United States v. Destin

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 13, 2007
No. 06-20847 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LAJUANA DESTIN and DENETRA McELROY,
Defendant-Appellants,
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-582
Before KING, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
Defendants-Appellants Lajuana Destin and Denetra McElroy appeal from
final judgments of conviction for their participation in a scheme to fraudulently
obtain unemployment benefits from the Texas Workforce Commission (TWC).
Destin and McElroy challenge their convictions on the ground that the
government presented insufficient evidence to support their respective
convictions. Finding no error, we AFFIRM.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 06-20847
I. BACKGROUND
A.
On December 29, 2004, Destin, McElroy, and four others – John Slaughter,
Jacqueline Ligon, Brenda Bowers, and Shalanda Nichols – were indicted by a
grand jury in the Southern District of Texas on forty-four separate counts
relating to a scheme to defraud the TWC from November 1996 through August
2001. All of the defendants were charged in Count One with conspiracy to
commit mail fraud, in violation of 18 U.S.C. § 371.1 McElroy, along with
Slaughter, was charged in Counts Two through Seven with mail fraud, in
violation of 18 U.S.C. § 1341. Destin, along with Slaughter, was charged in
Counts Forty-Two through Forty-Four, also under the mail fraud statute. A
bench trial commenced before United States District Judge Melinda Harmon on
March 27, 2006. At the close of the government’s case, on March 30, 2006,
Destin and McElroy moved for a judgment of acquittal, which the district court
denied. On April 3, 2006, following the close of both defendants’ cases, the
district court found McElroy guilty on Counts One through Seven and Destin
guilty on Counts One, Forty-Two and Forty-Four.2 McElroy was sentenced on
October 6, 2006 to five years of probation on each of Counts One through Seven,
with the sentences to run concurrently. She was ordered to pay restitution in
the amount of $20,545. Destin was likewise sentenced on October 6, 2006 to five
years of probation on Counts One, Forty-Two, and Forty-Four, with the
sentences to run concurrently. She was ordered to pay restitution in the amount
of $33,418.
1
Slaughter, Bowers, and Nichols each pleaded guilty before trial to Count One of the
indictment as part of separate plea agreements with the Government. Ligon remained a
fugitive throughout the district court proceedings.
2
At the time she announced the verdicts, Judge Harmon dismissed Count Forty-Three
as to Destin because it was “just essentially surplusage” in light of the conduct charged in
Count Forty-Four.
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No. 06-20847
B.
The instant convictions arise from a scheme to defraud the TWC through
the disbursement of unemployment benefits to persons who were not qualified
to receive them. The TWC is the Texas state agency in charge of administering
the federal government’s unemployment insurance system, which was created
by the Social Security Act of 1935 to provide monetary benefits through the
states to persons who are unemployed due to no fault of their own. Under this
program, state-levied employer taxes, occasionally supplemented by federal
funds, finance the benefits paid to unemployed persons in the private sector. In
addition, federal grants cover all costs incurred by the relevant state agency in
the course of administering the unemployment benefits program so long as the
state meets certain statutory and regulatory requirements.
According to a TWC representative who testified at trial, in order to
qualify for and receive unemployment benefits from the TWC, a person must
satisfy three eligibility criteria. First, the person must have had sufficient
earnings during the “base period,” which consists of the first four of the last five
completed calendar quarters. Second, the person’s last employment must have
terminated under appropriate circumstances, which include being laid off for a
lack of work. If a person was fired or quit her job, then TWC conducts an
investigation to determine the person’s eligibility under this criterion. Finally,
the claimant must be “able to work,” “available for work,” and “looking for work.”
Beginning in late 1996 and continuing through the entire period of time
relevant to the Destin and McElroy convictions, persons seeking unemployment
benefits were required to visit a TWC office in order to initiate their claims.
During that visit, according to the TWC representative, prospective recipients
“would be directed to a claims taker who would ask a series of questions . . . to
identify the person and next to determine what type of claim for unemployment
was needed. And then they would be questioned about who their last employer
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No. 06-20847
was and their reason for separation from that work.” The claims-takers then
entered this information directly into the TWC computer system, which it
referred to as an “online application.” The TWC did not require claimants to fill
out a paper application, and there was generally no paper record of these visits.
After the person submitted the online application for unemployment benefits,
the TWC provided the claimant with information on how to use its Tele-Serve
system, which was the mechanism by which the TWC disbursed benefits to
eligible recipients. Under the Tele-Serve system, payments of unemployment
benefits were not automatically generated as a result of the filing of an
application, but rather claimants were required to access the Tele-Serve system
by phone every two weeks to request payments. While using the Tele-Serve
system, a claimant was required to answer a series of “yes or no” questions using
a touch-tone phone and then, at the end of the call, to certify that those answers
were true and correct. The questions focused on the claimant’s ongoing
eligibility for receipt of unemployment benefits, including whether the person
was able to work, available to work, and looking for work during the relevant
two-week period.
The Government contends that Slaughter, with the help of Destin and
McElroy, knowingly and illegally manipulated TWC’s system for administering
unemployment benefits so as to provide ineligible persons with payments from
the unemployment insurance program. Slaughter, who began his employ with
TWC in 1982, was at all relevant times in this matter a claims-taker for TWC.
In that capacity, Slaughter met with prospective unemployment insurance
recipients at a TWC office in Houston and assisted them in filling out and
processing their applications for unemployment benefits. He testified that,
beginning in about 1996, he learned that he could obtain benefits for persons
who were otherwise ineligible through a loophole in the system known as the
“one-day rule.” In other words, if a person had been fired from or quit her last
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No. 06-20847
job, she could not receive unemployment benefits; however, if that person then
went to work for any entity for one day, and did not quit or get fired, she would
be eligible for unemployment benefits. To exploit this loophole, Slaughter would
input a fictitious employer as the claimant’s employer for one day, thereby
making the claimant eligible to receive benefits. Slaughter testified that he
started this scheme because “there was [sic] a lot of people that were not
receiving their benefits who I knew could get their benefits through a loophole
. . . .” He further testified that applicants would complain to him that they were
entitled to receive benefits from the program because they had paid money into
the unemployment insurance system, even though their beliefs were inaccurate.
Slaughter initially aided claimants in obtaining benefits through this loophole
for free because he “wanted to help people get their benefits. Simple as that.”
Eventually, however, Slaughter testified that he began to receive gifts in
exchange for his manipulation of the system through the one-day loophole and
the use of fictitious employers. Over the course of the approximately five-year
period during which Slaughter perpetrated his fraudulent scheme to obtain
unemployment benefits, he filed at least one hundred to two hundred false
claims in the TWC’s system. To carry out his scheme, he used about fifty to one
hundred fictitious employer names. Ultimately, Slaughter improperly obtained
more than $500,000 in unemployment benefits from TWC. It was TWC’s usual
business practice to disburse unemployment benefits checks through the United
States mail.
C.
The defendants’ involvement in the alleged scheme began in the mid-
1990s. At trial, witnesses testified about their respective participation as
follows.
1. Denetra McElroy
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No. 06-20847
According to Slaughter, he first met McElroy at a bingo hall at some time
between 1994 and 1996. On December 29, 1996, he helped McElroy fill out a
claim for unemployment benefits. In that claim, he listed Grace Morgan as
McElroy’s most recent employer, even though Morgan was not McElroy’s
employer but was simply a woman that he knew. Slaughter also helped McElroy
fill out claims for unemployment benefits in 1999 and 2000. In those claims, he
listed Simon Adams as McElroy’s most recent employer, even though Adams was
not McElroy’s employer but was simply a man that he knew. McElroy received
benefits from her 1996, 1999, and 2000 claims as a result of the fictitious
employer information.
Additionally, during this time period, Slaughter testified that he would
meet McElroy at bingo halls to discuss unemployment claims that she wanted
him to file on behalf of other persons. On these occasions, McElroy provided
Slaughter with a piece of paper that listed the names, addresses, and personal
information of the persons for whom she asked him to file claims, as well as $100
in cash for each claim that he filed. According to Slaughter, McElroy expressed
to him that she knew these claimants were otherwise ineligible to receive
benefits. This occurred approximately three or four times over the course of
three years.
One of the claimants who McElroy purportedly arranged to improperly
receive benefits with Slaughter’s help was Yvette Jones. She testified that she
was a distant relative of McElroy and lived on the same street as McElroy, about
six or seven houses away. In the spring of 1999, Jones was fired from her
position with Prudential Insurance for excessive health-related absences.
Shortly thereafter, Jones ran into McElroy in their neighborhood and explained
to McElroy that she had been terminated from her job at Prudential. During
that conversation, McElroy urged Jones to file for unemployment benefits. Jones
then proceeded to file a claim with TWC, which was denied. Some time later,
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No. 06-20847
Jones informed McElroy that her claim for benefits had been denied. McElroy
then told Jones that she knew someone at TWC who could help Jones, but that
it would cost $200. Jones subsequently filled out a new application, which her
father gave to McElroy along with $200. A few days later, McElroy told Jones
that she would begin to receive unemployment benefits, which did in fact occur.
Throughout this time, Jones testified that she never spoke with anyone at TWC
about her benefits, including Slaughter; she only spoke with McElroy. In late
December 1999, Jones ceased receiving benefits from TWC. At about that time,
McElroy asked Jones if she was still receiving benefits, to which Jones
responded that she was not. McElroy then told Jones that she would check with
someone at TWC to see if she had any more money in her account. Jones
eventually gave McElroy another benefits application to fill out. Jones began to
receive unemployment benefits again in mid-2000. Jones stated that McElroy
was the only person to whom Jones spoke about unemployment benefits after
she was initially denied benefits by TWC. Even though he had never met or
spoken with Jones, Slaughter testified that he was the one who had manipulated
the system to allow Jones to improperly obtain benefits. Although he could not
recall whether McElroy asked him to file a claim on behalf of Jones, he
confirmed that he had filled out a claim for Jones so that she could receive
unemployment benefits after previously being denied by TWC on the basis that
she was unable to work. That claim listed Jones’s address as 4706 Knotty Oaks
Trail, which was close to McElroy’s address at the time, 4606 Knotty Oaks Trail.
Slaughter was certain that someone had asked him to help obtain benefits for
Jones.
With regard to another claim, Slaughter testified that he used McElroy’s
name and address as a fictitious employer to fraudulently obtain benefits for Roy
Gaines in 1999. Slaughter had never met or spoken with Gaines before he filed
a claim on his behalf. Instead, he testified that “[McElroy] would have contacted
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No. 06-20847
me and gave [sic] me the information to file it.” After Slaughter inputted Gaines’
data into the TWC system, TWC sent a letter to McElroy’s home address because
she was listed as Gaines’ most recent employer. Slaughter told McElroy to
throw away any TWC correspondence that was mailed to her address.
After the Government rested, McElroy testified that, at some time in 1996
after she was terminated from her job with a manufacturing company, she
approached Slaughter at a bingo hall because she recognized him from a
previous visit she had made to a TWC office. McElroy explained to Slaughter
that she believed that she had been unfairly terminated from her job. At that
point, according to McElroy, Slaughter informed her that there is an exception
to the general rule that persons who are terminated from their most recent
employer are ineligible to receive unemployment benefits. The exception is for
situations in which a supervisor is aware a person has to leave a job shift for
medical reasons. McElroy then proceeded to visit Slaughter at his TWC office
where she filled out a claim with his help. She testified that during that visit he
told her that she was eligible to receive benefits and that he did not inform her
that he was using a fictitious employer as part of her claim. She testified that
she did not know Grace Morgan. In 1999, she returned to the TWC office to
submit another claim for benefits. She personally requested that Slaughter be
assigned to help her with her new claim. She stated that she believed she was
eligible to receive benefits at that time.
Regarding her name being used as an employer on certain claims
processed by Slaughter, she testified that she and Slaughter never discussed her
name being used as someone else’s employer. When she received correspondence
in the mail from TWC, she testified that she immediately called TWC to speak
with Slaughter. He told her that it was a “mistake” and that she should not
open it. McElroy denied receiving more than one letter from TWC, even though
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No. 06-20847
TWC records indicated that she had been sent five letters concerning claims in
which she had been listed as the employer.
McElroy admitted that she brought Jones an application to fill out, and
that she returned it to Slaughter on Jones’ behalf, along with $200. She believed
the $200 was payment for Slaughter helping out Jones appeal the initial denial
of benefits “on his off time.” She denied keeping any of that money for herself.
She described her conduct as “maybe inappropriate or unethical,” but not illegal.
As to Gaines’ claim, McElroy testified that she provided him with
Slaughter’s contact information at TWC. She referred Gaines to Slaughter for
help with a “job search project,” not to make a claim for benefits. McElroy
testified that she was unaware Gaines began receiving unemployment benefits
from TWC until one day when she was in a car with Gaines and he asked her to
cash a $277 benefits check for him. She endorsed the check, writing “Roy
Gaines, Pay to the Order of Denetra McElroy,” and cashed it. She stated that
she immediately gave the $277 to Gaines.
Gaines corroborated McElroy’s testimony that she had provided him with
Slaughter’s telephone number for help with his employment search. Gaines
spoke with Slaughter on the telephone and provided him with certain personal
information, but they did not discuss applying for employment benefits. He then
went down to the TWC office to drop off some forms related to his job search, but
did not meet with or speak with Slaughter. Gaines testified that he was
surprised when, about a month later, he began to receive unemployment checks
from TWC. He asked McElroy, who was his ex-girlfriend, to cash one of these
unemployment checks because he had lost his wallet and did not have a bank
account at the time. Gaines denied ever discussing with McElroy his receipt of
unemployment benefits.
Ultimately, TWC paid McElroy in the following amounts: a weekly benefit
of $262 from January 21, 1997 through May 7, 1997; a weekly benefit of $203
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No. 06-20847
from April 19, 1999 through July 21, 1999; and a weekly benefit of $200 from
April 17, 2000 through May 22, 2000. TWC paid Jones a weekly benefit of $227
for a total of $2,489 in 2000. TWC paid Gaines a total of $4,730 in benefits in
1999.
2. Lajuana Destin
Like McElroy, Slaughter testified that he first met Destin in the mid-
1990s. He filed false claims on her behalf using fictitious employers in 1996 and
1999. As part of the 1999 claim, Slaughter used the fictitious employer
“Destiny” to help Destin obtain benefits for which she was otherwise ineligible
because she had resigned from her most recent employ. Slaughter believed that
he added the “y” to the end of Destin’s name because “it made it look more like
an employer.” Slaughter inputted a P.O. Box address for Destiny, the fictitious
employer, that he was certain was provided to him by Destin. He stated that
there was no question in his mind that Destin knew he was filing a false claim
on her behalf because she gave him the P.O. Box address that he used as her last
employer’s address. Slaughter told her to throw away any correspondence she
received from TWC at that address.
Slaughter also used the name “Destiny” and the same P.O. Box address as
a fictitious employer to help Floyd McClain and Randall Jordan obtain
unemployment benefits. McLain had worked for the Texas Department of
Criminal Justice, but had quit voluntarily in March 1999. He thereafter
attempted to obtain benefits through TWC’s Tele-Serve system, but he was
deemed ineligible to receive benefits because he had voluntarily quit his last job.
On July 23, 1999, Slaughter, who had never met with or spoken to McClain and
was not the original claims-taker on this file, went into the system and changed
McClain’s ineligibility status so that he could begin receiving payments.
Slaughter stated that “someone would have prompted me to file a claim so that
he may receive his benefits.” Although he could not precisely recall who
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No. 06-20847
provided him with the necessary information to make the changes to McClain’s
claim, he said it was “more than likely I got it from [Destin]” because he used
Destiny as the employer name and the P.O. Box that was assigned to Destin as
his employer address. TWC records also indicate that Slaughter input a claim
for Jordan, who reported having worked only for one day for Destiny, his most
recent employer. When Slaughter used Destin’s P.O. Box address to make a
false claim, he would notify her in advance and instruct her to throw away any
correspondence she received from TWC at that address. According to Slaughter,
Destin paid him on two or three occasions to file false claims.
After the Government rested, Destin testified that she first applied for
unemployment benefits in 1996. She could not recall with whom she spoke when
she visited the TWC office. In 1999, after she lost her job with a company called
Imperial Holly, she again applied for unemployment benefits. She testified that
when she went to apply at the TWC office, Slaughter was randomly assigned to
take her claim. She then provided him with information that he input into the
computer. She stated that she did not pay Slaughter $100 to help her apply for
benefits. She also testified that she knew McClain, but did not know that he had
filed for unemployment benefits.
On cross examination, Destin testified that she never received any
correspondence from TWC regarding her being listed as an employer on other
claims. She first testified that she received her unemployment benefit checks
at her post office box, but then acknowledged that TWC records show that her
checks were sent to her home address. Destin confirmed that in June 1999 she
was instructed by the Tele-Serve system to contact TWC because of her
enrollment in school at the time, which was a potential disqualification to her
receiving unemployment benefits. Destin had filed her claim with Slaughter in
March 1999, but her status as a student, which she had been since January of
that year, was not an impediment to her eligibility to receive benefits until
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No. 06-20847
several months later when she notified the Tele-Serve system that she was a
student. She could not recall subsequently contacting either Slaughter or
someone else at TWC to discuss her school situation, nor could she recall being
notified that she was still eligible to receive benefits about a week later.
Ultimately, TWC paid Destin a weekly benefit of $287 from March 27,
1999 through September 18, 1999, for a total of $7,317. TWC paid McClain a
weekly benefit of $273 from July 24, 1999 through December 4, 1999, for a total
of $5,469. TWC paid Jordan a weekly benefit of about $222 from January 18,
2000 through February 14, 2000, for a total of $889.
II. STANDARD OF REVIEW
Destin and McElroy argue that the evidence was insufficient to support
their respective convictions. Both defendants moved for a judgment of acquittal
only at the close of the Government’s case-in-chief, even though both defendants
presented evidence and the Government put forth rebuttal evidence.
Nevertheless, we have stated that “[w]hen a jury trial has been waived and a
bench trial held we must determine whether [the] findings are supported by any
substantial evidence.” United States v. Rosas-Fuentes, 970 F.2d 1379, 1381 (5th
Cir. 1992) (internal quotations omitted) (noting that defendant’s failure to renew
his motion for acquittal at close of all evidence in bench trial does not waive
sufficiency review on appeal); see also United States v. Ceballos-Torres, 218 F.3d
409, 411 n.3 (5th Cir. 2000) (same). Evidence is sufficient to sustain a conviction
if any rational trier of fact could have found that the evidence established guilt
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979);
United States v. Serna-Villarreal, 352 F.3d 225, 234 (5th Cir. 2003). In
conducting this inquiry, we examine the evidence as a whole and construe it in
the light most favorable to the verdict. Id. “It is not [our] function to make
credibility choices or to pass upon the weight of the evidence.” Rosas-Fuentes,
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No. 06-20847
970 F.2d at 1381 (quoting United States v. Jennings, 726 F.2d 189, 190 (5th Cir.
1984)).
III. DISCUSSION
A. Conspiracy
McElroy and Destin argue that the evidence is insufficient to support their
convictions for conspiracy to commit mail fraud. To prove conspiracy to commit
mail fraud under 18 U.S.C. § 371, the Government must establish “(1) an
agreement between appellants and others (2) to commit the crime of mail fraud,
and (3) an overt act committed by one of the conspirators in furtherance of that
agreement.” United States v. Sneed, 63 F.3d 381, 385 (5th Cir. 1995).
Additionally, the Government must show that the defendant acted with intent
to defraud. United States v. Garza, 429 F.3d 165, 168-69 (5th Cir. 2005). To
prove mail fraud under 18 U.S.C. § 1341, the Government must prove “(1) a
scheme to defraud; (2) the use of the mails to execute the scheme; and (3) the
specific intent to defraud.” United States v. Holmes, 406 F.3d 337, 353 (5th Cir.
2005) (quoting United States v. Bieganowski, 313 F.3d 264, 275 (5th Cir. 2002)).
“The Government need not rely on direct evidence of a conspiracy; each element
may be proven by circumstantial evidence.” Id. at 351 (quoting United States v.
Mulderig, 120 F.3d 534, 547 (5th Cir. 1997)). We find the evidence adduced at
trial sufficient to support conspiracy convictions for both defendants.
1. Denetra McElroy
The evidence shows that, beginning in 1996, Slaughter and McElroy
agreed to a scheme to defraud the TWC that had as its genesis Slaughter’s
ability to manipulate a loophole in the unemployment benefits system using
fictitious employers such that persons otherwise ineligible to receive benefits
could do so. According to Slaughter’s testimony, which the district court
considered credible, he met McElroy at bingo halls at various times between
1996 and 2001 to discuss unemployment claims that she wanted him to file on
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No. 06-20847
behalf of other persons. See Burton v. United States, 237 F.3d 490, 498 (5th Cir.
2000) (“A guilty verdict may be sustained even if supported only by the
uncorroborated testimony of a co-conspirator, and even if the witness is
interested due to a plea bargain, unless the testimony is incredible on its face.”).
She provided him with the name, address, and Social Security number of these
persons, so that he could enter an unemployment claim. McElroy also paid
Slaughter $100 per claim that she wanted him to file. Slaughter testified that
McElroy knew when she provided this information to him that these persons
were otherwise ineligible to receive benefits. As part of the scheme, McElroy
arranged for Yvette Jones to receive benefits through Slaughter’s assistance
even though Jones never spoke with Slaughter or anyone else at TWC about her
application. Jones testified that McElroy asked for and received $200 from
Jones as part of this transaction.
Viewed in a light most favorable to the Government, the evidence
established that Slaughter and McElroy agreed to participate in a scheme that
had as its objective the fraudulent disbursement of TWC funds. McElroy
furthered the conspiracy by providing Slaughter with personal information, as
well as cash, from persons who sought to obtain, and eventually did obtain,
employment benefit checks that were sent through the mail.
2. Lajuana Destin
The evidence likewise shows that Destin conspired with Slaughter to
obtain unemployment benefits for herself and others through the loophole in the
TWC system that Slaughter was able to exploit. Slaughter testified that there
was no doubt in his mind that Destin knew that he filed a fraudulent claim on
her behalf in 1999 because she provided him with the post office box address
that he used as her last employer’s address. TWC records show that Destin
received her unemployment benefit checks at a different address. Destin had
difficulty explaining how or why Slaughter would have been able to input both
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No. 06-20847
addresses in relation to her 1999 claim if she had not provided him with both
addresses. Further, when TWC informed Destin later in 1999 that she may be
ineligible to receive further benefits because of her student status, the evidence
showed that Slaughter went into the TWC system and made a change to her file
so that she could continue to receive unemployment benefits. Although Destin
could not recall who she spoke with at TWC at that time concerning her
potential ineligibility, she acknowledged that she had been instructed to contact
TWC. Finally, Slaughter testified that he helped Floyd McClain, an
acquaintance of Destin’s, obtain unemployment benefits even though he had
never met with or spoken with McClain and was not the original claims-taker
on McClain’s file. Slaughter testified that it was more than likely that Destin
contacted him regarding McClain’s claim because he used Destiny as the
fictitious employer name and Destin’s post office box as the employer address so
that McClain could begin to receive benefits. McClain was otherwise ineligible
to receive benefits.
Thus, viewed in a light most favorable to the Government, the evidence
establishes that Slaughter and Destin agreed to pursue their scheme to obtain
fraudulent benefits and that both Destin and Slaughter committed overt acts in
furtherance of the conspiracy. The result of these acts was the disbursement of
TWC unemployment benefits through the mail to persons who were ineligible
to receive these benefits.
B. Mail Fraud
As discussed above, to prove mail fraud under 18 U.S.C. § 1341, the
Government must prove (1) a scheme to defraud; (2) the use of the mails to
execute the scheme; and (3) the specific intent to defraud. “The government
need not prove that the accused used the mails himself or actually intended that
the mail be used.” United States v. McClelland, 868 F.2d 704, 707 (5th Cir.
1989). Rather, “[t]he mail fraud statute requires only that the mailing caused
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No. 06-20847
by the defendant’s actions be ‘incident to an essential part of the scheme.’”
United States v. Ingles, 445 F.3d 830, 835 (5th Cir. 2006) (quoting United States
v. Green, 494 F.2d 820, 824 (5th Cir. 1974)). “To cause a mailing, a defendant
must 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
the use of the mails was not actually intended.” United States v. Duncan, 919
F.2d 981, 991 (5th Cir. 1990) (internal quotations omitted).
1. Denetra McElroy
The evidence is sufficient to support McElroy’s mail fraud convictions.
Counts Two through Seven charge McElroy and Slaughter with executing a
scheme to defraud the TWC that resulted in six unemployment benefits checks
being sent through the mail to Yvette Jones. As detailed above, McElroy
encouraged Jones to file for unemployment benefits in the spring of 1999. Jones
testified that, after Jones’ application was initially denied, McElroy informed her
that she knew someone at TWC who could help Jones. McElroy provided Jones
with a new application and told Jones that it would cost $200, which Jones’
father gave to McElroy. Soon thereafter, Jones began receiving unemployment
benefits checks even though she had not personally met with or spoken with
anyone at TWC after her initial claim had been denied. In late 1999, Jones
ceased receiving benefits from TWC. Jones testified that, when McElroy learned
of this development, she told Jones that she would check with someone at TWC
to see if Jones had any more money in her benefits account. McElroy then
provided Jones with a new application to fill out. Jones once again began
receiving unemployment benefits checks in mid-2000, even though she had not
personally communicated with anyone at TWC. Slaughter confirmed that
someone had asked him to help obtain benefits for Jones and that he had never
met or spoken with Jones. Slaughter also testified that he was the person who
manipulated the system to allow Jones to improperly obtain benefits. Finally,
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No. 06-20847
evidence presented at trial showed that Jones received six checks from TWC
during June, July, and August 2000, all of which came through the United
States mails.
Thus, there is sufficient evidence to show that McElroy knowingly engaged
in a scheme to defraud TWC by exploiting a loophole in TWC’s benefits system
and thereby causing unemployment benefits checks to be mailed to a person who
was otherwise ineligible to receive them.
2. Lajuana Destin
There is also sufficient evidence to sustain Destin’s mail fraud convictions.
on Counts Forty-Two and Forty-Four. The evidence showed that Destin
knowingly participated in a scheme to defraud the TWC for the purpose of
obtaining unemployment benefits for herself and others who were otherwise
ineligible. Destin provided false information, including fictitious employer
addresses, so that Slaughter could exploit a loophole in TWC’s system.
According to Slaughter, Destin paid him on two or three occasions to file false
claims. This scheme resulted in claimants fraudulently obtaining
unemployment benefits checks through the United States mail. Specific to
Counts Forty-Two and Forty-Four, the evidence shows that Slaughter inputted
Randall Jordan’s claim for unemployment benefits. As part of that claim, Jordan
reported having worked most recently for only one day for the fictitious employer
Destiny, whose address was listed as Destin’s post office box. Jordan ultimately
received benefits checks through the mails on January 29, 2000 and February
12, 2000.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM Denetra McElroy’s and Lajuana
Destin’s convictions.
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