United States v. Gonzalez-Martinez , 825 F.3d 51 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-1318
UNITED STATES OF AMERICA,
Appellee,
v.
ALLISON GONZÁLEZ-MARTÍNEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Kayatta and Barron, Circuit Judges,
and McAuliffe,* District Judge.
John H. Cunha, Jr., with whom Cunha & Holcomb, P.C. was on
brief, for appellant.
Julia M. Meconiates, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.
June 9, 2016
* Of the District of New Hampshire, sitting by designation.
BARRON, Circuit Judge. Allison González-Martínez was
convicted after a jury trial of twenty-two counts of theft of
government property and one count of aggravated identity theft.
She argues that her convictions must be vacated because the
evidence at trial was insufficient to support them and because the
District Court abused its discretion in denying her request to
continue her trial to a later date. We affirm.
I.
We recite the evidence introduced at trial in the light
most favorable to the prosecution, as is required when a criminal
defendant challenges the sufficiency of the evidence to support
her conviction. See United States v. Pena, 586 F.3d 105, 111 (1st
Cir. 2009).
In 2011, the Internal Revenue Service received twenty-
two tax returns purporting to be filed by twenty-two individuals.
Each return showed that the filer was due a tax refund. The
returns were not what they claimed to be. They had not in fact
been filed by the individuals whose names and security numbers
appeared in them. Nevertheless, the IRS approved tax refund checks
for each of the twenty-two tax returns. Each check was to be paid
from the funds of the United States Treasury.
The Treasury checks ranged in value from $6,210.93 to
$8,732.69. Each check was issued to the individual on the
corresponding tax return and sent to the address in the continental
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United States provided in that return. That address was also typed
on the front of each check.
The twenty-two Treasury checks were eventually submitted
for deposit into the Banco Popular account of "La Casa de los
Motores and Junker Correa," a business in Puerto Rico that sells
used automobile parts. The checks were submitted by Junker
Correa's owner, González, on twenty-two days from November 2011 to
May 2012. The first twenty-one of the checks were deposited into
Junker Correa's account; the twenty-second check was held by the
bank and not deposited.
Each check was endorsed twice. The first endorsement
purported to be the signature of the individual in whose name the
check had been issued. The second was an endorsement to Junker
Correa.
The individuals in whose names the checks were issued
never received the checks, never endorsed the checks, and never
spent the checks. Nor had they ever been to Junker Correa.
The jury found González guilty on all counts they were
asked to decide: twenty-two counts of theft of government property,
all charged in violation of 18 U.S.C. § 641, and one count of
aggravated identity theft, in violation of 18 U.S.C. § 1028A. Each
of the twenty-two counts of theft of government property alleged
that González had stolen the value of one of the twenty-two
Treasury checks. The aggravated identity theft count was charged
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in connection with just one of the twenty-two checks. González
appeals.
II.
We review González's challenge to the sufficiency of the
evidence de novo. United States v. Santos-Soto, 799 F.3d 49, 56
(1st Cir. 2015). "[W]e examine the evidence, both direct and
circumstantial, in the light most favorable to the prosecution and
decide whether that evidence, including all plausible inferences
drawn therefrom, would allow a rational factfinder to conclude
beyond a reasonable doubt that the defendant committed the charged
count or crime." United States v. Salva-Morales, 660 F.3d 72, 74
(1st Cir. 2011) (per curiam) (quoting United States v. Cruz-Díaz,
550 F.3d 169, 172 n.3 (1st Cir. 2008)). And, when we do, we
conclude that the evidence was sufficient in this case.
A.
We begin with the twenty-two counts of theft of
government property. Each count corresponds to the submission for
deposit by González of one of the Treasury checks.
González does not dispute that there was sufficient
evidence from which a reasonable factfinder could conclude that
the twenty-two checks were fraudulently obtained from the federal
government through the filing of false returns. González also
does not dispute that the evidence showed that she submitted the
twenty-two checks for deposit into Junker Correa's bank account.
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But González does contend that the evidence was not
sufficient because it revealed that she, too, was "a victim of the
fraudulent scheme," as she simply "deposited checks received by
[her] business." And so she contends that the jury could not have
found her guilty beyond a reasonable doubt given that, in light of
the evidence, it was equally possible that she submitted the checks
for deposit on a mistaken understanding of their pedigree as that
she submitted them knowing that they were fraudulent.
González is correct that the government needed to prove
that she acted with the specific intent to steal a thing of value
from the United States, and the government does not argue
otherwise. See United States v. Donato-Morales, 382 F.3d 42, 47
(1st Cir. 2004) (holding that although 18 U.S.C. § 641 "does not
expressly require specific intent, the Supreme Court has held that
Congress, in codifying the common law crimes described in § 641,
intended to incorporate the common law requirement of specific
intent as an element of the crime" (citing Morissette v. United
States, 342 U.S. 246, 270-73 (1952))). And the government put
forth no evidence regarding how González came to possess the
fraudulent checks. But the government contends that the evidence
in the record is still sufficient to support a finding that
González acted with the requisite intent, and we agree.
In support of her challenge, González points to the
evidence that when Banco Popular began investigating the Treasury
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checks, she produced eleven invoices that showed that customers
had purchased items from Junker Correa with the checks. González
further contends that the invoices were credible because they were
"detailed and distinctive." For example, she points to the fact
that one invoice stated that the customer had given a $6 tip. And
she points to the evidence that shows that she went to Banco
Popular when the bank did not accept one of the checks and that
she was a willing participant in Banco Popular's investigation of
the problem with that check -- "unlikely behavior," she contends,
"for someone who knew the check to be fraudulent."
But the question in resolving a challenge to the
sufficiency of the evidence is not whether the evidence was such
that a juror could have voted to acquit. The question is whether
the evidence was such that a reasonable juror could not have found
guilt beyond a reasonable doubt. And there are critical holes in
González's story that, along with the other evidence, provide
sufficient support for what the jury did.
González told the bank that she had an invoice for each
of the twenty-two checks and copies of forms of identification --
which she referred to as "IDs" -- for each person who had paid
with one of those checks. And yet she did not produce a single
ID. González insists that she failed to produce the IDs because
her business was "hectic" and her records sloppy, and she argues
that the evidence shows as much. But a reasonable juror could
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reject that argument and find that she failed to produce the IDs
for a different reason, namely that there were no such customers.
Moreover, the invoices that González did produce, while
containing the kind of detail one would expect from real invoices
(such as the $6 tip), also claimed that some of the customers had
used Treasury checks to pay for items that cost significantly less
than the value of the checks. In one case, the difference exceeded
four thousand dollars. Some of the invoices did claim that
customers waited several days to receive the substantial change
owed. If so, the customers were apparently trusting Junker Correa
to return the large difference and then accepting that difference
by cash or check. But Junker Correa's bank account statements did
not show cash withdrawals consistent with such large cash refunds.
For those reasons, too, a reasonable juror could reject the view
that the invoices were real records of past transactions rather
than post-hoc inventions of exchanges that never occurred.
To believe that González did not know the checks were
fraudulent, a juror would have to believe that Junker Correa,
despite never before having received payment from a customer in
the form of Treasury check, suddenly, in one seven-month period,
received an inundation of twenty-two such payments. A juror would
also have to believe the customers chose this unusual form of
payment even though it required them to trust González to refund
them thousands of dollars at some future point in time. And a
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juror would also have to believe that it just happened to be the
case that at the same time that customers began paying with those
checks, González decided to begin transferring large sums of money
from the Junker Correa account to her personal account -- something
that she had done on very few occasions in the several years before
the Treasury checks appeared.1
To state what the jury would be required to believe is
to state the reason that a jury reasonably could have believed the
government's account of what must have transpired rather than
González's own. Lending additional support to the government's
account is the fact that although Banco Popular does not permit
double-endorsed checks to be deposited into personal accounts,
such checks may be deposited in commercial accounts. As the Junker
Correa account was a commercial account, the government presented
the jurors with a reasonable alternative explanation to the one
González offers as to why she submitted the checks for deposit
into the Junker Correa account.
"Jurors . . . are not expected to resist commonsense
inferences on the realities of human experience." See United
1 On three occasions in December 2011, for example, González
transferred $1,700, $2,500, and $4,000 to her personal account.
She made approximately twenty-five transfers in the first half of
2012, most of which exceeded $1,000. By comparison, over the
course of the previous three years, González transferred money to
her personal account on just several occasions, and the transfers
ranged from $300 to $1,000.
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States v. Saccoccia, 58 F.3d 754, 782 (1st Cir. 1995). A rational
juror could have rejected González's story and concluded beyond a
reasonable doubt that González, in submitting the checks for
deposit, was knowingly stealing from the government. Accordingly,
González's challenge to the sufficiency of the evidence on the
first twenty-two counts fails.
B.
González also challenges her conviction for aggravated
identity theft. The identity theft statute, 18 U.S.C. § 1028A,
provides that someone who "knowingly transfers, possesses, or
uses, without lawful authority, a means of identification of
another person," "during and in relation to" various specified
felonies, including theft of government property in violation of
§ 641, "shall, in addition to the punishment provided for such
felony, be sentenced to a term of imprisonment of 2 years." 18
U.S.C. § 1028A(1).
González appears to understand the "means of
identification of another person" at issue in this case to be the
signature endorsement on one of the twenty-two Treasury checks.
The government does not argue otherwise, and so we proceed on that
understanding as well.
González does not contest that the signature on that
check was transferred, possessed, or used "without lawful
authority" -- that is, that it was forged. Nor does González
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contest that she "transfer[red], possess[ed], or use[d]" that
signature when she submitted the endorsed check for deposit into
the Junker Correa bank account. Rather, she argues that there was
insufficient evidence that she did so "knowingly" -- that is, with
the knowledge that the signature was forged.
But for the reasons already given, a reasonable juror
could conclude beyond a reasonable doubt that González did not
receive the Treasury checks in exchange for actual sales at Junker
Correa. From this conclusion, a reasonable juror could further
infer that González knew that the checks had not been signed by
the people in whose names they were issued.2
III.
González next argues that her convictions should be
vacated because the District Court erred when it denied her two
requests -- one made three days before trial and the second on the
morning of trial -- to continue her trial to a later date.
González's request was made pursuant to a provision of the Speedy
Trial Act that permits a trial court to grant a continuance where
"the ends of justice served by taking such action outweigh the
2 González also argues that the forfeiture count should be
vacated because the evidence was insufficient to support her
convictions on the other counts. Because we have concluded that
the evidence was sufficient to support her convictions, that
argument fails as well.
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best interest of the public and the defendant in a speedy trial."
18 U.S.C. § 3161(h)(7)(A).
We review a trial court's denial of a request for a
continuance under that provision of the Speedy Trial Act for an
abuse of discretion. United States v. Williams, 630 F.3d 44, 48
(1st Cir. 2010). Under that standard, "we will not disturb such
a decision if reasonable minds could disagree about the proper
ruling." United States v. Delgado-Marrero, 744 F.3d 167, 195 (1st
Cir. 2014).
We evaluate each case "on its own facts," Williams, 630
F.3d at 48, based on considerations that "include 'the reasons
contemporaneously presented in support of the request, the amount
of time needed for effective preparation, the complexity of the
case, the extent of inconvenience to others if a continuance is
granted, and the likelihood of injustice or unfair prejudice
attributable to the denial of a continuance.'" Id. (quoting United
States v. Rodríguez-Durán, 507 F.3d 749, 763 (1st Cir. 2007)).
And we will "overturn[] the denial of a continuance only when the
movant identifies specific, concrete ways in which the denial
resulted in 'substantial prejudice' to his or her defense."
Delgado-Marrero, 744 F.3d at 196.
González argues that the District Court abused its
discretion in denying her requests to continue trial to a later
date due to the issuance of the superseding indictment in this
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case only ten days before trial, and due to her retaining a new
attorney -- Luis Rafael Rivera -- to represent her just three days
before trial. But we do not agree.
We do not see the basis for concluding González suffered
prejudice by having to appear for trial with an attorney who had
just signed on to represent her. The District Court instructed
González that the court would allow Rivera to appear as counsel
only if Rivera were "ready for trial as scheduled" -- an order
González does not challenge as itself an abuse of discretion.
Thus, by appearing for trial, Rivera represented to the District
Court that he was prepared.3 Moreover, although Rivera tried the
case as lead counsel, he had by his side González's two other
attorneys, each of whom had been on the case since its inception.
See Delgado-Marrero, 744 F.3d at 196 (listing "other available
assistance" to the movant as a factor to be considered in
determining whether a district court abused its discretion in
denying a motion for a continuance).
We also do not see a basis for concluding that González
was prejudiced by having to go to trial soon after the superseding
indictment was issued. González is right that the new indictment
set forth eighteen additional counts of theft of government
3González does not argue to us that counsel was ineffective.
But she does "reserve her right" to raise that argument in a 28
U.S.C. § 2255 petition.
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property, each corresponding to a different Treasury check, as
well as the one count of aggravated identity theft. But González
agreed to the trial date in this case over a month and a half
before trial. When she agreed to that date, moreover, she knew
that a superseding indictment was forthcoming. González also does
not challenge the District Court's finding below that over a month
before trial she was in possession of all the discovery materials
relevant to the new counts in the superseding indictment.
We recognize that González argues that, despite having
those materials, and despite knowing that a superseding indictment
was forthcoming, she was unprepared to go to trial because she had
expected only fifteen new counts of theft of government
property -- as opposed to eighteen new counts -- and because she
had not expected to be charged with aggravated identity theft.
One can certainly see the potential need for more time to prepare
when faced with a wholly new count. But González must "identify
specific ways in which the court's erroneous denial of a
continuance prejudiced . . . her defense." United States v.
Rodriguez-Marrero, 390 F.3d 1, 22 (1st Cir. 2004); see also
Rodríguez-Durán, 507 F.3d at 763 ("Identifying prejudice from the
[denial of a request for a continuance] is essential."). She does
not, however, point to particular materials she would have more
carefully reviewed, witnesses or evidence she would have
investigated, or a strategy she would have pursued had she had
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more time to prepare. Because she has not identified any concrete
respect in which she was harmed by the denial of her request for
a continuance, her challenge fails. See Rodríguez-Durán, 507 F.3d
at 765 (finding no abuse of discretion in denial of a continuance
where the defendants "pointed to no pivotal evidence or theories
that realistically could have made a difference had they been
allotted more time to prepare for trial").
IV.
Having found no reversible error, we affirm.
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