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United States v. Del Carpio Frescas

United States Court of Appeals, Fifth Circuit

July 29, 2019


          Appeals from the United States District Court for the Western District of Texas

          Before CLEMENT, DUNCAN, and OLDHAM, Circuit Judges.

          PER CURIAM.

         A 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.


         El Paso 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.

         After 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.

         The 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.

         Prior 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.

         Next, 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 Guidelines:

• 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 States;
• 1 point under § 2S1.1(b)(2)(A) because del Carpio was convicted of money laundering under 18 U.S.C. § 1957;
• 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."

         Adding 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.

         Del 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.

         In his 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.

         Del Carpio appealed the district court's judgment and sentence, as well as its restitution order.


         We affirm del Carpio's convictions because sufficient evidence supports them. We also affirm the district court's restitution order.


         Del 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.


         We 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 turn.

         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 count.

         Del 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.

         The 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 cross.

         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 international "writing," "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 sufficient.[1]

         In 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.

         That 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."

         This 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.


         It is 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.

         In 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 ...

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