United States v. Tomasino , 885 F.3d 17 ( 2018 )

United States Court of Appeals
For the First Circuit
Nos. 17-1331, 17-1332, 17-1353
UNITED STATES OF AMERICA,
Appellee,
v.
DORIS MOREL; ERIKA TOMASINO;
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Lynch, Circuit Judge,
Souter, Associate Justice,*
and Stahl, Circuit Judge.
Virginia G. Villa for appellant Doris Morel.
Judith H. Mizner, Assistant Federal Public Defender, Federal
Public Defender Office, District of Massachusetts, with whom
Christine DeMaso, Assistant Federal Public Defender, Federal Public
Defender Office, District of Massachusetts, was on brief, for
appellant Erika Tomasino.
Donald C. Lockhart, Assistant United States Attorney, with whom
Stephen G. Dambruch, Acting United States Attorney, was on brief,
for appellee.
*Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
March 16, 2018
LYNCH, Circuit Judge. After a six-day trial, a federal
jury convicted co-defendants Doris Morel and Erika Tomasino of
conspiracy and multiple fraud-related counts based on their
participation in a multi-year tax-return fraud scheme. Each was
sentenced to three years in prison. On appeal, Morel challenges her
conviction with only a Batson jury claim. Tomasino adopts Morel's
Batson claim and raises four claims of her own, described later.
We affirm both defendants' convictions.
I.
On September 17, 2015 a grand jury indicted Juan Vasquez,
Belkis Vasquez, Doris Morel, and Erika Tomasino for conspiracy, theft
of government property, mail fraud, money laundering, and aggravated
identity theft, for their participation in an extensive scheme
primarily run from a grocery store in Pawtucket, Rhode Island called
the "Dominican Market." We provide an overview of the scheme and
specify Morel's and Tomasino's alleged roles, reciting the evidence
in the light most favorable to the verdict. United States v. Van Horn,
277 F.3d 48, 50 (1st Cir. 2002) (citing United States v. Escobar-de
Jesus, 187 F.3d 148, 157 (1st Cir. 1999)).
Between 2010 and 2014, about 450 fraudulent or stolen U.S.
Treasury tax refund checks, amounting to over $2.6 million, were
deposited into bank accounts under Juan Vasquez's or his
co-conspirators' control. The vast majority of the refunds were
procured from bogus federal tax returns, which used the names and
- 3 -
social security numbers of real U.S. citizens residing in Puerto Rico.
The returns listed false addresses in the Northeast, from which the
conspirators would retrieve the refund checks once delivered. The
conspirators then endorsed the checks by forging the payees'
signatures, and deposited them into shell bank accounts. To
camouflage their illicit activity, the conspirators concurrently
deposited legitimate paychecks from customers of the Dominican
Market, Juan Vasquez's grocery store.
Tomasino was employed at the Dominican Market for over ten
years in a variety of positions, including secretary, bookkeeper,
and cashier. At work, Tomasino would receive faxes with the names,
social security numbers, and dates of birth of other persons, and
would send the information to Juan Vasquez's office. In 2011,
multiple tax refund checks were mailed to Tomasino's residence and
an adjacent mailbox. Between 2013 and 2014, Tomasino deposited and
paid others to deposit twenty refunds, totaling almost $150,000,
alongside legitimate Dominican Market customer checks, into bank
accounts under her control. Then, again both personally and through
others, Tomasino made withdrawals from those accounts, as well as
transfers to an account under Vasquez's control. Tomasino received
a one-percent cut from Vasquez for cashing the Treasury checks.
Morel's involvement in the scheme was similar. Like
Tomasino, Morel was a longstanding Dominican Market employee. She
worked at the cash register and also cashed customer checks. Morel
- 4 -
used her own residence and nearby addresses to pick up the tax refund
checks generated by the fraudulent scheme. She then deposited the
refunds alongside legitimate Dominican Market checks into accounts
under her control, and later withdrew the funds.
Juan Vasquez, the head of the operation, and his sister
Belkis, pled guilty. Juan was sentenced to six years in prison, and
Belkis to three years of probation. Neither of them testified at Morel
and Tomasino's trial.
Morel and Tomasino pled not guilty. In September 2016, at
the close of their six-day joint trial, they were each convicted of
all but one of the charges against them. In March 2017, they were
each sentenced to three years in prison. Morel and Tomasino
separately appealed their convictions, and their appeals were
consolidated.
II.
A. The Batson Challenges
Morel seeks reversal of her convictions on the basis of
a Batson challenge, see Batson v. Kentucky, 476 U.S. 79 (1986), which
Tomasino adopts and incorporates into her own brief. Morel does not
otherwise challenge her convictions.
We provide the background to the challenge. During voir
dire, the magistrate judge asked whether any of the prospective jurors
were familiar with, or had frequented, the Dominican Market. Juror
15 disclosed that his grandmother lived near the store and frequented
- 5 -
it, and that he himself had occasionally been there to purchase
groceries. He stated that he had seen the owners of the store, was
"familiar with who they were," and had "spoke[n] on friendly terms"
with them, but added upon further questioning that he believed he
could serve as an impartial juror. The government exercised a
peremptory strike against Juror 15. Tomasino's counsel, but not
Morel's counsel, challenged the strike as racially discriminatory,
invoking Batson, and pointed out that Juror 15 was the sole black
male on the jury panel and was qualified to serve. The government
justified its strike on the basis that Juror 15 had personal knowledge
of the Dominican Market, the "epicenter" of the alleged fraudulent
scheme. The magistrate judge rejected Tomasino's challenge,
emphasizing that the entire case "revolve[d] around the Dominican
Market" and that some of the defendants were employed there. The court
found the government's justification legitimate and
nondiscriminatory. On appeal, Morel contends that the government's
peremptory strike was racially motivated, in violation of Batson.
"We review a district court's factual determination that
the government was not motivated by race for clear error, and may
reverse only where we arrive at a 'definite and firm conviction that
a mistake has been committed.'" United States v. Casey, 825 F.3d 1,
11 (1st Cir. 2016) (quoting United States v. Gonzalez-Melendez, 594
F.3d 28, 35 (1st Cir. 2010)).
- 6 -
The government raises several procedural challenges. We
need not resolve them, because the Batson challenge patently lacks
merit. See United States v. Aranjo, 603 F.3d 112, 115 (1st Cir. 2010).
The government's basis for its strike was plainly race-neutral and
legitimate. It was eminently reasonable to fear that a juror who had
been a customer at the store around which the alleged conspiracy
revolved, and had directly interacted with the alleged leaders of
that conspiracy, might be biased or harbor preconceived views about
the case.
Morel argues that because the neighborhood of the Dominican
Market has a higher percentage of African American residents than
other parts of Rhode Island, striking a juror for having frequented
the Dominican Market and being familiar and friendly with its owners
is a proxy for striking that juror on the basis of his or her race.
That is plainly wrong. A "statistical fact alone cannot convert a
facially race-neutral explanation into one based on race." Richard
v. Relentless, Inc., 341 F.3d 35, 45 (1st Cir. 2003); see also Caldwell
v. Maloney, 159 F.3d 639, 654 (1st Cir. 1998).
Morel's theory of discriminatory intent is all the more
patently without merit considering that her repeated representation
that the government struck the "sole black venire member" is wrong.
As the record shows, another black juror, a woman, was on the panel
and served through the verdict.
- 7 -
B. Tomasino's Other Claims
Tomasino raises four claims of her own: (1) that the
government produced insufficient evidence to support her conviction
for aggravated identity theft; (2) that the district court provided
an erroneous and prejudicial Pinkerton instruction to the jury;
(3) that the district court erred in admitting against Tomasino
incriminating statements made by Morel; and (4) that the district
court admitted improper summary witness testimony.
1. Sufficiency of the Evidence of Aggravated Identity Theft
Tomasino challenges the sufficiency of the evidence
supporting her conviction for aggravated identity theft, in violation
of 18 U.S.C. § 1028A (Count 39). Section 1028A prohibits "knowingly
transfer[ing], possess[ing], or us[ing], without lawful authority,
a means of identification of another person" in relation to an
enumerated felony. The government alleged and the jury found that
Tomasino violated § 1028A when she deposited a Treasury check bearing
the name and forged endorsement signature of a U.S. citizen whom the
parties refer to as "JRM." Tomasino challenges her conviction on the
grounds that the government failed to prove (1) that JRM's name on
a Treasury check was a "means of identification"; (2) that Tomasino
"used" JRM's means of identification; (3) that JRM was a real person;
and (4) that Tomasino knew that JRM was a real person.
This court reviews preserved sufficiency challenges "de
novo, albeit taking the evidence in the light most favorable to the
- 8 -
verdict," and unpreserved challenges "only for clear and gross
injustice." United States v. Marston, 694 F.3d 131, 134 (1st Cir.
2012) (quoting United States v. Upham, 168 F.3d 532, 537 (1st Cir.
1999) (internal quotation marks omitted)). Tomasino preserved her
last three challenges (but not the first) by contemporaneously raising
them before the district court, in her oral motion for judgment of
acquittal and/or in her timely post-trial written motion. As to those
claims, we "examin[e] 'whether the total evidence, taken in the light
most amicable to the prosecution, together with all reasonable
inferences favorable to it, would allow a rational factfinder to
conclude beyond a reasonable doubt that the defendant was guilty as
charged.'" United States v. Castro-Lara, 970 F.2d 976, 979 (1st Cir.
1992) (quoting United States v. Maraj, 947 F.2d 520, 522-23 (1st Cir.
1991)).
As to her first claim, Tomasino asserts that even though
she failed to argue before the district court that JRM's signature
did not constitute a "means of identification," her written motion
for acquittal made a "general" sufficiency-of-the-evidence challenge
that preserved for appeal all possible sufficiency challenges to the
aggravated identity theft count. This court has held that "a general
sufficiency-of-the-evidence objection preserves all possible
sufficiency arguments," whereas "a motion raising only specific
sufficiency arguments waives unenumerated arguments." United States
v. Foley, 783 F.3d 7, 12 (1st Cir. 2015).
- 9 -
Marston opined in dictum that when a sufficiency objection
is ambiguous -- i.e., where specific objections accompanying a
seemingly "general" objection could be construed either as examples
or as an exhaustive list -- "[t]here is good reason in case of doubt
to treat [the] ambiguous motion . . . as 'general' in the sense that
it preserves all grounds." 694 F.3d at 135. In that case, the
language counsel used to introduce specific objections implied the
existence of other unenumerated objections. See id. at 134. Here,
by contrast, Tomasino's motion for acquittal gave the district court
no reason to doubt that her three enumerated objections represented
her entire sufficiency challenge. And unlike in Marston, the
district court did not treat Tomasino's motion as a general one: it
addressed her three specific objections, and went no further. We
conclude that Tomasino has not preserved her "means of identification"
challenge, and accordingly review that issue only for clear or gross
injustice.
The district court committed no injustice, or even error,
in allowing the jury to consider whether JRM's name and forged
signature on a Treasury check were a "means of identification." The
statute, § 1028(d)(7), broadly construes the term "means of
identification" to mean "any name or number that may be used, alone
or in conjunction with other information, to identify a specific
individual . . . ." This court has found a name, alongside other
information, to qualify as a "means of identification." See, e.g.,
- 10 -
United States v. De La Cruz, 835 F.3d 1, 9-11 (1st Cir. 2016) (name
and date of birth); United States v. Kuc, 737 F.3d 129, 134-35
(1st Cir. 2013) (name and company name). Tomasino attempts to argue
that we have not previously found the use of a name alone to suffice
under § 1028A. But Tomasino did not invoke JRM's name in a vacuum:
she cashed a tax refund check that was issued to a unique individual
identified by a unique social security number. The check she
deposited bore JRM's full name as well as his (forged) signature on
the endorsement line. We have no difficulty finding that a name
together with a forged endorsement signature placed on a tax refund
check constitute a "means of identification" for purposes of § 1028A.
Other circuits agree. See, e.g., United States v. Wilson, 788 F.3d
1298, 1310-11 (11th Cir. 2015) ("[T]he use of a person's name and
forged signature sufficiently identifies a specific individual to
qualify as a 'means of identification' under the aggravated identity
theft statute."); United States v. Porter, 745 F.3d 1035, 1043 (10th
Cir. 2014); United States v. Blixt, 548 F.3d 882, 888 (9th Cir. 2008).
Tomasino's next argument is that her knowing act of
depositing the check cannot alone amount to "use" of JRM's means of
identification. After the district court had rejected the claim in
February 2017, this court issued a decision construing the term "use"
under § 1028A "to require that the defendant attempt to pass him or
herself off as another person or purport to take some other action
on another person's behalf." United States v. Berroa, 856 F.3d 141,
- 11 -
156-57 (1st Cir. 2017) (emphasis added). Tomasino's actions here
easily meet this definition. Tomasino deposited a check made payable
to JRM bearing an endorsement purporting to be JRM's signature,
despite the fact that she knew the signature had been forged. Based
on the evidence presented at trial, the jury could have found beyond
a reasonable doubt either that Tomasino herself forged JRM's signature
or that Tomasino knew one of her co-conspirators had forged his
signature. In this way, Tomasino purported to act on JRM's behalf,
and thus "used" his means of identification.
Tomasino next argues that the government did not adequately
prove that JRM was a real person. We disagree: a jury could have
reasonably concluded that this element was proven beyond a reasonable
doubt. The evidence presented at trial established that the IRS
verifies the name and social security number appearing on a tax return
before it issues a refund. Tomasino stresses that one of the
government's witnesses generally acknowledged that the IRS's
verification process is not "foolproof," but the jury was not required
to accept that this was an instance of an error in the validation
system.
Tomasino falls back on the argument that there was
insufficient evidence for the jury to infer that she knew that JRM
was a real person. This court has previously found sufficient
evidence of a defendant's knowledge that an identity was real where
the defendant repeatedly subjected that identity to scrutiny. See
- 12 -
United States v. Soto, 720 F.3d 51, 55 (1st Cir. 2013); United States
v. Valerio, 676 F.3d 237, 244-45 (1st Cir. 2012). Although Tomasino
only cashed a single refund check made out to JRM, the evidence showed
that the scheme in which she participated involved hundreds of
fraudulent tax refund transactions. Moreover, Tomasino admitted
that she would collect the personal identifying information of other
persons and provide that information to Vasquez. A jury could
reasonably infer, under these circumstances, that Tomasino knew that
the names appearing on the tax refund checks she was depositing
belonged to real persons.
2. Pinkerton Instruction
Tomasino next attacks the district court's decision to give
the jury a Pinkerton instruction that did not exclude the substantive
charges against her of money laundering, mail fraud, and aggravated
identity theft. She argues that the instruction confused the jury
and lessened the government's burden of proof. "[U]nder the
Pinkerton doctrine, a defendant can be found liable for the
substantive crime of a coconspirator provided the crime was reasonably
foreseeable and committed in furtherance of the conspiracy." United
States v. Vázquez-Botet, 532 F.3d 37, 62 (1st Cir. 2008).
As to the objection made, the court had provided the parties
proposed instructions that included a Pinkerton charge previously
proposed by the government. Trial counsel for Tomasino objected that
the Pinkerton instruction was overbroad and could lead to jury
- 13 -
confusion as to the counts where she was charged individually and
no other defendant was so charged, while conceding that the
instruction was appropriate for Count 2. Trial counsel specifically
referred to United States v. Sanchez, 917 F.2d 607 (1st Cir. 1990)
and a Second Circuit case referenced in Sanchez. The government
responded that Tomasino seemed to be making some sort of lack of notice
argument, which was unfounded since the government had consistently
given notice of its intended use of Pinkerton liability. After a
recess, the court said that it had read Sanchez and that the case
did not support defense counsel's position. The court explained:
[Sanchez] said in the footnote, "We're not
confronted with the sort of 'marginal case' in
which the Pinkerton instruction sometimes
causes concerns," and cited cases. "The Second
Circuit appropriately cautioned that a
Pinkerton charge 'should not be given as a matter
of course,' particularly where the jury is being
asked to make the converse inference; that is,
to infer, on the basis of a series of disparate
criminal acts, that a conspiracy existed. In
the present case there was ample evidence that
Rafael Sanchez was a member of the alleged
conspiracy to possess cocaine for
distribution."
(quoting Sanchez, 917 F.2d at 612 n.4). The court went on to conclude
that in this case, as in Sanchez, there was ample evidence from which
the jury could conclude a conspiracy existed. Later, defense counsel
again asked the court to "change the [Pinkerton] instruction . . .
[to] make it less broad and more specific to the particular charges
- 14 -
that it should address." The court rejected the request. At no point
did counsel expressly ask for a limiting instruction.
On appeal, Tomasino reiterates that the Pinkerton
instruction should not have extended to substantive counts for which
the government's primary argument was that she personally engaged
in the prohibited conduct. She claims prejudice insofar as the
instruction both "confused the jury" and "diminished the government's
burden of proof" because it enabled the jury to convict Tomasino of
crimes "without requiring the government to prove the mens rea
typically required for such convictions."
Tomasino's arguments fail. We see no evidence that the
jury was confused by the instruction or that it thought the government
had a lesser standard of proof. There were only two defendants in
this trial, and there was little risk the jury would confuse the
evidence as to each. Tomasino's acquittal on one count of aggravated
identity theft (Count 40) (to which she thought the Pinkerton charge
should not apply) helps prove the point. The court properly
instructed the jury on the substantive offenses involving Tomasino's
own conduct. Moreover, as the district court found, there was "ample
evidence" of conspiracy, and Tomasino does not appear to challenge
her conspiracy conviction on appeal. In such circumstances, the
- 15 -
instruction regarding the Pinkerton theory of liability was
harmless.1
3. Morel’s Statements to IRS Agents
Tomasino next challenges the admission of out-of-court
statements Morel made to IRS agents during questioning. At trial,
the agents recounted how Morel described to them how she had deposited
Treasury checks into various bank accounts, including in one instance
into an account under Tomasino's name. Tomasino contends that the
government introduced these admissions as "co-conspirator
statements" under Federal Rule of Evidence 802(d)(2)(E), and that
the district court failed to make the requisite Petrozziello finding
that "the declarant and the defendant were members of a conspiracy
when the statement was made, and that the statement was made in
furtherance of the conspiracy." United States v. Ciresi, 697 F.3d
19, 25 (1st Cir. 2012). The government retorts that the statements
were introduced as admissions of a party opponent, under Federal Rule
of Evidence 801(d)(2)(A), and thus did not require Petrozziello
findings.
Because Tomasino did not contemporaneously object to the
admission of Morel's statements at trial, plain-error review applies.
1 The concern raised in the Second Circuit case cited by
Sanchez -- United States v. Sperling, 506 F.2d 1323, 1341-42 (2d Cir.
1974) -- does not arise in cases, such as this one, where there was
considerable evidence of the defendant's involvement in the
conspiracy. See United States v. Stackpole, 811 F.2d 689, 696 (1st
Cir. 1987).
- 16 -
See United States v. Rodríguez-Milián, 820 F.3d 26, 33-34 (1st Cir.
2016). To establish plain error, Tomasino must show “(1) that an error
occurred (2) which was clear or obvious and which not only (3) affected
the defendant’s substantial rights, but also (4) seriously impaired
the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Duarte, 246 F.3d 56, 60 (1st Cir.
2001).
It is undisputed that Morel's statements were admissible
against Morel as party admissions. The issue is whether the
government also used Morel's statements to incriminate Tomasino, in
which case they would need to be independently admissible against
Tomasino as "co-conspirator" statements. See United States v. Vega
Molina, 407 F.3d 511, 518-519 (1st Cir. 2005) ("It is well-established
that the out-of-court statements of a non-testifying defendant, even
if admissible against the declarant, may not be used against a jointly
tried codefendant unless otherwise independently admissible against
that codefendant.").
Tomasino stresses that the district court failed sua sponte
to specifically instruct the jury not to consider Morel's statements
against Tomasino. Tellingly, Tomasino's trial counsel never
requested a limiting instruction, let alone argued that the statements
would be sufficiently incriminating vis-à-vis Tomasino as to warrant
their exclusion or separate trials. Cf. Bruton v. United States, 391
U.S. 123, 135-36 (1968) (proscribing the introduction of statements
- 17 -
that are "powerfully incriminating" as to a jointly tried
co-defendant). Tomasino's claim of clear error fails because she has
not shown that the government introduced the statements as evidence
of her (as opposed to Morel's) participation in the scheme, or that
the statements facially incriminated her. And even if there was
error, it neither affected Tomasino's substantive rights nor
seriously impaired the fairness of the proceedings, because Morel's
statements were, at worst, only mildly and indirectly incriminating
as to Tomasino.
4. Testimony of IRS Agent Matthew Amsden
Tomasino’s final argument is that the district court failed
to exclude testimony from IRS Special Agent Matthew Amsden, which
she argues was prejudicial summary witness testimony. Amsden
conducted an investigation of the Dominican Market after receiving
a tip from a local detective. As the government’s final witness at
trial, Amsden synthesized, with the help of summary charts, the
evidence uncovered over the course of the investigation, which
included hundreds of tax returns and voluminous records of related
banking transactions. Over the course of Amsden's lengthy testimony,
Tomasino only objected to one instance of alleged hearsay testimony
and one summary chart. The district court overruled both objections.
On appeal, Tomasino sweepingly attacks the agent’s testimony, arguing
that it improperly bolstered the testimony of other witnesses,
- 18 -
"offered opinions as to ultimate issues, and organized and endorsed
the government's case for the jury."
Although we normally review the district court’s
evidentiary rulings for abuse of discretion, United States v.
Stierhoff, 549 F.3d 19, 27 (1st Cir. 2008), Tomasino did not
contemporaneously object to the bulk of the testimony she now
protests. We review her unpreserved challenges for plain error. See
United States v. Powers, 702 F.3d 1, 10 (1st Cir. 2012).
Tomasino's broad attack on Amsden's testimony fails. This
court has held that “summary testimony . . . is permissible to
summarize complex aspects of a case such as the financial dealings
of a defendant.” United States v. Hall, 434 F.3d 42, 57 (1st Cir.
2006). Moreover, the majority of Amsden's testimony consisted of a
description of his own investigation of the Dominican Market and the
evidence of fraud he uncovered. Such testimony, based on personal
knowledge, is plainly admissible. See United States v. Rose, 802 F.3d
114, 121 (1st Cir. 2015) ("Where an officer testifies exclusively
about his or her role in an investigation and speaks only to
information about which he or she has first-hand knowledge, the
testimony is generally . . . permissible.").
On a few occasions, Amsden briefly referred to testimony
from prior witnesses, but Tomasino did not object, and the testimony
was hardly prejudicial. The one time counsel raised an objection,
the court instructed Amsden to "be careful to describe only what [he]
- 19 -
kn[e]w from [his] knowledge, as opposed to . . . what another witness
may have testified to earlier." The court also soundly overruled the
objection because Amsden was describing evidence he had reviewed
himself in the course of his investigation.
Tomasino's plaint as to Amsden's opinion testimony is also
meritless. Tomasino alleges that Amsden usurped the jury's function
when he opined that the deposit activity for her bank account was
consistent with money laundering and inconsistent with the activity
of a normal convenience store. This inference, which was based on
Amsden's observations of the account activity and his experience with
tax-fraud investigations of small convenience stores, was admissible
lay testimony. See United States v. Maher, 454 F.3d 13, 23 (1st Cir.
2006) (noting that Federal Rule of Evidence 701 allows for "testimony
based on the lay expertise a witness personally acquires through
experience, often on the job").
III.
We affirm each of the defendants' convictions.
- 20 -