United States v. Rosario Divins ( 2011 )


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  •      Case: 09-50855 Document: 00511478100 Page: 1 Date Filed: 05/16/2011
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    May 16, 2011
    No. 09-50855                         Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee
    v.
    ROSARIO DIVINS,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 5:08-CR-889-1
    Before JONES, Chief Judge, and BENAVIDES and STEWART, Circuit Judges.
    PER CURIAM:*
    Rosario Divins was convicted by a jury of seven counts of criminal
    contempt in violation of 18 U.S.C. § 401(3) and seven counts of mail fraud in
    violation of 18 U.S.C. § 1341. She was sentenced to a total of 350 months of
    imprisonment, to be followed by three years of supervised release. Finding no
    reversible error in her appellate points, we AFFIRM.
    *
    Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
    R. 47.5.4.
    Case: 09-50855 Document: 00511478100 Page: 2 Date Filed: 05/16/2011
    No. 09-50855
    BACKGROUND
    For the past 30 years, Divins has made a living swindling financially
    distressed people by promising (falsely) to keep their homes out of foreclosure in
    exchange for exorbitant fees.   She has been brought to court and sanctioned on
    four separate occasions for this conduct. Various court orders, issued in 1994,
    January 2000, June 2000, and September 2003, permanently enjoined Divins
    from the unauthorized practice of law, including offering or providing
    bankruptcy services, making representations to assist or stop foreclosure, and
    making representations to provide mortgage brokering services to assist or stop
    foreclosure.
    In February 2006, the district court learned that Divins was violating
    these orders. The court initiated criminal contempt proceedings, which the
    government supplemented with charges of mail fraud. The matter went to trial.
    At least eight individuals testified against Divins, including Jackie Guerrero,
    Guadalupe Dominguez, Stanley Miele, Tommy Bordelon, Lupe Monreal, Maria
    Martinez, Issac Vela, and Juana Anderson. Their stories were similar. Each
    had faced the possibility of foreclosure due to some sort of financial hardship
    brought about by an illness or a lost job. Divins had contacted them via mailed
    flyers promising that she could keep them out of foreclosure in exchange for
    thousands of dollars in up-front fees. In each case, Divins either had absconded
    with the money or refused to return it when she failed to secure the clients relief
    from foreclosure. Many of Divins’ victims ultimately spent thousands more on
    real attorneys to undo the damage Divins caused.
    Divins elected not to testify, and she presented no witnesses in her
    defense. At the close of the Government’ case, Divins moved for a judgment of
    2
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    acquittal on all counts. That motion was denied, and the jury convicted her on
    all counts.
    Divins’s presentence report (“PSR”) calculated a total offense level of 23
    on the mail fraud convictions, which included an eight-level increase under
    U.S.S.G. § 2B1.1(b)(1)(E) because the amount of loss was greater than $70,000.
    In determining the amount of loss, the PSR considered statements of various
    victims who did not testify at trial but who instead testified under oath at the
    sentencing hearing. On the criminal contempt charges, Divins was subject to a
    statutory maximum sentence of six months. Divins objected to the PSR on
    various grounds, including an objection to the eight-level enhancement for
    amount of loss.
    At the sentencing hearing, Divins argued that the amount of loss should
    be calculated only from the receipts admitted into evidence at trial. The district
    court concluded that the testimony presented at trial established a loss amount
    slightly over $60,000. The court then heard sworn testimony from victims who
    had been included in the PSR but did not testify at trial, including Beatriz
    Ybarra, Yvonne Cantu, and Rogelio Reyes. Based on the testimony and the facts
    as presented in the PSR, the district court determined that the amount of loss
    was over $70,000.
    After finding that Divins posed a continuing threat to society and had an
    extensive criminal history, and after noting that Divins had threatened
    witnesses against her, the court sentenced her to six months on each count of
    criminal contempt, all of which were ordered to run concurrently to each other
    and to the sentences imposed on the mail fraud charges. On the remaining
    seven counts of mail fraud, Divins was sentenced to 50 months on each count,
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    which fell on the low end of the guideline. The 50-month sentences, however,
    were ordered to run consecutively rather than concurrently, bringing Divins’s
    total sentence to 350 months of imprisonment. The district court also imposed
    a three-year term of supervised release. After Divins’s motion for a new trial
    was denied, she timely appealed. We have jurisdiction pursuant to 28 U.S.C.
    § 1291.
    DISCUSSION
    I.    Challenges to Conviction
    Divins challenges her conviction on four grounds. First, Divins argues
    that the district court erred in denying her motion for judgment of acquittal
    because the criminal contempt charges were barred by the statute of limitations.
    This challenge fails because it is based on the assertion that the one-year statute
    of limitations set forth in 18 U.S.C. § 3285 applies to contempt prosecutions
    brought under 18 U.S.C. § 401. The plain language of the statute limits its
    applicability to contempt prosecutions arising under 18 U.S.C. § 402. Because
    Divins was charged and convicted of violations of § 401(3), and the indictment
    was filed within five years of the date of the earliest act alleged in the
    indictment, the district court did not err in denying her motion for acquittal on
    this ground. See 18 U.S.C. §§ 401, 3282.
    Divins argues next that the evidence was insufficient to support her mail
    fraud convictions because the government did not prove her intent to defraud or
    that the representations made in the mailings were in furtherance of a
    fraudulent scheme. The standard of review for a sufficiency claim is “whether
    any reasonable trier of fact could have found that the evidence established the
    appellant’s guilt beyond a reasonable doubt.”       United States v. Jaramillo,
    4
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    42 F.3d 920
    , 922-23 (5th Cir. 1995) (citing Jackson v. Virginia, 
    443 U.S. 307
    , 319
    (1979)). Mail fraud requires the government to prove beyond a reasonable doubt
    “(1) a scheme to defraud (2) which involves a use of the mails (3) for the purpose
    of executing the scheme.” United States v. Ingles, 
    445 F.3d 830
    , 835 (5th Cir.
    2006) (internal quotation marks and citations omitted). The government must
    also prove that the defendant acted with specific intent to defraud. United
    States v. Garza, 
    429 F.3d 165
    , 168-69 & n.1 (5th Cir. 2005).         To act with
    fraudulent intent, the defendant must contemplate or intend some harm to the
    property rights of her victim. United States v. Stouffer, 
    986 F.2d 916
    , 922 (5th
    Cir. 1993).
    The evidence showed that Divins solicited vulnerable individuals facing
    foreclosure by mailing flyers to them to further her scheme. The flyers stated
    that she could stop foreclosure. Each individual contacted Divins based on the
    representations made in the flyers. The victims would then pay Divins sums of
    money, usually in cash, in exchange for promises from Divins that she would
    stop foreclosure, negotiate with the mortgage company, and sell homes or
    refinance mortgages.    Though there was testimony that foreclosures were
    initially delayed, there is no evidence that Divins performed her promised
    actions. The evidence showed that she continually requested more money and
    then avoided contact with these individuals when her fraudulent actions were
    suspected or discovered. Mortgage companies never received the money on
    behalf of her “clients.” Additionally, Divins did not inform any of these victims
    that she had been prohibited by the bankruptcy court from representing that she
    could assist in foreclosure or bankruptcy proceedings. Divins was repeatedly
    warned by the bankruptcy court of the consequences if she failed to comply with
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    the court's orders. These warnings occurred in bankruptcy proceedings where
    it was apparent that the individuals involved had suffered loss as a result of her
    actions. There was sufficient evidence for a reasonable jury to conclude that
    Divins contemplated or intended some harm to the property rights of her
    victims. The district court correctly denied her motion for acquittal.
    Next, Divins contends that the district court violated her due process
    rights by excluding documentary and testimonial evidence she sought to present
    at trial. The evidence was excluded because Divins failed to comply with a
    pretrial order mandating reciprocal discovery. Divins does not dispute that she
    failed to comply with the discovery order. Rather, she argues that the court
    abused its discretion by excluding the evidence. Divins cannot support this
    argument. The evidence pertaining to victims Vela and Bordelon that she
    complains was excluded was admitted into evidence after the Government
    withdrew its objection. Divins also fails to show any harm that resulted from the
    exclusion from the remaining documentary and testimonial evidence. She does
    not discuss whom she sought to present as witnesses or detail the purported
    testimony. Nor does she explain how the documentary evidence would have
    been beneficial. Because Divins does not argue the benefit of the evidence she
    sought to produce, she cannot maintain on appeal that the district court abused
    its discretion in excluding it. See United States v. Garcia, 
    530 F.3d 348
    , 351 (5th
    Cir. 2008).
    Finally, Divins contends that her counsel was ineffective in failing to
    comply with the discovery order.       We do not address claims of ineffective
    assistance of counsel on direct appeal unless the record is adequate to allow the
    court to consider the claim’s merits. See United States v. Higdon, 
    832 F.2d 312
    ,
    6
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    313-14 (5th Cir. 1987). No such record exists here, and we decline to consider
    this claim.
    II.    Challenge to Sentence
    Divins challenges the district court’s application of an eight-level
    enhancement to her offense level pursuant to U.S.S.G. § 2B1.1(b)(1)(E) based on
    a finding that the amount of loss was greater than $70,000. Divins argues that
    the district court’s consideration of sworn testimony from victims at the
    sentencing hearing who did not testify at trial violated her rights under the
    Confrontation Clause and Federal Rule of Criminal Procedure 32. Specifically,
    she claims that the trial court erred in imposing a sentencing enhancement by
    “polling the audience” to see if any additional people in the courtroom were
    victims of Divins's scheme. Divins also asserts that she was “ambushed” by this
    tactic and did not have an adequate chance to rebut the PSR.
    Contrary to her lack of notice contention, the presentence report was
    prepared on July 28, 2009.        Divins filed lengthy objections, including an
    objection to the eight-level enhancement for amount of loss. She was clearly
    aware before sentencing of the existence of these victims as well as their claims.
    Further, we have held that the confrontation clause does not apply at
    sentencing. United States v. Mitchell, 
    484 F.3d 762
    , 776 (5th Cir. 2007).
    It is true that the trial court asked Divins’s victims to stand briefly during
    the sentencing hearing. But the record shows that the court did so as a means
    of illustrating to Divins how her crimes had affected her community. The court
    directed: “But for right now I want everyone either who testified or who
    otherwise feels that they have been a victim to stand. Okay. Now, Ms. Divins,
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    you may turn around and look at your fellow human beings. All right. Thank
    you, ladies and gentlemen.” There was no “polling.”
    The record offers no support for her complaint of “ambush” testimony from
    additional witnesses at sentencing. The court added up the loss amounts for
    each of Divins’s victims that testified under oath at trial and reached a total of
    $60,500. The government noted at the hearing that a number of potential
    victims who were listed in the PSR were not able to attend trial. To give these
    victims a chance to be heard, the trial court proceeded to hear their sworn
    testimony. The court disregarded some of this testimony, but the testimony it
    credited brought the amount of money Divins stole over the $70,000 threshold.
    The court therefore adopted the PSR’s recommendation. This approach may not
    have employed surgical accuracy, but it was certainly reasonable and supported
    by sworn testimony of which Divins had reasonable advance notice.
    CONCLUSION
    For the foregoing reasons, we AFFIRM Divins’s conviction and sentence.
    AFFIRMED
    8