UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 97-4071

FAYE ANN HINTON,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 97-4072

THOMAS EDWARD JOHNSON, JR.,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Robert G. Doumar, Senior District Judge.
(CR-96-156)

Submitted: July 29, 1997

Decided: September 3, 1997

Before LUTTIG, MICHAEL, and
MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

Everett C. Meixel, Virginia Beach, Virginia; Donald R. Ray, Norfolk,
Virginia, for Appellants. Helen F. Fahey, United States Attorney,
Charles P. Rosenberg, Assistant United States Attorney, Alexandria,
Virginia; Laura P. Tayman, Assistant United States Attorney, Nor-
folk, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellants Thomas Johnson, Jr., and Faye Hinton appeal their con-
victions and sentences for conspiracy, 18 U.S.C.§ 371 (1994), and
mail fraud, 18 U.S.C. § 1341 (1994). They maintain that their conduct
in tampering with electric meters did not constitute a violation of fed-
eral mail fraud statutes. Finding no error, we affirm Appellants' con-
victions and sentences.

The record discloses that both Hinton and Johnson conspired with
various Virginia Electric & Power Company, Inc. (Virginia Power)
customers to fraudulently reduce their power bills by tampering with
their electricity meters. An undercover informant arranged for Appel-
lants to tamper with and alter four Virginia Power meters. Appellants
were paid in cash for altering Virginia Power meters in such a way
that the meters recorded only a portion of the actual amount of elec-
tricity consumed. Appellants revealed to the informant that they had
been engaged in this illegal activity for several years in various parts
of Virginia. From the recorded conversations, it was clear Appellants
were aware that the meter tampering would ultimately lead to reduced
billings for their customers. As a matter of course, Virginia Power
employees read the meters, generated bills accordingly, and mailed
monthly statements to the customers via United States mail.

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Appellants' indictments charged them with conspiring with each
other and others to commit an offense against the United States "to
devise and intend to devise a scheme and artifice to defraud and to
obtain money and property by means of false and fraudulent pretenses
. . . [and to] . . . knowingly cause to be delivered by mail according
to the direction thereon certain mail matters . . . ." Appellants moved
to dismiss the indictments against them on the grounds that their con-
duct did not constitute a federal offense. The district court denied the
motions. Appellants thereafter entered conditional guilty pleas reserv-
ing the right to appeal the district court's denial of their motions to
dismiss the indictments. Appellants contend that federal prosecution
was improper because it was not reasonably foreseeable to them their
conduct would "cause" the United States mails to be used in further-
ance of a fraudulent scheme. They maintain that they should have
been prosecuted in state court for violations of state law rather than
in federal court.

A conviction for mail fraud requires proof of a scheme to defraud
which involves use of the mails in furtherance of the scheme. See
United States v. Locklear, 829 F.2d 1314, 1318 (4th Cir. 1987) (citing
18 U.S.C. § 1341). In order for Appellants' scheme to succeed it was
essential that the customers receive reduced monthly billings from
Virginia Power based on the tampered meter readings. Without this
component, Appellants' efforts would have been inconsequential and
their scheme ineffective. Virginia Power customers received these
bills through the United States mail. Since Appellants caused the
mails to be used for defrauding Virginia Power, their conduct violated
federal law. See Locklear, 829 F.2d at 1318.

Because we find that the indictments sufficiently establish a federal
charge of mail fraud, we also conclude that federal authorities prop-
erly prosecuted Appellants in federal court absent any claim that the
federal prosecutor's decision to prosecute was based on an impermis-
sible classification such as race or gender. See United States v. Smith,
30 F.3d 568, 572 (4th Cir. 1994). For these reasons, we affirm Appel-
lants' convictions and sentences. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.

AFFIRMED

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