U.S. v. De Nieto

• Decision Date: 30 April 2019
• Docket Number: No. 16-51142,16-51142
• Citation: 922 F.3d 669
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Elizabeth Garcia DE NIETO, Also Known as Betty, Also Known as Elizabeth Jurado, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

922 F.3d 669

UNITED STATES of America, Plaintiff–Appellee,

v.Elizabeth Garcia DE NIETO, Also Known as Betty, Also Known as Elizabeth Jurado, Defendant–Appellant.

No. 16-51142

United States Court of Appeals, Fifth Circuit.

April 30, 2019

Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office Western District of Texas, San Antonio, TX, Zachary Carl Richter, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, Austin, TX, for Plaintiff - Appellee.

Leonard Christopher Morales, Counsel, El Paso, TX, for Defendant - Appellant.

Before SMITH, GRAVES, and WILLETT, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Elizabeth Garcia De Nieto was convicted of conspiracy to defraud the United States, mail fraud, and aiding and abetting aggravated identity theft. De Nieto appeals, challenging the court's calculation of the loss amount, the sufficiency of the evidence to support the verdict that she aided and abetted aggravated identity theft, and the court's disqualification of her original attorney for conflict of interest. We affirm.

I.

De Nieto would send packages from her house in Mexico to her contacts in the United States, including numerous completed tax returns that had been preaddressed to the IRS. De Nieto reimbursed her contacts for their expenses in sending the tax returns to the IRS and sometimes also paid them.

The fraudulent returns followed a pattern. Each (1) listed the taxpayer as single or as head of household, (2) reported income from self-employment as a sole proprietor, usually as a nail technician or a barber, (3) claimed three exemptions: the taxpayer and two dependents, who were usually foster children, nieces, or nephews, and (4) claimed a refund of about $ 5000. Though the names and social security numbers corresponded to real persons, those individuals did not file the returns or authorize De Nieto to file for them. They also did not receive the refunds claimed on the returns because the addresses on the returns were not their real addresses but, instead, were addresses of De Nieto's contacts in the United States, who received the checks.

The contacts would forward the refund checks to De Nieto in Mexico, and she would arrange to have them cashed. When refund checks she expected did not arrive, she called IRS service centers for assistance.

The IRS discovered the scheme by investigating a business cashing a large number of tax refund checks and determining that the refunds were obtained fraudulently. When the IRS visited the addresses that appeared in the returns, it learned about De Nieto from the individuals at those addresses. Consequently, agents began to intercept packages arriving into the United States that had De Nieto's name and return address and contained numerous tax returns that matched De Nieto's pattern. Shortly thereafter, border agents apprehended a man attempting to bring a package of tax returns that matched De Nieto's pattern across the border. The man admitted that he worked for De Nieto and that she had provided him with the returns and had instructed him to mail them in the United States.

Agents then called De Nieto, who explained that she was responsible for the tax returns, and told her to retrieve them at a port of entry in El Paso. A woman named Yolanda Turrubiatez Nuñez came to the port of entry claiming to be De Nieto and asking for the tax returns. After agents arrested Turrubiatez, she admitted that she was not De Nieto.

In the presence of her attorney, Kenneth del Valle, Turrubiatez explained that De Nieto had instructed her to impersonate De Nieto and to retrieve the confiscated tax returns. She also stated that she had witnessed De Nieto preparing the seized returns, that De Nieto had given them to the man apprehended trying to bring them into the United States, and that De Nieto had instructed her to mail other returns to the United States. Turrubiatez pleaded guilty of making a false statement in violation of 18 U.S.C. § 1001 for her attempt to impersonate De Nieto.

De Nieto was arrested when she tried to cross from Mexico. After agents informed De Nieto of her rights, she acknowledged that she had prepared the tax returns seized from the man attempting to bring them into the United States. She also admitted that Turrubiatez had attempted to retrieve the returns for her, but she contradicted Turrubiatez's account by claiming that she had not known that Turrubiatez would impersonate her.

A grand jury charged De Nieto in a ten-count indictment. Counts One and Ten charged her with conspiring to defraud the United States in violation of 18 U.S.C. §§ 371 and 286, respectively. Counts Two through Six charged mail fraud in violation of 18 U.S.C. § 1341. Counts Seven through Nine charged aiding and abetting aggravated identity theft in violation of 18 U.S.C. §§ 2 and 1028A.

Early in the prosecution, Turrubiatez's attorney, del Valle, filed an appearance for De Nieto. Because it was possible that a serious conflict of interest would arise from del Valle's representation of both Turrubiatez and De Nieto, the government moved to disqualify del Valle as De Nieto's attorney. Without holding a hearing or requesting De Nieto's response, the district court granted the motion and appointed new counsel for De Nieto.

II.

At trial, the government presented testimony of De Nieto's contacts in the United States and IRS call center representatives who had spoken with De Nieto when she impersonated taxpayers and called to ask about tax returns. The government also proffered fraudulent returns consistent with De Nieto's pattern, some filed with the IRS and some seized at the border, and refund checks obtained through those fraudulent returns. De Nieto offered no testimony or evidence. The jury found her guilty on all counts.

Based on trial testimony and the IRS's investigation into De Nieto's fraudulent scheme, the presentence investigation report ("PSR") estimated that De Nieto's intended loss exceeded $ 8.2 million. Determining that the PSR's estimate was reliable, the district court adopted this loss amount, triggering an 18-level increase in De Nieto's offense level. The court sentenced De Nieto to 192 months' imprisonment and $ 3,009,999.80 in restitution.

De Nieto appealed, and del Valle filed her opening brief. After the government brought to this court's attention del Valle's previous disqualification, the court suspended briefing and ordered a limited remand "so that a record as to the conflict and possibility of waiver c[ould] be better developed." On that remand, the district court held a hearing regarding whether del Valle could represent De Nieto on appeal. The court considered De Nieto's testimony and each party's contentions and determined that del Valle be disqualified from the appeal. It then appointed new counsel for De Nieto, and this appeal resumed.

On appeal, De Nieto challenges (1) the calculation of the loss amount, (2) the sufficiency of the evidence to support the verdict that she aided and abetted aggravated identity theft, and (3) the disqualification of De Nieto's original attorney for conflict of interest. She also asserts that (4) even if the court's various errors do not warrant reversal on their own, the judgment should be reversed for cumulative error.

III.

De Nieto challenges the district court's reliance on the PSR's loss estimate, contending "that the extrapolation of 1,727 fraudulent returns and the extrapolation of an $ 8,480,425.00 dollars loss are not based on any evidence presented at trial and that the extrapolations are clearly erroneous." She asserts that "most of the [fraudulent returns] were never linked to [her] at trial yet they were used to estimate the [loss] applicable to her." She raises "the problem of multiple conspiracies" engaged in the same criminal activity as was she, and consequently her "criminal liability is left unresolved." De Nieto's contentions are unavailing, and she does not satisfy her burden of demonstrating that the information in the PSR is "inaccurate or materially untrue." United States v. Danhach , 815 F.3d 228, 238 (5th Cir. 2016) (citation omitted).

A.

We review for clear error the factual findings of whether a loss resulted from an offense. United States v. Bazemore , 839 F.3d 379, 387 (5th Cir. 2016) (per curiam). "A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. U.S. Gypsum Co. , 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). But "[t]here is no clear error if the district court's finding is plausible in light of the record as a whole." United States v. Harris , 597 F.3d 242, 250 (5th Cir. 2010) (citation omitted).

Given the district court's "unique position to assess the evidence and estimate the loss" amount, its "loss determination is entitled to appropriate deference." U.S.S.G. § 2B1.1 cmt. 3(C); see also United States v. Hebron , 684 F.3d 554, 560 (5th Cir. 2012). Thus, this court gives "wide latitude" to the district court "to determine the amount of loss." United States v. Jones , 475 F.3d 701, 705 (5th Cir. 2007). The district "court need only make a reasonable estimate of the loss," U.S.S.G. § 2B1.1 cmt. 3(C), based on available information, Jones , 475 F.3d at 705. The loss amount "need not be determined with precision," United States v. Reasor , 541 F.3d 366, 369 (5th Cir. 2008), nor "absolute certainty," United States v. Goss , 549 F.3d 1013, 1019 (5th Cir. 2008). "[I]n making its loss-amount estimate," "[a] district court may rely upon information in the PSR ... so long as that information bears some indicia of reliability." Danhach , 815 F.3d at 238 (internal quotation marks and citation omitted). When a defendant challenges a PSR's loss estimate, "he bears the burden of presenting rebuttal evidence to demonstrate that the information in the PSR is inaccurate or materially untrue." Id. (cleaned up).

The...