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____________________
No. 95-1209
UNITED STATES,
Appellee,
v.
GANIYU BARUWA,
Defendant, Appellant.
____________________
____________________
Before
____________________
Whitehouse, United
States Attorney,
Margaret E.
Cur
___________________
________________
____________________
____________________
br
Per Curiam.
__________
Appellant
violation
of 18 U.S.C.
on two of the
1341.
the scheme"
by a
fraud, in
insufficient to support
affirm.
by the Government in
furtherance of
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
insured premises.
mails
at trial, unchallenged in
any way on
false personal
companies
and
the claims,
the United
claims-related
States
materials
and
The heart
the
two letters
Eight1 of
of Baruwa's
which form
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
was from
Roy A.
to determine the
It advised
and that
Mr.
he
Baruwa that
would need
to
his
cooperation was
provide a
recorded
Liberty Mutual.
identified
claim's
Mr.
Stack
as
the
This letter
investigator,
and
-2-
the scheme to
defraud, as
required by
statute, but
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
the
routine
processing of
his
claim, but
were
sent only
There are
"They
are
the
defraud and
defendant's
participation in
scheme
to
scheme."
U.S. v. Yefsky,
____
______
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
_____________
some
on
the
F.2d 301,
305 (1st
760 (1st
way
scheme; "[i]t
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
includes
use
the
of
Those
who
no guarantee
mails
use
will be
the
mails
that the
risk
to
free.
defraud
Id.
___
at 715.
rolled
back
Schmuck
_______
involved
car odometers
and
a scheme
resold
whereby defendant
the resulting
low-
mileage
cars to
public.
state
on behalf of their
these submissions
fraud
offense,
ultimate resale
customers.
The
observing
that
"once the
to the
full
of the mail
flavor
of
(1st
Cir. 1987),
counts
mailings
we upheld
between an
defendant's conviction
on five
attorney and
the insurance
company he
attorney's
Id.
___
at 928.
construction
reservations about
We noted
Insurance Company's
the validity
first that
we have
of
the claim."
given a liberal
-4-
Id.
__
In
answer
to
Serino's
Our response
be
specific
argument,
concerned
less
with
with
the role
the execution
related
to
precise
mailings than
those mailings
of the scheme
said:
ought to
the
we
played in
to defraud.
are sufficiently
scheme
so
that
the
nexus is
established.
Id. at 928-29.
__
an insurance
letter,
that an insurer's
automobile,
scheme to defraud.
We said
any deception,
it "was `incidental' to
an essential element
reasonably
be expected
when false
claims are
submitted to
thereby
F.3d
fraud successful."
(1995);
(1st
making the
U.S. v.
____
v. Contenti, 735
________
paid,
Morrow, 39
______
F.2d 628,
631 n. 2
-5-
which
mailing
In
____
_______
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
reliance
requesting
these
mailings
If in
fact the letters did conflict rather than promote the scheme,
was continuing
to try to
is that Draiman
Id. at 253.
__
U.S.
____
letters helped
v.
indictment
adjuster
to the
on a report
insurance company's
McClelland,
__________
There, the
from an insurance
claim department.
In
on the defendant.
The
Fifth Circuit
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
on
his
fraudulent
insurance
claim.
Id. at 708-09.
___
objective was to
premises.
Id.
__
of paper,
a "criss-cross of
were sent as
Appellant's Brief, p. 2.
the insurers of
His
the
a result of the
mailings."
That the
mailings
is
clearly
incidental, even
scheme.
"Success of
depend on
documents
and supporting
sent...."
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
Counts Seven
to
satisfy
and
the
-7-