USCA1 Opinion

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[NOT FOR PUBLICATION]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.

Cur

___________________

________________

and Charles A. Tamuleviz, Assistant United States Attorneys, on

____________________
for appellee.

____________________

____________________

br

Per Curiam.
__________

Appellant

Rhode Island federal jury

violation

of 18 U.S.C.

on two of the

1341.

the scheme"

by a

fraud, in

He challenges his conviction

support did not meet the

insufficient to support

affirm.

of eight counts of mail

counts, arguing that the mailings

by the Government in

furtherance of

Baruwa was convicted

requirement, and

his conviction.

relied upon

statute's "in

therefore were

We disagree, and so

The evidence

appeal,

revealed

injury

claims

businesses,

that

against

Baruwa

filed

various

were

For

used

to

all

carry

eight

insurance

based on a claimed slip

insured premises.

mails

at trial, unchallenged in

any way on

false personal

companies

and

and fall at each of the

the claims,

the United

claims-related

States

materials

and

correspondence to or from Baruwa.

The heart

the

two letters

Eight1 of

of Baruwa's

which form

the indictment were

argument on appeal

the basis

of Counts

not mailed in

is that

Seven and

furtherance of

____________________

1.

The

Prout,

letter in

support of

Count Seven

Investigator for Constitution

the claims handler for Woolworth, Inc.

essence, that

was from

Roy A.

State Service Company,

The letter stated, in

an investigation was ongoing

to determine the

circumstances of the accident, and the extent and severity of

injury.
necessary,

It advised
and that

Mr.
he

Baruwa that
would need

to

his

cooperation was

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.

identified

claim's

Mr.

Stack

as

the

This letter

investigator,

and

requested Mr. Baruwa to contact him to discuss the claim.

-2-

the scheme to

defraud, as

were sent to him

required by

statute, but

by investigators who regarded his

rather

claim as

questionable.

respective

Each

letter,

suspicious.

investigator

that it

These letters,

testified,

is sent

so

only

as

when a

the argument

to

his

claim is

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

"They

are

the

defraud and

two elements to the crime of mail fraud.

defendant's

participation in

scheme

to

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

the scheme,'

mailing to be considered

"the scheme's

`in furtherance of

completion or the

prevention of

its

detection

mailings."

must

have

U.S. v.
____

depended

in

Pacheco-Ortiz, 889
_____________

Cir. 1989), quoting U.S.

____

some

on

the

F.2d 301,

305 (1st

v. Silvano, 812 F.2d 754,

_______

760 (1st

Cir. 1987)(internal quotation marks omitted.)

mails need not be

way

an essential element of the

The use of the

scheme; "[i]t

is sufficient for the mailing to be `incident to an essential

part

of

Schmuck
_______

the

v.

scheme,' ...

U.S.,
____

489

or

`a

U.S. 705,

step

in the

710-11

(1989)

all

times is

omitted.)

The

relevant

whether

the

question at
mailing

-3-

is

part

of

the

plot....'"

(citation

execution of the

scheme as conceived

the perpetrator at
of

whether

hindsight,

the

the time,

regardless

mailing later,

may

prove

by

to

through

have

been

counterproductive and return to haunt the

perpetrator of the fraud.
statute

includes

use

the

of

Those

who

no guarantee

mails
use

The mail fraud

will be

the

mails

that the

risk
to

free.
defraud

succeed at their peril.

Id.
___

at 715.

rolled

back

Schmuck
_______

involved

car odometers

and

a scheme

resold

whereby defendant

the resulting

low-

mileage

cars to

public.

The dealers submitted title application forms to the

state

on behalf of their

these submissions

fraud

retail dealers for

offense,

ultimate resale

customers.

The

Court agreed that

satisfied the mailing element

observing

that

"once the

to the

full

of the mail

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.

___

(1st

Cir. 1987),

counts

mailings

In U.S. v. Serino, 835 F.2d 924

____
______

we upheld

of mail fraud and

between an

defendant's conviction

on five

rejected the argument that certain

attorney and

the insurance

company he

represented were not in furtherance of the scheme "but rather

hindered it, because

attorney's

Id.
___

at 928.

construction

they contained the

reservations about

We noted

Insurance Company's

the validity

first that

we have

of

the claim."

given a liberal

to the language of the mail fraud statute.

-4-

Id.
__

In

answer

to

Serino's

Our response
be

specific

argument,

is that the focus

concerned

less

with

with

the role

the execution

related

to

precise

mailings than

those mailings
of the scheme

As long as the mailings

the

said:

ought to

the

contents of the particular

we

played in
to defraud.

are sufficiently

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

letter,

context against the argument

that an insurer's

acknowledging receipt of a claim for the theft of an

automobile,

was not part of the

that while the acknowledgement

scheme to defraud.

We said

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

thereby

F.3d

fraud successful."

1228, 1237 (1st Cir.

(1995);

(1st

making the

see also U.S.

___ ____ ____

U.S. v.
____

1994), cert. den.,

____ ___

v. Contenti, 735
________

paid,

Morrow, 39
______

115 S.Ct 1421

F.2d 628,

631 n. 2

Cir. 1984) (mailing is incident to an essential part of

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)).

___

-5-

Our cases, therefore,

which

reflect that even a

mailing

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

from

insurance

the

attorney indicating

documentation

clarification.

the Government's

company's

that the

were

not

attorney

to

argues

business

and supporting

and

that

on letters

his

proofs of loss

sufficient,

"Draiman

conflicted with his scheme

reliance

requesting

these

mailings

rather than furthered it.

If in

fact the letters did conflict rather than promote the scheme,

they would not

qualify. ... The distinction

was continuing

to try to

give him another chance."

is that Draiman

collect, and these

Id. at 253.
__

U.S.
____

letters helped

v.

868 F.2d 704 (5th Cir. 1989) is instructive, too.

indictment

adjuster

was based in part

to the

on a report

insurance company's

McClelland,
__________

There, the

from an insurance

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.

contained in [the]
used by

Most

of the facts

report are

insurers in making

-6-

routinely

decisions on

whether

and

insurance
interim

much

to

pay

on

an

claim.

Consequently,

[this]

report was

a customary

step in

processing
was

how

an insurance claim.

entitled

to

conclude

The jury

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.

objective was to

collect proceeds from

premises.

Id.
__

of paper,

a "criss-cross of

were sent as

Appellant's Brief, p. 2.

the insurers of

His

the

His claims set in motion a predictable flurry

a result of the

mailings."

That the

mailings

suspicions of the insurers

is

not decisive here; it is obvious that mailings such as these,

seeking information about Baruwa's claims and injuries,

clearly

incidental, even

scheme.

"Success of

depend on

the sending and

documents

and supporting

sent...."

Serino, 835 F.2d at 929.

______

that the letters

Eight

of

statute.

the

critical,

his plan,

relied on

indictment

to the

were

success of

it to

receipt of precisely

documentation

that

were

his

result, would

those claim

were in

fact

Accordingly, we conclude

in support of

were sufficient

Baruwa's conviction is affirmed.

________

Counts Seven

to

satisfy

and

the

-7-