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United States v. Tomasino

United States District Court, D. Rhode Island

February 27, 2017

UNITED STATES OF AMERICA
v.
ERIKA TOMASINO, Defendant.

          MEMORANDUM AND ORDER

          WILLIAM E. SMITH, Chief Judge.

         On September 17, 2015, the Government filed a 45-count Indictment charging Defendant Erika Tomasino (“Defendant” or “Tomasino”) and three co-defendants, Juan Vasquez, Belkis Vasquez, and Doris Morel, with Conspiracy to Commit Offenses against the United States, Theft of Government Property, Mail Fraud, Money Laundering, and Aggravated Identity Theft. (See generally Indictment, ECF No. 11.) Tomasino was implicated in eleven of those counts. (Id.) Defendants Juan Vasquez and Belkis Vasquez pleaded guilty to their roles in the conspiracy, and Tomasino and Morel (collectively, “Defendants”) proceeded to trial. Over the course of a six-day jury trial, the Government presented the testimony of thirty-three witnesses and hundreds of exhibits. At the close of the Government's case, the Court denied both Defendants' Rule 29 motions for judgments of acquittal. (9/26/2016 Minute Entry.)

         The Court instructed the jury that, if all elements were met beyond a reasonable doubt, it could find Defendants guilty on the substantive counts of the Indictment as a principal, an aider and abettor, or pursuant to Pinkerton v. United States, 328 U.S. 640 (1946). (See Jury Instructions 23, 34, ECF No. 70.) To convict under Pinkerton, the Court explained, the jury needed to find beyond a reasonable doubt that: Tomasino was guilty on the conspiracy count (Count 1); a co-conspirator committed the substantive count charged (here, Aggravated Identity Theft) in furtherance of the conspiracy; Tomasino was a member of the conspiracy at the time the substantive crime was committed; and Tomasino could have reasonably foreseen that one or more of the co-conspirators might commit the charged act.[1](Jury Instructions 34-35.)

         The case was submitted to the jury and, after deliberations, the jury found Tomasino guilty of Conspiracy to Commit Offenses against the United States (Count 1), Theft of Government Property (Count 2), Mail Fraud (Counts 8-10), Money Laundering (Counts 15, 19, 20, and 24), and Aggravated Identity Theft (Count 39). (Jury Verdict, ECF No. 71.) The jury found Tomasino not guilty on a second count of Aggravated Identity Theft with respect to another alleged victim (Count 40). (Id.; Indictment.) The jury found co-defendant Doris Morel guilty of ten counts of the Indictment, and it acquitted her on a Mail Fraud charge. (Id.)

         Before the Court is Defendant Tomasino's Motion for Acquittal asking the Court to acquit her of Count 39 of the Indictment. (See generally Mot. for J. of Acquittal, ECF No. 78.) Count 39 charged Tomasino with, in connection with the Theft of Government Property and Mail Fraud counts, “knowingly transfer[ing], possess[ing], and us[ing], without lawful authority” a “[t]reasury check made payable to J.R.M. in the amount of $9, 579.00, ” by using J.R.M.'s name and Social Security number, on December 27, 2013.[2] (Indictment 22.) The Government opposes the motion. (See generally Gov't's Resp. to Def.'s Mot. for J. of Acquittal, ECF No. 93.) For the reasons set forth below, the Court DENIES Defendant's Motion.

         I. Legal Standard

         Rule 29(c)(1) of the Federal Rules of Criminal Procedure states that “[a] defendant may move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later.” The Court may only grant a Rule 29 motion for judgment of acquittal “when the evidence and all reasonable inferences to be drawn from the evidence, both taken in the light most favorable to the government, are insufficient for a rational factfinder to conclude that the prosecution has proven, beyond a reasonable doubt, each of the elements of the offense.” United States v. Pimental, 380 F.3d 575, 584 (1st Cir. 2004) (citing United States v. Moran, 312 F.3d 480, 487 (1st Cir. 2002)). “Under this formulation, a court considers all the evidence, direct and circumstantial, and resolves all evidentiary conflicts in favor of the verdict.” Id. (quoting Moran, 312 F.3d at 487); see also United States v. Valerio, 676 F.3d 237, 244 (1st Cir. 2012).

         II. Background[3]

         During the six-day trial, the Government put on evidence from which a reasonable jury could deduce the following, beyond a reasonable doubt. From at least January 2010 through November 2014, Juan Vasquez operated the Dominican Market, a grocery store in Pawtucket, Rhode Island, which served as the hub for the conspiracy at issue. (Trial Tr. 5:11, 23:2-10, Sept. 22-23, 2016, ECF No. 83 (hereinafter “Sept. 22-23, 2016 Trial Tr.”).) During this time, the charged Defendants, as well as unindicted co-conspirators, operated a scheme out of the Dominican Market to cash fraudulently-obtained and stolen Treasury checks. (Sept. 22-23, 2016 Trial Tr. (Agent Amsden).) The Treasury checks exceeded $2.6 million in value and were deposited into at least 21 bank accounts held or controlled by co-conspirators. (See Gov't Exs. 177A, 177B.) Some of the Treasury checks were obtained by filing fraudulent tax returns bearing the names and Social Security numbers of real people. (See Sept. 21, 2016 Trial Tr.) Many of these people were residents of Puerto Rico; this was key to the conspiracy because residents of Puerto Rico, the jury learned, are not required to file tax returns unless they earned income in the continental United States for that tax year. (Sept. 19, 2016 Trial Tr. 7:24-25, 8:1-3, ECF No. 79.) Co-conspirators stole other Treasury checks from the U.S. mail. (Sept. 22-23, 2016 Trial Tr. 21, 24.) At least three fraudulent tax refunds were sent to Tomasino's residence and deposited into the accounts of co-conspirators. (Id. at 24:5-10; Sept. 19, 2016 Trial Tr. 23-26; Gov't Ex. 181.)

         Juan Vasquez employed Defendant Tomasino, as well as co-Defendant Morel, at the Dominican Market for over ten years. (Sept. 22-23, 2016 Trial Tr. 11:20-12:4, 18:3-22.) Tomasino was Vasquez's secretary and bookkeeper, and she also cashed checks at the Dominican Market. (Id. at 18:7-10; 21:3-7.) Tomasino was a bookkeeper for a second business, RI Produce, and was a co-signor on its bank account. (Id. at 18:14-24.) Co- conspirators deposited fraudulently-obtained Treasury checks into accounts belonging to the Dominican Market and RI Produce, along with legitimate payroll checks, in order to cloak the fraudulently-obtained checks from detection. (Id. at 21:3; Trial Tr. Sept. 23, 2016 (Agent Amsden).) Tomasino also told federal agents, before she was indicted, that the market received faxes with personal identifying information, which she would roll up and drop through a hole connecting the market to its basement office. (See Sept. 22-23, 2016 Trial Tr. 26:10-21.)

         Nestor Guerrero, an employee of the Dominican Market, testified that he could not speak, read, or write in English and that Tomasino had assisted him in opening bank accounts that were controlled by Juan Vasquez and Tomasino. (Sept. 22, 2016 Trial Tr. (Nestor Guerrero).) He also stated that, while the Dominican Market did have a check cashing operation for customers, it did not cash Treasury checks because they required additional verification of the individual's identity. (Id.) He stated that he never saw anyone at the Dominican Market cash a Treasury check for a customer. (Id.)

         Harold Sanabria testified that he was Vasquez's friend. (Sept. 21, 2016 Trial Tr. (Harold Sanabria).) Sanbria spent time at the Dominican Market chatting with employees and doing errands for the market. (Id.) He testified that he was disabled and had acute depression. (Id.) He further stated that Tomasino drove him to the bank and waited outside while he deposited checks at Tomasino's direction. (Id.)

         A fraudulent tax return was filed in J.R.M.'s name for tax year 2012, in November 2013. (See Gov't Ex. 229B.) A corresponding refund check issued in December 2013. (See Gov't Ex. 229A.) Tomasino deposited the fraudulently-obtained refund check into the checking account of RI Produce at Citizens Bank. (Id.) As noted above, Tomasino and Juan Vasquez controlled the RI Produce checking account.

         At trial, Evelyn Buckley, Investigative Analyst for the Criminal Investigation Division of the Internal Revenue Service (“IRS”) testified about the IRS's tax return validation processes and, specifically, about the tax return and W-2 filed with the IRS on behalf of J.R.M. for the 2012 tax year. (See Sept. 19, 2016 Trial Tr. 3-17.) Buckley testified that, once a tax return is filed with the IRS, the IRS verifies the return by entering the first four letters of the person's last name and matching it in its system to “make sure it is an accurate and valid Social Security number.” (Id. at 6:18-25.) The Social Security number on the tax return is further cross-referenced with the Social Security Administration. (Id. at 7:1-7.) ...


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