United States v. Baruwa
Opinion
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September 20, 1995 [NOT FOR PUBLICATION]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. 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.
-2-
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
-3-
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
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Related
Schmuck v. United States
489 U.S. 705 (Supreme Court, 1989)
United States v. John L. Lea
618 F.2d 426 (Seventh Circuit, 1980)
United States v. Dino Contenti
735 F.2d 628 (First Circuit, 1984)
United States v. Yehuda Draiman
784 F.2d 248 (Seventh Circuit, 1986)
United States v. Joseph Silvano, Jr., United States of America v. William P. McNeill
812 F.2d 754 (First Circuit, 1987)
United States v. Dominic L. Serino, United States of America v. John L. Close
835 F.2d 924 (First Circuit, 1987)
United States v. Benjamin C. McClelland
868 F.2d 704 (Fifth Circuit, 1989)
United States v. Francisco J. Pacheco-Ortiz
889 F.2d 301 (First Circuit, 1989)
United States v. Sheldon Arthur Yefsky
994 F.2d 885 (First Circuit, 1993)