United States v. Hebshie

United States Court of Appeals
For the First Circuit

No. 07-2339

UNITED STATES OF AMERICA,

Appellee,

v.

JAMES G. HEBSHIE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Howard, Baldock,* and Selya, Circuit Judges.

Jeanne M. Kempthorne for appellant.
Donald L. Cabell, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief,
for appellees.

December 4, 2008

*
Of the Tenth Circuit, sitting by designation.
 BALDOCK, Circuit Judge. A federal grand jury returned a

superseding indictment against Defendant James Hebshie. The

indictment had four counts: arson, in violation of 18 U.S.C.

§ 844(i) (Count One); two counts of mail fraud, in violation of 18

U.S.C. § 1341 (Counts Two and Three); and use of fire to commit a

felony, in violation of 18 U.S.C. § 844(h)(1) (Count Four). A

petit jury convicted him on all counts. Now, Defendant appeals his

convictions for mail fraud and using fire to commit a felony, i.e.,

Counts Two, Three, and Four. We have jurisdiction under 28 U.S.C.`

§ 1291, and affirm.

I.

We recount the relevant facts in the light most favorable

to the Government. See United States v. Cardoza, 129 F.3d 6, 8

(1st Cir. 1997).1 On April 21, 2001, a fire severely damaged a

two-story commercial building at 32-34 Main Street in downtown

Taunton, Massachusetts. Defendant leased a portion of the building

for his business, the Main Street Lottery & News Store. On the day

of the fire, the Lottery & News Store’s alarm system recorded

Defendant entering at 8:11 a.m. and leaving at 1:37 p.m. Seven

minutes after Defendant left, the alarm’s motion and heat sensors

activated, notifying local authorities. Around the same time, a

Taunton Police Officer arrived at the scene and saw dark smoke

1
Defendant’s trial began on June 12, 2006 and concluded on
June 29, 2006.

-2-
billowing in the Lottery & News Store window. The fire department

arrived shortly thereafter. Efforts to save the building were

unsuccessful. Ultimately, the building collapsed due to structural

damage from the fire and attempts to save it with high-powered

water hoses. The next day, officials began a “cause and origin”

investigation of the building. Officials concluded that the fire

originated at the Lottery & News Store, and was caused by

deliberate human involvement.

Two days after the fire, on April 23, 2001, Defendant

filed a claim at the office of his insurance agent. The agency

contacted Commerce Insurance Company (Commerce), the insurance

provider, with claim information that same day. The next day,

Peter Rolashevich, a Commerce employee, spoke with Defendant. When

Defendant asked “how quick he could get payment,” Rolashevich

responded that the claim had been assigned to an independent

adjusting firm, Certuse Adjustment, Inc. (Certuse), which would

contact Defendant about investigating and processing his claim.

The following day, Rolashevich sent Defendant Commerce’s standard

reservation-of-rights letter (the Rolashevich letter).2

2
The Rolashevich letter, which was addressed to Defendant and
Judith Foley at the Lottery & News Store, read in pertinent part:

April 25, 2001

***

Dear Mr. HEBSHIE:

-3-
Thank you for your notice of loss concerning the above
captioned matter.

There are issues which need to be clarified, before we
can determine whether or not the claim which has been
presented is covered by your insurance policy. It is our
intention to undertake any investigation that may appear
to be necessary or appropriate.

This letter is written to notify you that this company is
reserving all of its rights and defenses. Not only such
rights and defenses as may now exist, but, in addition,
all rights and conditions this company may hereafter have
under all of the terms, conditions, provisions and
exclusions of your policy, irrespective of whether or not
they have been specifically referred to in this letter.
It is to be further understood that any action heretofore
taken by our company, its agents, representatives, or
attorneys in investigating the occurrence involved, or in
participating in any settlement discussions or
negotiations does not constitute and is not intended as
a waiver of any rights of [sic] defenses available to our
company, and shall not estop our company from asserting,
at a later date, any rights or policy defenses that may
be available now or at that time. All of this company’s
rights are hereby expressly reserved. As our
investigation progresses, we will communicate further
with you.

This matter requires your immediate attention. Please
sign the enclosed copy of this letter where your name
appears indicating your receipt of this letter and that
you understood the contents of it. Enclosed is a self-
addressed stamped envelope for your convenience in
returning the signed copy to our office.

Sincerely,

THE COMMERCE INSURANCE COMPANY

PETER ROLASHEVICH
Claim Adjuster

***

-4-
 One week after the fire, Commerce’s cause and origin

investigator, Vincent Calenda, conducted a tape-recorded interview

with Defendant. After about fifteen or twenty minutes of

discussion, Defendant abruptly terminated the interview. While the

timing is unclear from the record, Defendant also declined to meet

with Glen Williams, the adjuster for Certuse. Commerce was aware

that Defendant had refused to meet with Williams on or before May

2, 2001, however, because it sent a letter through its attorney,

Lawrence Dugan (the Dugan letter) requesting that Defendant contact

Williams. The letter advised Defendant that his refusal to

cooperate in the investigation and settlement of his claim could

provide Commerce with an independent basis to deny his claim.3

3
The Dugan letter, addressed to Defendant at his home
address, read in pertinent part:

***

May 2, 2001

***

Dear Mr. Hebshie:

Please be advised that we have been retained to represent
the interests of the Commerce Insurance Company with
respect to the matter referenced above. You have been
previously advised that the Commerce Insurance Company is
proceeding with its investigation into the circumstances
of the reported fire and its adjustment of the damage and
loss that has resulted, pursuant to a full and complete
reservation of rights.

As you know, Glen Williams of Certuse Adjustment, Inc.
has been retained by the Commerce Insurance Company to
(continued...)

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(...continued)
assist it with respect to the adjustment of the loss. We
have been informed that Mr. Williams has requested an
opportunity to meet with you, conduct a recorded
interview with you concerning the circumstances
surrounding the fire, and the extent of the loss and
damage sustained, and obtain your written authorization
to obtain from third party sources documents and
materials that are relevant to the insurer’s
investigation and adjustment of the loss. We are further
informed that you have stated to Mr. Williams that you
will not provide him with a recorded interview or
otherwise cooperate with the insurer’s ongoing
investigation and adjustment activities.

***
Please be advised that the subject insurance policy
contains a description of your contractual duties and
obligations to the insurer in the event of loss or
damage. These duties include, but are not limited to, the
requirement that you provide the insurer with inventories
of the damaged property, and access to books and records
relevant to the loss, but also requires your cooperation
with the insurer in its investigation and settlement of
the claim. Your refusal to cooperate with the insurer’s
reasonable request for information and documents may
provide the Commerce Insurance Company with an
independent basis for it to disclaim all liability to you
under the terms and conditions of the subject insurance
policy. Accordingly, we request that you contact Mr.
Williams immediately upon your receipt of this
correspondence in order that the Commerce Insurance
Company may receive from you the information and
documentation necessary to bring the insurer’s
investigation and adjustment of this matter to a
conclusion.

We are of course, available to discuss this matter with
you. if you have any questions, please feel free to
telephone.

***

Very truly yours,

(continued...)

-6-
 Defendant retained an attorney. Defendant’s attorney

notified Commerce that his client would no longer communicate with

it, but was not waiving any rights he might have to collect on his

insurance policy. Ultimately, Commerce declined Defendant’s claim,

but the record is unclear on the specific grounds.

II.

At trial, the Government presented evidence that

Defendant’s business was financially failing and sought to have the

jury infer that he had burned down the Lottery & News Store to

collect on a $30,0000 insurance policy after attempting

unsuccessfully to sell the business. The evidence included

Defendant’s erratic behavior during the time frame surrounding the

fire and expert testimony opining that the fire was set

deliberately. At the close of the Government’s case-in-chief, the

Defendant moved for a judgment of acquittal. See Fed. R. Crim. P.

29(a). The district court reserved its ruling, but ultimately

denied the motion before submitting the case to the jury.

In his own case-in-chief, Defendant attempted to

discredit the accuracy of the cause and origin investigation

through the testimony of an expert. The Government rebutted with

(...continued)
MORRISON, MAHONEY & MILLER, LLP
Lawrence A. Dugan
***

-7-
the testimony of a former special agent with the Bureau of Alcohol,

Tobacco, and Firearms who reaffirmed the initial conclusion of the

cause and origin investigators, i.e., the fire was deliberately set

and originated in Defendant’s store.

When the district court instructed the jury, Defendant

did not object. The jury returned a guilty verdict on all counts.

Defendant moved for judgment notwithstanding the verdict,

contending the evidence was insufficient to support the

convictions. The district court denied the motion, and sentenced

Defendant to a fifteen-year term of imprisonment, followed by a

two-year term of supervised release. The sentence included

60 months on each of the arson and mail fraud counts, to run

concurrently, and a consecutive term of 120 months on the count

alleging use of fire to commit a felony. The district court also

ordered the Defendant to pay restitution in the amount of

$621,389.98.

Defendant made a timely appeal, alleging (1) the

Rolashevich and Dugan letters were insufficient to support his mail

fraud convictions because they did not further his scheme to

collect fraudulently on his insurance policy; (2) the district

court clearly erred in instructing the jury on an essential element

of the mail fraud counts; and (3) the district court erroneously

-8-
concluded that the crime of arson carried a five-year mandatory-

minimum term of imprisonment.4

III.

We first consider whether the Government presented

sufficient evidence for the jury to conclude that the Rolashevich

and Dugan letters furthered Defendant’s fraudulent scheme.

Defendant contends there is no evidence that these letters

furthered his scheme to collect on the insurance policy, and that

no rational jury could have concluded otherwise. The Defendant

does not appeal the jury’s conclusion that he engaged in a

fraudulent scheme to collect on his insurance policy.

Consequently, we only inquire into the sufficiency of the evidence

as to whether the mailings furthered this scheme. Our review is de

novo. United States v. Cornier-Ortiz, 361 F.3d 29, 32 (1st Cir.

2004). We inquire “whether, after assaying all the evidence in the

light most amiable to the government, and taking all reasonable

inferences in its favor, a rational factfinder could find, beyond

a reasonable doubt, that the prosecution successfully proved the

essential elements of the crime.” United States v. O’Brien, 14 F.3d

703, 706 (1st Cir. 1994); see also Jackson v. Virginia, 443 U.S.

307, 319 (1979).

4
Defendant’s challenge to the mail fraud counts, if
successful, would nullify the charge of using fire to commit a
felony because the Government’s theory was that Defendant used fire
to commit mail fraud.

-9-
 Because the district court reserved its ruling on

Defendant’s motion for judgment of acquittal at the close of the

Government’s case-in-chief, we assess the sufficiency of the

evidence as of the time the district court reserved its ruling.

See Fed. R. Crim. P. 29(b); see also United States v. Moran, 312

F.3d 480, 487-88 (1st Cir. 2002). In performing our “limited role

in reviewing this evidence” we “neither weigh . . . the credibility

of the witnesses nor attempt . . . to assess whether the

prosecution succeeded in eliminating every possible theory

consistent with the defendant’s innocence.” United States v.

Rivera-Ruiz, 244 F.3d 263, 266 (1st Cir. 2001) (citations omitted).

A.

The crime of mail fraud includes three elements: “(1) a

scheme to defraud based on false pretenses; (2) the defendant's

knowing and willing participation in the scheme with the intent to

defraud; and (3) the use of interstate mail . . . communications in

furtherance of that scheme.”5 United States v. Cheal, 389 F.3d 35,

5
The relevant language of the mail fraud statute at the time
of the incident provided:

Whoever, having devised or intending to devise any scheme
or artifice to defraud, or for obtaining money or
property by means of false or fraudulent pretenses,
representations, or promises, . . . for the purpose of
executing such scheme or artifice . . . , places in any
post office . . . any matter or thing whatever to be sent
or delivered by the Postal Service, . . . or takes or
receives therefrom, any such matter or thing, or
knowingly causes to be delivered by mail . . . according
(continued...)

-10-
41 (1st Cir. 2004). Importantly, the last element, which we will

refer to as the “mailing element,” requires that the defendant both

(1) cause the use of the mails, which includes reasonably

foreseeable mailings, and (2) use the mails for the purpose, or in

furtherance, of executing the scheme to defraud.6 See United

States v. Moss, 591 F.2d 428, 436 (8th Cir. 1979).

The “in furtherance” requirement is to be broadly read

and applied. See United States v. Koen, 982 F.2d 1101, 1107 (7th

Cir. 1992). To further Defendant’s fraudulent scheme, the mailings

need not be an “essential element” of the scheme. Pereira v.

United States, 347 U.S. 1, 8 (1954). They simply must be

“sufficiently closely related” to the scheme, United States v.

Maze, 414 U.S. 395, 399 (1974), such that they are “incident to an

essential part of the scheme,” Pereira, 347 U.S. at 8, or “a step

in [the] plot.” Schmuck v. United States, 489 U.S. 705, 715 (1989).

Although we have observed that “the scheme’s completion or the

prevention of its detection must have depended in some way on the

mailings,” United States v. Pacheco-Ortiz, 889 F.2d 301, 305 (1st

(...continued)
to the direction thereon, . . . any such matter or thing,
shall be fined under this title or imprisoned not more
than five years, or both.

18 U.S.C. § 1341 (2000).
6
We have used the terms “in furtherance of” a fraudulent
scheme and “for the purpose of” executing a fraudulent scheme
interchangeably in this context. See United States v. Pimental, 380
F.3d 575, 586 (1st Cir. 2004).

-11-
Cir. 1989) (citation omitted), we have not required a “but-for”

link between a mailing and the fraudulent scheme. See United

States v. Pimental, 380 F.3d 575, 587 (1st Cir. 2004). Rather, a

mere “connection or relationship” is sufficient. Id. at 587 n.5.

“The relevant question at all times is whether the mailing is part

of the 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.” Schmuck, 489 U.S. at 715.

Courts have generally held that mailings sent in

connection with insurance claims further an insurance fraud scheme.

See United States v. Tocco, 135 F.3d 116, 125 (2d Cir. 1998). For

example, in United States v. Morrow, 39 F.3d 1228, 1237 (1st Cir.

1994), we held that an insurer’s letter acknowledging it received

a claim was incident to an essential element of the defendant’s

scheme to collect fraudulently on an insurance policy. The letter

was part of “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.” Id. We observed that “[p]recedent amply supports the

use of mailings to and from the insurer or agent to supply this

element under the statute.” Id. (citations omitted).

Likewise, in United States v. Contenti, 735 F.2d 628, 632

(1st Cir. 1984), we determined that several mailings were each

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sufficient to support the jury’s finding that they furthered the

defendant’s fraudulent scheme to collect on insurance proceeds.

Among these mailings, we held that a proof of loss sent to the

insurance broker was “an essential part of the process leading to

payment of the claim.” Id. We also determined that mailings

arranging for the defendant to give his sworn statement furthered

the defendant’s scheme because they were “one of the customary

steps leading to settlement, payment or denial of the claim” and

“were prompted by [the defendant’s] submission of his proof of loss

and furthered the processing of the claim.” Id.

To summarize these and additional cases regarding the

“criss-cross of mailings,” Morrow, 39 F.2d at 1237, involved in

processing a fraudulent insurance claim, we have held that mailings

(1) summarizing defendant's fraudulent statements, see Pimental,

380 F.3d 575, Contenti, 735 F.2d at 632; (2) acknowledging receipt

of claims, see Morrow, 39 F.3d 1228; Contenti, 735 F.2d 632;

(3) expressing doubt regarding the validity of a claim accompanying

a proof of loss statement, see Serino, 835 F.2d 924; (4) containing

a proof of loss only, see Contenti, 735 F.2d 628, or a proof of

loss along with a non-waiver agreement, see Serino, 835 F.3d at

928; (5) arranging for the defendant to give his sworn statement,

see id. at 628; (6) intercepting and converting insurance refund

checks, see United States v. Martin, 694 F.2d 885 (1st Cir. 1982);

(7) lying about conversion of a refund check, id. at 890;

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(8) falsifying insurance applications, see id.; and (9) receiving

the subsequent return mailings of falsified insurance policies, see

id.; all furthered various insurance fraud schemes.

B.

Count Two of the indictment in this case is premised on

the Rolashevich letter. Defendant argues that the purpose of the

letter was to notify him that Commerce was not conceding liability.

Therefore, Defendant contends, no reasonable jury could have found

the Rolashevich letter was “in furtherance” of Defendant’s

fraudulent scheme. As we have explained, the “in furtherance”

requirement is a subpart of the mailing element in the statute.

Moss, 591 F.2d at 436. This requirement has been a thorn in the

side of reviewing courts for decades. See, e.g., United States v.

Curry, 681 F.2d 406, 411 (5th Cir. 1982) (“Since the mail fraud

statute was enacted, courts have been plagued by difficulties in

defining the necessary degree of connection between a mailing and

a scheme to defraud.”). But this appears to be the first time a

federal appeals court has considered whether an insurer’s

reservation-of-rights letter may, standing alone, support a

conviction for mail fraud.

We achieved a near miss on this question in United States

v. Serino, 835 F.2d 924 (1st Cir. 1987), where we held that a

mailing containing both a proof of loss statement and a non-waiver

-14-
agreement7 together furthered defendant’s insurance fraud scheme

because the mailing contained “false statements” and “was an

essential step toward the defendants obtaining payment.” Id. at

928. But we also explained in Serino that, where one document in

a mailing is independently sufficient to further a fraudulent

scheme, the presence of other documents that might “hinder” or

contain “expressions of doubt about the validity of the

[fraudulent] claims does not sever those expected and necessary

mailings from the fraudulent scheme.” Id. at 928-29. We

determined “[i]t is not necessary . . . that each mailing guarantee

the success of the scheme, or even significantly advance it,” as

long as the mailing is closely related to the scheme. Id. at 928.

It was sufficient in Serino that the mailings were “incident to

defendants’ efforts in furtherance of the scheme.” Id. In Serino

we did not consider, however, whether the non-waiver agreement,

standing alone, furthered the insurance fraud scheme. Therefore,

the question whether a reservation-of-rights letter may be “part of

the execution of the scheme as conceived by the perpetrator at the

7
A non-waiver agreement and a reservation-of-rights letter
constitute two sides of the same coin. A “nonwaiver agreement”
occurs when “the insured acknowledges that the insurer’s
investigation or defense of a claim against the insured does not
waive the insurer’s right to contest coverage later.” Black’s Law
Dictionary 1085 (8th ed. 2004); see also 13 Couch on Insurance §
194:34 (3d 1995) (describing non-waiver agreements). A
“reservation-of-rights letter” is a “notice of an insurer’s
intention not to waive its contractual rights to contest coverage
or to apply an exclusion that negates an insured’s claim.” Black’s
Law Dictionary 1334 (8th ed. 2004).

-15-
time” is a matter of first impression in this circuit. Schmuck,

489 U.S. at 715.

Analyzing the substance of the Rolashevich letter, we do

not find it altogether unlike other mailings we have found capable

of furthering insurance fraud schemes. The first sentence of the

Rolashevich letter thanked Defendant for his notice of loss,

essentially acknowledging Commerce’s receipt of his claim. See

supra note 2. Courts have consistently held that letters of

acknowledgment are sufficient to support a conviction for mail

fraud. See Morrow, 39 F.3d at 1237; Contenti, 735 F.2d at 632; see

also United States v. Owen, 492 F.2d 1100, 1103 (5th Cir. 1974)

(finding confirmatory letter “in accord with business practices

associated with the sale of goods” to be sufficiently closely

related to a scheme to fraudulently receive goods). Here,

essential elements of Defendant’s scheme included (1) filing a

fraudulent claim and (2) successfully deceiving the insurer

throughout the ordinary claims investigation process.

The Rolashevich letter was the beginning of what we have

described as “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.” Morrow, 39 F.3d at 1237. Although the Rolashevich

letter did not “guarantee the success of the scheme, or even

significantly advance it,” Serino, 835 F.2d at 928, the letter was

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“incident to an essential part” of Defendant’s scheme, i.e.,

successfully navigating Commerce’s claims investigation. See

Pereira, 347 U.S. at 8. Defendant’s “completion” of the scheme or

“prevention of its detection” did not “depend” on the letter in a

“but-for” sense. Pimental, 380 F.3d at 587. But the Rolashevich

letter had a sufficient “connection or relationship” to the claims

process. Id. at 587 n.5. We conclude that a reasonable jury could

find it was “part of the execution of the scheme as conceived by

the perpetrator at the time.” Schmuck, 489 U.S. at 715.

We acknowledge that the portion of the Rolashevich letter

reserving Commerce’s rights to deny payment could “through

hindsight . . . return to haunt” the Defendant. Id. That is not

enough, however, to vitiate the connection between the letter and

Defendant’s scheme. The Rolashevich letter “may not have

contributed directly to the duping” of Defendant’s victims but it

was nonetheless incident to an essential element of his scheme.

Schmuck, 489 U.S. at 711-12.

Defendant contends that the decisions in United States v.

Maze, 414 U.S. 395 (1974), United States v. Pietri Giraldi, 864

F.2d 222 (1st Cir. 1988) (per curiam), and United States v.

Castile, 795 F.2d 1278 (6th Cir. 1986) demonstrate that no

reasonable jury could have found the mailings sufficient here. We

find these precedents readily distinguishable.

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 In Maze, the Supreme Court held that invoices mailed to

credit-card-issuing banks from motel operators defrauded by the

defendant with stolen credit cards could not support convictions

for mail fraud. 414 U.S. at 401. The Court reasoned that the

defendant’s scheme already “reached fruition when he checked out of

the motel, and there was no indication that the success of his

scheme depended in any way on which of his victims ultimately bore

the loss.” Id. at 402. Here, by contrast, Defendant’s scheme

depended on successfully deceiving Commerce until it had paid his

fraudulent insurance claim. Thus, the scheme had not “reached

fruition,” before the mailings.

In Pietri Giraldi, we held that telexes sent between

banks to verify a bogus certificate of deposit the defendant

supplied as security for a debt were not in furtherance of his

scheme of lulling a customer into refraining from legal action to

recover the debt.8 864 F.2d at 225. The telexes “could only (and

did) lead to the discovery that the certificate of deposit was

false.” Id. (emphasis added); see also id. at 226 (noting the

telexes “did not engender any circumstances in which [the

defendant] could do anything to forestall discovery . . . , the

telexes . . . could only result in detection of the scheme”)

(emphasis added).

8
“[C]ase law construing 18 U.S.C. § 1341 (mail fraud) is
instructive for purposes of § 1343 [wire fraud].” Pietri Giraldi,
864 F.2d at 224 (citation omitted). The reverse is also true here.

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 The Rolashevich letter here was not so singular in its

purpose. Although it reserved Commerce’s rights and mentioned the

possibility of an investigation, it vacillated on whether an

investigation would even be necessary, stating “[i]t is our

intention to undertake any investigation that may appear to be

necessary or appropriate.” See supra note 2. Unlike Pietri

Giraldi, Defendant could have continued to “forestall discovery” of

his scheme by cooperating with Commerce’s claims processing

efforts.

Finally, the Sixth Circuit’s decision in Castile warrants

a close look. In that case, the court held that letters concerning

an insurance company's investigation into the possibility the

defendant committed arson were not in furtherance of his scheme to

collect fire insurance proceeds. See 795 F.2d at 1280-81. Four

letters were mailed between the insurance company and its agents in

the course of the investigation. See id. at 1279-80. After

analyzing the substance of the letters, the court concluded that

the “purpose of the mailings was to defeat a fraudulent scheme.”

Id. at 1281.

Defendant contends that the letters here were similarly

investigatory in nature and thus served to undermine—rather than

advance—his fraudulent scheme. But most actions of an insurance

company in the course of ordinary claim processing and adjusting

-19-
could be characterized as “investigative.”9 The “investigation” in

Castile was focused, however, on confirming the insurer’s pre-

existing suspicions about the validity of the defendant’s claim.

In that case, the defendant made a prior claim on the same property

resulting in a substantial settlement. Id. at 1274. Subsequently,

the defendant made another claim on the same property for

destruction of a restaurant he built with money from the first

settlement. Id. The skeptical insurer “began an investigation of

the fire to determine the cause of the fire and whether the person

named on the policy was involved.” Id. at 1275 (emphasis added).

The record in this case reveals that Commerce’s actions

in processing Defendant’s claim were qualitatively different than

the investigation in Castile. Testimony elicited on cross-

examination of Peter Rolashevich by defense counsel indicated that

his letter on behalf of Commerce was an ordinary, “stock” letter in

accord with insurance business practices.10 In describing the

9
See generally 14 Couch on Insurance § 198:27 (observing
“[i]nsurers have a duty to investigate claims filed by the
insured”); id. § 198:28 (“The duty [to investigate] requires that
the insurer investigate before it denies or settles a claim.”); id.
§ 198:29 (“An insurer’s duty to investigate is triggered when its
insured first makes a claim.”).
10
The questions between defense counsel and Rolashevich were
as follows:

Q: Then I think you testified that you talked to some
other people and sent a reservations [sic] rights
letter to the insured?
A: Yes.
(continued...)

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actions that Commerce took while handling Defendant’s claim,

Rolashevich said they were consistent with “basic investigation”

practices and “standard questioning” the company used in all claims

processing.11

Thus, the record indicates that, at the time the

Rolashevich letter was mailed, Commerce was engaging in standard

claims investigation and processing practices not characterized by

a particular, pre-existing suspicion of Defendant. By contrast,

the investigation in Castile was motivated by a particularized

suspicion of a defendant due to his prior insurance claim filed

under substantially similar circumstances. See Castile, 795 F.2d

at 1275. We cannot say here that any reasonable jury would have

(...continued)
Q: And that reservations [sic] rights letter is a
standard letter that’s used in many cases when the
insurer wants to conduct an additional
investigation or a thorough investigation
concerning loss?
A: Yes
Q: That’s an ordinary letter, that’s almost a stock
letter?
A: Yes

11
Despite acknowledging Commerce signified the need for an
“additional . . . or [more] thorough” investigation in sending the
Rolashevich letter, see supra note 10, Rolashevich subsequently
acknowledged that the independent investigators employed by
Commerce were “routine,” or employed “all the time,” and there was
nothing “unusual” about hiring them. Reaffirming this point, on
redirect Rolashevich again acknowledged the initial intake
conversation following a claim was not intended to acquire all the
information needed to complete processing. In the ordinary case,
further investigation was designed to procure all the needed
information for Commerce.

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found the “purpose of the [Rolashevich letter] was to defeat a

fraudulent scheme.” Id. at 1281.

C.

Defendant also challenges the sufficiency of the evidence

on the second mail fraud count, relying on the same precedents we

have previously discussed, i.e., Maze, Pietri Giraldi, and Castile.

We need not tarry long, having already held that “mailings

arrang[ing] for [an insured] to give his sworn statement, [are] one

of the customary steps leading to settlement, payment or denial of

the claim, [and are] prompted by [the insured’s] submission of his

proof of loss and further[] the processing of the claim.”

Contenti, 735 F.2d at 632. But Defendant assails the Dugan letter

on the ground that its sole purpose was to advise him of an

independent basis for disclaiming liability.

To be sure, the letter contains both the proverbial

“carrot” and “stick.” On one hand, the letter’s “carrot” notified

Defendant that, by contacting Williams and participating in his

investigation, Defendant could bring Commerce’s inquiry “to a

conclusion.” See supra note 3. As the insurance company’s routine

investigation had to end before Defendant could obtain payment,

this portion of the letter discussed a “necessary step in the

continued relationship between the defendant and the insurance

company,” which advanced Defendant’s fraudulent scheme. Pimental,

380 F.3d at 586. On the other hand, the Dugan letter’s “stick”

-22-
threatens Defendant’s scheme by citing his failure to cooperate as

an independent basis for disclaiming liability under the policy.

In our view, the stick in this case is clearly analogous

to the insurance company’s “expressions of doubt” regarding the

fraudulent claim presented in Serino, 835 F.2d at 928-29. Just as

the “expressions of doubt” in that case, which arguably did not

further the defendant’s scheme, failed to nullify the proof of loss

statement, which did, the “stick” in this case is incapable of

“sever[ing]” the carrot “from [Defendant’s] fraudulent scheme.”

Id. at 928. That Defendant refused to bite and evaded contact with

investigators, as their suspicions rose, is immaterial. The law is

clear that mailings do not cease to be in furtherance of a

fraudulent scheme merely because they prove “through hindsight” to

have been “counterproductive.” Schmuck, 489 U.S. at 715.

Accordingly, we conclude that a reasonable jury could determine

that both the Rolashevich and Dugan letters furthered Defendant’s

scheme to collect fraudulently on his insurance policy.

IV.

Next, we consider Defendant’s challenge to the district

court’s jury instructions on the “in furtherance” requirement of

mail fraud. We review the district court’s jury instructions as a

whole to determine “if they adequately explained the law or whether

they tended to confuse or mislead the jury on controlling issues.”

United States v. Griffin, 524 F.3d 71, 76 (1st Cir. 2008) (citation

-23-
omitted). Because Defendant failed to object to the instruction,

we review for plain error. See Ramirez-Burgos v. United States,

313 F.3d 23, 28 (1st Cir. 2003). Under plain error review, a

defendant must first demonstrate an error that is plain. See id.

at 29. Even if a defendant demonstrates such an error, we may only

take corrective action if the error not only prejudices the

defendant’s substantial rights, but also seriously affects the

fairness, integrity, or public reputation of judicial proceedings.

See id. At the outset, we observe that “[i]t is the rare case in

which an improper instruction will justify reversal of a criminal

conviction when no objection has been made in the trial court.”

Henderson v. Kibbe, 431 U.S. 145, 154 (1977); see also United

States v. Gomez, 255 F.3d 31, 37 (1st Cir. 2001) (noting that “the

plain-error exception is cold comfort to most defendants pursuing

claims of instructional error”).

A.

We consider the first two prongs of plain error review

together. Defendant must demonstrate that an “error” actually

occurred. For purposes of plain error review, an “error” is a

“[d]eviation from a legal rule.” Olano, 507 U.S. at 732-33. It is

not enough, however, that an error occurred—the error must also be

“plain.” Id. at 734. “Plain” is synonymous with “clear” or

“obvious.” See id.; see also Griffin, 524 F.3d at 76. We conclude

that such an obvious deviation from a legal rule occurred here.

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 The district court, in the course of its oral

instructions to the jury, mentioned the “in furtherance”

requirement of the mailing element four times. First, in

summarizing the three elements of mail fraud, the court described

“the use of the U.S. mail on the date charged in furtherance of the

scheme” as the final element. After describing the first two

elements of mail fraud in detail, the district court began a

cursory summary of the mailing element because it apparently

believed this element was not contested at trial:12

THE COURT: [T]he use of the U.S. mail on or about the
date charged in furtherance of the scheme,
and that has been stipulated to, is that
correct, the use of the mails in connection?
MR. SPINALE: No, it has not.
THE COURT: No, it has not.

Upon learning that the element actually was contested,

the district court proceeded to define it. This discussion is

where the district court deviated from the correct legal definition

of mail fraud by conflating the two separate components of the

mailing element:

The third element is the use of the mail on or about the
date charged. The government must establish beyond a
reasonable doubt that the defendant used the mail
in . . . furtherance of the crime charged. . . . [T]he
crime of mail fraud does require that the government
prove beyond a reasonable doubt that the mails were in
fact used in some manner to further such a scheme for the

12
The district court’s assumption was perfectly
reasonable, given defense counsel’s failure to address the
element at trial–a matter we will presently discuss in greater
detail. See infra Part IV.B.

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 purposes of obtaining money by means of false or
fraudulent pretenses or that the use of the mails would
ordinarily follow in the usual course of business or
events or that the use of the mails was reasonably
foreseeable.

(emphasis added). Using the word “or” in the last sentence above,

instead of “and,” made the instruction incorrect. See generally

Maze, 414 U.S. at 400, 405; Pereira, 347 U.S. at 8-9.

Finally, after incorrectly defining the mailing element,

the district court mentioned it again in its summation of the

elements of mail fraud:

So, with respect to mail fraud, then . . . there are, as
I said, three elements, . . . [first,] the existence of
a scheme to defraud . . . second, the defendant’s knowing
and willful participation in this scheme with the intent
to defraud . . . and, third, the use of the mail on or
about the date charged in furtherance of the scheme.

(emphasis added).

As mentioned, the district court’s error occurred when it

explained the mailing element of the statute, conflating the

“causation” requirement with the “in furtherance” requirement.

“The mailing element of 18 U.S.C. § 1341 consists of two

requirements: (1) that the defendant ‘caused’ the use of the mails

and (2) that the use was [in furtherance, or] ‘for the purpose of

executing’ the scheme to defraud. Moss, 591 F.2d at 436; see also

Cheal, 389 F.3d at 41; Pimental, 380 F.3d at 584. But the district

court’s instruction here allowed the jury to find the mailing

element satisfied if “the use of the mails would ordinarily follow

in the usual course of business” or if “the use of the mails was

-26-
reasonably foreseeable.” Although the instruction stated the

government must demonstrate “that the mails were in fact used in

some manner to further” Defendant’s insurance fraud scheme, the

instruction phrased this mandatory element of mail fraud as a

permissible alternative that was unnecessary if the jury found

causation.

The Government contends that the district court’s

instructions were not erroneous because it “correctly stated the

element at least three other times, both before and after the

misstatement,” and thus “cured” the “misstatement.” We reject this

argument for two reasons. First, if the jury questioned the

requirements for satisfying the mailing element it would naturally

gravitate to the district court’s most thorough and specific

definition, not the three other summaries. This conclusion is

reinforced by the district court’s own directions. The court told

the jury to interpret its summary of the elements as an “outline”

and its more specific descriptions as definitions.

See Trial Tr. 7:14 (“The way this works, I’ll outline the elements

for you, and then I’ll define them more specifically.”). The

Government’s argument that a jury would likely ignore this error

merely because of other statements of summation ignores “the almost

-27-
invariable assumption of the law that jurors follow their

instructions.” Richardson v. Marsh, 481 U.S. 200, 206 (1987).13

More importantly, the district court’s final statement

was not a correction, but rather a summation; thus, no reason

existed for the jury to think an error had been corrected, or even

occurred. Lack of an explicit correction to cure the erroneous

instruction distinguishes this case from United States v.

Rodriguez, 525 F.3d 85 (1st Cir. 2008), where we determined an

“immediate correction” to a misstatement in a jury instruction

precluded a finding of plain error. Id. at 106 (emphasis added).

If the district court had merely summarized the statutory elements

without defining them nothing would likely have been amiss. See

Davis v. McAllister, 631 F.2d 1256, 1260 (5th Cir. 1980) (“The mere

fact that the trial court failed to elaborate or enlarge its

instructions beyond setting forth the statutory elements of the

offense does not constitute constitutional error.”). But once a

13
We do not hold that we would find a plain error in every
case where jury instructions contain an erroneous statement of the
law accompanied by other correct statements. For example, an
erroneous statement may be so clearly contradicted by other correct
statements that any error is neutralized. See United States v.
Duncan, 855 F.2d 1528, 1532-33 (11th Cir. 1988) (holding erroneous
statement allowing jury to convict even if all elements of a crime
were not proven was neutralized by other statements at the
beginning of the trial and in final closing instructions clearly
contradicting the error “such that reasonable jurors would not have
been misled,” because other statements required “that all of the
essential elements of [the crime] had to be proven”). Here,
however, the correct summaries of the mailing element did not so
clearly contradict the district court’s erroneous explication of it
that we could say the summaries neutralized the error.

-28-
court sets out to define each element of an offense in addition to

summarizing, it cannot wipe the slate clean of erroneous specific

definitions by pointing to the correctness of general summaries.

“Ordinarily, where a specific provision conflicts with a general

one, the specific governs.” Edmond v. United States, 520 U.S. 651,

657 (1997). In light of the established definition of the mailing

element at the time the district court gave this instruction, see

Maze, 414 U.S. at 400, 405; Pereira, 347 U.S. at 8-9, we cannot

help but conclude that the instruction deviated from the clear

legal definition of mail fraud. Thus, the first two elements of

plain error review are satisfied.

B.

Although the Supreme Court has recognized a tightly

circumscribed category of “structural errors” that alter “the

framework within which the trial proceeds, rather than

simply . . . the trial process itself,” Arizona v. Fulminante, 499

U.S. 279, 310 (1991), errors in jury instructions do not generally

fit within this category. See Neder v. United States, 527 U.S. 1,

9 (1999) (holding that the omission of a single element of a

criminal offense from a jury instruction is not structural error).

Because the district court’s misdescription of an element of the

mail-fraud statute does not amount to structural error, Defendant

bears the heavy burden of demonstrating prejudice. See Ramirez-

Burgo, 313 F.3d at 29. To satisfy this burden, he must show that

-29-
the error likely “affected the outcome of the district court

proceedings.” Olano, 507 U.S. at 734. In other words, the

Defendant must show “‘a reasonable probability that, but for [the

error claimed], the result of the proceeding would have been

different.’” United States v. Padilla, 415 F.3d 211, 221 (1st Cir.

2005)(en banc)(quoting United States v. Dominguez Benitez, 542 U.S.

74, 82 (2004)). Although the reasonable-probability standard is

demanding, it “is not the same as, and should not be confused with,

a requirement that a defendant prove by a preponderance of the

evidence that but for [the] error things would have been

different.” Dominguez Benitez, 542 U.S. at 83 n.9. Nevertheless,

“it is enough to sustain the conviction that the result would quite

likely have been the same” despite an erroneous instruction.

United States v. O’Brien, 435 F.3d 36, 40 (1st Cir. 2006).

Without citing any authority, Defendant makes three

arguments that the erroneous instruction in this case prejudiced

him. We consider each argument in turn. First, Defendant contends

that the instruction prejudiced him because it eliminated an

element of the crime of mail fraud. But this alone is insufficient

to demonstrate prejudice. In Neder, the Supreme Court considered

an error in jury instructions that omitted materiality, which the

court held was an element of the mail, wire, and bank fraud

statutes the defendant was charged with violating. 527 U.S. at 8.

The Court affirmed the convictions because it concluded that the

-30-
government met its burden of demonstrating the error was harmless

beyond a reasonable doubt. Id. at 16. Here, because Defendant did

not object to the erroneous instruction, he must satisfy the

difficult standard of showing “a likely effect on the outcome or

verdict.” Dominguez Benitez, 542 U.S. at 82 n.7. The mere fact

that an erroneous instruction resulted in the omission of an

element of the offense is not alone sufficient to demonstrate a

prejudicial affect on the outcome of the trial. See Olano, 507

U.S. at 734 (holding “in most cases” a showing of prejudice

requires that the error “must have affected the outcome of the

district court proceedings”); see also Dominguez Benitez, 542 U.S.

at 81 (“To affect ‘substantial rights,’ . . . an error must have

‘substantial and injurious effect or influence in determining

the . . . verdict.” (quoting Kotteakos v. United States, 328 U.S.

750, 776 (1946)).

Second, Defendant contends that the district court’s

instruction prejudiced him because the jury never heard anything to

correct the error. Accepting this argument would require us to

hold that every instructional error has a prejudicial impact on

judicial proceedings. We have already explained that this is not

the law. “Where the effect of an alleged error is so uncertain, a

defendant cannot meet his burden of showing that the error actually

affected his substantial rights.” Jones v. United States, 527 U.S.

373, 394-95 (1999); see also United States v. Moran, 393 F.3d 1, 2

-31-
(1st Cir. 2004) (noting that under plain error review defendant

must show improper instruction affected the outcome of the trial).

Third, Defendant suggests that if the jury was properly

instructed “it seems more than likely” that it would have acquitted

him of both the mail fraud counts because of “the lack of

evidence.” In light of Defendant’s trial strategy and the evidence

presented, we disagree. At trial, Defendant focused exclusively on

rebutting the arson charge and the existence of a scheme to defraud

his insurance provider. We seriously doubt that the jury would

have changed its verdict if the district court had used the word

“and” instead of the disjunctive “or” without any relevant argument

presented by defense counsel.

We also reject Defendant’s characterization of the

evidence. The Dugan letter was strong evidence supporting the mail

fraud conviction given our holding in Contenti. See supra

Part III.C. The testimony at trial also provided ample ground for

a reasonable jury to conclude the Rolashevich letter was part of

Commerce’s standard claims process. See supra Part III.B.; see

also Neder, 527 U.S. at 18 (affirming convictions in spite of

instructional error where the evidence made it clear that a

rational jury would have found defendants guilty even if properly

instructed). Faced with uncontroverted evidence, we think it quite

likely that a properly instructed jury would have found Defendant

-32-
guilty of both counts of mail fraud.14 See O’Brien, 435 F.3d at 40

(holding “it is enough to sustain the conviction that the result

would quite likely have been the same” despite an erroneous

instruction).

V.

Finally, we consider Defendant’s challenge to his

sentence. The arson statute provides that a person violating it

“shall be imprisoned for not less than 5 years and not more than 20

years, fined under this title, or both.” 18 U.S.C. § 844(i). The

district court interpreted this language to impose a mandatory

five-year term of imprisonment, and sentenced Defendant

accordingly. On appeal, Defendant contends the “or both” clause

allowed the court to impose a fine instead of imprisonment, a

result the record indicates the district court might have favored

if it had the choice. Defendant further contends we should review

the district court’s interpretation of § 844(i) for harmless error

because he raised an argument based on the statutory language

14
Had Defendant met his burden of demonstrating prejudice,
we would still be disinclined to determine the error seriously
affects the fairness, integrity, or public reputation of judicial
proceedings. See Olano, 507 U.S. at 732 (noting the discretionary
nature of plain error review). Because the evidence was not
closely contested at trial and we have found it sufficient to
support Defendant’s conviction, we are reluctant to disturb the
jury’s verdict. See United States v. Gee, 226 F.3d 885, 896 (7th
Cir. 2000) (holding that despite prejudice, whether to reverse for
plain error was “a difficult question when the evidence was
sufficient to support a conviction,” but ultimately reversing under
Olano’s third prong because issue was “closely contested and
conflicting evidence was presented”).

-33-
below, albeit not the same contention he advances now.15 The

Government urges that plain error review should apply. We need not

resolve this dispute, as we would affirm the district court under

either standard of review.

At the outset, we note that our sister circuits have

routinely assumed that § 844(i) mandates a minimum term of

imprisonment. See, e.g., United States v. Gibney, 519 F.3d 301,

304 (6th Cir. 2008); United States v. Gillespie, 452 F.3d 1183,

1191 (10th Cir. 2006); United States v. Uphoff, 232 F.3d 624, 626

(8th Cir. 2000); United States v. Zendeli, 180 F.3d 879, 881 (7th

Cir. 1999). We conclude that the structure of § 844(i) compels

this reading. The provision stating that a violator of § 844(i)

“shall be imprisoned” is mandatory as to that clause, thus

requiring a minimum five-year term of imprisonment.

We are persuaded by the Second Circuit’s reasoning in

United States v. Detrich, 940 F.2d 37 (2d Cir. 1991), in which the

court construed similar language found in 21 U.S.C. § 960(b)(2).

“Although this portion of the statute could have been more artfully

drafted, the structure of [§ 844(i)] makes it readily apparent that

the district court must impose a [minimum] prison sentence of five

15
At sentencing, defense counsel argued that § 844(i) did not
impose a mandatory minimum because it lacked language that appeared
in § 844(h)(“Notwithstanding any other provision of law, the court
shall not place on probation or suspend the sentence of any person
convicted of a violation of this subsection.”). Defendant
explicitly abandoned this argument on appeal.

-34-
years.” Id. at 39.16 The remainder of the disputed portion of

§ 844(i)(“fined under this title, or both”), however, contains no

such mandatory language, and merely indicates that a fine may also

be imposed. Having rejected Defendant’s interpretation of

§ 844(i), we affirm his sentence.17

For the foregoing reasons, we affirm the district court’s

judgment in all respects.

16
Defendant’s arguments to the contrary, which are based on
two of our prior cases involving a different statute, do not
persuade us. In United States v. Colon-Ortiz, 866 F.2d 6, 9 (1st
Cir. 1989), for example, the Government conceded that the language
of a prior version of 21 U.S.C. § 841(b)(1)(B) was ambiguous. No
such concession exists here. Further, the language the Defendant
relies on from United States v. McMahon, 935 F.2d 397, 400 (1st
Cir. 1998) is clearly dictum. In any event, we gave mere lip
service to the defendant’s assertion in that case that
§ 841(b)(1)(B) was ambiguous, noting the “general unanimity” among
the circuits that § 841(b)(1)(B) required a mandatory five-year
prison term. Id.
17
In his opening brief, Defendant maintained that his
convictions should be reversed because the district court admitted,
over his objection, evidence of the financial losses of the 32-34
building’s occupants. Defendant failed to respond to the
Government’s contention that the evidence was relevant to prove
destruction of property under 18 U.S.C. § 844(i) and to “draw the
sting” of any potential bias the jury might have concluded the
witnesses possessed. After reviewing the record, we conclude the
district court did not abuse its discretion in admitting this
evidence. See United States v. Brown, 450 F.3d 76, 78 (1st Cir.
2006) (holding evidentiary rulings objected to at trial are
reviewed for an abuse of discretion).

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