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United States v. Pena

United States Court of Appeals, First Circuit

December 14, 2018

ALBA PENA, a/k/a Alba Toribio, Defendant, Appellant. UNITED STATES OF AMERICA, Appellee,
INDRANIS ROCHEFORD, Defendant, Appellant.


          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.

          Before Torruella, Selya and Barron, Circuit Judges.


         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.


         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 . . . 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.

         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.


         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 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 ...

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