APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS [Hon. Timothy S. Hillman, U.S.
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
Torruella, Selya and Barron, Circuit Judges.
BARRON, CIRCUIT JUDGE.
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.
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.
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."
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.
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.
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
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.
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.
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)).
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)).
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