United States v. Ochoa ( 2023 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 22-1327
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    CHRISTOPHER OCHOA,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MAINE
    [Hon. John A. Woodcock, Jr., U.S. District Judge]
    Before
    Kayatta, Selya, and Gelpí,
    Circuit Judges.
    Robert C. Andrews, with whom Robert C. Andrews Esquire P.C.
    was on brief, for appellant.
    Brian S. Kleinbord, Assistant United States Attorney, with
    whom Darcie N. McElwee, United States Attorney, was on brief, for
    appellee.
    January 26, 2023
    SELYA, Circuit Judge.           Defendant-appellant Christopher
    Ochoa,   formerly   a   practicing      attorney      and   now   a   convicted
    fraudster, challenges the district court's restitution order,
    which held him jointly and severally liable for all sums illicitly
    obtained by the charged conspiracy.           In the defendant's view, his
    restitution obligation should have been limited to the portion of
    the proceeds that went into his own pocket.            Concluding, as we do,
    that the restitution order falls within the encincture of the
    district court's discretion, we affirm.
    I
    We briefly rehearse the facts and travel of the case.
    Because this "appeal follows a guilty plea, 'we glean the relevant
    facts from the change-of-plea colloquy, the unchallenged portions
    of the presentence investigation report (PSI Report), and the
    record of the disposition hearing.'"              United States v. Dávila-
    González, 
    595 F.3d 42
    , 45 (1st Cir. 2010) (quoting United States
    v. Vargas, 
    560 F.3d 45
    , 47 (1st Cir. 2009)).
    Beginning in March of 2017, the defendant — a lawyer
    formerly licensed in the state of Florida — and his co-conspirators
    orchestrated a scheme designed to defraud investors of millions of
    dollars.     To     execute     the     scheme,      the    conspirators    (or
    intermediaries    acting   to   their      behoof)    contacted    prospective
    - 2 -
    victims and induced them to invest in standby letters of credit.1
    The conspirators pitched the investments as a win-win opportunity.
    On the one hand, if the standby letters of credit were
    issued, the investors would reap huge returns within days or weeks
    (or so they were promised).2         On the other hand, if the standby
    letters of credit were not issued, the investors would not lose a
    dime (or so they were promised); each investor would simply receive
    a full refund of his initial investment.
    Over   the   course   of    a   few   months,   the   conspirators
    convinced at least five people to invest substantial sums of money
    in the scheme.   The defendant played a significant role in bilking
    the investors.      At the direction of two of his co-conspirators
    (Russell Hearld and Herbert Caswell), he drafted agreements to
    memorialize   the    investments,     delineate    the    handling   of    the
    investors' funds, and limn the terms of the transactions.                 Among
    other things, the agreements represented that investor funds would
    be held in escrow in the client trust account of the defendant's
    1 A standby letter of credit is an agreement through which a
    financial institution commits to "serve as a guarantor of a certain
    amount of money in a transaction between" a debtor and a third-
    party beneficiary. F.D.I.C. v. Plato, 
    981 F.2d 852
    , 854 n.3 (5th
    Cir. 1993); see Mago Int'l v. LHB AG, 
    833 F.3d 270
    , 272 (2d Cir.
    2016).
    2 For example, one victim who invested $50,000 was promised a
    $6,200,000 return within ten weeks. Another victim was promised
    that his $250,000 investment would yield a $10,000,000 return
    within seven to twelve days.
    - 3 -
    law firm unless and until the defendant received confirmation that
    a standby letter of credit had been issued.
    Trusting that the drafted agreements said what they
    meant and meant what they said, each of the five investors wired
    funds to the defendant to be held in escrow.        The defendant,
    though, did not retain the investors' money in his trust account.
    Instead, he quickly withdrew some funds for his personal use and
    disbursed other funds to his co-conspirators.
    A few examples help to illustrate the defendant's role.
    On April 10, 2017, two investors wired a total of $1,500,000 to
    the defendant's trust account.     That same day, the defendant
    transferred $50,000 from the trust account to his personal account
    and $50,000 to his business account.       In addition, he wired
    $750,000 to Hearld and $300,000 to Caswell's company.     The next
    day, the defendant transferred another $10,000 to his personal
    account and transferred $200,000 to Hearld.
    Essentially the same pattern was repeated a few weeks
    later after a different investor wired $1,250,000 to the trust
    account.   Within hours, the defendant transferred $50,000 to his
    personal account and $10,000 to his business account.     He also
    wired $900,000 to Hearld and $250,000 to Caswell.
    The five victims of the fraudulent scheme invested a
    total of $3,550,000.   Individual investments ranged from $50,000
    to $1,500,000.   After sending their money to the defendant, the
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    investors were kept in the dark:   no investor was informed by any
    of the conspirators (including the defendant) that any of his funds
    had been withdrawn from the trust account.
    In point of fact, not a red cent of the investors' money
    was ever used to obtain standby letters of credit.     Nor was any of
    that money ever refunded to any investor.
    The   conspirators   bought   time    by   playing   on   the
    investors' fears.   For instance, one of the conspirators (Arthur
    Merson) threatened the investors that they could be precluded from
    future investment opportunities if they sought the return of their
    funds.
    Patience has its limits and — after some time had passed
    — one of the victims contacted Florida authorities.      That contact
    started a chain reaction that brought the matter to the attention
    of the Federal Bureau of Investigation.        A probe ensued and, on
    April 25, 2019, a federal grand jury sitting in the District of
    Maine handed up an indictment charging the defendant and his three
    co-conspirators with a single count of conspiracy to commit wire
    fraud.3   See 
    18 U.S.C. §§ 1343
    , 1349.         Although the defendant
    3 Although none of the defendants resided in Maine, one of
    the victims was a resident of that state. Moreover, that victim
    had wired funds from his in-state bank account to the defendant's
    trust account. In a federal criminal case, venue may be laid in
    any district in which an act in furtherance of a charged conspiracy
    has taken place. See 
    18 U.S.C. § 3237
    (a); see also United States
    v. Rutigliano, 
    790 F.3d 389
    , 395-97 (2d Cir. 2015). Consequently,
    venue in this case was properly laid in the District of Maine.
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    initially maintained his innocence, he later entered into a plea
    agreement with the government. On July 22, 2021, he pleaded guilty
    to the single count charged in the indictment.               The district court
    accepted his plea.
    The disposition hearing was held on February 11, 2022,
    and the court sentenced the defendant to a twenty-nine-month term
    of immurement, to be followed by a three-year term of supervised
    release. The court also determined that restitution was "mandatory
    in the amount of $3,473,701," which was the total amount of the
    loss       caused   by    the    fraudulent   scheme.4    The     court   deferred,
    however, in entering a defendant-specific restitution order, see
    
    18 U.S.C. § 3664
    (d)(5), and directed the parties to furnish further
    briefing as to whether to apportion restitution or, conversely, to
    hold the defendant jointly and severally liable for the entire
    amount of the loss.
    In due course, the parties filed their supplemental
    submissions.          The district court reviewed those submissions, and
    on   April      15,      2022,    rejected    the   defendant's    entreaty   that
    restitution be limited to $230,000 — the amount that the defendant
    "personally received from the fraud."               United States v. Ochoa, No.
    Although the conspirators had obtained $3,550,000 from the
    4
    victims, the district court found that one of the victims had
    managed to recoup $76,299. The court, therefore, subtracted that
    sum from the amount of the loss for purposes of restitution. This
    overall loss calculation is not challenged on appeal.
    - 6 -
    19-00077, 
    2022 WL 1127858
    , at *3 (D. Me. Apr. 15, 2022).          Instead,
    the court ruled that the defendant should be held jointly and
    severally liable (along with his co-conspirators) for the full
    amount of the victims' loss:        $3,473,701.   See 
    id. at *1, *5
    .       In
    reaching this result, the court observed that the defendant:
    played a major role in carrying . . . out [the
    scheme], and its success turned on [his]
    position as an attorney.    Mr. Ochoa induced
    trusting victims to deposit their money in his
    law office's trust account, drafted related
    agreements, and, as the [c]ourt raised during
    the sentencing hearing, disbursed the victims'
    funds in direct violation of the agreements
    that he himself drafted.    Moreover, each of
    the victims wired money to Mr. Ochoa's
    attorney trust account and Mr. Ochoa disbursed
    the money to his co-conspirators and to
    himself. . . . In other words, all of the
    losses subject to restitution passed through
    Mr. Ochoa's trust account and none is
    attributable to activity in which he was not
    involved.
    
    Id. at *4
    .     The court found it unpersuasive that the defendant had
    "retained less of the proceeds" than two of his co-conspirators,
    noting   that     such    an   argument   "improperly    conflate[d]     [the
    defendant's] gain with the victims' losses."         
    Id. at *5
    .   Finally,
    the   court    declined    the   defendant's   invitation   to   apply    the
    reasoning of Paroline v. United States, 
    572 U.S. 434
     (2014), a
    child pornography case, to the case at hand.            See Ochoa, 
    2022 WL 1127858
    , at *3.
    This timely appeal followed.
    - 7 -
    II
    This is a rifle-shot appeal:           the sole issue on appeal
    focuses on the district court's decision to hold the defendant
    jointly    and     severally    liable    for   the   full    amount      of    loss
    attributable to the fraud scheme.             The defendant argues that the
    court should have limited his restitution obligation to $230,000
    —   the   amount    that   he   personally      garnered     from   the    scheme.
    Relatedly, he argues that holding him liable for the full amount
    of the sums extracted by the conspiracy would impose a crushing
    burden and foreclose any prospect of rehabilitation.                Because the
    defendant preserved this claim of error below, our review is for
    abuse of discretion.       See United States v. Carrasquillo-Vilches,
    
    33 F.4th 36
    , 45 (1st Cir. 2022).                 Within that framework, we
    "examin[e] the court's subsidiary factual findings for clear error
    and its answers to abstract legal questions de novo."                          United
    States v. Chiaradio, 
    684 F.3d 265
    , 283 (1st Cir. 2012).
    The restitution order in this case is grounded upon the
    Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A.                      The
    MVRA requires a district court to order a defendant convicted of
    "an offense against property . . . including any offense committed
    by fraud or deceit," 18 U.S.C. § 3663A(c)(1)(A)(ii), "to 'make
    restitution to the victim of the offense,'" United States v. Soto,
    
    799 F.3d 68
    , 97 (1st Cir. 2015) (quoting 18 U.S.C. § 3663A(a)(1)).
    What is more, the MVRA requires the court to "order restitution to
    - 8 -
    each   victim    in   the   full   amount    of   each    victim's   losses   as
    determined by the court and without consideration of the economic
    circumstances of the defendant."           United States v. Morán-Calderón,
    
    780 F.3d 50
    ,   51    (1st    Cir.     2015)       (quoting    
    18 U.S.C. § 3664
    (f)(1)(A)).      This mandate is easy to apply when a defendant,
    acting alone, caused all of a victim's losses:              in that event, the
    defendant must be ordered to pay the entire amount of the losses.
    See United States v. Yalincak, 
    30 F.4th 115
    , 121 (2d Cir. 2022).
    The situation is more nuanced, however, when — as in
    this case — more than one miscreant has contributed to the victims'
    losses.   In that event, the MVRA gives the court a choice between
    two options.      See United States v. Salas-Fernández, 
    620 F.3d 45
    ,
    49 (1st Cir. 2010).         The court may "apportion liability among
    defendants according to culpability or capacity to pay, or, in the
    alternative, [may] make each defendant liable for the full amount
    of restitution by imposing joint and several liability."                  United
    States v. Wall, 
    349 F.3d 18
    , 26 (1st Cir. 2003); see 
    18 U.S.C. § 3664
    (h).      In making this choice, a sentencing court enjoys broad
    discretion.      See Morán-Calderón, 
    780 F.3d at 52
    ; Salas-Fernández,
    
    620 F.3d at 48-49
    .
    The short of it is that the court may weigh an individual
    defendant's role in the offense when deciding whether to apportion
    restitution — but it is generally free to decide the issue either
    way.   See Salas-Fernández, 
    620 F.3d at 49-50
    .                This freedom of
    - 9 -
    choice is especially appropriate in conspiracy prosecutions.                       In
    that context, "it is well established that defendants can be
    required    to       pay   restitution    for    the     reasonably       foreseeable
    offenses of their co-conspirators."              United States v. Newell, 
    658 F.3d 1
    , 32 (1st Cir. 2011); see United States v. Collins, 
    209 F.3d 1
    , 4 (1st Cir. 1999).         Put another way, under the MVRA, members of
    a conspiracy may be "held jointly and severally liable for all
    foreseeable losses within the scope of their conspiracy regardless
    of   whether     a    specific   loss    is   attributable     to     a   particular
    conspirator."         United States v. Moeser, 
    758 F.3d 793
    , 797 (7th
    Cir. 2014).
    With these tenets in mind, it is readily apparent that
    the district court acted within the encincture of its discretion
    in entering a restitution order that held the defendant jointly
    and severally liable to each of the victims for the full amount of
    the losses suffered by that victim as a result of the scheme.
    Although not obligated to do so, see Salas-Fernández, 
    620 F.3d at 48-49
    , the district court went the extra mile, sought supplemental
    briefing,   and       thoroughly   considered      the    degree    to     which   the
    defendant's actions contributed to the victims' losses.                       In the
    district court's judgment, this review reinforced — rather than
    weakened — the appropriateness of holding the defendant jointly
    and severally liable for all of the losses.
    - 10 -
    The court supportably found that the defendant played an
    instrumental part in the conspiracy:    he took advantage of his
    position as a lawyer to entice investors to entrust him with their
    money; he drafted the agreements used to facilitate the scheme; he
    served as a de facto intake valve for the bilked funds; he falsely
    promised to hold those funds in escrow; and he siphoned off the
    money and disbursed it — in varying amounts — to himself and to
    his co-conspirators.   And as the district court astutely noted,
    the defendant's actions created a facade of legitimacy that formed
    an essential part of the conspiracy.
    To be sure, the defendant received a smaller share of
    the booty than some of his co-conspirators.   But his able counsel
    made that argument to the district court, which rejected it.
    Nothing in the record fairly suggests that we should second-guess
    the district court and disturb that quintessential exercise of its
    discretion.
    In an effort to blunt the force of this reasoning, the
    defendant strives to convince us that a district court's exercise
    of discretion under the MVRA should be guided by "a standard that
    place[s] some restriction" on the district court's exercise of
    that discretion.   Although the defendant does not provide much
    detail as to what the contours of that standard should be, he
    suggests that this new standard should be derived from the Supreme
    Court's decision in Paroline, 
    572 U.S. 434
    .   Based on the logic of
    - 11 -
    that case, he submits that a district court should be obliged to
    give weight to a defendant's "conduct" and relative "culpability"
    in determining whether to apportion restitution.                       We are not
    convinced.
    Paroline is not a fair congener.             There, the defendant
    pleaded guilty to possessing child pornography, and the Court was
    faced   with    "the   question     of   how    to   determine   the    amount   of
    restitution a possessor of child pornography must pay to the victim
    whose   childhood      abuse   appears    in     the    pornographic    materials
    possessed."     Paroline, 
    572 U.S. at 439
    .             The governing statute was
    not the MVRA but, rather, 
    18 U.S.C. § 2259
     — a restitution statute
    specific to offenses enumerated in 18 U.S.C. chapter 110.                        The
    Fifth Circuit held that the defendant could be adjudged jointly
    and severally liable for the full amount of restitution owed to
    the victim, approximately $3,400,000.                See 
    id. at 441-43
    .        That
    holding was premised in part on the notion that section 2259 "did
    not   limit    restitution     to    losses     proximately      caused   by     the
    defendant" so that "each defendant who possessed the victim's
    images should be made liable for the victim's entire losses from
    the trade in her images."           
    Id. at 442-43
    .
    The Supreme Court took a different view, rejecting the
    Fifth Circuit's conclusion that section 2259 did not "limit[]
    restitution to those losses proximately caused by the defendant's
    offense conduct."        
    Id. at 443
    .           The Court held that "a court
    - 12 -
    applying [section] 2259 should order restitution in an amount that
    comports with the defendant's relative role in the causal process
    that underlies the victim's general losses."              
    Id. at 458
    .   The
    Court   described   the   "causal    process"   between    the   defendant's
    offense and the victim's losses as "atypical," and it was careful
    to explain that its holding applied only to the "special context"
    before it — a context that embodied cases in which the defendant
    was "one of thousands" who contributed to the victim's loss by
    possessing her images and where, as a result, "it [wa]s impossible
    to trace a particular amount of [the victim's] losses to the
    individual defendant."     
    Id. at 449, 458
    .
    The case at hand is at a far remove from Paroline.           This
    case involves a fraud scheme in which there is nothing either
    atypical or difficult to trace about the causal nexus between the
    offense conduct and the investors' losses.         Nor is there anything
    about the context that can fairly be described as "special":             the
    defendant took part in a garden-variety fraud scheme in which he
    and his co-conspirators obtained millions of dollars from five
    individuals by hoodwinking them into pursuing a bogus investment
    opportunity.   Apples should be compared with apples and — given
    the starkly different factual settings — we decline to transplant
    the reasoning of Paroline into the inhospitable soil of this case.
    See United States v. Kolodesh, 
    787 F.3d 224
    , 242-43 (3d Cir. 2015)
    (declining to extend Paroline to "case involv[ing] straightforward
    - 13 -
    consideration of moneys obtained by fraud"); see also United States
    v. Sheets, 
    814 F.3d 256
    , 261 (5th Cir. 2016) ("Paroline solely
    involves the issue of whether restitution may be imposed under the
    circumstances of that case . . . .").
    Three     decades   ago,   we   wrote    that   "[i]n    making
    discretionary judgments, a district court abuses its discretion
    when   a     relevant    factor   deserving   of   significant     weight   is
    overlooked, or when an improper factor is accorded significant
    weight, or when the court considers the appropriate mix of factors,
    but commits a palpable error of judgment in calibrating the
    decisional scales."         United States v. Roberts, 
    978 F.2d 17
    , 21
    (1st Cir. 1992); accord United States v. Soto-Beníquez, 
    356 F.3d 1
    , 30 (1st Cir. 2003); Indep. Oil & Chem. Workers, Inc. v. Procter
    & Gamble Mfg. Co., 
    864 F.2d 927
    , 929 (1st Cir. 1988).               Here, the
    district court did not overlook a relevant factor.                Nor has the
    defendant argued that the court gave significant weight to any
    irrelevant factor.         And, finally, the district court's careful
    handling of the issue belies any suggestion that it made a palpable
    error of judgment.
    We hold that where, as here, a defendant is convicted as
    a   member    of   a    wire-fraud   conspiracy,   a   district    court    has
    discretion to order him to reimburse the victims of the scheme,
    jointly and severally with his co-conspirators, for all reasonably
    foreseeable losses engendered by the scheme.           See Newell, 658 F.3d
    - 14 -
    at 32; Collins, 209 F.3d at 4.         Such a holding is consistent with
    the   principle    that   a   defendant      may   be    held   liable    "for   all
    foreseeable losses within the scope of [a] conspiracy."                    Moeser,
    
    758 F.3d at 797
    .     And the court's discretion does not vanish into
    thin air simply because a particular defendant received a smaller
    share   of   the   swindled    funds   than    was      received   by    other   co-
    conspirators.      See United States v. Rodriguez, 
    915 F.3d 532
    , 536-
    37 (8th Cir. 2019).
    III
    We need go no further. For the reasons elucidated above,
    the district court's restitution order is
    Affirmed.
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