                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 21 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-10382

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00288-PMP-RJJ-
                                                 3
  v.

CALWAY WILLIAM CAULEY, AKA                       MEMORANDUM *
William Cauley,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 10-10412

              Plaintiff - Appellant,             D.C. No. 2:08-cr-00288-PMP-RJJ-
                                                 3
  v.

CALWAY WILLIAM CAULEY, AKA
William Cauley,

              Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Nevada
                      Philip M. Pro, District Judge, Presiding


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                        Argued and Submitted May 17, 2012
                             San Francisco, California

Before: THOMAS, McKEOWN, and W. FLETCHER, Circuit Judges.

      Calway William Cauley appeals his convictions of conspiracy to commit

bank and mail fraud, in violation of 18 U.S.C. § 1349, and mail fraud and aiding

and abetting, in violation of 18 U.S.C. §§ 2 and 1341, as charged in Counts One

and Two of the Second Superceding Indictment. The government cross-appeals

the district court’s denial of the government’s motion to enter an in personam

criminal forfeiture money judgment. We affirm Cauley’s convictions but reverse

and remand the district court’s denial of the government’s motion to order

forfeiture in light of United States v. Newman, 659 F.3d 1235 (9th Cir. 2011).

Because the parties are familiar with the factual and procedural history of this case,

we need not recount it here.

                                           I

      Sufficient evidence in the record supports Cauley’s convictions as charged

in Counts I and II of the second superceding indictment. Cauley’s sufficiency-of-

the-evidence challenge to his convictions succeeds “only if, viewing the evidence

in the light most favorable to the prosecution, no rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” United



                                          -2-
States v. Lo, 231 F.3d 471, 475 (9th Cir. 2000). To prove mail fraud, “the

government must establish that a defendant used the mails ‘for the purpose of

executing such [fraudulent] scheme or artifice or attempting to do so.’” Id. at 478

(quoting 18 U.S.C. § 1341). “[T]he use of the mails need not be an essential

element of the scheme.” Schmuck v. United States, 489 U.S. 705, 710 (1989)

(citing Pereira v. United States, 347 U.S. 1, 8 (1954)). Where a defendant “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, then he causes the mails to be used.” Pereira, 347 U.S. at 8-9

(internal quotation marks omitted).

      The conspirators could have reasonably foreseen that the mails would be

used in furtherance of their scheme. In order to obtain the loan underlying

Cauley’s conviction, the conspirators had to sign a servicing disclosure statement

that clearly stated that the mortgage lender, Sierra Pacific Mortgage Company

(SPMC), did not service its mortgage loans and that it intended to assign, sell, or

transfer the servicing of these loans. The closing documents also indicated that

SPMC assigned, sold, or transferred “100%” of its loans in 2004, 2005, and 2006.

It was therefore reasonably foreseeable that SPMC would use the mail to send the




                                         -3-
loan documents from its Nevada office to its California office, where it

subsequently bundled and sold the loan to Countrywide.

      Although SPMC mailed the loan documents after it funded the loan, the

mailing underlying a mail fraud conviction “can occur after the defendant has

obtained her fee, if ‘the mailing is part of the execution of the scheme as conceived

by the perpetrator at the time.’” Lo, 231 F.3d at 478 (quoting Schmuck, 489 U.S. at

715); see also United States v. Miller, 676 F.2d 359, 362 (9th Cir. 1982) (“A

fraudulent scheme may depend on a mailing even after the defrauders have

received their money.”). Just as the mailing in Schmuck was required for the car

dealers to complete the transaction by passing title to their customers, 489 U.S. at

707, the mailing in this case was required to execute the conspirators’ scheme by

allowing SPMC to sell the loan to Countrywide. Without that mailing, the

conspirators could not have used the proceeds of this loan to continue to execute

their fraudulent scheme of obtaining cash back on loans and using some of that

money to pay loans on other properties and to pay straw buyers.

                                           II

      The district court erred by declining to order Cauley to pay the statutorily

required criminal forfeiture judgment. When proper notice is given and forfeiture

is authorized by statute, “the district court must impose criminal forfeiture in the


                                          -4-
amount of the ‘proceeds’ of the crime.” Newman, 659 F.3d at 1239. “For

purposes of criminal forfeiture, the ‘proceeds’ of a fraudulently obtained loan

equal the amount of the loan” and, in a conspiracy, the “proceeds” “equal the total

amount of the loans obtained by the conspiracy as a whole.” Id. at 1244. Thus,

because Cauley was found guilty of conspiracy to commit mail fraud, he is subject

to mandatory criminal forfeiture equal to the total amount of the loans obtained by

the conspiracy. Id. We therefore reverse and remand, in part, in light of Newman.




      AFFIRMED IN PART; REVERSED AND REMANDED IN PART.




                                         -5-
