible under Rule 404(b) to establish intent and absence of mistake, even if it involves different but analogous forms of mail-handling misconduct.
• Loss attribution under § 2B1.1 remains capacious where the government connects the dots through fingerprints, route overlaps, co-schemer possession of stolen checks, and inculpatory communications; courts need only make a reasonable estimate.
• For pre-amendment sentencings, acquitted conduct may still be considered if proved by a preponderance, and intended loss can be used to set enhancements under § 2B1.1(b)(1) as a matter of Guideline text (per Horn), not merely commentary.

While nonprecedential, the decision operates as a persuasive primer for litigants in postal theft and mail fraud prosecutions on evidence sufficiency, the admissibility of other-acts proof, and loss-calculation methodology—especially amid the ongoing evolution of sentencing rules concerning acquitted conduct.