United States v. Cory Eglash

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-30132

Plaintiff-Appellee,

D.C. No.

v. 2:13-cr-00040-RSM-2

CORY MICHAEL EGLASH,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the Western District of Washington

Ricardo S. Martinez, District Judge, Presiding

Argued and Submitted

May 6, 2015—Seattle, Washington

Filed February 17, 2016

Before: J. Clifford Wallace, Andrew J. Kleinfeld,

and Morgan Christen, Circuit Judges.

Opinion by Judge Christen;

Concurrence by Judge Kleinfeld;

Partial Concurrence and Partial Dissent by Judge Wallace

2 UNITED STATES V. EGLASH

SUMMARY*

Criminal Law

The panel affirmed in part and reversed in part the district

court’s judgment in a case in which the defendant claimed

that the evidence presented to support two mail fraud counts

was insufficient to show that the underlying mailings

furthered his fraudulent scheme to receive disability benefits.

The panel affirmed the district court’s judgment on Count

4, which arose out of a notice of disability award mailed by

the Social Security Administration, because the notice—

which marked the last step before the defendant’s girlfriend

would receive disability benefit payments, the goal of her

fraudulent plan with the defendant—was a contemplated,

necessary step in the fraudulent scheme.

The panel reversed the district court’s conviction on

Count 6, which pertained to a disability application summary

that the SSA mailed to the defendant, because the fraud the

defendant envisioned was neither dependent upon nor

furthered by the Government’s decision to transcribe, in

summary form, the fraudulent statements he made when he

talked to the SSA.

The panel affirmed the defendant’s convictions on four

other counts in a memorandum disposition.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. EGLASH 3

Judge Kleinfeld concurred with regard to affirming the

conviction on Count 4 as compelled by United States v.

Brown, 771 F.3d 1149 (9th Cir. 2014). He wrote that this

case should be reheard en banc to correct Brown’s mistaken

interpretation of the mail fraud statute and Schmuck v. United

States, 489 U.S. 705 (1989), because the SSA’s mailing of the

notice of award to the defendant cannot be characterized as

“part of the execution” of the defendant’s scheme.

Judge Wallace concurred and dissented. He agreed with

the majority that Brown controls with regard to Count 4, and

wrote that it is sufficient for the mailing to be “incident to an

essential part of the scheme.” He would affirm the conviction

on Count 6. He wrote that it is enough that the scheme

conceived of by the perpetrator include the mailing as part of

its normal execution, and that the jury could have reasonably

found that the SSA’s mailing of the application summary was

incident to an essential part of the defendant’s scheme.

COUNSEL

Theresa DeMonte (argued) and Andrea D. Ostrovsky, Calfo

Harrigan Leyh & Eakes LLP, Seattle, Washington, for

Defendant-Appellant.

Thomas Merton Woods (argued) and Seth Wilkinson,

Assistant United States Attorneys; and Annette L. Hayes,

Acting United States Attorney, Western District of

Washington, Seattle, Washington, for Plaintiff-Appellee.

4 UNITED STATES V. EGLASH

OPINION

CHRISTEN, Circuit Judge:

After a jury trial, Cory Michael Eglash was convicted of

four counts of mail fraud under 18 U.S.C. § 1341. Eglash

appeals from the judgment. He argues that, for his mail fraud

convictions on Counts 4 and 6, there is insufficient evidence

showing the underlying mailings furthered his fraudulent

scheme.1 We affirm in part and reverse in part.

BACKGROUND

In 2010, Eglash and his girlfriend, Ramona Hayes, moved

to San Juan Island, Washington. From 2010 to 2012, Eglash

and Hayes ran a coffee shop. During the same period, Eglash

also worked part time at an aquarium, volunteered at a senior

center, and participated in a full-court basketball league.

In January 2011, Hayes submitted an application for

disability benefits to the Social Security Administration

(“SSA”), claiming that she had been unable to work since

2007 due to anxiety, manic depression, and other mental

health issues. She identified Eglash as an individual who

could speak to her disability. In response to a mailed request

from the SSA, Eglash submitted a third party function report

in which he indicated that he was Hayes’s “caregiver.”

Eglash claimed that Hayes could not “function normally” or

1

In a separate memorandum disposition issued concurrently, we address

Eglash’s other arguments and affirm his convictions for one count of

conspiracy to defraud the United States under 18 U.S.C. § 286, one count

of making a false statement to the United States under 18 U.S.C.

§ 1001(a)(2), and two other counts of mail fraud under 18 U.S.C. § 1341.

UNITED STATES V. EGLASH 5

“drive or go outside alone,” and that he “seriously doubt[ed]

that today [Hayes] could work in a retail store on a part time

basis, or actually put gas in a car.”

In July 2011, SSA notified Hayes by mail that it had

approved her application for benefits. The agency paid Hayes

$20,740 in retroactive benefit payments and awarded her

prospective monthly payments of $1,074.

On November 29, 2011, Eglash applied for disability

benefits for himself. In December 2011, Eglash mailed to

SSA a function report claiming that he “cannot stand or sit for

any length of time [and] . . . cannot walk more than 100–200

y[ar]ds,” that he was “almost home bound,” and that “most of

[his] hobbies were sports related and have now ceased due to

[his] condition(s).”

In January 2012, after processing his application, SSA

sent Eglash a mailing titled “Application Summary for

Disability Insurance Benefits.” The top of the mailing

informed Eglash: “On November 29, 2011, we talked with

you and completed your application for SOCIAL SECURITY

BENEFITS. We stored this information electronically in our

records. We are enclosing a summary of your statements.”

The rest of the mailing listed the statements Eglash made

when he talked to SSA on November 29, 2011.

SSA special agents subsequently engaged in an

undercover operation during which different agents visited

Eglash’s and Hayes’ coffee shop eight times. The agents

engaged in conversation with Eglash and Hayes and recorded

their interactions. The agents observed Eglash and Hayes

prepare and serve meals and drinks to customers without any

sign of disability. They noted that Eglash’s “movements

6 UNITED STATES V. EGLASH

were fluid and normal with no indication of discomfort,” and

Hayes was “personable,” “gregarious,” and “very pleasant.”

On the agent’s undercover video, Eglash claims that he walks

everywhere, enjoys long bike rides, and sometimes plays

basketball. He also says that he works at the coffee shop

every day from 7 am to 5 pm and boasts about how he was

the most efficient volunteer to paint a local church. And

contrary to Eglash’s claim to SSA that Hayes could not drive

or go outside alone, the video shows Hayes walking out of the

coffee shop alone while telling Eglash that she was about to

drive to a business meeting.

The Government later discovered additional evidence

contradicting Eglash’s and Hayes’s claims of disability, such

as proof that Eglash played full court basketball once or twice

weekly, including the week he applied for disability, and that

he worked part time at a local aquarium and volunteered

regularly in a senior center.

Eglash and Hayes were indicted on various criminal

charges, including five counts of mail fraud pursuant to

18 U.S.C. § 1341. After the Government voluntarily

dismissed one of the mail fraud counts, Eglash proceeded to

trial on the remaining four. Count 4 charged mail fraud based

on the notice of disability award that the SSA sent Hayes in

July 2011. Count 6 charged mail fraud based on the summary

of statements Eglash made when he talked to SSA on

November 29, 2011. The summary was mailed to Eglash in

January 2012.

At trial, Eglash did not challenge much of the

Government’s evidence but instead asserted a good faith

defense, claiming that he did not believe his work constituted

“substantial gainful activity.” The jury convicted Eglash of

UNITED STATES V. EGLASH 7

all mail fraud counts. Eglash moved for a judgment of

acquittal, challenging the sufficiency of the evidence and

arguing that the Government did not prove that the mailings

underlying Counts 4 and 6 furthered a fraudulent scheme.

The district court orally denied the motion during its

sentencing hearing, and Eglash timely appeals. We have

jurisdiction under 28 U.S.C. § 1291.

LEGAL STANDARD and STANDARD OF REVIEW

“There is sufficient evidence to support a conviction if,

viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of a crime beyond a reasonable doubt.”

United States v. Gonzalez, 528 F.3d 1207, 1211 (9th Cir.

2008). “When a claim of sufficiency of the evidence is

preserved by making a motion for acquittal at the close of

evidence, this court reviews the district court’s denial of the

motion de novo.” Id.

DISCUSSION

Eglash claims the district court erred by denying his

motion for judgment of acquittal on mail fraud Counts 4 and

6 because the underlying mailings were not shown to further

a fraudulent scheme to receive disability benefits.

“There are two elements in mail fraud: (1) having devised

or intending to devise a scheme to defraud (or to perform

specified fraudulent acts), and (2) use of the mail for the

purpose of executing, or attempting to execute, the scheme

(or specified fraudulent acts).” Schmuck v. United States,

489 U.S. 705, 721 (1989). “The relevant question at all times

is whether the mailing is part of the execution of the scheme

8 UNITED STATES V. EGLASH

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.” Id. at 715. We have held that

where “‘the execution of the scheme as conceived by’ [the

defendant] depended” on a mailing, that mailing constitutes

“an ‘essential step’” of the scheme and offers sufficient basis

for a mail fraud conviction. United States v. Jinian, 753 F.3d

954, 963 (9th Cir. 2013) (quoting Schmuck, 489 U.S. at 715).

We recently revisited this framework in United States v.

Brown, 771 F.3d 1149 (9th Cir. 2014). Brown concerned a

scheme in which the defendant’s bankruptcy petition falsely

claimed little or no income in recent years, underreported

assets, and listed a fictitious loan for $2.5 million. Id. at

1153. As a result of the false claims in the petition, the

bankruptcy trustee abandoned efforts to recover debts owed

to creditors and the defendant received a discharge. Id. We

relied on Schmuck and observed that the Government had

introduced evidence establishing notice of discharge “is

essential to the bankruptcy process and a discharge is ‘the

golden ring that people want in a bankruptcy. It’s a

declaration that all debts that are dischargeable are discharged

and the debtor no longer personally owned any of the debt.’”

Id. at 1158. In light of this evidence, we concluded “[t]here

was sufficient evidence of the mailings’ importance to [the]

bankruptcy fraud scheme” and the court’s “mailing of the

bankruptcy notices was ‘incident to an essential part of the

scheme, or a step in the plot.’” Id. (quoting Schmuck,

489 U.S. at 711).

In the instant case, Count 4 arises from the notice of

disability award that SSA mailed to Hayes. That mailing

informed Hayes that the agency had determined that she was

UNITED STATES V. EGLASH 9

“entitled to monthly disability benefits beginning November

2009.” It also indicated that Hayes would receive prospective

monthly payments and retroactive payments for qualifying

past months. Hayes and Eglash designed their scheme in the

hope of defrauding the Government into paying them

disability benefits, and Eglash offered false statements to

support Hayes’s application and perpetuate the scheme. The

result here is compelled by our decision in Brown. The notice

of discharge in Brown was the penultimate step in the

fraudulent scheme because the notice enabled the defendant

to evade his debts to his creditors, which was his ultimate

goal. Similarly, the notice of disability award marked the last

step before Hayes would receive disability benefit payments,

the goal of her fraudulent plan with Eglash. Although the

Government, not the defendant, mailed the notice of

discharge in Brown and the notice of disability award here,

each mailing was a contemplated, necessary step in its

respective scheme. Like the notice of discharge, the notice of

award was the “golden ring” in Eglash’s plot and “‘incident

to an essential part of the scheme.’” Id. (quoting Schmuck,

489 U.S. at 711). We therefore affirm the district court’s

judgment on Count 4.

Count 6 pertains to the application summary that SSA

mailed to Eglash in January 2012. The summary recounts the

statements that Eglash made on November 29, 2011, when he

applied for his own disability benefits. The letter states: “We

stored this information electronically in our records. We are

enclosing a summary of your statements.” It did not require

Eglash to take any action.

There is no indication that the scheme, as Eglash

conceived it, contemplated or depended on receiving such a

summary. Nor was the summary necessary to bring the

10 UNITED STATES V. EGLASH

scheme to fruition because Eglash’s fraudulent statements

had already been entered and saved in SSA’s records.

Finally, the SSA did not require that Eglash sign and return

the summary, or do anything else with it, in order to complete

his application for benefits. See Schmuck, 489 U.S. at 715;

United States v. Jinian, 725 F.3d 954, 963 (9th Cir. 2013). In

short, the evidence did not show that printing and mailing the

summary furthered any part of Eglash’s scheme. For this

reason, the Government’s position at oral argument—that it

could issue such a mailing repeatedly and charge a separate

count of mail fraud for each of its duplicate mailings—is

wrong. The summary may have been a predictable

consequence of Eglash’s fraudulent application, but the fraud

he envisioned was neither dependent upon nor furthered by

the Government’s decision to transcribe, in summary form,

the fraudulent statements he made when he talked to SSA on

November 29, 2011.2 Because the underlying mailing was

not “part of the execution of the scheme as conceived by the

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

because it did nothing to further the scheme, we reverse

Eglash’s mail fraud conviction on Count 6.

2

The dissent argues this reasoning cannot be reconciled with our

reasoning on Count 4. We disagree. Count 4 falls very close to the line

of permissible mail fraud prosecutions, but we ultimately affirm the

conviction on that count because the notice of disability, like the mailings

at issue in Brown and United States v. Mitchell, was “required to

consummate the scheme.” United States v. Mitchell, 744 F.2d 701, 704

(9th Cir. 1984); see also Brown, 771 F.3d at 1158. By contrast, the

summary mailing at issue in Count 6 was not required to consummate

Eglash’s fraud: Eglash had already telephonically communicated his false

information to SSA, and SSA had stored the information electronically.

The summary mailing merely memorialized that this step had been taken.

In this critical way, Counts 4 and 6 differ.

UNITED STATES V. EGLASH 11

CONCLUSION

We affirm the district court’s judgment on Count 4 of

Eglash’s mail fraud convictions, but reverse on Count 6.3 We

remand for further proceedings consistent with this opinion.

Each party shall bear its own costs on appeal.

AFFIRMED IN PART; REVERSED AND

REMANDED IN PART.

KLEINFELD, Senior Circuit Judge, concurring:

I concur in Judge Christen’s opinion.

My concurrence with regard to affirming the conviction

on count 4 depends on a recent decision of our court that is

mistaken. Count 4 charges mail fraud based on the notice of

award that the Social Security Administration mailed to

Eglash. It does not refer to any mailing that Eglash made or

caused another to make, in the sense required by the mail

fraud statute. I agree with Judge Christen that our decision in

United States v. Brown1 compels the result in this case. But

Brown, I think, is a mistaken interpretation of the statute and

the controlling Supreme Court case, Schmuck v. United

States.2 Since a three judge panel cannot correct mistaken

3

Eglash’s motion for judicial notice is granted.

1

771 F.3d 1149, 1158 (9th Cir. 2014).

2

489 U.S. 705, 712 (1989).

12 UNITED STATES V. EGLASH

circuit law,3 we ought to rehear this case en banc to correct

Brown’s error.

The mail fraud statute criminalizes “plac[ing] in any post

office . . . any matter or thing to be sent or delivered” or

“knowingly caus[ing] to be delivered . . . any such matter or

thing.” The mailing has to be “for the purpose of executing”

the fraudulent scheme.4 That is a reasonably plain spoken

way of saying that to commit the crime, the criminal has to

put the thing in the mail or cause it to be mailed, and that the

mailing has to be for “executing” the scheme. The word

“executing” implies that the mailing has to be for the purpose

of defrauding. That is, the thing mailed has to be an

instrument accomplishing the fraud, not the fruit of the fraud.

And indeed, that is what Schmuck holds. Schmuck

wholesaled used cars to used car dealers. He rolled back the

odometers to make the price higher. What made Schmuck

more debatable than the usual mail fraud case was that the

mailings were by Schmuck’s duped customers, the innocent

used car dealers, not by Schmuck. They, not Schmuck, sent

the state Department of Transportation applications for title

showing the false odometer numbers.5 This distinguished

Schmuck from the more common case where the “causes to

be delivered” statutory phrase means the criminal had an

employee or associate put the envelope in the mail.

3

United States v. Gay, 967 F.2d 322, 327 (9th Cir. 1992) (“as a general

rule, one three-judge panel of this court cannot reconsider or overrule the

decision of a prior panel”).

4

18 U.S.C. § 1341 (2012).

5

Schmuck, 489 U.S. at 707.

UNITED STATES V. EGLASH 13

Our decision today, applying our decision in Brown, holds

that Eglash was guilty of mail fraud based on the Social

Security Administration’s mailing of the notice that the

fraudulently obtained disability award had been granted. The

explanation of the holding is that “the notice of award was the

‘golden ring’ in Eglash’s plot and ‘incident to an essential

part of the scheme.’” That Brown analysis conflicts with

Schmuck. Precisely because the disability award and notice

of it were the fruit of Eglash’s fraud, the “golden ring”

obtained thereby, the notice was not, as the statute requires,

a means of “executing” the fraud.

In Schmuck, by contrast, the Court held that a “rational

jury could have found that the title-registration mailings were

part of the execution of the fraudulent scheme, a scheme

which did not reach fruition until the retail dealers resold the

cars and effected transfers of titles.”6 (emphasis added) The

state’s mailings in Schmuck were “incident to an essential

part of the scheme” in the sense that perpetuation of the

scheme, by which Schmuck overpriced many cars over a long

period, depended on the retail dealers’ ability to get title

transferred to the consumers.7 The four justice dissent

thought that even the Schmuck majority had gone too far in

allowing the statute to be so used, because the Court had held

in Kann v. United States8 that it reached “only ‘those limited

instances in which the use of the mails is a part of the

execution of the fraud,’” and disagreed with the majority’s

view that perpetuation of Schmuck’s scheme required that the

6

Id. at 712.

7

Id.

8

Kann v. United States, 323 U.S. 88 (1944).

14 UNITED STATES V. EGLASH

dealers be lulled by successful transfers of title to their

customers.9 (emphasis in the original) Eglash’s conviction

goes well beyond Schmuck’s, and renders the “executing”

term in the statute meaningless.

The Court in Schmuck distinguished, and did not overrule,

United States v. Maze.10 Maze is still good law.11 Maze,

applying the Court’s earlier decision in Kann v. United States,

held that the mailings must be “for the purpose of executing

the scheme,” not when the scheme “had reached fruition.”12

The notice of award the Social Security Administration

mailed was precisely the fruit of Eglash’s fraud, obtained

when his scheme “had reached fruition,” and not a mailing

“for the purpose of executing”13 the obtaining of the

undeserved disability award.14 (emphasis added). Under

Maze and Schmuck, Eglash’s convictions on count 4 as well

as count 6 ought to be vacated.

The Social Security Administration’s mailing of the

notice of award to Eglash cannot be characterized as “part of

the execution” of Eglash’s scheme. For the notice here to be

analogous to the title in Schmuck, Eglash would have had to

9

Schmuck, 489 U.S. at 723 (Scalia, J. dissenting) (citing Kann, 323 U.S.

at 95).

10

414 U.S. 395 (1974).

11

See Schmuck, 489 U.S. at 714.

12

414 U.S. at 400 (quoting Kann, 323 U.S. at 94).

13

18 U.S.C. § 1341.

14

Id.

UNITED STATES V. EGLASH 15

be in the business of preparing fraudulent disability claims,

needing notices of award to sell his criminal services to

others. Since the Social Security Administration mailed the

notice of award, not Eglash, and the notice was the fruit of

Eglash’s scheme, not a mailing sent for the purpose of

defrauding the Social Security Administration, an element of

the crime is missing in count 4.

Eglash was enough of a crook without counts 4 and 6 to

make these two counts superfluous. The hardest part of this

case to understand is why the government turned an easy and

obvious conviction into a difficult appellate case and

fractured opinion by overcharging him. Eglash was so

plainly guilty of all the other counts, and probably would get

the same sentence without counts 4 and 6, that charging him

with mail fraud for mailings by the Social Security

Administration that were not part of the execution of the

scheme makes no practical sense. And if the jury had

somehow acquitted him of the other counts, it is hard to

imagine it nevertheless convicting him of counts 4 and 6.

Eglash defrauded the Social Security Administration with a

phony disability claim. The undeserved award was the fruit,

not part of the execution, of his scheme. We ought to rehear

this case en banc to correct our error in Brown that compels

today’s error.

WALLACE, Circuit Judge, concurring and dissenting:

I concur with regard to the majority’s treatment of Counts

1, 2, 3, 4, 5, and 7, but I dissent from the majority’s

conclusion with regard to Count 6.

16 UNITED STATES V. EGLASH

I agree with the majority that United States v. Brown,

771 F.3d 1149 (9th Cir. 2014), controls with regard to Count

4. Eglash is correct that the success of his fraudulent scheme

did not depend upon receiving the notice of disability award

underlying Count 4. That, however, is not the standard for

determining whether a mailing was made “for the purpose of

executing such scheme or artifice or attempting so to do”

under 18 U.S.C. § 1341. The use of the mails “need not be an

essential element of the scheme;” rather, it is “sufficient for

the mailing to be ‘incident to an essential part of the

scheme.’” Schmuck v. United States, 489 U.S. 705, 710–11

(1989), quoting Pereira v. United States, 347 U.S. 1, 8 (1954)

(emphasis added). In particular, a government entity’s

mailing of a routine document can create liability for mail

fraud, as shown by the holdings in both Schmuck and Brown.

489 U.S. at 714–15; 771 F.3d at 1158; see also United States

v. Mitchell, 744 F.2d 701, 703 (9th Cir. 1984) (upholding

conviction based on mailings that were “routine, intrinsically

innocent, and required by law”).

Count 6 cannot be distinguished from the majority’s

conclusions with respect to Count 4. Although the Social

Security Administration’s (SSA) mailing of the application

summary neither concealed nor perpetuated the fraud, and the

mailing of the application summary was neither essential nor

even necessary to the scheme, the same could be said of the

mailing underlying Count 4, as well as the mailings in Brown.

In Brown, it was not essential to the defendants’ scheme

that the government mail a Notice of Chapter 7 Bankruptcy

Case to one of the defendants; as co-conspirators, the

defendants were fully aware of the bankruptcy filing (since it

was an essential part of their scheme), and the scheme would

not have been harmed in any way if the government had

UNITED STATES V. EGLASH 17

failed to mail the Notice. However, the defendants’ fraudulent

scheme started the bureaucracy of the bankruptcy process,

and as part of that process the government mailed out both a

Notice of Chapter 7 Bankruptcy Case and eventually a Notice

of Discharge. Brown, 771 F.3d at 1158. The mailing was only

“necessary” in the sense that the mailing of bankruptcy

notices to creditors follows the act of filing for

bankruptcy—it is a natural part of the bureaucratic process set

into motion by the filing. See also Mitchell, 744 F.2d at 704

(“the fraudulent scheme triggered the mailings, which would

not have occurred except as a step in the scheme”). Likewise,

in this case, Eglash started the Social Security application

process to defraud the government, and the application

summary was mailed to him as part of that process.

It is true that “[t]he 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.” Schmuck, 489 U.S.

at 715. But this does not require that the perpetrator

specifically envision, at the scheme’s outset, that the charged

mailing will occur; it is enough that the scheme conceived of

by the perpetrator include the mailing as part of its normal

execution. In Brown, for example, there is no indication that

the defendant envisioned the mailing of the notices when he

was planning the scheme. Instead, the question was whether

the notices were part of the execution of the scheme as

conceived by the defendant. 771 F.3d at 1158.

Even if Eglash had to envision specifically each

individual mailing at the outset of his scheme, the evidence

suggests that Eglash would have anticipated the SSA mailing

him the application summary at issue here. Eglash had

already experienced the entire Social Security application

process when he assisted Hayes in applying for her own

18 UNITED STATES V. EGLASH

Social Security benefits. Based on his familiarity with

applying for benefits, the jury could have reasonably inferred

that Eglash was aware of the SSA’s process, including the

fact that an application summary would be mailed to him.

Also, even if Eglash had no experience with the application

process, information about the process is easily accessible,

including the fact that an application summary is mailed out

after the submission of information online and over the

phone. See, e.g., Social Security Administration Program

Operations Manual System GN 00201.015 (2015), available

at http://policy.ssa.gov/poms.nsf/lnx/0200201015.

Eglash’s conduct is analogous to the defendant’s conduct

in Mitchell. In Mitchell, the defendant set in motion the city

government approval process for a condominium project as

part of his scheme; the court concluded that he “knew the

mails would be used in the course of securing the city’s

approval of the project” because city ordinances so indicated.

744 F.2d at 704, citing United States v. Brutzman, 731 F.2d

1449, 1454 (9th Cir. 1984), overruled on other grounds by

United States v. Charmley, 764 F.2d 675, 677 n. 1 (9th

Cir.1985) (defendant “set the forces in motion that

foreseeably would involve use of the mails”). Likewise,

Eglash, having not only been through the application process

before, but also guided by the SSA’s publicly displayed

information, would have known the SSA would use the mail

to send him a summary of his application.

Along with my colleagues, I was troubled by the

government’s assertion at oral argument that Eglash could

have been subject to an additional mail fraud charge for each

additional copy of the application summary that was mailed

to him. However, that issue is not before us, because such an

expansive interpretation of the mail fraud statute is not

UNITED STATES V. EGLASH 19

necessary to uphold the conviction on Count 6. Our court has

already held that mailings triggered in the ordinary course of

a fraudulent scheme support mail fraud charges; inadvertent

or erroneous mailings would fall outside that scope. I

therefore conclude that because there was evidence offered at

trial to show that the mailing of the summary was part of the

Social Security application process, the jury could have

reasonably found that the mailing was “incident to an

essential part of [Eglash’s] scheme.” Therefore, I would

affirm the conviction on count 6, as well as on the other

counts.