                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                     FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                              August 9, 2006
                             No. 05-10663                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                 D. C. Docket No. 04-00181-CR-T-27-EAJ

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

TODD MAYO,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                             (August 9, 2006)

Before CARNES, PRYOR and FAY, Circuit Judges.

PER CURIAM:
       Todd Mayo appeals his convictions for mail fraud, in violation of 18

U.S.C.§ 1341, and forgery, in violation of 18 U.S.C. § 513(a).1 On appeal, he

argues that the evidence is insufficient to sustain either conviction. For the reasons

set forth more fully below, we affirm.

       We review the sufficiency of the evidence de novo, “viewing the evidence in

the light most favorable to the government.” United States v. Garcia, 405 F.3d

1260, 1269 (11th Cir. 2005). We also make all reasonable inferences and

credibility choices in favor of the government and the jury’s verdict. Id. We must

affirm “unless, under no reasonable construction of the evidence, could the jury

have found the [defendant] guilty beyond a reasonable doubt.” Id. “The evidence

need not exclude every hypothesis of innocence or be completely inconsistent with

every conclusion other than guilt because a jury may select among constructions of

the evidence.” U.S. v. Bailey, 123 F.3d 1381, 1391 (11th Cir. 1997).

       Mayo ran two companies, Pacific Capital Corporation (“PCC”) and Security

Trust Income Fund, LLC (“STIF”), which loaned private investor money to

borrowers and secured the loans with real estate, placing deeds of trust on the

properties. Mayo’s investors included Robert Peck, his brother, David Peck, and


       1
         Mayo was charged with four counts of mail fraud, one count of transportation of stolen
property, and one count of forgery. The district court granted Mayo’s motion for judgment of
acquittal as to one of the mail fraud counts, and the jury acquitted Mayo on two of the remaining
mail fraud counts and the transportation of stolen property count.

                                                2
Morton Myerson. All three invested in STIF. Mayo’s convictions are based upon

a PCC check representing the return of Robert Peck’s $225,000 principal

investment in PCC. This check contained a forged endorsement, and the bank

stamps on the back of the check came from another PCC check. A copy of this

check was mailed to Robert Peck in December 2000.

      On appeal, Mayo challenges the mail fraud conviction, arguing that the

evidence does not establish a scheme to defraud, but conversion of legally obtained

funds and acts designed to forestall discovery of a simple theft. He further argues

that the jury verdict demonstrates that the government failed to prove a scheme to

defraud regarding STIF investments. He contends that the theory that the mailing

lulled investors does not make sense because no reasonably prudent person would

rely upon the canceled check. In addition, Mayo asserts that the only purpose of

the cancelled check would be to alert Peck that something was wrong, and,

therefore, does not amount to mail fraud.

      “Mail fraud consists of the following elements: ‘(1) an intentional

participation in a scheme to defraud a person of money or property, and (2) the use

of the mails in furtherance of the scheme.’” United States v. Sharpe, 438 F.3d

1257, 1263 (11th Cir. 2006) (citation omitted). “A scheme to defraud requires

proof of material misrepresentations, or the omission or concealment of material



                                            3
facts reasonably calculated to deceive persons of ordinary prudence.” United

States v. Hasson, 333 F.3d 1264, 1270-71 (11th Cir. 2003) (citations omitted).2

“While a mailing is a required element of a § 1341 claim, the use of the mails need

not be an essential element of the scheme; for a mail fraud conviction, it is

sufficient if the government shows that the mailing was ‘incident to an essential

part of the scheme’ or ‘a step in the plot.’” United States v. Lee, 427 F.3d 881, 887

(11th Cir. 2005), cert. denied, 126 S.Ct. 1447 (2006) (citation omitted). The

defendant need not personally mail the item, but need only cause a use of the

mails. United States v. Funt, 896 F.2d 1288, 1292, 1294 (11th Cir. 1990); see also

United States v. Toney, 598 F.2d 1349, 1355 (5th Cir. 1979) (“One ‘causes’ the

mails to be used when he ‘does an act with knowledge that the use of the mails will

follow in the ordinary course of business, or where such use can reasonably be

foreseen, even though not actually intended.’”) (citation omitted).

       The mailings can occur after the goods are fraudulently obtained “if they

‘were designed to lull the victims into a false sense of security, postpone their

ultimate complaint to the authorities, and therefore make the apprehension of the

defendants less likely than if no mailings had taken place.’” United States v. Lane,



       2
        Although Hasson is a wire fraud case, “[t]he ‘scheme or artifice to defraud’ and ‘for the
purpose of executing’ language in the mail and wire fraud statutes are construed identically.”
Hasson, 333 F.3d at 1271 n.7.

                                                4
474 U.S. 438, 451-452, 106 S.Ct. 725, 733, 88 L.Ed.2d 814 (1986) (citation

omitted). Letters that are designed to conceal the fraud by lulling the victim into

inaction or that are designed to allay suspicions are actionable under the fraud

statute. United States v. Georgalis, 631 F.2d 1199, 1204-05 (5th Cir. Unit B 1980).

One “common element in the ‘lulling’ cases is that the lulling devices comprised a

fundamental part of the basic scheme and its desired continued perpetration.”

Henderson v. United States, 425 F.2d 134, 143 (5th Cir. 1970).

       The evidence is sufficient for a jury to find a scheme to defraud STIF

investors.3 Mayo explained that, although he had a number of pending transactions

from which he was expecting revenue, he was experiencing a short-term cash-flow

problem between approximately April and June 2000. There is sufficient evidence

for the jury to find that Mayo was seeking additional funds to get PCC and STIF

(and himself) through the cash-flow crisis, and that he secured such funds from

Myerson and the Pecks by misrepresenting how he intended to use the money. As

evidence of his intent to defraud, the evidence shows that Myerson, Robert Peck,

and David Peck invested in STIF during the time that STIF and PCC were in a


       3
        Acquittal by the jury on the other mail fraud counts does not demonstrate that the
evidence of a scheme to defraud was insufficient, as the jury could have acquitted for other
reasons. Funt, 896 F.2d at 1293. In addition, the verdict is not necessarily inconsistent, as the
jury could have found that there was a scheme to defraud, but that the checks in the remaining
two counts — payment of interest to PCC investors — were not mailed in furtherance of the
scheme to defraud.

                                                 5
cash-flow crisis. They all believed that their money would be used for investment

purposes. Mayo did not give David Peck any reason to believe that things were not

going well, his money was at risk, or he would not receive interest payments. He

did not give Myerson any reason to think that his money was at risk, and did not

tell Myerson that he was experiencing a cash-flow crisis or that he would use the

money to pay expenses.

      The use of the STIF investor funds provides further evidence of Mayo’s

scheme to defraud. Both of Robert Peck’s checks were deposited directly into

PCC’s bank account, and, after Myerson’s $250,000 investment and David Peck’s

$5,000 investment were deposited in STIF’s bank account (which previously had a

balance of $27,839.53), a total of $199,000 was transferred from the STIF account

to the PCC account. This money helped Mayo pay expenses and interest to other

investors including: (1) $63,000 that went to Mayo’s personal accounts,

(2) $25,000 toward a premature balloon payment on property he purchased from

William Welch, which appeared to be used as both an office and residence, and

(3) $100,000 transferred to another corporate account for which Mayo was the only

authorized agent. Mayo also used some of the money in the STIF account to make

interest payments to other investors.

      There is also sufficient evidence for the jury to find that Mayo caused the



                                         6
mailing of the copy of the check to Robert Peck by directing Lori Mayo, who

worked as an office manager/bookkeeper, to do so. Although Lori Mayo appeared

to do the actual mailing, Robert Peck requested the check from Mayo. In the days

before sending the check, Mayo told Robert Peck that he would send the check by

fax and Federal Express.

       In order to find that the mailing of the copy of the check was in furtherance

of the scheme to defraud STIF investors, the jury would have to infer that the

mailing was intended to lull the investors into a false sense of security regarding

these investments. To reach this inference, the jury could find that Mayo knew that

the check was fraudulent and that he had previously tried to cast suspicion away

from himself. As evidence of Mayo’s knowledge, he made multiple statements

that the check had cleared the PCC account and claimed to have a copy of the bank

statement. He also made multiple statements casting suspicion on Lincoln Trust.

The jury could also infer such knowledge based on: (1) the length of time during

which Mayo insisted that the check had cleared the PCC account, particularly as

Mayo continued to insist that the check had cleared the account despite evidence

that he had in his possession two different versions of the check,4 (2) Mayo’s


       4
         Copies of the copy of the check mailed to Robert Peck and the check photocopied by
David Peck were admitted into evidence. Although the front of both copies appears to be
identical, the back of the checks are not — the “Bob Peck” endorsement is different, and the
bank stamps are in different locations. Based on the date on the fax, Robert Peck faxed his copy

                                               7
statement that he brought the check to NationsBank and was told that it did not

clear the NationsBank account, as NationsBank became Bank of America in 1998,

and the check was a NationsBank/Bank of America check, and (3) Mayo’s

statement that the check may have cleared a different account when he was

confronted with evidence that it never cleared the PCC account, as he had

previously claimed. The jury could also disbelieve Mayo’s statements to the effect

that he did not forge the check, and, thereby, infer that the opposite was true. See

United States v. Hasner, 340 F.3d 1261, 1272 (11th Cir. 2003) (holding that a jury

can disbelieve a witness and infer that the opposite of his testimony is true).

       It follows that the jury could reasonably infer that Mayo’s intent in

providing Robert Peck with a copy of the canceled check was to make him believe

that PCC had issued a check for his investment principal and to induce him to

investigate other reasons for the missing funds, thereby diverting suspicion that

Mayo was engaged in any wrongdoing. Both of the Pecks were involved in

investigating this check. If either of them questioned the propriety of Mayo’s

handling of Robert Peck’s PCC investment, it is logical that they would also

question Mayo’s handling of their STIF investments. Therefore, the jury could



of the check back to Mayo on February 16, 2001. When Mayo met with David Peck on
February 22, 2001, David copied the other version of the check. Mayo continued to insist that
the check had cleared the PCC account into April 2001.

                                               8
reasonably infer that, in seeking to allay suspicions regarding Robert Peck’s PCC

investment, Mayo also intended to lull the Pecks into a false sense of security

regarding their STIF investments. Accordingly, there is sufficient evidence to

support Mayo’s conviction for mail fraud.

      As to his forgery conviction, Mayo does not challenge the sufficiency of the

evidence that the check was a forged security of an organization, but argues that

the evidence was not sufficient to establish his responsibility for the forgery or his

intent to deceive.

      Whoever makes, utters or possesses a counterfeited security of a State
      or a political subdivision thereof or of an organization, or whoever
      makes, utters or possesses a forged security of a State or political
      subdivision thereof or of an organization, with intent to deceive
      another person, organization, or government shall be fined under this
      title or imprisoned for not more than ten years, or both.

18 U.S.C. § 513(a). Thus, there must be sufficient evidence that Mayo: (1) made,

uttered, or possessed; (2) a forged security; (3) of an organization; (4) with intent

to deceive another person, organization, or government. Id. § 513(a). Only the

first and fourth elements are challenged on appeal.

      There is sufficient evidence to allow the jury to infer that Mayo made the

forgery with the intent to deceive. For the reasons that the jury could find that

Mayo knew that the check was fraudulent discussed above, the jury could also find

that Mayo perpetrated the forgery. The jury could also disbelieve Mayo’s

                                           9
statements to the effect that he did not forge the check, and, thereby, infer that the

opposite was true. Hasner, 340 F.3d at 1272. Furthermore, because Mayo was

president of PCC and Lori Mayo was a subordinate, the jury could also infer that

he directed Lori Mayo to fill out the check. Despite Mayo’s candor with the Pecks

regarding his suspicions as to the check, the jury could also reasonably infer

Mayo’s intent to deceive as he made multiple statements casting suspicion on

Lincoln Trust. This would support an inference that Mayo intended to deceive the

Pecks into believing that he had, in fact, issued the check.

      In light of the foregoing, we conclude that Mayo’s convictions for mail fraud

and forgery are supported by sufficient evidence. We, therefore, affirm.

      AFFIRMED.




                                           10
