UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4799

DONALD COZART,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Greenville.

Henry M. Herlong, Jr., District Judge.

(CR-95-945)

Submitted: March 3, 1998

Decided: March 19, 1998

Before HAMILTON and LUTTIG, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William G. Yarborough, III, ASHMORE & YARBOROUGH, P.A.,

Greenville, South Carolina, for Appellant. J. Rene Josey, United

States Attorney, David C. Stephens, Assistant United States Attorney,

Greenville, South Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Donald Cozart appeals his jury conviction of one count of mail

fraud in violation of 18 U.S.C. §§ 1341, 2 (1994). We affirm.

Cozart takes issue with the trial court's denial of his motion for

judgment of acquittal, contending that the Government failed to present sufficient evidence of a mailing. We review the denial of a

motion for judgment of acquittal under a sufficiency of the evidence

standard. See Fed. R. Crim. P. 29; United States v. Brooks, 957 F.2d

1138, 1146-47 (4th Cir. 1992). To support a conviction, "the evidence, when viewed in the light most favorable to the government,

must be sufficient for a rational trier of fact to have found the essential elements of the crime beyond a reasonable doubt." United States

v. Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993). Circumstantial as well

as direct evidence is considered, and the government is given the benefit of all reasonable inferences from the facts proven to those sought

to be established. See United States v. Tresvant , 677 F.2d 1018, 1021

(4th Cir. 1982).

To support a conviction for mail fraud, the Government must

establish (1) the existence of a scheme to defraud, and (2) a mailing

for the purpose of executing the scheme. See United States v. United

Medical & Surgical Supply Corp., 989 F.2d 1390, 1404 (4th Cir.

1993). Cozart first contends that the Government failed to prove the

occurrence of a mailing because the letter admitted at trial was not

properly authenticated. The district court's ruling to admit the letter

into evidence is reviewed for abuse of discretion. See United States

v. Hassan El, 5 F.3d 726, 731 (4th Cir. 1993). Our review of the

record discloses that the court did not abuse its discretion in admitting

the letter as evidence at trial.

The evidence at trial revealed that Cozart and his half-brother, Alan

Burdick, sold business packages consisting of machinery, training,

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territories, and support services throughout the United States at trade

and entrepreneur fairs. Numerous victims testified that they had contracted to purchase machinery and support services to enable them to

start a small business. Among the support services promised were

marketing assistance and protected territories, which were never provided. In addition, many victims never received the machinery they

purchased through Cozart and Burdick. When the victims tried to

obtain the machinery, they were ignored, given false excuses, or

promised a future delivery that never took place. Testimony established that various victims received letters promising future delivery.

At trial, the Government introduced only one of these letters, as

referred to in the single indictment, through witness Debra Bonilla.

The Bonillas had purchased glass etching equipment from Cozart for

over $12,000 in January 1994. They never received the equipment or

services, and after months of unsuccessful efforts to contact Cozart,

began correspondence with the State Attorneys General in California

and South Carolina. Through this contact, Bonilla received a letter

from the Attorney General of California enclosing a letter from Alan

Burdick, dated April 29, 1997. The enclosed letter, which was

addressed to the Attorney General, accused the Bonillas of libel and

slander and expressed an intent to take legal action against them.

At the same time that the letter by Burdick was received by the

Attorney General, the Bonillas received a letter from Burdick also

dated April 29, 1997. Bonilla testified that the letter, on letterhead of

one of Cozart and Burdick's companies and signed by Burdick, was

delivered to her and her husband's home through the United States

Mail. In that letter, Burdick apologized profusely for the company's

tardiness in shipping the machinery and cited various unforeseen contingencies. Burdick promised shipment within 150 days. Over defense

counsel's objection, the court admitted the letter into evidence.

We find Cozart's contention that the letter was improperly admitted to be without merit. Bonilla identified the letter and testified that

it arrived at the Bonilla residence through the United States Mail. The

letter was thus properly identified and authenticated and its admission

was not an abuse of discretion. See Fed. R. Evid. 901(a), (b)(1).

Cozart also argues that the letter should not have been admitted

because it was inadmissible hearsay. We reject this contention.

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Because the letter was not offered for the truth of the information

asserted in its contents, it was not hearsay. See Fed. R. Evid. 801(c).

Finally, Cozart asserts that the evidence was insufficient to sustain

his conviction because the Government failed to prove that the mailing of the letter was part of the execution of the fraud. This assertion

has no merit. We have held that "lulling letters," letters sent to victims

for the purpose of advancing a fraudulent and criminal scheme, are

sufficient to charge mail fraud, even when the letters follow the acquisition of the money in question. See United States v. Snowden, 770

F.2d 393, 398 (4th Cir. 1985). The evidence supports a finding that

the Burdick letter was written precisely when the company became

aware of the Bonillas' complaints about their practices. Full of apologies, excuses, and promises to ship machinery in the future, the letter

was intended to calm the Bonillas, postpone their efforts to take legal

action, and make ultimate apprehension and prosecution less likely.

We accordingly affirm Cozart's conviction. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid

the decisional process.

AFFIRMED

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