                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-17-2006

USA v. Al-Ame
Precedential or Non-Precedential: Precedential

Docket No. 04-3769




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                                           PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                        No. 04-3769


             UNITED STATES OF AMERICA

                             v.

                     ALI B. AL-AME,

                                               Appellant


        Appeal from the United States District Court
               for the District of New Jersey
         (D.C. Criminal Action No. 02-cr-00402)
         District Judge: Honorable John C. Lifland


        Submitted Under Third Circuit LAR 34.1(a)
                   November 15, 2005

       Before: BARRY, and AMBRO, Circuit Judges
                POLLAK*, District Judge

 *Honorable Louis H. Pollak, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
                   (filed January 17, 2006)

Catherine M. Brown, Esquire
P.O. Box 9058
60 Washington Street
Morristown, NJ 07963

      Counsel for Appellant

Christopher J. Christie
  United States Attorney
George S. Leone
  Chief, Appeals Division
Caroline A. Sadlowski
  Assistant U.S. Attorney
District of New Jersey
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102

      Counsel for Appellee


                OPINION OF THE COURT


AMBRO, Circuit Judge

       Ali B. Al-Ame appeals from his conviction in the United
States District Court for the District of New Jersey for


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conspiracy to commit mail fraud in violation of 18 U.S.C. § 371.
He contends, inter alia, that the mailing at issue was not in
furtherance of the fraud and therefore his conduct does not
qualify as mail fraud as defined in 18 U.S.C. § 1341. For the
reasons that follow, we affirm the judgment of conviction.

I. Facts and Procedural History

        Al-Ame is one of over 60 individuals who have been
prosecuted for their roles in a conspiracy to defraud the
Educational Testing Service (“ETS”), a nonprofit testing
organization headquartered in New Jersey. Among the many
standardized tests developed and administered by ETS is the
Test of English as a Foreign Language (“TOEFL”). Many U.S.
colleges and universities require that foreign students take the
TOEFL to demonstrate English proficiency, and therefore
passing it is essential for many foreign students who wish to
study at post-secondary educational institutions in the United
States.

        The conspiracy involved several dozen foreign students
of Arab or Middle Eastern descent who entered into a scheme
whereby they paid imposters to take the TOEFL for them. The
imposters’ scores were subsequently reported to colleges and
universities as the students’ own. Al-Ame, a foreign student
enrolled at a community college in the State of Washington,
paid an imposter to take the TOEFL in Al-Ame’s name at a
testing site in San Diego, California. On November 5, 2001, the

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imposter went to the testing site and presented false
identification stating that he was Al-Ame. ETS accepted the
imposter’s identification and, in accordance with the testing
rules, photographed the imposter, had him sign a confidentiality
agreement, and admitted him to the test. At Al-Ame’s direction,
the imposter instructed ETS to mail the test results to Al-Ame’s
home address. Consistent with these instructions, ETS mailed
the results from New Jersey to Al-Ame’s address in
Washington, where Al-Ame intended to replace the imposter’s
photograph with his own and then send the results to his college.

        In May 2002 the Government indicted Al-Ame on one
count of conspiracy to commit mail fraud in violation of 18
U.S.C. § 371. The Government filed a superseding indictment
in October 2002 charging the same offense. Al-Ame waived his
right to a jury trial and stipulated to the relevant facts. He
argued that (1) ETS’s property rights in its test were not
compromised as a result of his fraud, and (2) its act of mailing
the test results to him was not in furtherance of the conspiracy
and therefore did not constitute mail fraud under 18 U.S.C. §
1341. The District Court rejected these arguments and, based on
the stipulated facts, found Al-Ame guilty of conspiracy to
commit mail fraud. The Court sentenced him to two years
probation and a $1,000 fine.

      We disposed of Al-Ame’s first objection in United States
v. Hedaithy, 392 F.3d 580 (3d Cir. 2004), a case involving two
of Al-Ame’s co-conspirators. We held that the scheme

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“interfered with ETS’s efforts to keep its test confidential” and
“defraud[ed] ETS of traditionally recognized property interests
in its confidential business information and TOEFL score
reports.” Id. at 595, 601. Al-Ame therefore presses only the
second objection that ETS’s act of mailing the test results to him
was not in furtherance of the conspiracy.

           II. Jurisdiction and Standard of Review

        The District Court had subject matter jurisdiction over
this case pursuant to 18 U.S.C. § 3231, and we have jurisdiction
over the appeal under 28 U.S.C. § 1291. In its brief, the
Government notes its uncertainty as to whether Al-Ame is
challenging the sufficiency of the superseding indictment’s
allegations of mail fraud or the sufficiency of the evidence of
mail fraud produced at trial. Review of the former is plenary,
see Hedaithy, 392 F.3d at 590 n.10 (citing United States v.
Panarella, 277 F.3d 678, 685 (3d Cir. 2002)), while review of
the latter is subject to a deferential standard of review under
which we construe all evidence in favor of the Government and
will only reverse if “[no] reasonable trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979);
Hedaithy, 392 F.3d at 605. Because we conclude that the
mailing from ETS to Al-Ame was in furtherance of the fraud, it
is not necessary to determine under which theory his challenge
arises because our holding would be the same under either
standard of review.

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                           III. Analysis

        Under 18 U.S.C. § 1341, a person is guilty of mail fraud
if, “having devised or intending to devise any scheme or artifice
to defraud,” and “for the purpose of executing such scheme or
artifice or attempting so to do,” he “knowingly causes to be
delivered by mail or [interstate] carrier according to the
direction thereon, or at the place at which it is directed to be
delivered by the person to whom it is addressed, any . . . matter
or thing.” In Schmuck v. United States, 489 U.S. 705 (1989) the
Supreme Court reiterated that “the use of the mails need not be
an essential element of the scheme” in order to constitute mail
fraud; rather, it is “sufficient for the mailing to be incident to an
essential part of the scheme or a step in [the] plot.” Id. at 710-
11 (internal citations and quotation marks omitted; alteration in
original).

         Al-Ame makes two arguments in support of his
contention that ETS’s act of mailing test results to him was not
in furtherance of his fraudulent activities. First, he contends that
his scheme was complete at the time the imposter took the test
(i.e., that this was the act that defrauded ETS of its property
interests and therefore the subsequent mailing was not in
furtherance of the fraud). He thus relies on our statement in
United States v. Cross, 128 F.3d 145 (3d Cir. 1997) that
“‘mailings taking place after the object of the scheme has been
accomplished, or before its accomplishment has begun, are not
sufficiently closely related to the scheme to support a mail fraud

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prosecution.’” Id. at 150 (quoting United States v. Tarnopol,
561 F.2d 466, 472 (3d Cir. 1977 (internal citations and quotation
marks omitted)); see also United States v. Maze, 414 U.S. 395,
402 (1974) (holding that a credit card bill mailed to the
cardholder after the defendant stole the card from the cardholder
and used it to rent a room at a motel was insufficient to sustain
a conviction for mail fraud because the defendant’s “scheme
reached fruition when he checked out of the motel, and there is
no indication that the success of his scheme depended in any
way on which of his victims ultimately bore the loss. Indeed,
from his point of view, he probably would have preferred to
have the invoices misplaced by the various motel personnel and
never mailed at all”); Parr v. United States, 363 U.S. 370, 392-
93 (1960) (same).

        We disagree with this characterization of Al-Ame’s
offense. It is clear from the stipulated facts that ETS’s mailing
of the TOEFL score to Al-Ame was a critical step in furtherance
of the fraud. Al-Ame stipulated that he “knowingly and
intentionally agreed to participate in and began participating in
the conspiracy . . . with the hope that he would receive an
acceptable score of the exam that he could then submit to an
educational institution after substituting his own photograph on
the score sheet for that of the imposter.” Al-Ame’s act of hiring
an imposter to take the test for him was not, therefore, the full
extent of his fraud. Indeed, hiring the imposter was merely one
of several steps. Equally crucial to the scheme’s success was
Al-Ame’s receipt of the imposter’s TOEFL score in the mail, the

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substitution of Al-Ame’s photograph for that of the imposter,
and the mailing of the doctored score sheet containing the
imposter’s scores to the community college where Al-Ame was
studying. The scheme was incomplete without Al-Ame (via the
imposter) knowingly causing ETS to mail the imposter’s
TOEFL score to him.

        Second, Al-Ame asserts that ETS’s mailing of the score
was routine, legally required, and would have occurred with or
without his fraud. He therefore relies on our statement in Cross
that “routine mailings required by law[,] which are themselves
intrinsically innocent even though they take place during the
course of carrying out a fraudulent scheme,” cannot form the
basis for a mail fraud conviction. 128 F.3d at 150; see Parr, 363
U.S. at 391 (“[I]t cannot be said that mailings made or caused to
be made under the imperative command of duty imposed by
state law are criminal under the federal mail fraud statute, even
though some of those who are so required to do the mailing . .
. plan to steal, when or after received, some indefinite part of its
moneys.”).

        We reject this argument. First, we note that the Supreme
Court has definitively rejected the assertion that routine or
innocent mailings are per se excluded from the scope of 18
U.S.C. § 1341. See Schmuck, 489 U.S. at 714-15. Moreover,
the fact that ETS had a contractual duty to mail the scores to Al-
Ame is clearly distinguishable from the legal duties at issue in
Cross and Parr. In Cross the co-conspirators rigged the

                                 8
decision-making process of a Statutory Appeals Division of the
Pennsylvania Court of Common Pleas, and merely used the mail
to inform litigants of the outcomes of their cases. The crime was
complete before notices of disposition were mailed. “[T]he
relevant mailings would, of necessity, have been made whether
or not the conspiracy existed, and they would have performed
precisely the same function in the absence of the conspiracy that
they performed during its continuance.” Cross, 128 F.3d at 151.
Likewise, in Parr the co-conspirators took checks from local
taxpayers intended as payment of school taxes and converted
them. The Supreme Court noted that “the [School] Board was
compelled to collect and receipt for the taxes by state law,
which, in the circumstances here, compelled it to use . . . the
mails,” and thus “the legally compelled mailings . . . were not
shown to have been unlawful ‘step[s] in a plot’” even though
“some of those who [were] required to do the mailing for the
District plan[ned] to steal” the tax payments. Parr, 363 U.S. at
391.

        Al-Ame’s case is much different. He did not simply
receive a mailing that ETS would have sent to him anyway as
required by law. Rather, he fraudulently induced ETS to mail
him a TOEFL score. Had Al-Ame not dispatched an imposter
to take the test, no one would have taken the test in his name and
therefore no score would have been mailed. This is in contrast
to Cross and Parr, where the mailings would have occurred
regardless of the fraud because (as in Cross) the cases would
have been decided and the notices of judgment mailed even if

                                9
the results had not been fixed, and (as in Parr) the tax bills
would have been sent and payments received even if school
employees did not intend to convert the proceeds. To
paraphrase what the Supreme Court stated in Schmuck, “the
mailing[] in the present case . . . [was] derivative of [Al-Ame’s]
scheme . . . and would not have occurred but for that scheme.”
489 U.S. at 713 n.7.

                        IV. Conclusion

        We conclude that Al-Ame’s conduct was mail fraud as
defined in 18 U.S.C. § 1341, and therefore the Government had
a sufficient basis to charge him with, and the District Court had
a sufficient basis to find him guilty of, conspiracy to commit
mail fraud in violation of 18 U.S.C. § 371. For the foregoing
reasons, the judgment of conviction is affirmed.




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