Third Circuit Affirms Mail Fraud Conspiracy Conviction in TOEFL Case

In United States v. Al-Ame, No. 04-3769 (3d Cir. Jan. 17, 2006), the Third Circuit affirmed defendant’s conviction of conspiracy to commit mail fraud, holding that defendant’s act of causing the Educational Testing Service ("ETS") to mail Test of English as a Foreign Language ("TOEFL") scores to his address was in furtherance of the conspiracy, and therefore his conduct constituted mail fraud under 18 U.S.C. § 1341. Defendant Al-Ame had paid an imposter to take the TOEFL on his behalf, who instructed ETS to mail the test results to Al-Ame’s home address. Upon receipt of the test results, Al-Ame intended to replace the photograph of the imposter with his own, and mail these results to his college.

On appeal, although Al-Ame argued that his scheme to defraud was complete at the time that the imposter took the test for him and thus the mailing of the TOEFL score to him was not in furtherance of the fraud, the Third Circuit explained that this mailing of the TOEFL score was a "critical step" in furtherance of the fraud, as were his receipt of the TOEFL score in the mail, and the mailing of the doctored score sheet containing the imposter’s score to his college. The Third Circuit also rejected Al-Ame’s second argument that ETS’s mailing of the score was routine and thus would have occurred without his fraudulent act. The Supreme Court has already rejected the notion that routine or innocent mailings are per se excluded from the scope of 18 U.S.C. § 1341. Moreover, although it is true that the mailing would have been sent regardless as required by law, he fraudulently induced ETS to mail him the TOEFL score, as there would have been no scores to mail at all had Al-Ame not hired an imposter to take the test for him. In affirming the conviction, the Court held that the conduct was mail fraud as defined in 18 U.S.C. § 1341, and therefore, the District Court had sufficient basis in finding him guilty of conspiracy to commit mail fraud in violation of 18 U.S.C. § 371.