* Pursuant to 5 T H C IR

. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 97-30035

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WAYLAN RUSSELL DAUZAT; JAMES EUGENE MCCOLLOUGH,

Defendants-Appellants.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Louisiana

(95-CR-10021)

_________________________________________________________________ December 11, 1997

Before DAVIS, JONES, and DENNIS, Circuit Judges.

PER CURIAM: *

Appellants James McCollough and Waylan Dauzat were

convicted of conspiracy to commit mail fraud and twelve substantive

counts of mail fraud. The defendants defrauded their insurance

carriers by staging a fake automobile accident and then attempting

to collect on various policies.

McCollough argue s that the district court erred in

denying his motion to dismis s based on his alleged incompetency.2

McCollough and Dauzat argue that there was insufficient evidence to

support their convictions. We affirm.

I. McCollough’s Competency Claim

This court wi ll not set aside a district court’s

determination of competency to stand tria l unless it is clearly

arbitrary or unwarranted. S ee United States v. Birdsell

, 775 F.2d

645, 648 (5th Cir. 1985). While not undertaking d e novo review, we

must re-analyze the facts and take a “har d look” at the trial

judge’s ultimate conclusion because the question of competency is

a mixed question of law and fact which has direct constitutional

implications. S ee id. “The federal standard for determining

competency to stand trial prohibits trial if the court finds, by a

preponderance of the evid ence, that ‘the defendant is presently

suffering from a mental disease or defect rendering him mentally

incompetent to the extent that he is unable to understand the

nature and consequences of the proceedings against him or to assist

properly in his defense.’” Id. (quoting 18 U.S.C. § 4241(d)).

McCollough complains that he was incompetent to stand

trial because he allegedly sustained a head injury during the

automobile accident that caused amnesia. As a result of his

amnesia, McCollough claims that he was unable to provide his trial

counsel with any information regarding the automobile accident that3

formed the basis of both his insurance claims and the government’s

claims of mail fraud.

After McCollough filed his motion for a judicial

determination of his competency to stand trial, the district court

held an extended hearing on his condition and ordered an

independent psychiatrist, Dr. George Seiden, to examine McCollough.

Based upon the hearing and the psyc hiatrist’s examination, the

district cour t denied McCollough’s motion. Before trial,

McCollough filed a motion to reconsider. The district court stated

that he would carefully observe McCollough throughout the trial for

signs of incompetency. After the close of the government’s

evidence, McCollough’s motion was again denied.

After takin g a “hard look” at the district court’s

ultimate conclusion that McCollough was competent to stand trial,

we find that its determination was not clearly arbitrary or

unwarranted. The district court afforded McCollough ample

opportunity to make his incompetency clai m, but ultimately was

unconvinc ed that McCollough was unable to assist properly in his

defense.

Fin ally, we note that McCollough asserted that he was

asleep at the time of the accident. If McCollough was asleep, then

his amnesia should have had little effect on his ability to assist

his counse l in preparing for trial because he would have had no

memory of the events immediately leading up to the accident even

without amnesia.4

II. McCollough’s and Dauzat’s Sufficiency of the Evidence Claims

When considering a challenge to the sufficiency of the

evidence, we review the evidence and the inferences that may be

drawn from it in t he light most favorable to the prosecution to

determine whether a rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. See

United States v. Sneed

, 63 F.3d 381, 385 (5th Cir. 1995). The

standard of review is the same regardless whether the evidence is

direct or circumstantial. S ee United States v. Burton

, 126 F.3d

666, 670 (5th Cir. 1997).

Conspiracy to commit mail fraud requires proof of three

elements: (1) an agreement between two or more persons (2) to

commit mail fraud, and (3) an overt act committed by one of the

conspirators in furtherance of that agreement. S ee Sneed

, 63 F.3d

at 385. In addition, conspiracy to commit a particular substantive

offense cannot exist without at least the degree of criminal intent

necessary for the substantive offense. S ee id. Mail fraud itself

requires proof that the defendant (1) devised a scheme to defraud,

(2) had the specific intent to defraud, and (3) used the mails for

the purpose of executing the scheme to defraud. S ee United States

v. Landerman , 109 F.3d 1053, 1067 (5th Cir. 1997).

H aving carefully reviewed the record in light of the

parties’ o ral arguments, we find overwhelming evidence that

McCollough and Dauzat engaged in both mail fraud and a conspiracy5

to commit mail fraud. There is no doubt that sufficient evidence

existed for a rational trier of fact to find both defendants

guilty.

AFFIRMED.