UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 97-4799

DONALD COZART,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Henry M. Herlong, Jr., District Judge.
(CR-95-945)

Submitted: March 3, 1998

Decided: March 19, 1998

Before HAMILTON and LUTTIG, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William G. Yarborough, III, ASHMORE & YARBOROUGH, P.A.,
Greenville, South Carolina, for Appellant. J. Rene Josey, United
States Attorney, David C. Stephens, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Donald Cozart appeals his jury conviction of one count of mail
fraud in violation of 18 U.S.C. §§ 1341, 2 (1994). We affirm.

Cozart takes issue with the trial court's denial of his motion for
judgment of acquittal, contending that the Government failed to pre-
sent sufficient evidence of a mailing. We review the denial of a
motion for judgment of acquittal under a sufficiency of the evidence
standard. See Fed. R. Crim. P. 29; United States v. Brooks, 957 F.2d
1138, 1146-47 (4th Cir. 1992). To support a conviction, "the evi-
dence, when viewed in the light most favorable to the government,
must be sufficient for a rational trier of fact to have found the essen-
tial elements of the crime beyond a reasonable doubt." United States
v. Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993). Circumstantial as well
as direct evidence is considered, and the government is given the ben-
efit of all reasonable inferences from the facts proven to those sought
to be established. See United States v. Tresvant , 677 F.2d 1018, 1021
(4th Cir. 1982).

To support a conviction for mail fraud, the Government must
establish (1) the existence of a scheme to defraud, and (2) a mailing
for the purpose of executing the scheme. See United States v. United
Medical & Surgical Supply Corp., 989 F.2d 1390, 1404 (4th Cir.
1993). Cozart first contends that the Government failed to prove the
occurrence of a mailing because the letter admitted at trial was not
properly authenticated. The district court's ruling to admit the letter
into evidence is reviewed for abuse of discretion. See United States
v. Hassan El, 5 F.3d 726, 731 (4th Cir. 1993). Our review of the
record discloses that the court did not abuse its discretion in admitting
the letter as evidence at trial.

The evidence at trial revealed that Cozart and his half-brother, Alan
Burdick, sold business packages consisting of machinery, training,

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territories, and support services throughout the United States at trade
and entrepreneur fairs. Numerous victims testified that they had con-
tracted to purchase machinery and support services to enable them to
start a small business. Among the support services promised were
marketing assistance and protected territories, which were never pro-
vided. In addition, many victims never received the machinery they
purchased through Cozart and Burdick. When the victims tried to
obtain the machinery, they were ignored, given false excuses, or
promised a future delivery that never took place. Testimony estab-
lished that various victims received letters promising future delivery.

At trial, the Government introduced only one of these letters, as
referred to in the single indictment, through witness Debra Bonilla.
The Bonillas had purchased glass etching equipment from Cozart for
over $12,000 in January 1994. They never received the equipment or
services, and after months of unsuccessful efforts to contact Cozart,
began correspondence with the State Attorneys General in California
and South Carolina. Through this contact, Bonilla received a letter
from the Attorney General of California enclosing a letter from Alan
Burdick, dated April 29, 1997. The enclosed letter, which was
addressed to the Attorney General, accused the Bonillas of libel and
slander and expressed an intent to take legal action against them.

At the same time that the letter by Burdick was received by the
Attorney General, the Bonillas received a letter from Burdick also
dated April 29, 1997. Bonilla testified that the letter, on letterhead of
one of Cozart and Burdick's companies and signed by Burdick, was
delivered to her and her husband's home through the United States
Mail. In that letter, Burdick apologized profusely for the company's
tardiness in shipping the machinery and cited various unforeseen con-
tingencies. Burdick promised shipment within 150 days. Over defense
counsel's objection, the court admitted the letter into evidence.

We find Cozart's contention that the letter was improperly admit-
ted to be without merit. Bonilla identified the letter and testified that
it arrived at the Bonilla residence through the United States Mail. The
letter was thus properly identified and authenticated and its admission
was not an abuse of discretion. See Fed. R. Evid. 901(a), (b)(1).
Cozart also argues that the letter should not have been admitted
because it was inadmissible hearsay. We reject this contention.

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Because the letter was not offered for the truth of the information
asserted in its contents, it was not hearsay. See Fed. R. Evid. 801(c).

Finally, Cozart asserts that the evidence was insufficient to sustain
his conviction because the Government failed to prove that the mail-
ing of the letter was part of the execution of the fraud. This assertion
has no merit. We have held that "lulling letters," letters sent to victims
for the purpose of advancing a fraudulent and criminal scheme, are
sufficient to charge mail fraud, even when the letters follow the acqui-
sition of the money in question. See United States v. Snowden, 770
F.2d 393, 398 (4th Cir. 1985). The evidence supports a finding that
the Burdick letter was written precisely when the company became
aware of the Bonillas' complaints about their practices. Full of apolo-
gies, excuses, and promises to ship machinery in the future, the letter
was intended to calm the Bonillas, postpone their efforts to take legal
action, and make ultimate apprehension and prosecution less likely.

We accordingly affirm Cozart's conviction. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.

AFFIRMED

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