September 20, 1995 [NOT FOR PUBLICATION]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.
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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
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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.
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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)).
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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
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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.
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