                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
            ___________

            No. 02-1312
            ___________

United States of America,              *
                                       *
                  Appellee,            *
                                       *
      v.                               *
                                       *
Cristye Easton, also known as          *
Cristye Freeland,                      *
                                       *
                  Appellant.           *
                                           Appeals from the United States
            ___________                    District Court for the District of
                                           South Dakota.
            No. 02-1315
            ___________                         [UNPUBLISHED]

United States of America,              *
                                       *
                  Appellee,            *
                                       *
      v.                               *
                                       *
Paul Shannon Easton,                   *
                                       *
                  Appellant.           *
                                  ___________

                             Submitted: December 10, 2002

                                 Filed: December 16, 2002 (corrected 1/22/03)
                                  ___________
                                   ___________

Before McMILLIAN, FAGG, and BYE, Circuit Judges.
                            ___________

PER CURIAM.

      Cristye Easton (Cristye) and Paul Shannon Easton (Paul), who are married,
appeal their convictions for mail fraud and conspiracy to commit mail fraud. See 18
U.S.C. § 371 (2000) (conspiracy); 18 U.S.C. § 1346 (2000) (mail fraud). Having
reviewed the Eastons’ claims, we affirm their convictions.

       Paul and another Gateway, Inc. (Gateway) employee believed Gateway would
do business with the apparently women-owned vendor the two men created with their
wives to resell packing supplies to Gateway. The couples knew Gateway did not do
business with its employees, so the partnership, C&L Enterprises, Inc. (C&L), was
established in the wives’ maiden names. Cristye provided the partnership agreement
and represented the company in its dealings with an accountant and a lawyer.
Because C&L was required to prepay its vendor, Paul and his coworker falsely
claimed shipments had been received from C&L, and Gateway issued payment to
C&L. C&L then paid its vendor, and the prepaid materials were shipped to C&L and
delivered to Gateway. C&L profited approximately $220,000 from its sales to
Gateway.

       After a jury convicted Paul and Cristye of mail fraud and conspiracy to commit
mail fraud, the district court* sentenced Paul to fifteen months in prison and Cristye
to three years probation. The two couples are also jointly and severally liable for
$150,000 restitution. Because Cristye and Paul raise many of the same issues before


      *
       The Honorable John Bailey Jones, United States District Court Judge for the
District of South Dakota.

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our court, we have consolidated their appeals and we review their claims together
when appropriate.

       First, Cristye challenges the sufficiency of the evidence supporting her
convictions. We will overturn the jury verdict only if no reasonable jury could have
concluded Cristye was guilty beyond a reasonable doubt on each element of the
charges. United States v. Hernandez, 299 F.3d 984, 988 (8th Cir. 2002) (standard of
review). Contrary to Cristye’s assertion, the government is not required to prove
Gateway lost money or Cristye wanted Gateway to lose money in order to establish
Cristye’s intent to defraud. United States v. Pennington, 168 F.3d 1060, 1065 (8th
Cir. 1999); United States v. Costanzo, 4 F.3d 658, 664 (8th Cir. 1993). We conclude
a reasonable jury, after assessing the credibility of the witnesses and evaluating the
evidence, could have found Cristye guilty beyond a reasonable doubt of all elements
of mail fraud and conspiracy to commit mail fraud.

      Second, Cristye and Paul contend the district court failed properly to explain
fraudulent intent in the jury instructions. United States v. Whitehead, 176 F.3d 1030,
1037 (8th Cir. 1999) (standard of review). Jury instruction 25 stated in part:
      The crime of mail fraud . . . has four essential elements, which are:
      1.     The defendant under consideration voluntarily and intentionally
             devised or participated in a scheme to obtain money or property
             rights of another or to defraud another out of the intangible right
             to honest services by means of material false representations or
             promises . . . .
      2.     The defendant under consideration did so with the intent to
             defraud;
      3.     It was reasonably foreseeable that the mail would be used; and
      4.     The mail was used in furtherance of some essential step in the
             scheme.

Defining the elements of mail fraud, jury instruction 26 read:



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      To deprive a corporation of “honest services” as that term is used in this
      case, the defendant under consideration must cause or intend to cause
      actual harm or injury which is in most business contexts financial or
      economic harm.

After the jury asked, “Does it matter whether or not Gateway lost money in this
deal?” the court gave the jury the following supplemental instruction:
      Evidence of actual harm to Gateway can be considered in determining
      whether the defendants intended to defraud Gateway, as set out in
      Instruction Number 25. If you find that Gateway did not actually lose
      money as a result of the alleged scheme, this may also be considered in
      determining whether the defendants intended to defraud Gateway, as set
      out in Instruction Number 25.

Contrary to the Eastons’ view, financial or economic harm is not necessary to
establish intent to defraud. See id. at 1037-38. As in this case, the scheme itself often
serves as evidence of a defendant’s intent to defraud. Id. at 1038; Pennington, 168
F.3d at 1065. Jury instructions 25 and 26, and the supplemental instruction, are
consistent with the law of this circuit.

       Third, the Eastons claim the district court committed reversible error when it
instructed the jury on a single conspiracy and refused to instruct on multiple
conspiracies. United States v. Contreras, 283 F.3d 914, 916 (8th Cir. 2002) (standard
of review). Jury instruction 23 stated:
       You may consider acts knowingly done and statements knowingly made
       by a defendant’s co-conspirators during the existence of the conspiracy
       and in furtherance of it as evidence pertaining to the defendant even
       though they were done or made in the absence of and without the
       knowledge of the defendant. This includes acts done or statements
       made before the defendant had joined the conspiracy, for a person who
       knowingly, voluntarily, and intentionally joins an existing conspiracy is
       responsible for all of the conduct of the co-conspirators from the
       beginning of the conspiracy.



                                          -4-
Shortly before C&L was formed, Paul’s coworker and his wife created and operated
a company nearly identical to C&L in its structure, purpose, and methods. The
government argued the Eastons entered into an already-existing conspiracy, but the
Eastons contended the creation of C&L was a separate conspiracy. Having
considered the evidence in the light most favorable to the verdict, we conclude the
evidence supports a single conspiracy, thus the district court’s refusal to give a
multiple conspiracy instruction is not reversible error. Id.

       Finally, Paul argues his conviction under the mail fraud statute is plain error
because the statute is unconstitutionally vague as applied to his case. Specifically,
Paul contends an ordinary person would not understand C&L’s conduct was
prohibited by the statute. See United States v. Olano, 507 U.S. 725, 732 (1993) (plain
error standard). The Second Circuit distinguished the case on which Paul relies,
United States v. Handakas, 286 F.3d 92, 107 (2d Cir. 2002), in a situation factually
similar to Paul’s, United States v. Rybicki, 287 F.3d 257, 264 (2d Cir. 2002). In the
context of Paul’s plain error argument, we reject the contention that the mail fraud
statute is unconstitutionally vague when applied to a case in which two Gateway
employees and their wives created a false-front vendor with the intent to deceive
Gateway about the vendor’s ownership, to profit from doing business with Gateway,
and to use the mail to carry out this scheme. See, e.g., Pennington, 168 F.3d at 1065-
66 (CEO’s kickback scheme); Costanzo, 4 F.3d at 660, 664-67 (plan to obtain
discounted pharmaceuticals by making false claims and to resell at a profit).

      For the reasons stated above, we affirm the convictions of Cristye Easton and
Paul Shannon Easton.




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A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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