United States v. Rocheford , 910 F.3d 591 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1503
UNITED STATES OF AMERICA,
Appellee,
v.
ALBA PENA, a/k/a Alba Toribio,
Defendant, Appellant.
No. 17-1504
UNITED STATES OF AMERICA,
Appellee,
v.
INDRANIS ROCHEFORD,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Timothy S. Hillman, U.S. District Judge]
Before
Torruella, Selya and Barron,
Circuit Judges.
James L. Sultan, with whom Kerry A. Haberlin and Rankin
& Sultan were on brief, for appellant Pena.
Leonardo A. Angiulo for appellant Rocheford.
Randall E. Kromm, Assistant United States Attorney, with
whom Andrew E. Lelling, United States Attorney, was on brief, for
appellee.
December 14, 2018
BARRON, Circuit Judge. Alba Pena ("Pena") and Indranis
Rocheford ("Rocheford") are sisters, who in 2017 were each
convicted of multiple counts of wire fraud in violation of 18
U.S.C. § 1343. They had been charged with participating, along
with their mother, Patria Zuniga ("Zuniga"), in a scheme to defraud
immigrants by falsely promising them that Zuniga would, in return
for payment, secure valid immigration status documents for them.
We now reject the challenges to the convictions that each sister
brings on appeal, as well as the challenge that Rocheford brings
to her sentence. We thus affirm the judgments below.
I.
Zuniga, Pena, and Rocheford were each indicted, on July
16, 2015, in the United States District Court for the District of
Massachusetts on various counts of wire fraud in violation of 18
U.S.C. § 1343. That indictment charged Zuniga and the sisters
with eight separate counts of wire fraud, based on a "[s]cheme to
defraud" that, according to the superseding indictment, began in
2009 and extended through 2013. The indictment also included a
forfeiture allegation.
The indictment began by describing the alleged
fraudulent scheme and the role that Zuniga and the sisters
allegedly played in it. Specifically, the indictment alleged that
Zuniga and the two sisters "devised and intended to devise" the
scheme in order "to defraud and for obtaining money . . . from .
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. . the victim-immigrants . . . by causing and fraudulently
inducing [them] to pay significant sums of money in exchange for
immigration status documents which [Zuniga, Pena, and Rocheford]
promised that Zuniga could secure on their behalf." The indictment
further alleged that "[t]o accomplish this" fraud, Zuniga and the
two sisters "falsely and fraudulently represented to the victim-
immigrants that Zuniga worked for United States immigration
authorities and could obtain legal immigration status documents
for each immigrant-victim in exchange for payments ranging from
$8,000 to $14,000." And, the indictment also alleged, "[i]n
reliance" on these false and fraudulent representations, "the
victim-immigrants made payments directly to [Zuniga, Pena, and
Rocheford] or to parties specifically designated by" them "in
various ways, including but not limited to, interstate bank
deposits and interstate wire transfers."
The indictment then set forth the eight specific counts
of wire fraud. Each count corresponded to a separate wire transfer
or electronic bank deposit that allegedly had been made in
furtherance of the scheme. In addition, each of those wire
transactions was allegedly made, as payment for the fraudulent
services, by one of the immigrant victims of the scheme either to
Rocheford or to another person that the schemers had designated to
receive the funds.
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Zuniga pleaded guilty to the counts against her on
January 28, 2016. The government then issued superseding
indictments that set forth the same eight counts against Pena and
Rocheford, who each then proceeded to trial. Their joint trial
began on January 9, 2017.
At trial, the government introduced testimony from 20
immigrants who stated that they had been victims of the alleged
fraudulent scheme. Six of them testified to making the wire
transfers or bank deposits as payment for the fraudulent
immigration services referenced in the indictment's eight counts.
The District Court instructed the jury as to both principal and
aiding and abetting liability as to all of the counts against the
two sisters. The jury found Pena guilty of all but one of the
counts against her and Rocheford guilty of all but three of the
counts against her. Pena and her sister moved under Rule 29 of
the Federal Rules of Criminal Procedure for a judgment of
acquittal, but their motions were denied.
At sentencing, the District Court sentenced Pena to 35
months in prison and three years of supervised release. The
District Court sentenced Rocheford to 33 months in prison and three
years of supervised release. Each sister was required to pay
$739,850 in restitution.
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II.
We turn first to Rocheford's sufficiency challenge, in
which she seeks to overturn all five of her convictions. In order
to prove that a defendant has committed wire fraud in violation of
18 U.S.C. § 1343, the government must prove the following: "(1)
a scheme or artifice to defraud using false or fraudulent
pretenses; (2) the defendant's knowing and willing participation
in the scheme or artifice with the intent to defraud; and (3) the
use of the interstate wires in furtherance of the scheme." United
States v. Appolon, 715 F.3d 362, 367 (1st Cir. 2013).
Our review of the denial of Rocheford's Rule 29 motion
is de novo. United States v. Gómez-Encarnación, 885 F.3d 52, 55
(1st Cir. 2018). "Under such a review, 'we must affirm unless the
evidence, viewed in the light most favorable to the government,
could not have persuaded any trier of fact of the defendant's guilt
beyond a reasonable doubt.'" Id. (quoting United States v.
Acevedo, 882 F.3d 251, 258 (1st Cir. 2018)).
Rocheford does not dispute that the evidence sufficed to
show the existence of the fraudulent scheme described in the
indictment, which alleged a wide-ranging effort to cheat
immigrants by obtaining payments from them in return for the
immigration services that Zuniga falsely and fraudulently promised
them. Rocheford also does not dispute that the evidence sufficed
to show that the wire transfers and bank deposits referenced in
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the counts underlying the convictions at issue were made by victims
of the scheme as payment for the fraudulent services. Thus, she
does not challenge that the wire transfers were made in furtherance
of that scheme or even that it was foreseeable that such
transactions would occur in the scheme's "ordinary course." United
States v. Vázquez-Botet, 532 F.3d 37, 64 (1st Cir. 2008) (citing
United States v. Benmuhar, 658 F.2d 14, 16-17 (1st Cir. 1981)).
Rocheford focuses instead on the second of the elements
of the offense that we have just described. She contends that the
government failed to meet its burden to prove that she was a
knowing and willful participant in the fraudulent scheme alleged
in each count. Specifically, Rocheford contends that, based on
the evidence, "[a]t most, the jury could have found only that
Rocheford allowed Zuniga to use her bank account, and that
Rocheford thought that Zuniga had some ability to help people
resolve immigration issues." But, we do not agree.
The government introduced evidence that showed that
Rocheford helped her mother recruit new immigrants to obtain the
promised immigration services in return for payment, assisted with
administrative tasks like filling out the immigrants' applications
for the status documents, and sometimes directly received payment
from immigrants for the promised services either in person or via
electronic transfer. In fact, the government introduced evidence
that supportably showed that Rocheford had facilitated payments
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for her mother's services from two people who testified not only
to being victims of the scheme, but also to having made the
specific wire transfers and bank deposits that are referenced in
three of the five counts at issue. The government also introduced
evidence, referenced in the remaining counts under review, that
another person who had been a victim of the alleged fraudulent
scheme also made a bank deposit directly into Rocheford's bank
account in furtherance of that scheme.
Thus, the evidence amply showed that Rocheford was an
active participant in the scheme as a whole, received bank deposits
from all three victims named in the counts against her, and even
had a hand in facilitating the payments from two of those three
named victims. And Rocheford does not contest that the evidence
sufficed to show that the scheme was in fact fraudulent.
Against that background, Rocheford's contention that the
evidence did not suffice to show that she knew that her mother's
promises about the services that she could provide were false and
fraudulent is unpersuasive. We are obliged to consider the
evidence in the light most favorable to the verdicts. See United
States v. DiRosa, 761 F.3d 144, 150 (1st Cir. 2014). And, from
that vantage point, we conclude that the evidence plainly sufficed
to permit the jury to infer that Rocheford, given her close ties
to her mother and her broader involvement in the fraudulent scheme,
was a knowing and willful participant in the scheme to defraud
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alleged in the counts underlying the convictions that she
challenges. See id. at 151-52 (holding that, even where there was
no evidence that the defendant did any of the "heavy lifting" of
directly defrauding the victim, a jury could reasonably infer
active participation in a wire fraud scheme, in part, from the
defendant's proximity to the fraud and the fact that his wife's
bank account received proceeds from the fraud); United States v.
Ritz, 548 F.2d 510, 522 (5th Cir. 1977) ("The fact of the close
association of the several parties and their association with
Robert, Sr. the father who was the source of four of the bills is,
one circumstance from which the jury might infer knowledge."). In
fact, the record supportably shows that Rocheford, in the course
of assisting her mother in carrying out the scheme, spent the funds
given to her by victims on personal expenses after telling the
victims that the money was being used to pay for their immigration
papers, and obfuscated when victims became suspicious of Zuniga's
actions. And Rocheford does not dispute that, if the jury was
entitled to reject her contention that her involvement in the
scheme was undertaken in good faith, then the convictions that she
challenges rested on sufficient evidence.
Pena, for her part, challenges the sufficiency of the
evidence as to only five of the seven counts of which she was
convicted. But we see no merit in her challenge either.
- 9 -
The government introduced ample evidence to show that
Pena was a knowing and willful participant in what the indictment
described as -- and the evidence at trial revealed to be -- a wide-
ranging scheme to lure numerous immigrants into paying for
immigration services that Zuniga falsely and fraudulently promised
to provide them. In fact, Pena does not challenge her convictions
on two of the counts alleging her participation in that scheme.
To be sure, those counts reference wire transactions
that were made by immigrants other than the immigrants involved in
the counts underlying the convictions that she now challenges on
appeal. And, Pena contends, that fact is significant because the
government failed to prove any tie between her and the three
immigrant-victims who testified about the particular transfers and
deposits that are referenced in those counts.
Pena contends for that reason that convictions on those
counts cannot be sustained. But, we do not agree. Pena is right
that the record fails to show that she directly assisted her mother
in luring those particular victims to pay for fraudulent
immigration services or that she otherwise had any direct contact
with them. In fact, the evidence does not even show that funds
from those victims were directly deposited or transferred into
Pena's account by those victims. The evidence sufficed to show
only that, initially, Rocheford received those victims' funds and
that, subsequently, she transferred a portion of those funds into
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Pena's bank account. But, while Pena contends that, "the possible
transfer of ill-gotten gains" from her sister's account into her
own was not enough "to prove that Pena participated or assisted in
defrauding any of these three individuals," the government's case
against Pena as to the convictions at issue does not depend simply
on her receipt of "ill-gotten gains" standing alone.
The government put forth evidence of Pena's and
Rocheford's knowing and willful participation in the broader
fraudulent scheme to defraud numerous immigrants, as well as
evidence that the three immigrants who made the transfers and bank
deposits referenced in the counts underlying the convictions at
issue were victims of that broader scheme. In addition, the
government put forth evidence that showed that Rocheford
transferred funds to Pena just days after she had received funds
from those victims. And, the evidence also showed, the funds that
Rocheford transferred to Pena were in amounts that a jury could
reasonably find indicated that Rocheford was transferring to her
sister funds that the victims had paid to her in return for the
false and fraudulently promised immigration services. Notably,
Pena provides no explanation for why Rocheford otherwise would
have transferred these funds to her bank account were it not for
Pena's involvement in the fraudulent scheme.
Therefore, when the evidence is considered in the light
most favorable to the verdicts, a jury could reasonably find that
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Rocheford was transferring funds from these three victims to Pena
due to Pena's role as a participant in the scheme to defraud those
victims as part and parcel of the broader scheme, rather than out
of sisterly affection. And, when considered in that same verdict-
friendly light, a jury could also supportably find that Pena knew
that she was receiving those funds from Rocheford in consequence
of her participation in that same broader scheme. See DiRosa, 761
F.3d at 150; Ritz, 548 F.2d at 522.
As a result, the evidence was sufficient to sustain the
convictions. We have made clear, after all, that there is no
requirement under § 1343 that a defendant know the actual
identities of the victims of the fraudulent scheme for there to be
sufficient evidence that the defendant knowingly and willfully
participated in perpetrating the scheme. See United States v.
Tum, 707 F.3d 68, 75 (1st Cir. 2013). And, similarly, there is no
requirement that a defendant actively participate in defrauding a
particular victim of a broader scheme to defraud numerous victims
if the evidence otherwise suffices to show that the defendant
actively participated in the formulation and carrying out of that
same scheme. See United States v. Appolon, 695 F.3d 44, 59 (1st
Cir. 2012) (affirming multiple counts of wire fraud where, as here,
the defendant did not directly participate in the fraudulent acts
underlying those specific counts, but nonetheless received
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payments as a result of those frauds and actively participated in
the broader fraudulent scheme).
III.
We turn, then, to Pena's fallback contention, in which
she argues that the District Court erred by not allowing her to
testify as to statements made by Zuniga that were aimed at
demonstrating Pena's state of mind and thus that her convictions
must be vacated because she was prejudiced in her ability to mount
a "good faith" defense to the wire fraud charges. We see no merit
to this contention either.
Pena challenges the District Court's decision to sustain
the government's objections to her attempts to introduce testimony
concerning four types of conversations between herself and Zuniga.
She describes this testimony as having involved: conversations
between Pena and Zuniga about one of the victims, Isabel Morales;
conversations between Pena and Zuniga regarding Pena's familiarity
with Zuniga's purported boss, Mr. Williams; conversations between
Pena and Zuniga regarding "the source of the money in their shared
bank account"; and confrontations between Pena and Zuniga
regarding Pena's suspicions about Zuniga's fraud.
The parties dispute whether Pena properly preserved
below the challenges that she now makes on appeal to the District
Court's evidentiary rulings concerning this testimony. The
government, relying on the "bedrock rule of trial practice that,
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to preserve for appellate review a claim of error premised on the
exclusion of evidence, the aggrieved party must ensure that the
record sufficiently reflects the content of the proposed
evidence," Williams v. Drake, 146 F.3d 44, 49 (1st Cir. 1998),
contends that she has not preserved them. Accordingly, the
government contends that, insofar as the challenges are not waived,
they are forfeited and thus our review of them is only for plain
error. Pena responds that she has properly preserved these
challenges because the "thrust" of the testimony that she contends
was improperly excluded is "obvious" from the record, and so there
is no waiver or forfeiture.
We may assume, favorably to Pena, that our review is for
abuse of discretion rather than for plain error. We may assume,
too, that, as Pena contends, the testimony that she was barred
from giving was excluded in consequence of erroneous evidentiary
rulings by the District Court. For, even with those assumptions
in place, we still see no basis for concluding that the convictions
must be vacated, as Pena has not shown that she was prejudiced by
the erroneous evidentiary rulings that she claims that the District
Court made. See United States v. Sabean, 885 F.3d 27, 41 (1st
Cir. 2018) (noting that under the harmless error standard, "[w]hen
. . . an alleged error is not of constitutional dimension, we may
affirm a conviction so long as we have 'fair assurance . . . that
the judgment was not substantially swayed by the error'" (quoting
- 14 -
United States v. Melvin, 730 F.3d 29, 39 (1st Cir. 2013))); cf.
United States v. Padilla, 415 F.3d 211, 220-21 (1st Cir. 2005)
(noting that, under the plain error test, the error's prejudicial
effect on the proceeding must have been "substantial and
injurious").
We start with Pena's challenge to what she contends was
the District Court's error in preventing her from testifying about
what she describes as "conversations between Pena and Zuniga about
Isabel Morales." Pena contends that this testimony was potentially
significant because it would support her "good faith" defense by
showing that she thought her mother was actually trying to help
Morales and her son obtain immigration status documents.
We may assume, as Pena contends, that the District Court
permitted her to testify only about the "topic" of the conversation
and not about "what was said." And we may assume that such a
ruling was in error. But still, the record shows that, with
respect to her conversation with her mother about Morales, Pena
did testify that she genuinely believed in consequence of that
conversation that her mother could help Morales and Morales's son
because she "was really knowledgeable [about] the immigration
process." Thus, Pena was able to testify that she sincerely
believed her mother was trying to help Morales's family when her
mother met with her.
- 15 -
To the extent that Pena has in mind some additional
testimony that she would have provided if the District Court had
ruled other than it did, moreover, it is not the least bit obvious
what that testimony would be. All we know from her defense
counsel's colloquy with the District Court is that she wanted to
testify about "why [Morales] came to her house, or her
understanding and her state of mind of why she took the action
that she did." Yet, Pena did not provide a proffer describing the
substance of that testimony below. We are thus left with no means
of discerning prejudice. See United States v. Rivera Rangel, 466
F.3d 158, 163 n.3 (1st Cir. 2006) (noting that the Court could not
"credit [the appellant's] speculation" that they were harmed by
the exclusion of evidence without an offer of proof).
Second, Pena contends that the District Court committed
reversible error in precluding her from testifying about whether
"she had heard of Mr. Williams, one of Zuniga’s purported big
immigration bosses." Pena appears to contend that this testimony
would have been significant because it would have showed that she
believed that her mother was employed by a reputable immigration
service provider.
But, again, Pena has not shown any prejudice, even
assuming that she could show that the District Court erred with
respect to this aspect of the testimony. In particular, the record
shows that, on direct examination, Pena was permitted to testify
- 16 -
that she learned about Mr. Williams as a small child. Moreover,
soon after Pena gave that testimony, she testified, in response to
questions from her defense counsel, both that she thought that her
mother was getting paid by Mr. Williams and that her mother had
received payment from him in exchange for immigration services.
As Pena does not identify what additional testimony pertaining to
whether "she had heard of Mr. Williams, one of Zuniga’s purported
big immigration bosses," that she was barred from giving, let alone
how the alleged bar would have been prejudicial after accounting
for the testimony about Mr. Williams that Pena was able to provide,
we again see no basis for vacating the convictions.
Pena's third set of challenges to the District Court's
allegedly wrongful exclusion of her testimony concern what she
describes as "Pena's questions to Zuniga about the source of the
money in their shared bank account and Zuniga's responses to those
questions." But, this set of challenges runs into the same
obstacles as the challenges previously addressed.
The record shows that Pena was permitted to testify that
she did not know where Zuniga's money came from and that she did
not believe that the money came from Zuniga's immigration clients.
As Pena did not provide any proffer below about what additional
testimony she would have provided in connection with this line of
questioning if she had been permitted to respond more fully, we do
- 17 -
not see on what basis we could find prejudice sufficient to vacate
the convictions.
Finally, Pena challenges what she contends was the
wrongful exclusion by the District Court of what she describes as
"testimony about the substance of Pena's [confrontation with]
Zuniga when she became suspicious." But, once again, she cannot
show prejudice.
In particular, the record shows that Pena was able to
testify that, during her confrontations with Zuniga, her mother
was "angry," "didn't like to be confronted," "yell[ed]," reminded
Pena how much she had been there for her, and told Pena that she
"cannot distrust her." As Pena provided no indication below --
and provides none on appeal -- of what more information she would
have shared that would have materially advanced her "good faith"
defense beyond what is already in the record, this challenge also
fails, even if reviewed only for abuse of discretion.1
1 On appeal, Pena for the first time also frames her challenge
to the District Court's evidentiary rulings in federal
constitutional terms. She points out that, under the Fifth and
Sixth Amendments of the United States Constitution, a defendant is
entitled to a "meaningful opportunity to present complete defense"
to allegations of guilt. Crane v. Kentucky, 476 U.S. 683, 690
(1986) (quoting California v. Trombetta, 467 U.S. 479, 484 (1984)).
Pena argues that, because the District Court sustained the
government's hearsay objections and excluded this testimony, she
was unable to establish that she participated in Zuniga's wire
fraud scheme in "good faith," which would have provided a complete
defense to liability for this crime. See United States v. Dockray,
943 F.2d 152, 155 (1st Cir. 1991). She thus contends that the
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Because we do not find any merit in Pena's contention
that the District Court committed reversible error by excluding
the testimony that she identifies, we must also reject Rocheford's
follow-on challenge, in which she contends that we must vacate her
convictions insofar as we find that Pena's must be vacated due to
the District Court's rulings as to that same testimony. We thus
turn to the next issue, which concerns a challenge that only
Rocheford brings.
IV.
Rocheford contends that her convictions should be
vacated because the District Court erred in failing to give a
particular instruction concerning unanimity. We disagree.
At trial, just prior to instructing the jury on the
specific elements of wire fraud and of aiding and abetting, the
District Court instructed the jury that it had to "separately
consider the evidence against each defendant on each offense
government must show that any errors by the District Court in
excluding testimony were harmless beyond a reasonable doubt. See
United States v. Mulinelli-Navas, 111 F.3d 983, 992 (1st Cir.
1997). But, because Pena did not raise any constitutional
objections at trial, these claims were not properly preserved.
Our review is thus only for plain error. United States v. Cianci,
378 F.3d 71, 107 (1st Cir. 2004). And she cannot meet her burden
to show prejudice under that demanding standard for the same
reasons that we set forth in explaining that she has not shown
prejudice sufficient to meet the ordinary prejudice standard that
we apply in reviewing for abuse of discretion non-constitutional
challenges to evidentiary rulings of the sort that are at issue
here.
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charged" and that its "decision on any one defendant on any one
offense, whether guilty or not guilty, should not influence [its]
decision on any other defendant or offenses," as "[e]ach defendant
and each offense should be considered separate." The District
Court then instructed the jury that it had to be unanimous in
deciding to convict or acquit on a given count.
While deliberating, the jury had several questions for
the judge. One of them was: "Does each defendant need to be
directly involved in each count?" After that question, Rocheford
requested that the District Court instruct the jury that "whatever
they agree on, they all need to agree for a Defendant per each
count." The District Court declined to provide that instruction,
but did reinstruct the jury on the elements of wire fraud and
aiding and abetting.
The jury also asked: "Is it required for each defendant
to have direct involvement on each charge individually, or is
knowledge of the greater scheme enough?" After that question,
Rocheford "renewed [her] request for the separate unanimity
instruction." The District Court again declined to provide the
requested unanimity instruction, further instructed the jury that
"[d]irect involvement is not a legal term that is in play in this
case," and again asked the jury to "re-visit the elements" of the
charged offenses.
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"The standard of review for claims of instructional
error is not monolithic." United States v. De La Cruz, 835 F.3d
1, 12 (1st Cir. 2016). Where an instructional error claim turns
on a question of legal sufficiency, such as whether the District
Court failed to give an instruction that was required by law, our
review of the District Court's refusal to give the requested
instruction is de novo. Id. However, where an instructional error
claim turns on the District Court's phrasing or word choice, our
Court reviews that decision only for abuse of discretion. Id.Given that Rocheford's claim addresses the District Court's
failure to provide what, according to her, was a required unanimity
instruction, de novo review is appropriate in this instance. See
United States v. Lee, 317 F.3d 26, 35 (1st Cir. 2003). In addition,
our Court will only require a new trial where we find that an
instructional error was prejudicial. See Tatro v. Kervin, 41 F.3d
9, 14 (1st Cir. 1994).
It is not clear from the face of the requested
instruction in this case -- which would have told the jurors that
"whatever they agree on, they all need to agree for a Defendant
per each count" -- what more it would have added to the unanimity
instructions that were given that would have benefited Rocheford.
And, if the rejection of the requested instruction was not
prejudicial, then it was not reversible error for the District
Court to refuse to give it. See id.- 21 -
At oral argument on appeal, Rocheford's counsel did
attempt to argue that the unanimity instruction that she requested
would have added something. Specifically, she contended that it
would have instructed the jury that each juror had to agree that
Rocheford did "X" -- with "X" being the specific act(s) or
occurrence(s) the jurors all agree provided the basis for finding
each element of an offense of conviction was present -- on a
specific date.
But, Rocheford's challenge to the District Court's
refusal to give the instruction cannot be premised on that basis.
The Supreme Court "has 'never suggested that in returning general
verdicts'" in a wire fraud case such a Rocheford's that "the jurors
should be required to agree on as single means of commission, any
more than the indictments were required to specify one alone."
United States v. LaPlante, 714 F.3d 641, 647 (1st Cir. 2013)
(quoting United States v. Hernandez–Albino, 177 F.3d 33, 40 (1st
Cir. 1999)). After all, "[t]he requirement that a jury must come
to a unanimous agreement 'on the principal facts underlying its
verdict -- what courts have tended to call the elements of the
offense . . . does not extend to subsidiary facts —- what [the
Supreme Court] has called brute facts.'" LaPlante, 714 F.3d at
647 (alteration in original) (quoting Lee, 317 F.3d at 36); see
also United States v. Reeder, 170 F.3d 93, 105 (1st Cir. 1999)
(following Schad v. Arizona, 501 U.S. 624, 631 (1991)) (noting a
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jury must agree unanimously that the government has proven all the
elements of the offense, but it "need not agree on the means by
which all the elements were accomplished").2
V.
There remains, then, only Rocheford's challenge to her
sentence. She argues that the District Court erred in finding the
$739,852 loss amount used to support the application of a 14-level
sentencing enchantment under the United States Sentencing
Guidelines for a loss of more than $550,000 and less than
$1,500,000, pursuant to U.S.S.G. § 2B1.1(b)(1)(H)-(I), and a
restitution order, pursuant to U.S.S.G. § 5E1.1(a)(1) and the
Mandatory Victim Restitution Act ("MVRA"), 18 U.S.C. §§ 3663A,
3664.
This loss amount, set forth in the Pre-Sentencing Report
("PSR"), was comprised of the total loss to 57 victims who paid
Pena, Rocheford and Zuniga as part of the scheme. On appeal,
Rocheford argues that the proper amount for sentencing and
restitution purposes is $17,534, which equals the losses solely
associated with the counts for which she was convicted.
2
We also agree with the government that Rocheford's reliance
on United States v. Newell, 658 F.3d 1, 23 (1st Cir. 2011), is
misplaced, as the duplicity issues present there -- i.e., the
consolidation of multiple complete offenses under single counts
-- are not present in Rocheford's case.
- 23 -
We review preserved objections to a district court's
interpretation and application of the sentencing guidelines de
novo and its factual findings for clear error. United States v.
Curran, 525 F.3d 74, 78 (1st Cir. 2008). The government contends
that Rocheford's arguments were not preserved below and should be
reviewed for plain error only. But, even assuming that the issue
was preserved, Rocheford's argument should fail.
Rocheford presses two arguments for why the $739,852
loss amount is incorrect. First, she argues that the loss
attributable to her must be limited to "the sum of the amounts
listed in the counts Rocheford was convicted for" because
"Rocheford was not convicted as a co-conspirator of Zuniga." But,
as the government points out, our precedent supports the conclusion
that a restitution amount or sentencing enhancement, in the case
of jointly undertaken criminal activity, may be based on "the
amount of loss attributable to, or reasonably foreseeable by, a
defendant, and may not rely solely on what was charged in the
jointly undertaken criminal activity count of an indictment."
United States v. Codarcea, 505 F.3d 68, 72 (1st Cir. 2007)
(internal quotation marks omitted) (quoting United States v.
Pizaro-Berríos, 448 F.3d 1, 7 (1st Cir. 2006)); see also United
States v. Matos, 611 F.3d 31, 44 (1st Cir. 2010) ("[P]ursuant to
the MVRA, 18 U.S.C. § 3663A, where the defendant's criminal conduct
includes 'an offense that involves as an element a scheme,
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conspiracy, or pattern of criminal activity,' a victim is defined
as 'any person directly harmed by the defendant's criminal conduct
in the course of the scheme, conspiracy, or pattern,'" and "the
district court may order restitution without regard to whether the
conduct that harmed the victim was conduct underlying the offense
of conviction." (quoting 18 U.S.C. § 3663A(a)(2) (2008))).
Second, Rocheford argues that "the losses the court . .
. attributed to the defendant are too remote -- factually and
temporally -- from the discre[te] incidents and circumstances
surrounding her convictions." To support this argument, Rocheford
contends that the restitution amount of $739,852 wrongly overlooks
the fact that the jury did not convict Rocheford on all counts.
Rocheford fails to develop any specific argument,
however, as to why any amount over $17,534 is necessarily too
"factually and temporally" remote to support an order of
restitution or sentencing enhancement. And while the jury may
have been unable to conclude beyond a reasonable doubt that
Rocheford was responsible for the wire transfers mentioned in the
counts for which she was acquitted (counts 4 and 8), for purposes
of sentencing, the District Court was required to apply the less
stringent preponderance of the evidence standard. See Curran, 525
F.3d at 78. Under that less stringent standard, the record
sufficed to permit the District Court to find Rocheford responsible
for those (and other) transfers by victims.
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VI.
We, therefore, affirm Pena's and Rocheford's convictions
and sentences.
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