                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,              No. 14-30132
            Plaintiff-Appellee,
                                         D.C. No.
               v.                  2:13-cr-00040-RSM-2

CORY MICHAEL EGLASH,
        Defendant-Appellant.              OPINION


     Appeal from the United States District Court
        for the Western District of Washington
     Ricardo S. Martinez, District Judge, Presiding

               Argued and Submitted
          May 6, 2015—Seattle, Washington

                Filed February 17, 2016

    Before: J. Clifford Wallace, Andrew J. Kleinfeld,
         and Morgan Christen, Circuit Judges.

               Opinion by Judge Christen;
            Concurrence by Judge Kleinfeld;
Partial Concurrence and Partial Dissent by Judge Wallace
2                  UNITED STATES V. EGLASH

                           SUMMARY*


                          Criminal Law

    The panel affirmed in part and reversed in part the district
court’s judgment in a case in which the defendant claimed
that the evidence presented to support two mail fraud counts
was insufficient to show that the underlying mailings
furthered his fraudulent scheme to receive disability benefits.

    The panel affirmed the district court’s judgment on Count
4, which arose out of a notice of disability award mailed by
the Social Security Administration, because the notice—
which marked the last step before the defendant’s girlfriend
would receive disability benefit payments, the goal of her
fraudulent plan with the defendant—was a contemplated,
necessary step in the fraudulent scheme.

    The panel reversed the district court’s conviction on
Count 6, which pertained to a disability application summary
that the SSA mailed to the defendant, because the fraud the
defendant envisioned was neither dependent upon nor
furthered by the Government’s decision to transcribe, in
summary form, the fraudulent statements he made when he
talked to the SSA.

    The panel affirmed the defendant’s convictions on four
other counts in a memorandum disposition.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 UNITED STATES V. EGLASH                       3

    Judge Kleinfeld concurred with regard to affirming the
conviction on Count 4 as compelled by United States v.
Brown, 771 F.3d 1149 (9th Cir. 2014). He wrote that this
case should be reheard en banc to correct Brown’s mistaken
interpretation of the mail fraud statute and Schmuck v. United
States, 489 U.S. 705 (1989), because the SSA’s mailing of the
notice of award to the defendant cannot be characterized as
“part of the execution” of the defendant’s scheme.

     Judge Wallace concurred and dissented. He agreed with
the majority that Brown controls with regard to Count 4, and
wrote that it is sufficient for the mailing to be “incident to an
essential part of the scheme.” He would affirm the conviction
on Count 6. He wrote that it is enough that the scheme
conceived of by the perpetrator include the mailing as part of
its normal execution, and that the jury could have reasonably
found that the SSA’s mailing of the application summary was
incident to an essential part of the defendant’s scheme.


                         COUNSEL

Theresa DeMonte (argued) and Andrea D. Ostrovsky, Calfo
Harrigan Leyh & Eakes LLP, Seattle, Washington, for
Defendant-Appellant.

Thomas Merton Woods (argued) and Seth Wilkinson,
Assistant United States Attorneys; and Annette L. Hayes,
Acting United States Attorney, Western District of
Washington, Seattle, Washington, for Plaintiff-Appellee.
4                  UNITED STATES V. EGLASH

                             OPINION

CHRISTEN, Circuit Judge:

    After a jury trial, Cory Michael Eglash was convicted of
four counts of mail fraud under 18 U.S.C. § 1341. Eglash
appeals from the judgment. He argues that, for his mail fraud
convictions on Counts 4 and 6, there is insufficient evidence
showing the underlying mailings furthered his fraudulent
scheme.1 We affirm in part and reverse in part.

                         BACKGROUND

    In 2010, Eglash and his girlfriend, Ramona Hayes, moved
to San Juan Island, Washington. From 2010 to 2012, Eglash
and Hayes ran a coffee shop. During the same period, Eglash
also worked part time at an aquarium, volunteered at a senior
center, and participated in a full-court basketball league.

    In January 2011, Hayes submitted an application for
disability benefits to the Social Security Administration
(“SSA”), claiming that she had been unable to work since
2007 due to anxiety, manic depression, and other mental
health issues. She identified Eglash as an individual who
could speak to her disability. In response to a mailed request
from the SSA, Eglash submitted a third party function report
in which he indicated that he was Hayes’s “caregiver.”
Eglash claimed that Hayes could not “function normally” or


 1
   In a separate memorandum disposition issued concurrently, we address
Eglash’s other arguments and affirm his convictions for one count of
conspiracy to defraud the United States under 18 U.S.C. § 286, one count
of making a false statement to the United States under 18 U.S.C.
§ 1001(a)(2), and two other counts of mail fraud under 18 U.S.C. § 1341.
                 UNITED STATES V. EGLASH                     5

“drive or go outside alone,” and that he “seriously doubt[ed]
that today [Hayes] could work in a retail store on a part time
basis, or actually put gas in a car.”

   In July 2011, SSA notified Hayes by mail that it had
approved her application for benefits. The agency paid Hayes
$20,740 in retroactive benefit payments and awarded her
prospective monthly payments of $1,074.

    On November 29, 2011, Eglash applied for disability
benefits for himself. In December 2011, Eglash mailed to
SSA a function report claiming that he “cannot stand or sit for
any length of time [and] . . . cannot walk more than 100–200
y[ar]ds,” that he was “almost home bound,” and that “most of
[his] hobbies were sports related and have now ceased due to
[his] condition(s).”

    In January 2012, after processing his application, SSA
sent Eglash a mailing titled “Application Summary for
Disability Insurance Benefits.” The top of the mailing
informed Eglash: “On November 29, 2011, we talked with
you and completed your application for SOCIAL SECURITY
BENEFITS. We stored this information electronically in our
records. We are enclosing a summary of your statements.”
The rest of the mailing listed the statements Eglash made
when he talked to SSA on November 29, 2011.

    SSA special agents subsequently engaged in an
undercover operation during which different agents visited
Eglash’s and Hayes’ coffee shop eight times. The agents
engaged in conversation with Eglash and Hayes and recorded
their interactions. The agents observed Eglash and Hayes
prepare and serve meals and drinks to customers without any
sign of disability. They noted that Eglash’s “movements
6                UNITED STATES V. EGLASH

were fluid and normal with no indication of discomfort,” and
Hayes was “personable,” “gregarious,” and “very pleasant.”
On the agent’s undercover video, Eglash claims that he walks
everywhere, enjoys long bike rides, and sometimes plays
basketball. He also says that he works at the coffee shop
every day from 7 am to 5 pm and boasts about how he was
the most efficient volunteer to paint a local church. And
contrary to Eglash’s claim to SSA that Hayes could not drive
or go outside alone, the video shows Hayes walking out of the
coffee shop alone while telling Eglash that she was about to
drive to a business meeting.

    The Government later discovered additional evidence
contradicting Eglash’s and Hayes’s claims of disability, such
as proof that Eglash played full court basketball once or twice
weekly, including the week he applied for disability, and that
he worked part time at a local aquarium and volunteered
regularly in a senior center.

     Eglash and Hayes were indicted on various criminal
charges, including five counts of mail fraud pursuant to
18 U.S.C. § 1341. After the Government voluntarily
dismissed one of the mail fraud counts, Eglash proceeded to
trial on the remaining four. Count 4 charged mail fraud based
on the notice of disability award that the SSA sent Hayes in
July 2011. Count 6 charged mail fraud based on the summary
of statements Eglash made when he talked to SSA on
November 29, 2011. The summary was mailed to Eglash in
January 2012.

    At trial, Eglash did not challenge much of the
Government’s evidence but instead asserted a good faith
defense, claiming that he did not believe his work constituted
“substantial gainful activity.” The jury convicted Eglash of
                 UNITED STATES V. EGLASH                     7

all mail fraud counts. Eglash moved for a judgment of
acquittal, challenging the sufficiency of the evidence and
arguing that the Government did not prove that the mailings
underlying Counts 4 and 6 furthered a fraudulent scheme.
The district court orally denied the motion during its
sentencing hearing, and Eglash timely appeals. We have
jurisdiction under 28 U.S.C. § 1291.

 LEGAL STANDARD and STANDARD OF REVIEW

    “There is sufficient evidence to support a conviction if,
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of a crime beyond a reasonable doubt.”
United States v. Gonzalez, 528 F.3d 1207, 1211 (9th Cir.
2008). “When a claim of sufficiency of the evidence is
preserved by making a motion for acquittal at the close of
evidence, this court reviews the district court’s denial of the
motion de novo.” Id.

                       DISCUSSION

    Eglash claims the district court erred by denying his
motion for judgment of acquittal on mail fraud Counts 4 and
6 because the underlying mailings were not shown to further
a fraudulent scheme to receive disability benefits.

    “There are two elements in mail fraud: (1) having devised
or intending to devise a scheme to defraud (or to perform
specified fraudulent acts), and (2) use of the mail for the
purpose of executing, or attempting to execute, the scheme
(or specified fraudulent acts).” Schmuck v. United States,
489 U.S. 705, 721 (1989). “The relevant question at all times
is whether the mailing is part of the execution of the scheme
8                UNITED STATES V. EGLASH

as conceived by the perpetrator at the time, regardless of
whether the mailing later, through hindsight, may prove to
have been counterproductive and return to haunt the
perpetrator of the fraud.” Id. at 715. We have held that
where “‘the execution of the scheme as conceived by’ [the
defendant] depended” on a mailing, that mailing constitutes
“an ‘essential step’” of the scheme and offers sufficient basis
for a mail fraud conviction. United States v. Jinian, 753 F.3d
954, 963 (9th Cir. 2013) (quoting Schmuck, 489 U.S. at 715).

    We recently revisited this framework in United States v.
Brown, 771 F.3d 1149 (9th Cir. 2014). Brown concerned a
scheme in which the defendant’s bankruptcy petition falsely
claimed little or no income in recent years, underreported
assets, and listed a fictitious loan for $2.5 million. Id. at
1153. As a result of the false claims in the petition, the
bankruptcy trustee abandoned efforts to recover debts owed
to creditors and the defendant received a discharge. Id. We
relied on Schmuck and observed that the Government had
introduced evidence establishing notice of discharge “is
essential to the bankruptcy process and a discharge is ‘the
golden ring that people want in a bankruptcy. It’s a
declaration that all debts that are dischargeable are discharged
and the debtor no longer personally owned any of the debt.’”
Id. at 1158. In light of this evidence, we concluded “[t]here
was sufficient evidence of the mailings’ importance to [the]
bankruptcy fraud scheme” and the court’s “mailing of the
bankruptcy notices was ‘incident to an essential part of the
scheme, or a step in the plot.’” Id. (quoting Schmuck,
489 U.S. at 711).

    In the instant case, Count 4 arises from the notice of
disability award that SSA mailed to Hayes. That mailing
informed Hayes that the agency had determined that she was
                 UNITED STATES V. EGLASH                     9

“entitled to monthly disability benefits beginning November
2009.” It also indicated that Hayes would receive prospective
monthly payments and retroactive payments for qualifying
past months. Hayes and Eglash designed their scheme in the
hope of defrauding the Government into paying them
disability benefits, and Eglash offered false statements to
support Hayes’s application and perpetuate the scheme. The
result here is compelled by our decision in Brown. The notice
of discharge in Brown was the penultimate step in the
fraudulent scheme because the notice enabled the defendant
to evade his debts to his creditors, which was his ultimate
goal. Similarly, the notice of disability award marked the last
step before Hayes would receive disability benefit payments,
the goal of her fraudulent plan with Eglash. Although the
Government, not the defendant, mailed the notice of
discharge in Brown and the notice of disability award here,
each mailing was a contemplated, necessary step in its
respective scheme. Like the notice of discharge, the notice of
award was the “golden ring” in Eglash’s plot and “‘incident
to an essential part of the scheme.’” Id. (quoting Schmuck,
489 U.S. at 711). We therefore affirm the district court’s
judgment on Count 4.

    Count 6 pertains to the application summary that SSA
mailed to Eglash in January 2012. The summary recounts the
statements that Eglash made on November 29, 2011, when he
applied for his own disability benefits. The letter states: “We
stored this information electronically in our records. We are
enclosing a summary of your statements.” It did not require
Eglash to take any action.

   There is no indication that the scheme, as Eglash
conceived it, contemplated or depended on receiving such a
summary. Nor was the summary necessary to bring the
10                  UNITED STATES V. EGLASH

scheme to fruition because Eglash’s fraudulent statements
had already been entered and saved in SSA’s records.
Finally, the SSA did not require that Eglash sign and return
the summary, or do anything else with it, in order to complete
his application for benefits. See Schmuck, 489 U.S. at 715;
United States v. Jinian, 725 F.3d 954, 963 (9th Cir. 2013). In
short, the evidence did not show that printing and mailing the
summary furthered any part of Eglash’s scheme. For this
reason, the Government’s position at oral argument—that it
could issue such a mailing repeatedly and charge a separate
count of mail fraud for each of its duplicate mailings—is
wrong. The summary may have been a predictable
consequence of Eglash’s fraudulent application, but the fraud
he envisioned was neither dependent upon nor furthered by
the Government’s decision to transcribe, in summary form,
the fraudulent statements he made when he talked to SSA on
November 29, 2011.2 Because the underlying mailing was
not “part of the execution of the scheme as conceived by the
perpetrator at the time,” Schmuck, 489 U.S. at 715, and
because it did nothing to further the scheme, we reverse
Eglash’s mail fraud conviction on Count 6.



     2
     The dissent argues this reasoning cannot be reconciled with our
reasoning on Count 4. We disagree. Count 4 falls very close to the line
of permissible mail fraud prosecutions, but we ultimately affirm the
conviction on that count because the notice of disability, like the mailings
at issue in Brown and United States v. Mitchell, was “required to
consummate the scheme.” United States v. Mitchell, 744 F.2d 701, 704
(9th Cir. 1984); see also Brown, 771 F.3d at 1158. By contrast, the
summary mailing at issue in Count 6 was not required to consummate
Eglash’s fraud: Eglash had already telephonically communicated his false
information to SSA, and SSA had stored the information electronically.
The summary mailing merely memorialized that this step had been taken.
In this critical way, Counts 4 and 6 differ.
                     UNITED STATES V. EGLASH                11

                            CONCLUSION

   We affirm the district court’s judgment on Count 4 of
Eglash’s mail fraud convictions, but reverse on Count 6.3 We
remand for further proceedings consistent with this opinion.

      Each party shall bear its own costs on appeal.

  AFFIRMED IN PART;                             REVERSED   AND
REMANDED IN PART.



KLEINFELD, Senior Circuit Judge, concurring:

      I concur in Judge Christen’s opinion.

    My concurrence with regard to affirming the conviction
on count 4 depends on a recent decision of our court that is
mistaken. Count 4 charges mail fraud based on the notice of
award that the Social Security Administration mailed to
Eglash. It does not refer to any mailing that Eglash made or
caused another to make, in the sense required by the mail
fraud statute. I agree with Judge Christen that our decision in
United States v. Brown1 compels the result in this case. But
Brown, I think, is a mistaken interpretation of the statute and
the controlling Supreme Court case, Schmuck v. United
States.2 Since a three judge panel cannot correct mistaken


 3
     Eglash’s motion for judicial notice is granted.
 1
     771 F.3d 1149, 1158 (9th Cir. 2014).
 2
     489 U.S. 705, 712 (1989).
12                  UNITED STATES V. EGLASH

circuit law,3 we ought to rehear this case en banc to correct
Brown’s error.

    The mail fraud statute criminalizes “plac[ing] in any post
office . . . any matter or thing to be sent or delivered” or
“knowingly caus[ing] to be delivered . . . any such matter or
thing.” The mailing has to be “for the purpose of executing”
the fraudulent scheme.4 That is a reasonably plain spoken
way of saying that to commit the crime, the criminal has to
put the thing in the mail or cause it to be mailed, and that the
mailing has to be for “executing” the scheme. The word
“executing” implies that the mailing has to be for the purpose
of defrauding. That is, the thing mailed has to be an
instrument accomplishing the fraud, not the fruit of the fraud.

    And indeed, that is what Schmuck holds. Schmuck
wholesaled used cars to used car dealers. He rolled back the
odometers to make the price higher. What made Schmuck
more debatable than the usual mail fraud case was that the
mailings were by Schmuck’s duped customers, the innocent
used car dealers, not by Schmuck. They, not Schmuck, sent
the state Department of Transportation applications for title
showing the false odometer numbers.5 This distinguished
Schmuck from the more common case where the “causes to
be delivered” statutory phrase means the criminal had an
employee or associate put the envelope in the mail.


 3
   United States v. Gay, 967 F.2d 322, 327 (9th Cir. 1992) (“as a general
rule, one three-judge panel of this court cannot reconsider or overrule the
decision of a prior panel”).
 4
     18 U.S.C. § 1341 (2012).
 5
     Schmuck, 489 U.S. at 707.
                    UNITED STATES V. EGLASH                  13

    Our decision today, applying our decision in Brown, holds
that Eglash was guilty of mail fraud based on the Social
Security Administration’s mailing of the notice that the
fraudulently obtained disability award had been granted. The
explanation of the holding is that “the notice of award was the
‘golden ring’ in Eglash’s plot and ‘incident to an essential
part of the scheme.’” That Brown analysis conflicts with
Schmuck. Precisely because the disability award and notice
of it were the fruit of Eglash’s fraud, the “golden ring”
obtained thereby, the notice was not, as the statute requires,
a means of “executing” the fraud.

    In Schmuck, by contrast, the Court held that a “rational
jury could have found that the title-registration mailings were
part of the execution of the fraudulent scheme, a scheme
which did not reach fruition until the retail dealers resold the
cars and effected transfers of titles.”6 (emphasis added) The
state’s mailings in Schmuck were “incident to an essential
part of the scheme” in the sense that perpetuation of the
scheme, by which Schmuck overpriced many cars over a long
period, depended on the retail dealers’ ability to get title
transferred to the consumers.7 The four justice dissent
thought that even the Schmuck majority had gone too far in
allowing the statute to be so used, because the Court had held
in Kann v. United States8 that it reached “only ‘those limited
instances in which the use of the mails is a part of the
execution of the fraud,’” and disagreed with the majority’s
view that perpetuation of Schmuck’s scheme required that the


 6
     Id. at 712.
 7
     Id.
 8
     Kann v. United States, 323 U.S. 88 (1944).
14                   UNITED STATES V. EGLASH

dealers be lulled by successful transfers of title to their
customers.9 (emphasis in the original) Eglash’s conviction
goes well beyond Schmuck’s, and renders the “executing”
term in the statute meaningless.

    The Court in Schmuck distinguished, and did not overrule,
United States v. Maze.10 Maze is still good law.11 Maze,
applying the Court’s earlier decision in Kann v. United States,
held that the mailings must be “for the purpose of executing
the scheme,” not when the scheme “had reached fruition.”12
The notice of award the Social Security Administration
mailed was precisely the fruit of Eglash’s fraud, obtained
when his scheme “had reached fruition,” and not a mailing
“for the purpose of executing”13 the obtaining of the
undeserved disability award.14 (emphasis added). Under
Maze and Schmuck, Eglash’s convictions on count 4 as well
as count 6 ought to be vacated.

    The Social Security Administration’s mailing of the
notice of award to Eglash cannot be characterized as “part of
the execution” of Eglash’s scheme. For the notice here to be
analogous to the title in Schmuck, Eglash would have had to


 9
   Schmuck, 489 U.S. at 723 (Scalia, J. dissenting) (citing Kann, 323 U.S.
at 95).
 10
      414 U.S. 395 (1974).
 11
      See Schmuck, 489 U.S. at 714.
 12
      414 U.S. at 400 (quoting Kann, 323 U.S. at 94).
 13
      18 U.S.C. § 1341.
 14
      Id.
                UNITED STATES V. EGLASH                    15

be in the business of preparing fraudulent disability claims,
needing notices of award to sell his criminal services to
others. Since the Social Security Administration mailed the
notice of award, not Eglash, and the notice was the fruit of
Eglash’s scheme, not a mailing sent for the purpose of
defrauding the Social Security Administration, an element of
the crime is missing in count 4.

    Eglash was enough of a crook without counts 4 and 6 to
make these two counts superfluous. The hardest part of this
case to understand is why the government turned an easy and
obvious conviction into a difficult appellate case and
fractured opinion by overcharging him. Eglash was so
plainly guilty of all the other counts, and probably would get
the same sentence without counts 4 and 6, that charging him
with mail fraud for mailings by the Social Security
Administration that were not part of the execution of the
scheme makes no practical sense. And if the jury had
somehow acquitted him of the other counts, it is hard to
imagine it nevertheless convicting him of counts 4 and 6.
Eglash defrauded the Social Security Administration with a
phony disability claim. The undeserved award was the fruit,
not part of the execution, of his scheme. We ought to rehear
this case en banc to correct our error in Brown that compels
today’s error.



WALLACE, Circuit Judge, concurring and dissenting:

   I concur with regard to the majority’s treatment of Counts
1, 2, 3, 4, 5, and 7, but I dissent from the majority’s
conclusion with regard to Count 6.
16               UNITED STATES V. EGLASH

    I agree with the majority that United States v. Brown,
771 F.3d 1149 (9th Cir. 2014), controls with regard to Count
4. Eglash is correct that the success of his fraudulent scheme
did not depend upon receiving the notice of disability award
underlying Count 4. That, however, is not the standard for
determining whether a mailing was made “for the purpose of
executing such scheme or artifice or attempting so to do”
under 18 U.S.C. § 1341. The use of the mails “need not be an
essential element of the scheme;” rather, it is “sufficient for
the mailing to be ‘incident to an essential part of the
scheme.’” Schmuck v. United States, 489 U.S. 705, 710–11
(1989), quoting Pereira v. United States, 347 U.S. 1, 8 (1954)
(emphasis added). In particular, a government entity’s
mailing of a routine document can create liability for mail
fraud, as shown by the holdings in both Schmuck and Brown.
489 U.S. at 714–15; 771 F.3d at 1158; see also United States
v. Mitchell, 744 F.2d 701, 703 (9th Cir. 1984) (upholding
conviction based on mailings that were “routine, intrinsically
innocent, and required by law”).

   Count 6 cannot be distinguished from the majority’s
conclusions with respect to Count 4. Although the Social
Security Administration’s (SSA) mailing of the application
summary neither concealed nor perpetuated the fraud, and the
mailing of the application summary was neither essential nor
even necessary to the scheme, the same could be said of the
mailing underlying Count 4, as well as the mailings in Brown.

    In Brown, it was not essential to the defendants’ scheme
that the government mail a Notice of Chapter 7 Bankruptcy
Case to one of the defendants; as co-conspirators, the
defendants were fully aware of the bankruptcy filing (since it
was an essential part of their scheme), and the scheme would
not have been harmed in any way if the government had
                 UNITED STATES V. EGLASH                    17

failed to mail the Notice. However, the defendants’ fraudulent
scheme started the bureaucracy of the bankruptcy process,
and as part of that process the government mailed out both a
Notice of Chapter 7 Bankruptcy Case and eventually a Notice
of Discharge. Brown, 771 F.3d at 1158. The mailing was only
“necessary” in the sense that the mailing of bankruptcy
notices to creditors follows the act of filing for
bankruptcy—it is a natural part of the bureaucratic process set
into motion by the filing. See also Mitchell, 744 F.2d at 704
(“the fraudulent scheme triggered the mailings, which would
not have occurred except as a step in the scheme”). Likewise,
in this case, Eglash started the Social Security application
process to defraud the government, and the application
summary was mailed to him as part of that process.

    It is true that “[t]he relevant question at all times is
whether the mailing is part of the execution of the scheme as
conceived by the perpetrator at the time.” Schmuck, 489 U.S.
at 715. But this does not require that the perpetrator
specifically envision, at the scheme’s outset, that the charged
mailing will occur; it is enough that the scheme conceived of
by the perpetrator include the mailing as part of its normal
execution. In Brown, for example, there is no indication that
the defendant envisioned the mailing of the notices when he
was planning the scheme. Instead, the question was whether
the notices were part of the execution of the scheme as
conceived by the defendant. 771 F.3d at 1158.

    Even if Eglash had to envision specifically each
individual mailing at the outset of his scheme, the evidence
suggests that Eglash would have anticipated the SSA mailing
him the application summary at issue here. Eglash had
already experienced the entire Social Security application
process when he assisted Hayes in applying for her own
18              UNITED STATES V. EGLASH

Social Security benefits. Based on his familiarity with
applying for benefits, the jury could have reasonably inferred
that Eglash was aware of the SSA’s process, including the
fact that an application summary would be mailed to him.
Also, even if Eglash had no experience with the application
process, information about the process is easily accessible,
including the fact that an application summary is mailed out
after the submission of information online and over the
phone. See, e.g., Social Security Administration Program
Operations Manual System GN 00201.015 (2015), available
at http://policy.ssa.gov/poms.nsf/lnx/0200201015.

    Eglash’s conduct is analogous to the defendant’s conduct
in Mitchell. In Mitchell, the defendant set in motion the city
government approval process for a condominium project as
part of his scheme; the court concluded that he “knew the
mails would be used in the course of securing the city’s
approval of the project” because city ordinances so indicated.
744 F.2d at 704, citing United States v. Brutzman, 731 F.2d
1449, 1454 (9th Cir. 1984), overruled on other grounds by
United States v. Charmley, 764 F.2d 675, 677 n. 1 (9th
Cir.1985) (defendant “set the forces in motion that
foreseeably would involve use of the mails”). Likewise,
Eglash, having not only been through the application process
before, but also guided by the SSA’s publicly displayed
information, would have known the SSA would use the mail
to send him a summary of his application.

    Along with my colleagues, I was troubled by the
government’s assertion at oral argument that Eglash could
have been subject to an additional mail fraud charge for each
additional copy of the application summary that was mailed
to him. However, that issue is not before us, because such an
expansive interpretation of the mail fraud statute is not
                UNITED STATES V. EGLASH                    19

necessary to uphold the conviction on Count 6. Our court has
already held that mailings triggered in the ordinary course of
a fraudulent scheme support mail fraud charges; inadvertent
or erroneous mailings would fall outside that scope. I
therefore conclude that because there was evidence offered at
trial to show that the mailing of the summary was part of the
Social Security application process, the jury could have
reasonably found that the mailing was “incident to an
essential part of [Eglash’s] scheme.” Therefore, I would
affirm the conviction on count 6, as well as on the other
counts.
