United States v. Julia Nguyen

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-2687
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Julia Ngoc Nguyen, also known as Loan Nguyen
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Southern District of Iowa - Des Moines
____________
Submitted: March 17, 2016
Filed: July 18, 2016
____________
Before MURPHY, BEAM, and GRUENDER, Circuit Judges.
____________
GRUENDER, Circuit Judge.
A jury convicted Julia Ngoc Nguyen of multiple offenses relating to
immigration fraud and government-benefits fraud. At sentencing, the district court,
over Nguyen’s objection, applied a two-level sentencing guidelines enhancement
based on the number of victims affected by Nguyen’s crimes. The court then
sentenced Nguyen to a total of 87 months’ imprisonment and three years’ supervised
release. Nguyen now appeals, raising multiple challenges to her convictions and
sentence. We affirm the convictions, except for count 18. We affirm Nguyen’s
sentence, except that we direct the district court to vacate the $100 special assessment
associated with count 18.
I.
After a lengthy investigation by state and federal law enforcement, a federal
grand jury indicted Nguyen on twenty-two counts, including attempted naturalization
fraud, 18 U.S.C. § 1425(a); theft of government funds, 18 U.S.C. § 641; social-
security fraud, 42 U.S.C. § 1383a(a)(3); false use of a social security number,
42 U.S.C. § 408(a)(7)(B); aggravated identity theft, 18 U.S.C. § 1028A(a)(1); false
statements to a government agency, 18 U.S.C. § 1001(a)(1); health-care fraud,
18 U.S.C. § 1347; and mail fraud, 18 U.S.C. § 1341. During the four-day trial, the
Government presented the testimony of twenty-four witnesses describing the events
that gave rise to these charges.
Regarding the attempted naturalization fraud, the Government called three
witnesses. The first, an immigration officer, discussed the process of applying for
naturalization in the United States. He informed the jury that a successful applicant
must pass an English-proficiency and literacy test and a civics examination
addressing the applicant’s understanding of United States history and government.
He also explained that an applicant is excused from completing these tests if she has
a mental or physical disability and if she submits an N-648 form on which a doctor
certifies that this condition prevents her from learning or demonstrating language
abilities or knowledge of United States history and civics. The Government then
called N.B. and T.B., two immigrants to the United States. Both women testified that
they paid Nguyen to assist them in obtaining citizenship. N.B. previously failed the
English-proficiency and civics tests before she contacted Nguyen. T.B. also struggled
with this requirement, and she failed the tests even after consulting with Nguyen.
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Unbeknownst to these witnesses, Nguyen convinced a physician, Dr. S., to complete
N-648 forms for T.B. and N.B. with falsified medical information, even though
neither woman had a qualifying disability that would excuse her from the English-
proficiency or civics exams. These falsified N-648 forms were then submitted on
T.B.’s and N.B.’s behalf and filed with their applications for naturalization.
To prove the theft-of-government-funds and social-security-fraud counts, the
Government focused on Nguyen’s unlawful receipt of Social Security Income
(“SSI”). The Government presented evidence of bank records and testimony from
bankers and special agents to show that Nguyen received SSI payments intended for
herself and three different individuals—Q.N., C.P., and T.N.—from approximately
2007 through 2014. All of these payments either were mailed to a post-office box
associated with Nguyen or directly deposited into a bank account controlled by
Nguyen. Special agents from the Department of Homeland Security and the Social
Security Administration (“SSA”) testified that C.P. and Q.N. were not present in the
United States during much of the time the government paid benefits intended for
them. Indeed, Q.N. permanently departed the country in December 2008 on a
commercial airplane on which Nguyen also was a passenger. T.N. also left the
country for more than thirty days on multiple occasions without notifying the SSA,
and the government thus incorrectly continued to issue benefits to her. In total,
Nguyen received $33,350.00 of SSI benefits intended for Q.N., $7,115.60 of SSI
benefits intended for C.P., and $33,052.00 of SSI benefits intended for T.N.
As the recipient of these three income streams, Nguyen was required to report
the additional income to the SSA to determine her eligibility for SSI. A claims
representative from the SSA testified that Nguyen reported no income when she
initially applied for SSI benefits and again when she completed the benefit-renewal
statement. In addition, SSA special agents testified that Nguyen submitted a written
statement that contained an admission that she knew she was receiving benefits
illegally.
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With respect to the counts of false statements to a government agency, the
Government presented evidence that, from 2010 through 2012, Nguyen received
subsidized housing from the United States Department of Housing and Urban
Development (“HUD”); however, she failed to disclose her actual income, including
the SSI payments intended for Q.N., C.P., and T.N. Regarding the counts for false
use of a social security number and aggravated identity theft, a witness from the Iowa
Department of Revenue testified that, from 2011 through 2012, after Q.N. had left the
United States permanently, someone fraudulently used Q.N.’s social security number
and name to apply for and receive two $999 payments from the Iowa Rental
Reimbursement Program. These payments were delivered to an address in Des
Moines. Nguyen admitted to SSA agents that she filled out the application on Q.N.’s
behalf and that she “got [Q.N.’s] check.” Similar rebate payments for T.N. and C.P.
were delivered to Nguyen’s post-office box and deposited in Nguyen’s account while
the intended recipients were out of the country.
The Government also presented evidence that Nguyen fraudulently obtained
payments for health-care services from the Consumer-Directed Attendant Care
(“CDAC”) program administered by the state of Iowa. A CDAC income-management
specialist testified that a benefits applicant must submit a doctor-certified Medicaid
level-of-care form indicating that the applicant has a qualifying medical condition.
If the applicant qualifies, Iowa Medicaid funds the cost of her care. Witnesses
testified that Nguyen submitted a form on which she falsely claimed that she used a
cane and required assistance for tasks such as bathing and dressing. As a result of
these misrepresentations, Nguyen received CDAC benefits from July 2012 until
March 2013.
Finally, the Government addressed the mail-fraud counts by examining the
mailings that had been sent to Nguyen’s post-office box regarding Q.N.’s food-
assistance benefits. Because neither Q.N. nor Nguyen reported Q.N.’s permanent
departure from the United States, food-assistance benefits, in the form of an
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electronic benefits card (“EBT”), continued to be mailed to the post-office box
controlled by Nguyen. From 2009 through 2013, the Iowa Department of Human
Services mailed several decision notices and two replacement EBT cards, all of which
were intended for Q.N., to Nguyen’s post-office box. The Government also presented
video footage from a local Walmart showing that a woman matching Nguyen’s
description used these benefits to make purchases while Q.N. was in Vietnam.
At the close of evidence, Nguyen moved for judgment of acquittal on all
counts. The district court denied the motion. Nguyen also objected to the jury
instructions for the attempted naturalization-fraud counts. She maintained that the
court should have instructed the jury that the Government had to prove that N.B. and
T.B., the applicants, were ineligible for naturalization. Nguyen also objected to the
instruction’s definition of “material” as it related to the counts of attempted
naturalization fraud. The district court overruled both objections. Ultimately, the
jury convicted Nguyen on all counts. After the trial, Nguyen renewed her motion for
judgment of acquittal, which the district court denied.
At sentencing, the district court, over Nguyen’s objection, applied a two-level
sentencing guidelines enhancement because Nguyen’s fraud offenses involved ten or
more victims. The district court sentenced Nguyen to concurrent terms of 63 months’
imprisonment for the naturalization-fraud, theft-of-government-funds, health-care-
fraud, and mail-fraud counts. The court also imposed a term of 60 months’
imprisonment, to run concurrently with the first 63-month sentence, for the counts
related to social-security fraud, false use of a social security number, and false
statements to a government agency. Finally, the court imposed a consecutive
sentence of 24 months’ imprisonment for the aggravated identity-theft counts.
Together, her sentences amounted to 87 months’ imprisonment, plus three years of
supervised release. This sentence fell at the bottom of her advisory guidelines range
of 87-92 months’ imprisonment. The court assessed a $100 special assessment for
each count.
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II.
On appeal, Nguyen raises several challenges. She renews her argument that
the district court’s jury instructions on the naturalization-fraud charges were
improper. She also argues that the court erred by denying her motion for judgment
of acquittal on all counts. Third, she contends that the district court improperly
applied a two-level sentencing guidelines enhancement because the Government did
not show that her conduct affected ten or more victims. Finally, she argues that the
court imposed a substantively unreasonable sentence.
A.
Under 18 U.S.C. § 1425(a), “[w]hoever knowingly procures or attempts to
procure, contrary to law, the naturalization of any person, or documentary or other
evidence of naturalization or of citizenship” has committed naturalization fraud. At
trial, the court instructed the jury that the substantive crime of naturalization fraud has
four elements: (1) the defendant provided false information in the naturalization
process, (2) the false information related to a material matter, (3) the defendant acted
knowingly, and (4) naturalization was attempted as a result of the false information.
The court then gave instructions to the jury regarding attempt, noting that the jury
could convict Nguyen of attempted naturalized fraud “if she knowingly intended to
provide false information related to a material matter in the naturalization process and
voluntarily and intentionally carried out some act which was a substantial step toward
procuring naturalization.” Nguyen asserts that the court abused its discretion because
it failed to instruct the jury that the Government had to prove that the applicants
actually were ineligible for naturalization, and she argues that the women were not
ineligible because both later passed the English-proficiency and civics tests. She also
contends that the court erred by instructing the jury that whether a misrepresentation
is material “does not depend on whether [a] person or agency was actually deceived
or misled.”
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We review jury instructions for abuse of discretion. United States v. Farish,
535 F.3d 815, 821 (8th Cir. 2008). In doing so, “[w]e recognize that district courts
are entitled to ‘broad discretion in formulating the jury instructions.’” Id. (quoting
United States v. Hayes, 518 F.3d 989, 994 (8th Cir. 2008)). “We review the
instructions given as a whole and affirm if they fairly and adequately submitted the
issues to the jury.” Id. (quoting Hayes, 518 F.3d at 994).
As authority for her proposed jury instructions, Nguyen relies on Kungys v.
United States, 485 U.S. 759 (1988), a Supreme Court decision that interpreted the
civil denaturalization statute, 8 U.S.C. § 1451(a). This statute provides for the
revocation of a citizen’s naturalization if the “order and certificate of naturalization”
were “illegally procured or were procured by concealment of a material fact or by
willful misrepresentation.” 8 U.S.C. § 1451(a). Interpreting this statute, Kungys held
“that the test of whether [the defendant’s] concealments or misrepresentations were
material is whether they had a natural tendency to influence the decisions of the
Immigration and Naturalization Service.” 485 U.S. at 772. The Court then
considered the “procured by” requirement of § 1451(a). The Court clarified that the
Government need not prove “but for” causation—that is, the Government need not
show that naturalization would have been denied if the misrepresentations or
concealments had not occurred. Id. at 776-77. However, the Court said that the
“procured by” requirement did require the Government to prove more than the mere
fact that a misrepresentation had been made. Id. at 777. The Court stated that proof
of a material misrepresentation creates a rebuttable presumption of ineligibility for
citizenship—a presumption that arises whenever “the Government produces evidence
sufficient to raise a fair inference that a statutory disqualifying fact actually existed.”
Id. at 783 (Brennan, J., concurring); see United States v. Puerta, 982 F.2d 1297, 1304
(9th Cir. 1992) (concluding that this concurrence provides the controlling standard
in 18 U.S.C. § 1425(a) prosecutions for unlawful procurement of citizenship). Under
this rebuttable-presumption framework, the Government satisfies the “procured by”
requirement if it produces evidence making it fair to infer the existence of some
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disqualifying fact. Kungys, 485 U.S. at 776-77. A naturalized citizen may overcome
the presumption if he or she shows “through a preponderance of the evidence, that the
statutory requirement as to which the misrepresentation had a natural tendency to
produce a favorable decision was in fact met.” Id. at 777; see also United States v.
Pirela Pirela, 809 F.3d 1195, 1200 (11th Cir. 2015).
Our court has not yet addressed whether Kungys dictates what the Government
must prove in criminal naturalization-fraud proceedings under § 1425(a). Although
several courts have concluded that Kungys applies in criminal prosecutions under
§ 1425(a), see, e.g., United States v. Latchin, 554 F.3d 709, 713 (7th Cir. 2009), at
least one court has determined that the elements of the civil and criminal
naturalization-fraud statutes are different, see United States v. Maslenjak, 821 F.3d
675, 683 (6th Cir. 2016). Here, we need not answer this unsettled question because
even if we accept Nguyen’s position and assume that Kungys guides the
determination of what the Government must prove in a criminal case under § 1425(a),
we find that Nguyen’s argument lacks merit.
Regarding the materiality issue, the district court instructed the jury that the
Government had to prove that Nguyen presented “false information related to a
material matter in the naturalization process.” The court then instructed the jury that
a statement or representation is “material” if it “has a natural tendency to influence,
or is capable of influencing, the decision of a reasonable person in deciding whether
to engage in a particular transaction.” This language tracks closely with the language
used by the Supreme Court when describing the materiality requirement in Kungys.
485 U.S. at 770. There, the Court stated that “a misrepresentation is material if it has
‘a natural tendency to influence, or [is] capable of influencing, the decision of’ the
decisionmaking body to which it was addressed,” i.e., the agency determining
whether an individual qualifies for naturalization. Id. at 770-71. Contrary to
Nguyen’s argument, Kungys set forth no requirement that the Government prove that
an agency actually be deceived or misled. Indeed, the Court stated: “It has never
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been the test of materiality that the misrepresentation or concealment would more
likely than not have produced an erroneous decision, or even that it would more likely
than not have triggered an investigation.” Id. at 771.1 Accordingly, assuming Kungys
applies, we conclude that the court’s instruction fairly and adequately submitted the
“materiality” issue to the jury.
We find equally unavailing Nguyen’s argument that the court’s instructions did
not adequately explain the “procured by” requirement outlined in Kungys. By
arguing that the Government had to present evidence showing T.B. and N.B. were
ineligible for citizenship, Nguyen overlooks a significant difference between Kungys
and the present offense. Kungys examined a civil denaturalization statute applicable
only after an applicant actually obtained naturalization. In contrast, the criminal
statute at issue in Nguyen’s proceeding applies not only when the applicant actually
obtains naturalization but also when she attempts to do so. In attempt cases, a
defendant may be convicted regardless of whether the attempt is successful. See
United States v. Bauer, 626 F.3d 1004, 1007 (8th Cir. 2010) (“[A] defendant’s
success in attaining his criminal objective is not necessary for an attempt
conviction.”). Thus, the fact that T.B. and N.B. possibly could have passed the tests
and procured naturalization without the material misrepresentation is no more
relevant to the attempt charge or conviction than the fact that Nguyen ultimately was
unsuccessful in procuring naturalization for these women. See United States v.
1
When discussing the “materiality” requirement of the civil denaturalization
statute in Kungys, the Supreme Court explained that the term has the same meaning
as “materiality” under 18 U.S.C. § 1001. Kungys, 485 U.S. at 770 (“While we have
before us here a statute revoking citizenship rather than imposing criminal fine or
imprisonment, neither the evident objective sought to be achieved by the materiality
requirement, nor the gravity of the consequences that follow from its being met, is so
different as to justify adoption of a different standard.”). In interpreting materiality
under § 1001, our court previously has applied a consistent definition, noting that
materiality “does not require proof that the government actually relied on the
statement.” United States v. Mitchell, 388 F.3d 1139, 1143 (8th Cir. 2004).
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Rehak, 589 F.3d 965, 971 (8th Cir. 2009) (noting that factual impossibility is not a
defense to inchoate offenses such as attempt). When an individual is charged with
attempt, it is enough for the Government to show: (1) the defendant intended to
commit the substantive offense, and (2) the defendant took a substantial step toward
doing so. See United States v. Young, 613 F.3d 735, 742 (8th Cir. 2010) (defining the
elements of attempt). And here, the instructions described these requirements clearly.
The court instructed the jury that the charge of attempted naturalization fraud required
the Government to prove that Nguyen “knowingly intended to provide false
information related to a material matter in the naturalization process and voluntarily
and intentionally carried out some act which was a substantial step toward procuring
naturalization.” The court likewise instructed the jury that the underlying substantive
offense required the Government to prove more than just the fact that naturalization
was attempted; indeed, the court stated that the Government had to prove that
“naturalization was attempted as a result of the false information.” We conclude that
the instructions adequately reflect Kungys’s treatment of the “procured by”
requirement as it applies to the crime of attempted naturalization fraud. Assuming
Kungys applies, we find that the instructions fairly submitted the issue to the jury.
We therefore reject Nguyen’s arguments related to the jury instructions.
B.
We next consider Nguyen’s contention that the evidence was insufficient to
support the jury’s verdict. “When reviewing the sufficiency of the evidence, we
consider the evidence in the light most favorable to the verdict rendered and accept
all reasonable inferences which tend to support the jury verdict.” United States v.
Ramirez, 362 F.3d 521, 524 (8th Cir. 2004). Although “the evidence need not
preclude every outcome other than guilty, we consider whether it would be sufficient
to convince a reasonable jury beyond a reasonable doubt.” Id. We will reverse for
insufficient evidence only if no reasonable jury “could have found the essential
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elements of the crime beyond a reasonable doubt.” United States v. Inman, 558 F.3d
742, 747 (8th Cir. 2009) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
To convict Nguyen on the attempted naturalization-fraud counts, the
Government had to prove that Nguyen “knowingly procure[d] or attempt[ed] to
procure, contrary to law, the naturalization of any person, or documentary or other
evidence of naturalization or of citizenship.” 18 U.S.C. § 1425(a). Once again
accepting Nguyen’s starting premise and assuming that the proof requirements
identified by the Supreme Court in Kungys apply to criminal proceedings under
§ 1425(a), we conclude that the Government presented sufficient evidence.
First, the evidence clearly established that Nguyen made misrepresentations in
the naturalization-application process and that her misrepresentations were willful.
See United States v. Hirani, No. 15-1583, 2016 WL 3064743, at *4 (8th Cir. May 31,
2016) (noting that Kungys requires the Government to prove these two elements in
civil denaturalization proceedings in addition to proving materiality and “procured
by” causation). The relevant misrepresentations were the marks on the N-648 forms
indicating that T.B. and N.B. suffered from ailments that would excuse them from the
English-proficiency and civics exams. These misrepresentations were willful because
Nguyen convinced Dr. S. to sign N-648 forms attributing fabricated medical ailments
to each woman after Nguyen had been paid to assist them in obtaining naturalization.
In addition, the evidence showed that the misrepresentations were material. As the
immigration officer explained, the falsified medical information had a natural
tendency to influence a naturalization official by leading the official to conclude that
N.B. and T.B. should be exempted from the English-proficiency and civics-test
requirements. Finally, ample evidence supported the jury’s inference that Nguyen
attempted to procure naturalization through these misrepresentations because she
believed N.B. and T.B. would fail these tests. N.B. failed the tests on her first attempt
to obtain citizenship. T.B. failed the civics and English-proficiency tests even after
consulting with Nguyen. That Nguyen specifically sought a means to bypass the
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language and civics tests after meeting these women and accepting their payment
bolsters the inference that T.B. and N.B., at least in Nguyen’s view, lacked the ability
to pass the required tests. In order to obtain an exemption for these women, Nguyen
concocted a scheme in which she would facilitate the submission of fraudulent N-648
forms. Thus, naturalization was attempted through the misrepresentations. Viewing
the evidence in the light most favorable to the verdict, we conclude that a reasonable
jury could have found that Nguyen knowingly intended to provide false information
related to a material matter in the naturalization process and that she voluntarily and
intentionally carried out a substantial step toward procuring naturalization for N.B.
and T.B. Therefore, we reject Nguyen’s challenge to the attempted naturalization-
fraud counts.
We next turn to Nguyen’s challenge to her conviction on the counts for false
use of a social security number and aggravated identity theft. In order to convict
Nguyen on these counts, the Government had to prove that Nguyen (1) for any
purpose, (2) with the intent to deceive, (3) represented a particular social security
account number—here, a number ending in 3138—to be hers, (4) which
representation is false. See United States v. McKnight, 17 F.3d 1139, 1143 (8th Cir.
1994). Nguyen contends that the Government’s proof failed on the third element
because the evidence showed that she never represented that Q.N.’s social security
number, the social security number ending in 3138, was assigned to her or was
otherwise connected to her name. We find this argument unavailing. The focus of
the inquiry is not whether Nguyen stated that the number ending in 3138 was
connected to her name. Instead, the focus is whether she falsely represented herself
as the person who had been assigned number 3138 for some purpose and with an
intent to deceive. See id.; accord United States v. Barel, 939 F.2d 26, 34 (3d Cir.
1991) (affirming conviction where the defendant used a false name and social
security number to open bank accounts); United States v. Holland, 880 F.2d 1091,
1095 (9th Cir. 1989) (affirming conviction for use of false social security numbers to
obtain illegitimate paychecks); United States v. Darrell, 828 F.2d 644, 647-48 (10th
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Cir. 1987) (affirming conviction where the defendant used a false name and social
security number to obtain a loan and gave police false identification).
Here, the evidence showed that Nguyen used Q.N.’s social security number in
order to obtain Iowa rent-reimbursement payments. Indeed, an employee of the Iowa
Department of Revenue testified that someone fraudulently used Q.N.’s social
security number and name to apply for payments from the Iowa Rental
Reimbursement Program after Q.N. had departed the country. These payments were
sent to an address in Des Moines belonging to an acquaintance of Nguyen. The jury
also heard a recording of Nguyen’s interview with SSA agents, in which Nguyen
acknowledged that she filled out the application for rent reimbursement using Q.N.’s
information and that she “got [Q.N.]’s check.”2 These admissions and the
accompanying evidence were sufficient to show that Nguyen falsely represented
herself as Q.N., the individual with a social security number ending in 3138, in order
to obtain rent-reimbursement benefits.3
2
Nguyen contends that the admissions made to the SSA agents were “dubious”
because Nguyen lacked counsel during the three-hour interview and because the SSA
agent who translated Nguyen’s statements was not a certified translator. We reject
these contentions in short order. The SSA agents testified that Nguyen made her
statements voluntarily, and Nguyen never raised an objection claiming otherwise at
trial. Although the translating SSA agent conceded on cross-examination that he was
not a certified translator, he also informed the jury that he was a native Vietnamese
speaker, that he had no difficulty understanding Nguyen, and that he was confident
in his translation. See United States v. Perez, 663 F.3d 387, 394 (8th Cir. 2011)
(noting that our court will not second-guess a jury’s decision to credit a translation
where the defendant challenged the translator’s linguistic abilities on
cross-examination and attempted to demonstrate to the jury why it should have found
the translations untrustworthy).
3
Nguyen’s only argument regarding the sufficiency of the evidence for the
identity-theft counts is that these convictions required the Government to prove that
she committed the crime of false use of a social security number. Because we find
that the convictions for false use of a social security number were proper, we
necessarily reject this challenge to the identity-theft convictions.
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Nguyen next argues that the evidence was insufficient to support her conviction
for fraudulent receipt of health-care benefits. Conviction on these counts required the
Government to prove that Nguyen:
knowingly and willfully executed, or attempted to execute: a scheme or
artifice—(1) to defraud any health care benefit program; or (2) to obtain,
by means of false or fraudulent pretenses, representations, or promises,
any of the money or property owned by, or under the custody or control
of, any health care benefit program in connection with the delivery of or
payment for health care benefits, items, or services.
United States v. Refert, 519 F.3d 752, 758 (8th Cir. 2008) (quoting United States v.
Boesen, 491 F.3d 852, 856 (8th Cir. 2007)). Nguyen contends that no reasonable jury
could have found her guilty on this count because the evidence did not establish that
she actually submitted the falsified medical form to Iowa’s Department of Human
Services in order to obtain CDAC benefits. She further argues that the jury should
not have credited statements made by Dr. S., Nguyen’s physician, because that
physician admitted fraudulently completing the N-648 forms for T.B. and N.B.
We see no reason to reverse Nguyen’s conviction on these counts. The
evidence at trial allowed the jury to find that Nguyen altered and submitted the
medical-certification form to show that she suffered from qualifying disabilities. An
Iowa Department of Human Services income-maintenance worker testified that Iowa
Medicaid received a level-of-care certification form for Nguyen in April 2012. The
witness further testified that the form came to the office from a service worker who
would have received it from Nguyen. Nguyen contends that the jury should not have
inferred that she falsified the information because the form was signed by Dr. S.
However, Dr. S. testified that she never indicated on the form that Nguyen used a
cane or required assistance for bathing or dressing. Indeed, Dr. S. stated that
someone changed the form after she completed it. Although Nguyen argues that Dr.
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S. was not credible, we are “‘obliged to defer to the jury’s determination of the
credibility of the witnesses,’ and [we] ‘will not second-guess the jury’s credibility
determination of the Government’s witnesses.’” United States v. Sturdivant, 513 F.3d
795, 800 (8th Cir. 2008) (quoting United States v. Shepard, 462 F.3d 847, 867 (8th
Cir. 2006)). Viewing the evidence in the light most favorable to the verdict, we find
that a reasonable jury could have convicted Nguyen on these counts.
We next turn to Nguyen’s contention that the evidence was not sufficient to
support her convictions for mail fraud on counts 15, 18, 19, 21, and 22. To establish
mail fraud, the Government had to prove: “(1) a scheme to defraud by means of
material false representations or promises, (2) intent to defraud, (3) reasonable
foreseeability that the mail would be used, and (4) that the mail was used in
furtherance of some essential step in the scheme.” United States v. Bennett, 765 F.3d
887, 893 (8th Cir. 2014) (quoting United States v. Cole, 721 F.3d 1016, 1021 (8th
Cir. 2013)). “[I]t is not necessary to show that the defendant mailed anything himself,
it is sufficient to show that he caused the mailing.” United States v. Brickey, 426 F.2d
680, 684 (8th Cir. 1970). One “causes” the mails to be used where he “does an act
with knowledge that the use of the mails will follow in the ordinary course of
business, or where such use can reasonably be foreseen, even though not actually
intended.” Pereira v. United States, 347 U.S. 1, 8-9 (1954).
Nguyen argues that the two mailings underlying counts 18 and 22 were not sent
“for the purpose of executing the scheme or artifice.” United States v. Leyden, 842
F.2d 1026, 1028 (8th Cir. 1988). These mailings include: (1) an April 13, 2012
notification informing Q.N. that his benefits would be canceled and (2) a June 6, 2012
notice stating that Q.N. could not receive new benefits because he already was
deemed eligible to receive benefits (a notice that was inconsistent with the April 13
notification of cancellation). Nguyen contends that these mailings cannot support her
conviction because they did not “actually further[]” her plan. Id. However, the “in
furtherance” requirement of the mail-fraud statute does not require that a mailing
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itself be inherently criminal or serve some essential role in the underlying scheme.
United States v. Freitag, 768 F.2d 240, 243 (8th Cir. 1985). Instead, “[m]ailings are
considered to be in execution of a fraudulent scheme if they are ‘sufficiently closely
related,’ or ‘incident to an essential part of the scheme.’” United States v. Boyd, 606
F.2d 792, 794 (8th Cir. 1979) (internal citations omitted).
The “in furtherance” requirement, however, does serve to exclude mailings that
actually oppose the scheme, such as mailings that “clearly indicate[] that [the
defendant] was committing fraud.” Leyden, 842 F.2d at 1030. The purpose of such
mailings “conflicts with, rather than promotes, the scheme.” Id. (quoting United
States v. Castile, 795 F.2d 1273, 1278 (6th Cir. 1986). Such mailings therefore could
not have formed “part of the execution of the scheme as conceived by the perpetrator
at the time.” Schmuck v. United States, 489 U.S. 705, 715 (1989). We conclude that
the April 13 benefits-cancellation notice underlying count 18 cannot support
Nguyen’s mail-fraud conviction. This notification stated that the government had
learned that Q.N. was out of the country and that, as a result, the government was
canceling Q.N.’s food-assistance benefits. The purpose of this mailing directly
opposed Nguyen’s scheme: it both suggested that the government was growing wise
to some fraudulent activity, and it indicated that Nguyen’s plan to continue receiving
benefits had been foiled. Applying the general rule that such mailings are not
covered under § 1341, we find that this notice could not support Nguyen’s conviction.
See Leyden, 842 F.2d at 1027, 1030 (holding that an insurance company’s responsive
pleading denying coverage and alleging that the insured had made material
misrepresentations could not support a mail-fraud conviction for a defendant who had
attempted insurance fraud); Castile, 795 F.2d at 1278 (holding that an insurance
company’s investigative letter indicating suspicion of insurance fraud could not
support a mail-fraud conviction).
The Government attempts to escape this conclusion by arguing that the
cancellation notice actually “enabled [Nguyen] to take whatever actions she deemed
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necessary to try and get the benefits restored, to try and avoid detection as the culprit,
or both.” We conclude that this is not enough to satisfy the “in furtherance”
requirement. Were it sufficient, the “in furtherance” requirement would lose
meaning: even those documents directly opposing the scheme would suffice to
support conviction because they inform the fraudster of the need to pursue a new
scheme. This outcome runs contrary to the Supreme Court’s guidance in Schmuck
that “[t]he relevant question at all times is whether the mailing is part of the execution
of the scheme as conceived by the perpetrator at the time, regardless of whether the
mailing later, through hindsight,” may prove to have a different effect. 489 U.S. at
715. Accordingly, we hold that the district court erred when it found that the April
13 mailing supported a mail-fraud conviction. However, because the sentence for this
conviction ran fully concurrently with Nguyen’s 63-month sentence on multiple
properly obtained counts of conviction—including seven other mail-fraud
counts—we do not disturb the prison sentence. See United States v. Grimes, 702 F.3d
460, 469 (8th Cir. 2012) (finding that a remand for resentencing was unnecessary
because the district court had imposed concurrent sentences for five vacated
convictions and one affirmed conviction); United States v. Easom, 569 F.2d 457, 459
(8th Cir. 1978) (finding resentencing unnecessary after vacating one conviction
because the defendant was properly convicted of another, similar offense, and his
sentences for the valid and invalid convictions ran concurrently); accord United
States v. Hall, 613 F.3d 249, 257 (D.C. Cir. 2010); United States v. Hernandez, 730
F.2d 895, 899 (2d Cir. 1984). We remand to the district court with instructions to
vacate the conviction on count 18 and the special assessment of $100 associated with
it.4
Judged under the same “in furtherance” standard, the June 6 mailing underlying
count 22 supports conviction. Although this mailing purported to deny new benefits,
4
At oral argument, Nguyen’s counsel conceded that resentencing was
unnecessary because this limited remand was the proper remedy.
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it did not conflict with Nguyen’s overall scheme to obtain benefits using Q.N.’s
identity. The mailing contradicted the April 13 notice and informed Nguyen that the
state never actually canceled Q.N.’s food assistance and that Nguyen needed to take
no action in order to continue receiving benefits. Because this mailing reassured
Nguyen that her scheme was working, the June 6 notice was incident to Nguyen’s
scheme to defraud the government. See Boyd, 606 F.2d at 794; Freitag, 768 F.2d at
243-44 (evidence was sufficient to support mail-fraud conviction for check-kiting
scheme where bank statements routinely sent by mail allowed the defendants “to
know and keep track of the accounting balances in each account”). Consistent with
this notice, Nguyen received EBT cards intended for Q.N. after June 6. We thus find
that the “in furtherance” requirement poses no barrier to Nguyen’s conviction on
count 22 because the mailing did not oppose the scheme.
We next turn to Nguyen’s challenges rooted in the foreseeability element of
mail fraud. Nguyen contends that three mailings were not foreseeable and therefore
could not support mail-fraud convictions: (1) an automatically generated letter from
the Department of Human Services informing Q.N. of a change in the law (count 15);
(2) an EBT card sent on July 1, 2012, after Q.N.’s benefits allegedly had been
canceled (count 21); and (3) a second EBT card sent on January 9, 2013, again after
Q.N.’s benefits allegedly had been canceled (count 19). In mail-fraud offenses,
mailings are foreseeable as long as the defendant causes the mailings—i.e., the
defendant “does an act with knowledge that use of the mails will follow in the
ordinary course of business, or where such use can reasonably be foreseen, even
though not actually intended.” United States v. Fuel, 583 F.2d 978, 983 (8th Cir.
1978) (quoting Pereira, 347 U.S. at 8-9).
Under this standard, the automatically generated mailing underlying count 15
was foreseeable. The evidence supported the conclusion that Nguyen caused the state
to send her Q.N.’s benefits. Routine mailings, such as the letter updating Nguyen
regarding Q.N.’s benefit status, would be expected to follow in the ordinary course
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of delivering these benefits. The two mailed EBT cards, underlying counts 19 and
21, likewise were foreseeable. Nguyen argues that she could not foresee these
mailings because the April 13 notification stated that Q.N.’s benefits would be
canceled. However, after Nguyen received the June 6 notice informing Nguyen that
Q.N.’s benefits never were canceled, she reasonably could have foreseen that the
Government once again would use the mail to deliver Q.N.’s benefits. The EBT cards
underlying counts 19 and 21 arrived after this June 6 notice. Therefore, her
foreseeability argument fails.
Finally, we address Nguyen’s argument that the court should have granted her
motion for judgment of acquittal on all remaining counts, including the remaining
mail-fraud counts and the counts of theft of federal government funds, social-security
fraud, and false statements to HUD. Nguyen contends that her conviction on these
counts required proof of her connection to post-office box 8015. And she argues that
the Government never proved that she exercised sole control over this box, thus
rendering it possible that someone else was responsible for the criminal acts.
We conclude that the evidence sufficiently established Nguyen’s connection
to this post-office box. A post-office employee testified that Nguyen’s husband
initially applied for post-office box 8015 and that Nguyen was given individual
authorization to receive mail in the box in October 2008. The jury also heard that
benefit checks for several individuals had been mailed to this box after Nguyen
obtained authorization. Special Agent Fenton of the SSA testified that benefit
payments intended for the same individuals were then deposited into Nguyen’s bank
accounts or into accounts she held jointly with her daughter. As stated earlier, the
evidence need not preclude every outcome other than guilty, and here, based on this
evidence, we conclude that a reasonable jury could have found beyond a reasonable
doubt that Nguyen committed the charged offenses. See Ramirez, 362 F.3d at 524.
Accordingly, we reject Nguyen’s challenge to the sufficiency of the evidence on the
counts that arose from her use of the post-office box.
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C.
We next turn to Nguyen’s arguments related to sentencing. Nguyen contends
that the court erred by enhancing her sentence under USSG § 2B1.1(b)(2)(A) because
her offense did not involve at least ten victims. At sentencing, the district court
rejected her challenge, stating that Nguyen’s ten victims included “governmental
victims,” “banks,” and “the persons whose identities were usurped for purposes of
improper financial gain.” Nguyen concedes on appeal that the state of Iowa, the
federal government, an individual named H.L., and U.S. Bank qualify as victims.
However, she argues that the court erred by finding that her offenses victimized at
least six other individuals or entities. We review the court’s factual finding regarding
the number of victims for clear error. United States v. Cunningham, 593 F.3d 726,
732 (8th Cir. 2010). The court’s finding must be supported by a preponderance of the
evidence. United States v. Miell, 661 F.3d 995, 1000 (8th Cir. 2011).
The Guidelines define the term “victim” as “any person who sustained any part
of the actual loss” resulting from the defendant’s criminal offense. USSG § 2B1.1
cmt. n.1. In cases involving means of identification, a “victim” alternatively is
defined as “any individual whose means of identification was used unlawfully or
without authority.” USSG § 2B1.1 cmt. n.4(E). Victims may be “individuals,
corporations, companies, associations, firms, partnerships, societies, and joint stock
companies.” USSG § 2B1.1 cmt. n.1. Applying these definitions, we conclude that
the court did not clearly err when it concluded that there were ten or more victims of
Nguyen’s frauds.
First, the evidence at trial established that Nguyen fraudulently used the
identifying information of Q.N., C.P., and T.N. to receive SSI and other benefits. See
United States v. Adejumo, 772 F.3d 513, 528 (8th Cir. 2014), cert. denied sub nom.
Okeayainneh v. United States, 575 U.S. ---, 135 S. Ct. 1869 (2015) (considering
evidence presented at trial to determine the number of victims under USSG § 2B1.1).
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A special agent from the SSA testified that benefit checks had been issued for these
individuals and either sent to the post-office box associated with Nguyen or directly
deposited into Nguyen’s bank accounts. The vast majority of these checks were
issued while the intended recipients were out of the country. Because the evidence
showed that Nguyen unlawfully used the identifying information of these individuals,
they qualified as victims under § 2B1.1. See id.
In addition, the Government presented evidence showing that Nguyen
unlawfully used the identities of two other individuals—C.N. (Nguyen’s sister-in-
law) and N.P.—to obtain food assistance. C.N. stated in an interview with an SSA
agent that she never had applied for or received food assistance. However, the agent
determined that the state of Iowa had paid food-assistance benefits intended for C.N.
using a Des Moines address associated with Nguyen. Benefits also were paid to N.P.
at the same Des Moines address associated with Nguyen, even though N.P. was not
in the country at the time. Such evidence supports the court’s conclusion that Nguyen
used the means of identification of these two individuals unlawfully to obtain
benefits.5 Thus, they also qualified as victims.
Finally, the presentence investigation report (“PSR”) listed six other
individuals—N.D., S.N., P.P., T.L., T. D., and H.T.—named as payees on the checks
deposited into an account maintained by Nguyen. Nguyen objected to the inclusion
of these individuals as victims, and she alleges that the court clearly erred by
overruling her objection because the evidence did not show that they “lost money at
the hands of [] Nguyen.” We find this contention unavailing. As an initial matter,
this objection relies on an improperly limited definition of “victim.” In cases
involving means of identification, “victims” include not only those who suffered
5
Under the relevant Guidelines provision, “means of identification” refers to
any name or number used to identify a specific, non-fictitious individual, including
the individual’s name, date of birth, or official identification number. USSG § 2B1.1.
cmt. n.1 (citing 18 U.S.C. § 1028(d)(7)).
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financial losses but also those whose means of identification were used unlawfully.
USSG § 2B1.1 cmt. n.4(E). We find that a preponderance of the evidence supports
the district court’s conclusion that Nguyen used these individuals’ means of
identification unlawfully. During trial, a bank employee testified that checks
intended for these individuals were deposited into an account maintained by Nguyen.
The employee specifically noted that, on several occasions, the individuals named as
payees on the checks were not authorized to make transactions on the account. This
fact undermines Nguyen’s suggestion that the named payees made the deposits
themselves. Because Nguyen maintained the account, the court fairly could conclude
that Nguyen unlawfully used the identities of these individuals listed in the PSR to
obtain funds as part of her scheme. In light of the evidence, we see no clear error in
the court’s decision to include these individuals as victims. Having found no clear
error for the above-named individuals, we uphold the two-level enhancement. We
thus need not address Nguyen’s contention that any other individuals or entities
identified by the court failed to qualify for the purpose of USSG § 2B1.1(b)(2)(A).
We conclude by addressing Nguyen’s challenge to the substantive
reasonableness of her sentence. We review for abuse of discretion. United States v.
Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). In substantive-reasonableness
review, we “take into account the totality of the circumstances.” Id. (quoting Gall v.
United States, 552 U.S. 38, 51 (2007). “A sentence is substantively unreasonable ‘if
the district court fails to consider a relevant factor that should have received
significant weight, gives significant weight to an improper or irrelevant factor, or
considers only the appropriate factors but commits a clear error of judgment in
weighing those factors.’” United States v. Boelter, 806 F.3d 1134, 1136 (8th Cir.
2015) (per curiam) (quoting United States v. Lozoya, 623 F.3d 624, 626 (8th Cir.
2010)). “A sentence within the Guidelines range is accorded a presumption of
substantive reasonableness on appeal.” United States v. Vaughn, 519 F.3d 802, 805
(8th Cir. 2008) (quoting United States v. Robinson, 516 F.3d 716, 717 (8th Cir.
2008)).
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Nguyen contends that her sentence was substantively unreasonable because the
court did not adequately weigh the mitigating factors discussed in her PSR. However,
the record contradicts this assertion. At sentencing, the district court explained that
it considered the PSR, the mitigating factors presented by Nguyen, and the statutory
factors listed in 18 U.S.C. § 3553. See United States v. Townsend, 617 F.3d 991, 994
(8th Cir. 2010) (per curiam) (“Although a district court is required to consider each
of the § 3553(a) factors in determining the proper sentence to impose, it need not
‘categorically rehearse each of the [§] 3553(a) factors on the record when it imposes
a sentence as long as it is clear that they were considered.’” (quoting United States
v. Dieken, 432 F.3d 906, 909 (8th Cir. 2006) (alteration in original))). Although the
court acknowledged Nguyen’s possible mental and physical impairments and her
claims that she lacked understanding of the criminal nature of her conduct, the court
weighed heavily the “very serious” nature of Nguyen’s offenses, which involved
fraud committed in “a very large number of means and ways” that occurred
“repeatedly over a long period of time.” The court also expressed a desire to protect
the public from Nguyen, noting that she engaged in additional criminal activity even
while on release following her conviction. The court stated its aim to deter such
criminal conduct in the future.
We afford the district court wide latitude to consider these and other relevant
factors and to assign some factors greater weight than others. United States v.
Deering, 762 F.3d 783, 787 (8th Cir. 2014). A district court does not abuse its
discretion “[s]imply because [it] weigh[s] the relevant factors more heavily than [the
defendant] would prefer.” United States v. Richart, 662 F.3d 1037, 1054 (8th Cir.
2011). Indeed, “it will be the unusual case when we reverse a district court
sentence—whether within, above, or below the applicable Guidelines range—as
substantively unreasonable.” Id. at 1053 (quoting Feemster, 572 F.3d at 464). Based
on the record, we conclude that Nguyen has not rebutted the presumption of
reasonableness accorded her sentence of 87 month’s imprisonment, a sentence at the
bottom of her advisory guidelines range. The court did not abuse its discretion.
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III.
For the foregoing reasons, we direct the district court to vacate Nguyen’s
conviction on count 18, including the associated $100 special assessment. We
otherwise affirm Nguyen’s convictions and sentence.
______________________________
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