In the case of U.S. v. Desarro, 2007 WL 932111, (C.A.3 Pa.) 2007), Frank Desarro appeals his conviction for mail fraud.
Desarro owned a residential building. In September 2003, he offered one of his tenants $10,000 to set fire to the property; the tenant refused and subsequently moved out. In October 2003, when returning to retrieve his belongings, the tenant observed evidence that a fire had been started in the stairwell of the property. On November 1, 2003, the fire department responded to a second, more damaging fire at the building. The Allegheny County Fire Marshal determined that the second fire was started deliberately.
Subsequent to the second fire, Desarro submitted a claim to Erie Insurance Exchange, which provided fire insurance for 2300 Greentree. In February 2004, Desarro was questioned under oath by Erie's attorney in connection with his claim. Desarro repeatedly stated that he did not set fire to the building and that he never asked anyone to do so. At this examination, Erie sought information from Desarro about his personal financial condition and his financial dealings around the time of the fire. Erie believed such information had a bearing on its assessment of Desarro's possible motive for starting the fire. Desarro did not submit the requested documentation.
Erie began a correspondence with Desarro and his attorney that included a February 23, 2004 letter requesting personal financial information. On March 11, 2004, Desarro's attorney replied, stating that he and Desarro believed that such documentation was not needed to process the claim. This letter stated that Desarro would not produce personal information not directly related to the fire. Noting that Erie's attorney had accused Desarro of starting the fire, the letter requested any evidence supporting such an accusation. Erie eventually denied Desarro's claim.
On July 21, 2004, after a jury trial, Desarro was found guilty of a scheme to defraud Erie.
Desarro contends that the evidence presented was insufficient to prove the second element of mail fraud- i.e., the use of the mails in furtherance of a scheme to defraud. This element requires the government to show that the use of the mails was “for the purposes of executing the scheme,” and that the mailing was “knowingly cause[d]” by the defendant. Desarro argued that the March 11 letter was not for the purposes of executing the fraud because the letter refused Erie's requests for documentation. Additionally, Desarro argued that the letter was mailed by his attorney.
The court concluded that a reasonable jury could have determined that the March 11 letter was sent for the purposes of executing a scheme to defraud. Although the letter refused to provide the requested personal documentation, it stated Desarro's belief that the evidence already provided was sufficient to support his claim. Accordingly, the letter can be reasonably viewed as an attempt to process the claim without providing further documentation. Thus, it was possible for a jury to infer that Desarro refused to send this information to prevent Erie from concluding he had a motive. The court also ruled that a reasonable jury might have found that the March 11 letter was mailed in furtherance of Desarro's scheme to defraud.
The court reasoned that Desarro did not have to place a letter in the mailbox himself to have knowingly caused a mailing in furtherance of his scheme to defraud. Instead, Desarro need only have performed “an act with knowledge that the use of the mails would follow in the ordinary course of business, or where such use could reasonably be foreseen, even though not actually intended.” This is especially true because Erie's attorney told Desarro that they would require supplemental personal documentation. Desarro's attorney sent the March 11 letter in response to Erie's letter apparently after consultation with Desarro. The jury might have inferred that Desarro instructed his attorney to send the letter, or that, after consultation with his attorney, a subsequent mailing to Erie was reasonably foreseeable.
For the foregoing reasons, the court concluded that the evidence presented was sufficient to support the jury's verdict that Desarro caused the March 11 mailing in furtherance of a scheme to defraud Erie and the conviction was affirmed.