United States v. Swenson

• Decision Date: 02 February 2022
• Docket Number: No. 20-20509,20-20509
• Parties: UNITED STATES of America, Plaintiff—Appellee, v. Simone SWENSON, Defendant—Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

25 F.4th 309

UNITED STATES of America, Plaintiff—Appellee,

v.Simone SWENSON, Defendant—Appellant.

No. 20-20509

United States Court of Appeals, Fifth Circuit.

FILED February 2, 2022

Eileen K. Wilson, Carmen Castillo Mitchell, Assistant U.S. Attorneys, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff—Appellee.

Marjorie A. Meyers, Federal Public Defender, Michael Lance Herman, Assistant Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant—Appellant.

Before King, Costa, and Willett, Circuit Judges.

King, Circuit Judge:

Simone Swenson appeals her conviction for mail fraud under 18 U.S.C. § 1341. She also appeals the application of a vulnerable victims sentencing enhancement under U.S.S.G. § 3A1.1(b)(1) and the restitution imposed by the district court. Because we hold that there was sufficient evidence to support Swenson's conviction and that the district court did not err in its sentencing, we AFFIRM.

I. FACTS AND PROCEDURAL HISTORY

On July 29, 2015, a grand jury indicted Simone Swenson on four counts of wire fraud and mail fraud based on a scheme to defraud prospective adoptive parents through her adoption agency, Sans Pareil Center for Children and Family Services, LLC ("Sans Pareil"). As alleged in the indictment, the heart of this scheme was Swenson's practice of "double matching"—matching two prospective families with the same birth mother and receiving payments from both families. In September 2019, the case was tried before a jury. The jury returned a verdict of "not guilty" on the two wire fraud counts (counts 1 and 2), and a verdict of "guilty" on the two mail fraud counts (counts 3 and 4). The district court then granted Swenson's motion for judgment of acquittal only as to count 3.

The sole remaining count of conviction, count 4, stemmed from a check for $1,800 to pay for birth-mother expenses sent to Swenson on September 18, 2013.¹ That check, in turn, was related to the double matching of birth-mother Ashley Smolt with two different prospective birth families—Daniel and Christopher Cuschieri (the "Cuschieris") and Annise and Jason Neidrich (the "Neidriches"). The Cuschieris had previously sent Swenson $13,400 in agency fees on June 7 for an adoption match with a potential birth mother; that match eventually fell through. Similarly, the Neidriches had paid Swenson $11,700 on July 1 for a match that eventually failed.

After that failed match, the Neidriches were matched with birth-mother Smolt in mid-September. As part of that match, they were informed on September 12 by e-mail that their agency fees from the previous failed match would be rolled over, but that they needed to pay $1,800 for Smolt's birth-mother expenses. Annise Neidrich also testified that, after this e-mail, later phone conversations sowed confusion about whether Swenson was requesting more than $1,800 for birth-mother expenses. Annise Neidrich also testified that, while on vacation at Disney World with her family, she "had been in constant voice mail conversation with [Swenson] that whole week" about the Neidriches’ continued efforts to send Swenson payment for the birth-mother expenses. At the same time, Swenson had also matched Smolt with the Cuschieris. Daniel Cuschieri testified that he spoke with Swenson on the phone on September 14 about a match with Smolt.

While working with the Cuschieris on the match with Smolt, Swenson was continuing to solicit money from the Neidriches related to their match with Smolt. After not hearing from the Neidriches about the status of the $1,800 payment, one of Swenson's associates at Sans Pareil, Nancy Nauss, e-mailed Annise Neidrich on September 16 at 11:47 a.m. asking if the Neidriches had sent the payment. Annise responded that she had not, but that she would transfer the money online that day. At 1:14 p.m. that same day, September 16, Swenson e-mailed Nauss stating: "I have to recoup some of these expenses that have gone out. I cannot wait any longer." The subject of the e-mail was "Have to rematch ashley and jonah [the name of Ashley Smolt's boyfriend]."

On September 16, Swenson also continued to facilitate the Cuschieris' match with Smolt. Based on an e-mail Daniel Cuschieri sent on September 16, it can be inferred that Swenson and the Cuschieris spoke that day "in relation to [their] match with [Smolt]." That e-mail was sent on September 16 at 6:55 p.m. and said: "Thanks for taking the time to speak with me today. We're very excited. Never received any info - at your leisure, please send when you can[.]" Both Annise Neidrich and Daniel Cuschieri testified that they did not know Swenson had matched Smolt with anyone else and had promised her child to another family.

The next day, September 17, Swenson and her associates continued to solicit funds from the Neidriches. In response to voicemails left by Annise Neidrich, Nauss e-mailed the Neidriches on September 17. That e-mail stated that Nauss had "talked to [Swenson] again just now and the only payment we need right now is the birthmother expenses...1800.00. Hopefuly [sic] this helps!!! Did you mail or wire the check...just asking since you said that you did it yesterday!!!"

On September 18 at 7:36 a.m., Annise Neidrich e-mailed Nauss that she "finally got a hold of a computer that could open the old Wire Instruction email" and that she would "see if [her] bank can wire or send a check today." The Neidriches' bank issued a cashier's check for $1,800 on September 18. However, by that point, Swenson had already e-mailed Nauss at 3:54 a.m. that "Ashley and Jonah are rematched." At 12:28 p.m. that same day Swenson e-mailed the Cuschieris: "You would like to move forward?" and the Cuschieris responded asking Swenson to "let [them] know when [they] should move [forward] in terms of the match fee remainder."

Swenson responded the next day, September 19, with an itemized list of the fees that needed to be paid. The Cuschieris wired the money that day. In the meantime, the Neidriches continued to exchange e-mails with Sans Pareil that demonstrated a belief that they were still matched with Smolt after September 18. These communications include an e-mail from Nauss to Annise Neidrich regarding a "TB [tuberculosis

] test" and other ways to check for tuberculosis, and Annise Neidrich's response to that e-mail asking if there was "any update on Ashley?" and inquiring about any further paperwork or funds that needed to be sent.

Neither the Neidriches, the Cuschieris, nor Smolt were informed of the true state of affairs. The Neidriches believed they were matched with Smolt and continued "moving forward with the requirements for adoption" until they were falsely told on September 26, after Smolt had given birth, that Smolt had changed her mind on allowing them to adopt her child. The Cuschieris had been led to believe that Smolt had been previously matched with a family (the Neidriches) and that that family had decided not to proceed with the adoption. Smolt, who had chosen the Neidriches to adopt her child, believed that they were providing funds to help with her expenses. After giving birth on September 24, Swenson told Smolt that the Neidriches "had backed out" but that "there was another family [the Cuschieris] already prepared and waiting in the emergency room for [her] child." Smolt, who had never heard about the Cuschieris before and "had only agreed on adopting" her child to the Neidriches, decided to keep the baby. The $1,800 cashier's check sent by the Neidriches for birth-mother expenses was eventually returned to them uncashed. In the end, neither the Neidriches nor the Cuschieris adopted Smolt's child.

In addition to the above accounting of the facts, the jury heard testimony from a former Sans Pareil employee. That employee testified that she believed Swenson's efforts to double match birth mothers with multiple prospective families (such as the incident with Smolt, the Neidriches, and the Cuschieris underlying counts 3 and 4 of the indictment) were intentional and that Swenson stood to benefit financially by taking money from more than one prospective family for the same child. In addition, a district director at the agency which regulates adoption centers testified that she had investigated Sans Pareil and seen evidence of double matching, a practice she had never seen employed by an adoption center in her 25 years with the regulating agency. The jury also heard contravening testimony from Swenson, who testified in her own defense that the Neidriches had not actually been matched with Smolt because "they did not send birth parent expense money to finalize the match." She also testified that any conversations with the Cuschieris were purely speculative, and that Smolt was not actually matched with them until after September 18.

As stated above, Swenson was ultimately convicted on count 4—mail fraud based on a scheme of double matching and misrepresentations that caused the Neidriches to send the $1,800 check on September 18. The district court overruled Swenson's objections, including an objection to the vulnerable victims enhancement, and sentenced Swenson to a below-guidelines 24-month term of imprisonment, a three-year term of supervised release, and a $100 mandatory assessment. The district court also awarded $26,550 in restitution to be paid to the Cuschieris.² Swenson timely appeals her conviction, the application of the vulnerable victims enhancement, and the restitution award.

II. DISCUSSION

We first discuss whether there was sufficient evidence to support Swenson's conviction for mail fraud. We then turn to Swenson's objections to the sentence and restitution order issued by the district court.

A. Sufficiency of the Evidence for the Mail Fraud Conviction

Swenson argues that there was insufficient evidence to support her mail fraud conviction, an argument she raised to the district court in her motion for a judgment of acquittal and which is therefore...