
USCA1 Opinion

	




        September 20, 1995      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 95-1209                                     UNITED STATES,                                      Appellee,                                          v.                                    GANIYU BARUWA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                       [Hon. Mary M. Lisi, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Selya, Stahl and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Mary June Ciresi on brief for appellant.            ________________            Sheldon  Whitehouse, United  States Attorney,  Margaret E.  Curran            ___________________                            ___________________        and Charles A. Tamuleviz, Assistant United States Attorneys, on  brief            ____________________        for appellee.                                 ____________________                                 ____________________                      Per Curiam.   Appellant  Baruwa was convicted  by a                      __________            Rhode Island federal jury  of eight counts of mail  fraud, in            violation  of 18 U.S.C.   1341.  He challenges his conviction            on two of the  counts, arguing that the mailings  relied upon            by the Government in  support did not meet the  statute's "in            furtherance of  the scheme"  requirement, and  therefore were            insufficient to support  his conviction.  We disagree, and so            affirm.                      The evidence  at trial, unchallenged in  any way on            appeal,  revealed  that  Baruwa  filed  eight  false personal            injury   claims  against  various   insurance  companies  and            businesses,  based on a claimed slip  and fall at each of the            insured premises.   For  all  the claims,  the United  States            mails  were  used  to   carry  claims-related  materials  and            correspondence to or from Baruwa.                        The heart  of Baruwa's  argument on appeal  is that            the  two letters  which form  the basis  of Counts  Seven and            Eight1 of  the indictment were  not mailed in  furtherance of                                            ____________________            1.  The  letter in  support of  Count Seven  was from  Roy A.            Prout,  Investigator for Constitution  State Service Company,            the claims handler for Woolworth, Inc.  The letter stated, in            essence, that  an investigation was ongoing  to determine the            circumstances of the accident, and the extent and severity of            injury.    It advised  Mr.  Baruwa that  his  cooperation was            necessary,  and that  he  would need  to  provide a  recorded            statement and documentation of injuries.                 The letter in support of Count Eight was from Michael J.            Stack, Special Investigator for  Liberty Mutual.  This letter            identified  Mr.  Stack  as  the  claim's  investigator,   and            requested Mr. Baruwa to contact him to discuss the claim.                                            -2-            the scheme to  defraud, as  required by  statute, but  rather            were sent to him  by investigators who regarded his  claim as            questionable.    Each  investigator  testified,  as  to   his            respective  letter,  that it  is sent  only  when a  claim is            suspicious.  These letters,  so  the argument  runs, did  not            further Baruwa's scheme because they were not sent as part of            the  routine  processing of  his  claim, but  were  sent only            because his claims were suspect.                       There are  two elements to the crime of mail fraud.            "They  are  the  defendant's  participation in  a  scheme  to            defraud and  the use of the mails, either by or caused by the            [defendant], in furtherance of the  scheme."  U.S. v. Yefsky,                                                          ____    ______            994 F.2d 885, 891 (1st Cir. 1993).                      For a  mailing to be considered  `in furtherance of            the scheme,'  "the scheme's  completion or the  prevention of            its  detection  must   have  depended  in  some  way  on  the            mailings."   U.S. v.  Pacheco-Ortiz, 889  F.2d 301,  305 (1st                         ____     _____________            Cir. 1989), quoting U.S.  v. Silvano, 812 F.2d 754,  760 (1st                                ____     _______            Cir. 1987)(internal quotation marks omitted.)  The use of the            mails need not be  an essential element of the  scheme; "[i]t            is sufficient for the mailing to be `incident to an essential            part  of  the  scheme,' ...  or  `a  step  in the  plot....'"            Schmuck  v.  U.S.,  489  U.S. 705,  710-11  (1989)  (citation            _______      ____            omitted.)                        The  relevant  question at  all  times is                      whether  the  mailing   is  part  of  the                                         -3-                      execution of the  scheme 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.  The mail fraud                      statute  includes  no guarantee  that the                      use  of  the  mails  will be  risk  free.                      Those  who  use  the  mails   to  defraud                      succeed at their peril.              Id.  at 715.   Schmuck  involved  a scheme  whereby defendant            ___            _______            rolled  back  car odometers  and  resold  the resulting  low-            mileage  cars to  retail dealers for  ultimate resale  to the            public.  The dealers submitted title application forms to the            state  on behalf of their  customers.  The  Court agreed that            these submissions  satisfied the mailing element  of the mail            fraud  offense,  observing  that  "once the  full  flavor  of            Schmuck's scheme is appreciated," it became clear that "[t]he            mailing of the title-registration forms was an essential step            in the successful passage of title to the retail purchasers."            Id. at 712, 714.              In U.S. v. Serino, 835 F.2d 924            ___                              ____    ______            (1st  Cir. 1987),  we upheld  defendant's conviction  on five            counts  of mail fraud and  rejected the argument that certain            mailings  between an  attorney and  the insurance  company he            represented were not in furtherance of the scheme "but rather            hindered it, because  they contained the  Insurance Company's            attorney's  reservations about  the validity  of  the claim."            Id.  at 928.   We noted  first that  we have  given a liberal            ___            construction  to the language of the mail fraud statute.  Id.                                                                      __                                         -4-            In  answer   to  Serino's   specific  argument,  we   said:                        Our response  is that the focus  ought to                      be  concerned  less   with  the   precise                      contents of the particular  mailings than                      with  the role  those mailings  played in                      the execution  of the scheme  to defraud.                      As long as the mailings  are sufficiently                      related  to  the   scheme  so  that   the                      execution of the scheme depended on those                      mailings being sent, the proper  nexus is                      established.            Id. at 928-29.            __                      More recently, we upheld a mail fraud conviction in            an insurance  context against the argument  that an insurer's            letter,  acknowledging receipt of a claim for the theft of an            automobile,  was not part of the  scheme to defraud.  We said            that while the acknowledgement  letter itself did not involve            any deception,  it "was `incidental' to  an essential element            in the scheme, namely, the criss-cross of mailings that would            reasonably  be expected  when false  claims are  submitted to            insurance companies, are processed, and are ultimately  paid,            thereby  making the  fraud successful."   U.S. v.  Morrow, 39                                                      ____     ______            F.3d  1228, 1237 (1st Cir.  1994), cert. den.,  115 S.Ct 1421                                               ____  ___            (1995);  see also U.S.  v. Contenti, 735  F.2d 628,  631 n. 2                     ___ ____ ____     ________            (1st  Cir. 1984) (mailing is incident to an essential part of            a  scheme where it is `"a normal concomitant of a transaction            that is essential to the fraudulent scheme,'" quoting U.S. v.                                                                  ____            Lea, 618 F.2d 426, 431 (7th Cir. 1980)).            ___                                         -5-                      Our cases, therefore,  reflect that even a  mailing            which  expresses some doubt about the validity of a claim can            satisfy the mail fraud statute if the mailing is sufficiently            related to the scheme:  if execution of the scheme depends on            the mailing being sent. Other Circuits have so held.                        In  U.S. v. Draiman, 784 F.2d  248 (7th Cir. 1986),                          ____    _______            defendant  challenged  the Government's  reliance  on letters            from  the  insurance  company's  attorney   to  his  business            attorney indicating  that the  proofs of loss  and supporting            documentation   were   not    sufficient,   and    requesting            clarification.     "Draiman   argues  that   these   mailings            conflicted with his scheme  rather than furthered it.   If in            fact the letters did conflict rather than promote the scheme,            they would not  qualify. ... The distinction  is that Draiman            was continuing  to try to  collect, and these  letters helped            give him another chance."  Id. at 253.  U.S.  v.  McClelland,                                       __           ____      __________            868 F.2d 704 (5th Cir. 1989) is instructive, too.  There, the            indictment  was based in part  on a report  from an insurance            adjuster  to the  insurance company's  claim department.   In            addition to routine claims  information, the report reflected            facts that would lead the claims department to suspect arson,            and to focus suspicion  on the defendant.  The  Fifth Circuit            upheld reliance on the report, finding that it:                      was not for the sole purpose of defeating                      [defendant's]  claim.  Most  of the facts                      contained in [the]  report are  routinely                      used by  insurers in making  decisions on                                         -6-                      whether  and  how  much  to   pay  on  an                      insurance  claim.   Consequently,  [this]                      interim  report was  a customary  step in                      processing  an insurance claim.  The jury                      was  entitled  to   conclude  that   this                      mailing furthered [defendant's] scheme to                      collect   on  his   fraudulent  insurance                      claim.            Id. at 708-09.               ___                      Baruwa's scheme was to claim he had suffered injury            at different insured premises.  Appellant's Brief, p. 2.  His            objective was to  collect proceeds from  the insurers of  the            premises.  Id.  His claims set in motion a predictable flurry                       __            of paper,  a "criss-cross of  mailings."   That the  mailings            were sent as  a result of the  suspicions of the insurers  is            not decisive here; it is obvious that mailings such as these,            seeking information about Baruwa's claims and injuries,  were            clearly  incidental, even  critical,  to the  success of  his            scheme.    "Success of  his plan,  were  it to  result, would            depend on  the sending and  receipt of precisely  those claim            documents  and supporting  documentation  that  were in  fact            sent...."  Serino, 835 F.2d at 929.  Accordingly, we conclude                       ______            that the letters  relied on  in support of  Counts Seven  and            Eight  of  the  indictment  were sufficient  to  satisfy  the            statute.  Baruwa's conviction is affirmed.                                             ________                                         -7-
