     Case: 11-50227     Document: 00511669233         Page: 1     Date Filed: 11/17/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        November 17, 2011
                                     No. 11-50227
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

CARLOS RIOS BUENO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:10-CR-167-1


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Carlos Rios Bueno appeals following his conviction on a three-count
indictment charging him with using the mails to defraud Endeavor Energy
Resources by submitting fraudulent invoices for work purportedly performed by
his company, Muy Bueno Backhoe Service. He argues that the evidence was
legally insufficient to support the jury’s verdict because the Government did not
establish “use of the mails” as required in a federal mail fraud prosecution.



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-50227   Document: 00511669233     Page: 2   Date Filed: 11/17/2011

                                 No. 11-50227

      Bueno moved for a judgment of acquittal at the close of the Government’s
case, and he renewed his motion at the close of all of the evidence. Accordingly,
he properly preserved his sufficiency claim for appellate review. See United
States v. Ferguson, 211 F.3d 878, 882 (5th Cir. 2000). The denial of a motion for
a judgment of acquittal is reviewed de novo. Id. In deciding the sufficiency of
the evidence, we will affirm a jury verdict if, “viewing the evidence and the
inferences that may be drawn from it in the light most favorable to the verdict,
a rational jury could have found the essential elements of the offenses beyond a
reasonable doubt.” United States v. Clark, 577 F.3d 273, 284 (5th Cir. 2009)
(internal quotation and citation omitted).
      To prove mail fraud under 18 U.S.C. § 1341, the Government must prove
beyond a reasonable doubt: “(1) a scheme to defraud (2) which involves a use of
the mails (3) for the purpose of executing the scheme.” United States v. Ingles,
445 F.3d 830, 835 (5th Cir. 2006) (internal quotation marks and citations
omitted). Although the Government must prove that the mailing caused by the
defendant’s actions was incident to an essential part of the scheme, it need not
prove that the defendant used the mails himself or actually intended that the
mail be used. Id. The defendant “causes” the mails to be used if he does an act
with the knowledge that the use of the mails will follow in the ordinary course
of business, or where such use can be reasonably foreseen. Id. A mailing is
“incident to an essential part of the scheme” if the completion of the alleged
scheme depended in some way on the use of the mails. Id.
      Bueno argues that the Government failed to establish his use of the mails
because his scheme to defraud was complete before the payment checks were
deposited in the mail. He argues that the scheme began when he filled out the
invoices and hand delivered them to an Endeavor Energy Resources employee
and obtained his approval; therefore, “[a]ny mailing was tangential and after the
alleged scheme had occurred.” He further argues that the reasoning set forth by
the Supreme Court in United States v. Maze, 414 U.S. 395 (1974) and Kahn v.
United States, 323 U.S. 88 (1944), supports this argument. Id.

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                                 No. 11-50227

      In Kahn, 323 U.S. at 94-95, the Supreme Court held that the mailing of
fraudulently cashed checks between two banks was not “incident to an essential
part of the scheme” because the scheme to defraud was complete when the
defendants cashed the fraudulent checks at the first bank. In Maze, 414 U.S. at
402, the Court held that the mailing of invoices among a motel proprietor and
a credit card holder by a credit card company was immaterial to the
consummation of the defendant’s scheme because the scheme reached fruition
when the defendant fraudulently obtained goods and services using the credit
card, not when the credit card bills were mailed to the card holder. In United
States v. Strong, 371 F.3d 225, 229 (5th Cir. 2004), this court recognized that
under the holdings in Kahn and Maze, “a tangential mailing occurring after the
success of a fraud scheme is complete would never qualify” as incident to an
essential part of the scheme.
      Unlike in Kahn and Maze, the mailings at issue were the payments
themselves. “Mailings that distribute the proceeds of the scheme to defraud
among the perpetrators are ‘incident to an essential part of the scheme.’” United
States v. Rico Indus., Inc., 854 F.2d 710, 713 5th Cir. 1988) (citing Pereira v.
United States, 347 U.S. 1, 8 (1954)). Bueno’s scheme could not, and did not,
come to fruition unless and until Endeavor paid either him directly, or paid the
factoring company. The mailings were thus an integral part of the scheme.
      Bueno’s sole challenge to the use of the mails element of the offense is
without merit. Accordingly, the evidence was sufficient to establish the use of
the mails element of the offense. See Rico Indus, 854 F.2d at 713.
      AFFIRMED.




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