2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-20-2002

USA v. Tiller

Precedential or Non-Precedential: Precedential

Docket No. 01-2791

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Recommended Citation

"USA v. Tiller" (2002). 2002 Decisions. Paper 521.

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PRECEDENTIAL 

 Filed August 20, 2002 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 01-2791 

UNITED STATES OF AMERICA 

v. 

FREDA TILLER 

a/k/a 

FREDA TOLLIVER, 

 Appellant 

ON APPEAL FROM THE 

UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

District Court Judge: Honorable Anita B. Brody 

(D.C. No. 99-cr-00485) 

Argued: May 6, 2002 

Before: NYGAARD, ALITO, and ROSENN, Circuit Ju dges 

(Opinion Filed: August 20, 2002) 

 ARTHUR THOMAS DONATO, JR. 

 211-213 North Olive Street 

 Media, Pennsylvania 19063 

 MARY E. WELCH (Argued) 

 117-119 North Olive Street 

 Media, Pennsylvania 19063 

 Co-Counsel for Appellants 

 

 PATRICK L. MEEHAN 

 United States Attorney 

 LAURIE MAGID 

 Deputy United States Attorney for 

 Policy and Appeals 

 ROBERT A. ZAUZMER 

 Assistant United States Attorney 

 Senior Appellate Counsel 

 JOEL D. GOLDSTEIN (Argued) 

 Assistant United States Attorney 

 Room 1250 

 615 Chestnut Street 

 Philadelphia, Pennsylvania 19106 

 Counsel for Appellee 
OPINION OF THE COURT 

ALITO, Circuit Judge: 

In this appeal, Freda Tiller challenges her conviction on 

18 counts of mail fraud. Tiller argues that the evidence at 

trial was insufficient to satisfy the mailing element of the 

statute, that the trial court erred in instructing the jury 

concerning this element, that the prosecutor was allowed to 

make inaccurate statements about this element in closing 

argument, and that the trial judge erred in calculating the 

amount of loss for sentencing purposes. We affirm. 

I. 

During the 21-month period covered by the indictment, 

Freda Tiller was employed as a managed care caseworker 

by Villanova Rehabilitation Consultants ("VRC"), a medical 

managed-care consulting firm. VRC employed caseworkers 

such as Tiller to monitor the medical care provided under 

insurance policies. The Philadelphia Housing Authority 

("PHA") contracted with VRC to monitor the medical 

treatments covered by PHA’s workers’ compensation 

insurance policies. The service for which PHA bargained 

was in-person, on-site monitoring of the medical care 

administered by health care professionals to PHA 

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employees ("claimants") who received treatment for on-thejob injuries. Individual PHA claimants were assigned to 

VRC caseworkers, who were responsible for meeting with 

claimants at the doctors’ or physical therapists’ offices and 

then preparing detailed written reports. When a caseworker 

first met with a claimant, the caseworker prepared a report 

entitled "PHA Initial Assessment," and subsequent contacts 

with a claimant resulted in the preparation of "Follow Up" 

reports. In addition to preparing these reports, caseworkers 

were required to document their activities on VRC records 

known as "Weekly Activity Summaries and Expense 

Reports," which tracked the number of visits the 

caseworker made for each two-week pay period. 

VRC billed PHA for its services on a per-visit basis. 

Caseworkers submitted their reports to VRC, which in turn 

prepared an invoice. The invoice broke down the activity for 

which PHA was being charged, including travel time, time 

spent on the visit, and any incidental expenses (e.g., 

telephone calls). VRC then sent the invoice to Crawford and 

Company ("Crawford"), the third-party administrator for the 

PHA workers’ compensation program. Based on the invoices 

and reports received from VRC, Crawford prepared checks 

payable to VRC. These checks were mailed from Crawford’s 

office in Broomall, Pennsylvania, to VRC in Wayne, 

Pennsylvania. 

VRC paid Tiller a base salary, as well a $40 bonus for 

every visit made and reported in excess of six visits per 
week. Caseworkers received bi-weekly pay checks from VRC 

that included any bonuses. 

Tiller devised and executed a scheme to obtain additional 

bonuses by stating that she had visited PHA claimants 

when in fact she had not. Unaware of this fraud, VRC then 

billed PHA for these visits in invoices that it submitted to 

Crawford, and Crawford mailed VRC checks as payment for 

visits that had never taken place. 

Tiller was charged with 41 counts of mail fraud under 18 

U.S.C. S 1341. After the government withdrew 23 counts, 

the case was submitted to the jury, which convicted Tiller 

of the remaining 18 counts. Tiller’s post-trial motions were 

denied, and she was sentenced to a term of 15 months of 

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imprisonment and three years of supervised release, and 

was ordered to pay $5,000 in restitution. This timely appeal 

followed. 

II. 

A. 

Tiller argues on appeal that the evidence at trial was 

insufficient to establish the mailing element of the federal 

mail fraud statute. Specifically, Tiller contends that (1) the 

success of the scheme had been achieved prior to the 

mailings, and (2) the mailings were not reasonably 

foreseeable to her. We disagree.1 First, we hold that the 

mailings were incident to an essential part of the ongoing 

scheme. Second, we hold that the mailings were reasonably 

foreseeable under the circumstances. 

1. The federal mail fraud statute provides: 

 Whoever, having devised or intending to devise any 

 scheme or artifice to defraud, or for obtaining money or 

 property by means of false or fraudulent pretenses, 

 representations, or promises . . . for the purpose of 

 executing such scheme or artifice or attempting so to 

 do . . . knowingly causes to be delivered by mail or 

 such carrier according to the direction thereon, or at 

 the place at which it is directed to be delivered by the 

 person to whom it is addressed, any [matter or thing 

 whatever to be sent or delivered by the Postal Service 

 or a private or commercial interstate carrier] shall be 

 [guilty of the offense]. 

18 U.S.C. S 1341. 

The Supreme Court has stated that the purpose of the 

mail fraud statute is "to prevent the post office from being 

used to carry [fraudulent schemes] into effect." Durland v. 

_________________________________________________________________ 

1. The proper standard of review is whether, viewing the evidence in the 
light most favorable to the government, together with all reasonable 

inferences to be drawn therefrom, there is sufficient evidence to prove 

guilt beyond a reasonable doubt. See Glasser v. United States, 315 U.S. 

60, 80 (1942). 

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United States, 161 U.S. 306, 314 (1896); Parr v. United 

States, 363 U.S. 370, 389 (1960). The Court has cautioned 

that the federal mail fraud statute "does not purport to 

reach all frauds, but only those limited instances in which 

the use of the mails is a part of the execution of the fraud, 

leaving all other cases to be dealt with by appropriate state 

law." Kann v. United States, 323 U.S. 88, 95 (1944). 

Two statutory requirements for the mailing2 element are 

at issue on appeal. First, the mailing must be "for the 

purpose of executing the scheme, as the statute requires," 

Kann, 323 U.S. at 94. However, "[i]t is not necessary that 

the scheme contemplate the use of the mails as an 

essential element"; the mailing suffices if it is"incident to 

an essential part of the scheme." Pereira v. United States, 

347 U.S. 1, 8 (1954). We must therefore inquire whether 

the mailings in this case were "sufficiently closely related" 

to the scheme to bring the conduct within the statute. 

United States v. Maze, 414 U.S. 395, 399 (1974). 

Second, the defendant must "knowingly cause" the use of 

the mails. The Pereira Court clarified that the necessary 

intent in a mail fraud prosecution is the defendant’s intent 

to engage in the scheme to defraud. Although a defendant 

must cause a mailing in furtherance of a fraud, that 

mailing may be incidental to the fraud, and the defendant 

need not personally send the mailing or even intend that it 

be sent. A defendant "causes" the mails to be used where 

the defendant "does an act with knowledge that the use of 

the mails will follow in the ordinary course of business, or 

where such use can reasonably be foreseen, even though 

not actually intended . . . ." Pereira, 347 U.S. at 8-9. 

a. We turn first to the question whether a reasonable 

jury could have concluded that the mailings in this case 

were "incident to an essential part of the scheme," Pereira, 

347 U.S. at 8, or, put another way, whether the charged 

mailings were "sufficiently closely related" to the scheme to 

bring Tiller’s conduct within the federal mail fraud statute, 

Maze, 414 U.S. at 399. We conclude that there was 

_________________________________________________________________ 

2. We use the term "mail" and "mailing" to include any mode of delivery 

covered by the mail fraud statute. 

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sufficient evidence in the record for a reasonable jury to 

have so found. 

Tiller argues that this case is like Kann v. United States, 
323 U.S. 88 (1944), Parr v. United States, 363 U.S. 370 

(1960), and United States v. Maze, 414 U.S. 395 (1974). In 

Kann, corporate officers and directors were accused of 

having set up a dummy corporation through which to divert 

corporate profits to their own use. The defendants were 

accused of fraudulently obtaining checks payable to them 

and cashing or depositing those checks at a bank that then 

mailed the checks for collection against the drawee bank. 

Holding that the fraud was completed at the point at which 

the defendants cashed their checks, the Supreme Court 

stated: 

 The scheme . . . had reached fruition. The persons 

 intended to receive the money had received it 

 irrevocably. It was immaterial to them, or to any 

 consummation of the scheme, how the bank which 

 paid or credited the check would collect from the 

 drawee bank. It cannot be said that the mailings in 

 question were for the purpose of executing the scheme, 

 as the statute requires. 

Kann, 323 U.S. at 94. 

In Parr, the defendants were charged with having 

obtained gasoline and other products and services for their 

own purposes by the unauthorized use of a gasoline credit 

card issued to their employer. The oil company that 

furnished products and services to the defendants mailed 

invoices to the employer for payment, and the employer’s 

payment was made by check sent in the mail. Relying on 

Kann, the Supreme Court held in Parr that there was not 

a sufficient connection between the mailings and the 

execution of the defendants’ scheme because it was 

immaterial to the defendants how the oil company went 

about collecting its payments. 

In Maze, the defendant stole his roommate’s credit card 

and used it to obtain food and lodging while driving across 

the country. The Supreme Court held that the defendant’s 

scheme had reached fruition when he checked out of each 

motel. The success of the scheme in no way depended upon 

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the mailings, the Court reasoned. Maze, 414 U.S. at 402. 

Rather, the mailings simply determined "which of[the 

defendant’s] victims ultimately bore the loss." Id. The Court 

concluded that "the mailings [ ] were directed to the end of 

adjusting accounts between the motel proprietor, the[ ] 

bank, and [the roommate], all of whom had to a greater or 

lesser degree been the victims of respondent’s scheme." Id. 

These cases are distinguishable from the case at bar. Had 

Tiller submitted a single false report to VRC, been paid for 

her work by VRC, and then moved on to other employment, 

Tiller’s argument would have greater force. But Tiller’s was 

an ongoing fraud, similar to the scheme in Schmuck v. 

United States, 489 U.S. 705 (1989). There, the defendant 

over a period of years sold cars with rolled-back odometers 
to a group of dealers at prices that were artificially inflated 

by the low-mileage readings. The unwitting dealers then 

predictably resold the cars to customers at even higher 

prices. The dealers mailed title forms to the state to 

complete the sales. The indictment charged that the 

defendant’s fraud was directed at the ultimate buyers of the 

cars, who overpaid for the vehicles. In Schmuck , the 

mailings were essential to obtain new and apparently 

"clean" certificates of title for the purchaser. If clean 

certificates of title had not been obtained, the cars would 

not have been marketable, and the scheme ultimately 

would not have been successful. Therefore, the Court held 

that "although the registration-form mailings may not have 

contributed directly to the duping of either the retail dealers 

or the customers, they were necessary to the passage of 

title, which in turn was essential to the perpetuation of 

Schmuck’s scheme." Schmuck, 489 U.S. at 712. 

Here, Tiller is in much the same position as Schmuck; 

VRC’s position is akin to the retail car dealers’; and the 

position of PHA and Crawford resembles that of the retail 

car customers. As in Schmuck, it was essential to the 

continuation of Tiller’s scheme that each transaction be 

completed in an orderly fashion. We agree with the 

government that a rational jury could have concluded that 

Tiller’s fraud depended on her continued harmonious 

relationship and good reputation with her employer, which 

in turn depended on her employer’s ability to continue to 

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receive payment from Crawford by mail for the claims that 

Tiller submitted. Just as Schmuck’s scheme "would have 

come to an abrupt halt if the dealers either had lost faith 

in Schmuck or had not been able to resell the cars obtained 

from him," Schmuck, 489 U.S. at 712, Tiller’s ongoing 

scheme would have quickly ended if VRC had not received 

checks from Crawford for Tiller’s work. We, therefore, hold 

that the government adequately proved that the mailings 

were sufficiently closely related to the scheme to defraud. 

b. Next, we address the question whether Tiller 

"knowingly caused" Crawford to use the mails. Nothing in 

the record demonstrates that Tiller actually knew that 

Crawford would mail the checks to VRC. Tiller argues that 

the government’s own witnesses testified that she would 

not have had any knowledge regarding the PHA/VRC 

contract, the billing procedures, billing rates, or accounting 

procedures. Moreover, Tiller argues that the only evidence 

concerning her knowledge of the use of mails came during 

the defendant’s case, namely, when Tiller stated during 

cross-examination that she supposed that all businesses 

probably use the mails in some way. Appellant’s Br. at 19. 

As we noted above, however, under Supreme Court 

precedent, subjective intent or knowledge regarding the use 

of the mail is not required; reasonable foreseeability is 

sufficient. This is an objective, not subjective, test. As the 

government states in its brief, "[w]here a person is working 
for a monitoring service, knowing that her employer has 

been retained by the benefit provider, it is obvious that the 

mailing of payment by the provider to the employer for its 

service is reasonably foreseeable to an objective observer." 

Appellee’s Br. at 18. Although the prosecution was required 

to prove that Tiller specifically intended to defraud, the 

prosecution was not obligated to show that she planned a 

mailing or even knew that mailings would occur. All that 

was required was proof that a mailing (or other covered 

delivery by an interstate carrier) would have been 

reasonably foreseeable to an objective observer. Taking all 

inferences in the government’s favor, we conclude that 

there was sufficient evidence to support the jury’s verdict. 

 8 

 

B. 

Tiller argues that the District Court abused its discretion 

in its charge to the jury.3 The District Court gave the 

following jury instruction with respect to the mailing 

element: 

 [1] The third element of mail fraud requires that the 

 Government prove beyond a reasonable doubt that the 

 United States mails were used in furtherance of the 

 scheme to defraud. 

 [2] Under the law, when a defendant does an act with 

 knowledge that the use of the mails will follow in the 

 ordinary course of events, or where such use of the 

 mails can reasonably be foreseen, even though not 

 actually intended, then he or she causes the mails to 

 be used. 

 [3] Therefore, if you are satisfied beyond a reasonable 

 doubt that the defendant engaged in the scheme to 

 defraud as charged in the indictment, and that the use 

 of the mails was a reasonably foreseeable consequence 

 of this scheme and that the individual mailings 

 charged in the indictment contributed to the carrying 

 out of the scheme, the mailing element of the offense is 

 satisfied and you may find the defendant guilty of mail 

 fraud. 

 . . . 

 [4] The Government must prove, however, that the use 

 of the mails furthered, advanced or carried out in some 

 way the scheme to defraud. 

 [5] Once participation in a scheme to defraud is 

 established, a knowing participant is liable for any 

_________________________________________________________________ 

3. The standard of review of a district court’s ruling on points for charge 

is abuse of discretion. See United States v. Fischbach & Moore, Inc., 750 

F.2d 1183, 1195 (3d Cir. 1984). We must "determine whether the charge, 

taken as a whole and viewed in the light of the evidence, fairly and 
adequately submits the issues in the case to the jury." Ayoub v. Spencer, 

550 F.2d 164, 167 (3d Cir. 1977). We do not isolate particular language, 

but rather examine it in the context of the entire jury charge. See United 

States v. Turley, 891 F.2d 57, 62 (3d Cir. 1989). 

 9 

 

 mailing that subsequently takes place in connection 

 with the scheme, whether or not the participant 

 actually knows of or agrees to that specific mailing. 

Tiller contends that this instruction was in error because 

the third paragraph did not contain any reference to 

"specific knowledge that the check from Crawford . . . 

would be placed in the mail pursuant to the normal course 

of business." Def. Motion for a New Trial at 12. Tiller 

submits that the third paragraph should have read as 

follows: 

 Therefore, if you are satisfied, beyond a reasonable 

 doubt, that the defendant engaged in the scheme to 

 defraud as charged in the indictment, and that the use 

 of the mails was a reasonably foreseeable consequence 

 of this scheme or that the mail followed in the normal 

 course of business of which the defendant had 

 knowledge, and that the individual mailings charged in 

 the indictment contributed to the carrying out of that 

 scheme, the mailing element of the offense is satisfied 

 and you may find the defendant guilty of mail fraud. 

Id. at 11. Tiller also argues that the jury should have been 

instructed "as to the factors they should consider in 

determining whether or [not] the specific mailings as 

charged in the indictment were reasonably foreseeable to 

the defendant." Def. Motion at 14. 

We reject these arguments. First, although the italicized 

language relating to "actual knowledge" was not included in 

the third paragraph quoted above, the District Court did 

instruct the jury regarding actual knowledge in the second 

paragraph. Moreover, the second paragraph of the District 

Court’s instruction was almost a direct quotation of the 

Pereira Court’s definition of the foreseeability requirement. 

Thus, we conclude that the jury was not misinformed as to 

how the mailing element could be met. 

Second, with respect to the omission of language 

discussing "factors" that could be considered in deciding 

whether the mailings were reasonably foreseeable, we 

conclude that the District Court did not err. After both 

sides gave their closing argument and immediately before 

the court’s charge, Tiller requested that the court alter its 

 10 

 

charge on the foreseeability of the charged mailings using 

language from United States v. Smith, 934 F.2d 270 (11th 

Cir. 1991). Tiller wanted the court to instruct the jury 
concerning the factors that it might consider in determining 

whether Tiller was liable for the charged mailing, factors 

that Tiller’s counsel had argued in closing. 

It is well settled that a trial judge has substantial 

discretion to select the language to be used in instructing 

the jury on the law so long as the judge’s instructions are 

correct and do not omit essentials. See Douglas v. Owens, 

50 F.3d 1226, 1233 (3d Cir. 1995); Harrison v. Otis Elevator 

Co., 935 F.2d 714, 717 (5th Cir. 1991) (trial court has 

broad discretion to compose jury instructions, as long as 

they are fundamentally accurate and not misleading); see 

also Wright & Miller, Federal Practice & Procedure: Civil 2d 

S 2556 ("The particular form of jury instructions used in a 

given situation generally is within the trial court’s 

discretion."). Here, as we have noted above, the District 

Court’s charge correctly stated that a defendant causes the 

mails to be used when she "does an act with knowledge 

that the use of the mails will follow in the ordinary course 

of events, or where such use of the mails can reasonably be 

foreseen." The District Court did not err when it chose not 

to mention factors that another circuit finds useful in 

evaluating mail fraud claims. Taken as a whole, the jury 

instructions correctly stated the legal standard for the 

mailing element, and we conclude that there is no basis for 

finding an abuse of discretion. 

C. 

Next, Tiller contends that the District Court erred in 

allowing the government to make an allegedly improper 

closing argument. Tiller complains that "the government 

argued to the jury that the mailing element of 18 U.S.C. 

S 1341 was satisfied because of a generalized knowledge 

that all companies use the mail and therefore it was 

reasonably foreseeable to defendant that Crawford[ ] would 

mail checks to [VRC] for payment." Appellant’s Br. at 34. 

Tiller objects to the following statement: 

 The standard for the element of the use of the mails is 

 satisfied if the defendant engaged in a scheme as 

 11 

 

 charged in the indictment and that the use of the mails 

 was a reasonably foreseeable consequence of the 

 scheme. I suggest to you, ladies and gentlemen, on this 

 evidence that that element is easily satisfied. 

 The defendant went to work for a company that is 

 involved in the cost containment in the field of 

 medicine. They’re obviously in business, they do 

 correspondence, it is certainly, ladies and gentlemen, 

 reasonably foreseeable that the mails will be used. 

As the District Court noted in denying Tiller’s post-trial 

motion, Tiller did not make a contemporaneous objection to 

the government’s closing argument. Failure to object at 

trial, absent plain error, constitutes a waiver of the issue 
for post-trial purposes. See United States v. Young, 470 

U.S. 1, 15 (1985). Moreover, the District Court correctly 

noted, even if Tiller had objected during the closing, there 

would have been no basis for a new trial because the 

government did not misstate the law. The government did 

not argue that the foreseeability of the mailings in this case 

was established by the fact that all companies use the mail, 

but rather that use of the mails was reasonably foreseeable 

in the circumstances of this case. The prosecutor’s closing 

addressed the specific evidence in this case, which 

demonstrated that Tiller worked for a company that she 

knew used the mails, and that in the particular business in 

which she was involved -- provision and billing for cost 

containment services -- it was reasonably foreseeable that 

the mails would be used. Therefore, we conclude that Tiller 

cannot show any plain error on this record. 

D. 

Finally, Tiller argues that the District Court erred in 

calculating the amount of the loss used in determining the 

base-level offense for the purpose of sentencing. 4 Based on 

the amount that PHA paid for fraudulent Tiller visits, the 

_________________________________________________________________ 

4. Sentencing findings are reviewed for clear error. See United States v. 

Gibbs, 190 F.3d 188, 203 (3d Cir. 1999). The burden of proof in the 

District Court is on the government, and the standard of proof is a 

preponderance of reliable evidence. Id. 

 12 

 

District Court found the loss for guideline purposes was 

between $70,000 and $120,000. This total reflects the 

amount PHA paid for invoices tied to fraudulent Tiller 

reports in connection with the witnesses who testified at 

trial plus the probable loss sustained in connection with 

other claimants interviewed in the investigation and 

identified in discovery. 

On appeal, Tiller does not argue that the District Court 

incorrectly determined the amount of money that PHA paid 

for invoices that billed for visits that she did not make. 

Rather, Tiller asserts that PHA suffered no actual loss 

because, she claims, her reports accurately set forth 

medical information about the claimants. The fact that this 

information was gleaned from medical reports, rather than 

from personal visits with claimants and doctors, did not, in 

her submission, cause PHA any loss. Tiller argues that 

because PHA did not suffer any actual loss, the loss for 

purposes of sentencing should be based on the amount of 

incentive pay (i.e., bonuses) that she received for the 

fraudulent reports submitted. 

Tiller’s argument ignores the critical fact that PHA 

bargained and paid for in-person, on-site monitoring of 

claimants, but was fraudulently deprived of this service. 

James Sredzinski, the former risk manager at PHA, testified 

at trial that (1) the purpose of hiring VRC was to make sure 
that medical care was appropriate and that the claimants 

were not perpetrating frauds or malingering, App. at 292- 

93; (2) PHA’s expectation was for VRC to "actually 

physically visit with the claimant while the claimant was at 

the provider’s office or place of service", App. at 294; and (3) 

this aspect of VRC’s service was "very, very important" to 

PHA, App. at 298. 

If PHA had been paying for VRC to distill information 

contained in claimant medical files, then there would have 

been no fraud. But, the indictment charged: 

 It was part of the scheme and artifice that defendant 

 FREDA TILLER prepared and caused to be prepared 

 "PHA Initial Assessment" and "Follow Up Reports"[ ], 

 which falsely stated that she had met claimants at the 

 offices of doctors and therapists (including industrial 

 13 

 

 health clinics), and at the homes of claimants, when in 

 fact she had not. 

App. at 58. Consequently, the scheme for which Tiller was 

convicted was not the preparation and submission of 

reports that misstated the substance of the medical care 

being provided to claimants. Rather, Tiller was convicted of 

reporting that she had met with claimants when in fact she 

had not. The District Court correctly found that"[t]here is 

no question that PHA sustained a financial loss when it 

paid for visits that defendant never actually made. The loss 

is properly calculated based on the amount paid by PHA for 

visits with claimants that the defendant never made." 

Appellee’s Br. at 33. 

PHA’s situation here is analogous to that of a person who 

contracts and pays for any other service that is intended to 

prevent some sort of damage before it occurs. Examples 

that come readily to mind are a termite inspection of a 

home prior to purchase, a contract for central monitoring of 

a burglar alarm system, or a medical test to detect the 

presence of a disease at an early stage. If a person 

contracts and pays for such services and the services are 

not furnished, the loss to the person who contracted for the 

services is the amount that the person paid. Just because 

it turns out that the house is not infested with termites, no 

burglars break into the house, and the person does not 

have the disease, it does not follow that the person has not 

suffered a loss. The person has paid for a service that the 

person did not receive. And the amount of the loss is the 

value of the service to the person in question, considering 

that person’s level of risk aversion, which is to say the 

amount that the person paid. We therefore hold that the 

District Court did not err, much less commit a plain error, 

in its calculation of the loss in this case. 

For the foregoing reasons, we affirm Tiller’s conviction on 

all 18 counts for federal mail fraud under 18 U.S.C.S 1431. 
A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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