United States v. Washington, 634 F.3d 1180

Washington, Sr. was convicted of conspiracy to commit wire and mail fraud, wire fraud, and commercial carrier fraud; acquitted of making a false statement and money laundering; sentenced to 36 months' imprisonment and three years' supervised release.
As mortgage broker, he assisted Emma Holmes in purchasing three Overland Park, Kansas homes with income misstatements and other falsehoods in loan applications.
The commercial carrier fraud charge rested on a September 2004 closing documents mailing via Federal Express, a standard industry practice, not specially requested by Washington.
The district court denied Washington's motion for judgment of acquittal on the commercial carrier count, holding the mailing was a contemplated step in obtaining the loan.
On appeal, Washington challenges (i) sufficiency of the evidence for commercial carrier fraud and (ii) the loss calculation that included assignees’ losses; the Tenth Circuit affirms on both grounds.
Foreclosure following the loans led to losses measured by the difference between the outstanding loan balances and the subsequent sale prices, including losses of intermediaries and assignees.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for commercial carrier fraud	Washington argues mailing was not essential to the fraud.	Washington contends carrier use was not integral to scheme.	Sufficient evidence; mailing was incident to the scheme.
Loss calculation including assignees’ losses	Loss should reflect harm to original lenders only.	Foreseeable losses to assignees may be included.	Loss calculation reasonable; includes intermediary/assignee losses.
Definition of loss in mortgage fraud context	Loss equals decline in collateral value.	Loss is unpaid loan balance offset by collateral value.	Loss equals unpaid loan balance offset by collateral; losses from the fraud foreseeable.

Schmuck v. United States, 489 U.S. 705 (Supreme Court 1989) (mailing need not be essential element if part of execution of the fraud)
Parker v. United States, 553 F.3d 1309 (10th Cir. 2009) (mailing can be part of execution if foreseeable or customary)
Weiss v. United States, 630 F.3d 1263 (10th Cir. 2010) (requires foreseeability or knowledge that mail will follow in ordinary course)
Pereira v. United States, 347 U.S. 1 (Supreme Court 1954) (analysis of mail fraud elements and intent)
United States v. James, 592 F.3d 1109 (10th Cir. 2010) (losses of assignees may be foreseeable and included)
United States v. Chavis, 461 F.3d 1201 (10th Cir. 2006) (establishes mail/fraud elements for scheme)
United States v. Maze, 414 U.S. 395 (Supreme Court 1974) (mailing can be part of execution of fraud)
United States v. Lane, 474 U.S. 438 (Supreme Court 1986) (mailing can be leveraged to deceive for fraud)
United States v. Schild, 269 F.3d 1198 (10th Cir. 2001) (use of loss information supported by preponderance of evidence)
United States v. Smith, 951 F.2d 1164 (10th Cir. 1991) (loss calculations in mortgage fraud context)