Appeals from the United States District Court for the Western
District of Texas
CLEMENT, DUNCAN, and OLDHAM, Circuit Judges.
federal jury convicted Roberto Trinidad del Carpio Frescas of
engaging in wire fraud and then laundering the proceeds. He
cheated Mexican "investors" out of at least $5
million in a multi-year transnational Ponzi scheme. Del
Carpio nonetheless brings a variety of challenges to his
convictions, restitution order, and sentence. We affirm the
convictions and restitution order in full. But the district
court's Guidelines calculation was off by a single point.
So under current Supreme Court precedent and the facts of
this case, we have no choice but to vacate the sentence and
remand for the limited purpose of resentencing.
police first learned of del Carpio's Ponzi scheme in
2011. Their first witness was Luz Elva Martinez Rivera. In
her thirty years working as a school teacher in Mexico,
Martinez Rivera had saved $165, 000. Believing del
Carpio's promise that he would pay her 15% interest, she
drove from her home in Chihuahua, Mexico, to El Paso, Texas,
and deposited every penny into del Carpio's bank account.
She lost everything.
speaking with Martinez Rivera, Detective Nichole Ramm spoke
with more than 100 other victims. Most were from Chihuahua,
Mexico. All had similar stories to tell: Del Carpio held
himself out as a stock broker, solicited their investments,
promised them big returns, and took their money. When they
asked for status updates, del Carpio often responded
evasively. Eventually he stopped responding entirely.
government charged del Carpio with twenty-five counts of wire
fraud and ten counts of money laundering. 18 U.S.C.
§§ 1343, 1957(a). Specifically, del Carpio
"caused [certain writings or signals] to be transmitted
by means of wire communication in foreign and interstate
commerce" to further a scheme to defraud others of their
money. Then he transferred those ill-gotten gains to himself
and his family for personal use. An eleven-day trial included
testimony from three investigators, three bank employees, ten
of the victims named in the indictment, and seven other
victims impacted by the scheme. The jury convicted del Carpio
on thirty-four counts.
to the sentencing hearing, the probation office prepared a
Pre-Sentence Report ("PSR") under the 2015
Sentencing Guidelines. The PSR grouped all thirty-four counts
together under Chapter 3, Part D of those Guidelines. It then
identified money laundering as the relevant offense guideline
for the group.
the PSR identified the base offense level for money
laundering. The money laundering guideline required a base
offense level equal to "[t]he offense level for the
underlying offense for which the laundered funds were
derived"-in this case, wire fraud. U.S.S.G. §
2S1.1(a). Based on the wire fraud provisions, the PSR
assigned a base offense level of 7. Then the PSR identified
the relevant specific offense characteristics under Chapter
Two and two adjustments under Chapter Three of the
• 18 points under § 2B1.1(b)(1)(J) because del
Carpio caused more than $3.5 million in economic loss;
• 6 points under § 2B1.1(b)(2)(C) because del
Carpio caused hardship to more than 25 people;
• 2 points under § 2B1.1(b)(10)(B) because del
Carpio committed much of his scheme from outside the United
• 1 point under § 2S1.1(b)(2)(A) because del Carpio
was convicted of money laundering under 18 U.S.C. §
• 2 points under § 3B1.3 because del Carpio abused
his victims' trust; and
• 4 points under § 3B1.1(a) because del Carpio
organized or led a scheme "that involved five or more
participants or was otherwise extensive."
those together, the PSR calculated an offense level of 40.
Del Carpio fell in criminal history category I. So the
Guidelines yielded a range of 292 to 365 months in prison.
Carpio contested one of the specific offense characteristics
under Chapter Two-namely, that his offense caused hardship to
more than 25 people. See U.S.S.G. §
2B1.1(b)(2)(C). And he contested both of the Chapter Three
enhancements-the abuse-of-trust enhancement and the
leadership enhancement. See id. §§ 3B1.3,
3B1.1(a). After an evidentiary hearing, the court concluded
that both enhancements applied in full. But it modified the
specific offense characteristics under Chapter Two. It
concluded del Carpio caused hardship to at least 5 people,
but perhaps not 25. So it applied 4 points under §
2B1.1(b)(2)(B) rather than 6 points under §
2B1.1(b)(2)(C). The court also granted a 2-point reduction
because del Carpio had assisted investigators. Combining this
new offense level of 36 with a criminal history category of I
yielded a Guidelines range of 188 to 235 months.
allocution at sentencing, del Carpio suggested he ran a
legitimate business that just turned south. "I am a man
fearful of God," he said. The court rebuked him:
"What did the conversation with God sound like when you
took that poor school teacher's life savings that she
worked all her life to save?" The court sentenced del
Carpio to concurrent sentences of 235 months for the wire
fraud counts and 120 months for the money laundering counts.
Two weeks later, the court began its restitution hearing. A
month after that, the court ordered del Carpio to pay back
$5, 402, 661.
Carpio appealed the district court's judgment and
sentence, as well as its restitution order.
affirm del Carpio's convictions because sufficient
evidence supports them. We also affirm the district
court's restitution order.
Carpio challenges the evidentiary sufficiency of his
convictions on a handful of wire fraud and money laundering
counts. In a sufficiency challenge, the question is not
"whether [this court] believes that the evidence at the
trial established guilt beyond a reasonable doubt."
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979).
Rather, the familiar test is "whether, after viewing the
evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the
essential elements of the crime beyond a reasonable
doubt." Id. at 319.
start with wire fraud. In a wire fraud prosecution, the
government must prove that (1) a scheme to defraud exists,
(2) the defendant used wire communications in interstate or
foreign commerce to further that scheme, and (3) the
defendant had specific intent to defraud. See 18
U.S.C. § 1343; United States v. Harris, 821
F.3d 589, 598 (5th Cir. 2016). Del Carpio challenges the
sufficiency of the government's wire fraud evidence on
Counts 13, 23, and 24. We affirm the sufficiency of each in
Count 13, the government charged del Carpio with fraudulently
inducing Rodrigo Muñiz Vallina to wire him $100, 000
on July 5, 2011. Del Carpio challenges the jury's guilty
verdict on this count based only on wire fraud's second
element-that the government failed to show this money moved
in interstate or foreign commerce. Relatedly, he challenges
the district court's decision permitting the government
to introduce a summary chart ("Exhibit 42") that
purported to list the transaction details for each wire fraud
Carpio complains that Exhibit 42 created the false appearance
that the $100, 000 moved from Mexico to New York. The chart
lists Intercam Casa de Bolsa (in Mexico) as the "Origin
Bank" and Bank of America (in New York) as the
"Destination Bank." Jurors relying on that chart,
then, would conclude the money moved in foreign commerce. In
reality, del Carpio contends, the money only moved from one
New York bank to another New York bank.
district court did not abuse its discretion in admitting
Exhibit 42. For starters, the court, the prosecutor, and
defense counsel repeatedly reminded the jury that the chart
was not evidence. Plus, the chart was generally consistent
with the testimony at trial. Roxanne Hollingsworth, a Bank of
America employee, testified that the July 5th transaction was
requested by an originator in Chihuahua, Mexico, before
passing through an originating bank in New York (Standard
Chartered Bank, Ltd.), and landing at a receiving bank in New
York (Bank of America). Based on these facts, Hollingsworth
agreed that "this wire transfer also [was]
interstate." Del Carpio never objected to her
conclusion. He did not even ask Hollingsworth about it on
appeal, however, del Carpio insists Hollingsworth's
testimony shows the money moved only
intrastate-between two New York banks. That is
irrelevant even if true: All that needs to move across
national or state lines is a "writing, sign,
signal, picture, or sound" that furthers the
fraud. 18 U.S.C. § 1343. Therefore, a customer in Mexico
who sends a digital request- by email, phone, or some other
conceivable means-to his bank in New York asking it to
transfer money to another New York bank transmits an
"signal," or "sound" that facilitates an
intrastate transfer. See United States v. Arledge,
553 F.3d 881, 892 (5th Cir. 2008) (facsimile); United
States v. Johnson, 700 F.2d 163, 176-77 (5th Cir. 1983)
(phone call); United States v. Foster, 878 F.3d
1297, 1304-05 (11th Cir. 2018) (email). The evidence was
Counts 23 and 24, the government charged del Carpio with
fraudulently inducing Miguel Luevano Gutierrez and Augustine
Jiminez Leyva to wire him $13, 970 and $2, 988, respectively.
Del Carpio challenges the jury's guilty verdicts on those
counts based only on wire fraud's third element- that the
government showed no specific intent to defraud. Del Carpio
insists that because neither victim testified, we do not know
why they sent money to him.
does not cut it. Detective Ramm testified that she spoke with
110 victims, that "all of these people gave [her]
reports" and produced documents showing the
"investments" they made with del Carpio, and that
two of the victims she spoke with were Luevano Gutierrez and
Jiminez Leyva. "In general, the [victims']
allegation was theft . . . and that they had invested money
that they did not believe had been invested."
evidence may not have been detailed. But "the relevant
question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt." Jackson, 443
U.S. at 319. A jury could infer Luevano Gutierrez and Jiminez
Leyva complained to the El Paso police because they were
drawn to del Carpio by the same lure as his other victims-the
false promise of bountiful returns. The evidence on Counts 23
and 24 was sufficient.
also a federal crime to launder dirty money. See 18
U.S.C. § 1957(a). In a money laundering prosecution, the
government must prove that (1) the defendant knowingly
engaged in a monetary transaction, (2) the transaction
involved criminally derived property worth more than $10,
000, and (3) the defendant knew the property was derived from
criminal activity. United States v. Rodriguez, 278
F.3d 486, 490 (5th Cir. 2002). Del Carpio challenges the
sufficiency of the government's money laundering evidence
in Counts 27 and 32. We affirm as to both.
Counts 27 and 32, the government charged del Carpio with
laundering some of the fraudulent proceeds by transferring
money from his Wells Fargo account on March 18, 2011 ($20,
000) and March 25, 2011 ($21, 859.84). Del Carpio challenges
the jury's guilty verdicts on these counts based only on
money laundering's second element-that he transferred
criminally derived funds. That is so, he says, because his
Wells Fargo account had at least some clean money in it. In