United States v. Marcela Heredia ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 27 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10416
Plaintiff-Appellee, D.C. Nos.
1:17-cr-00090-DAD-SKO-1
v. 1:17-cr-00090-DAD-SKO
MARCELA HEREDIA,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Argued and Submitted February 14, 2022
Pasadena, California
Before: WALLACE and FRIEDLAND, Circuit Judges, and LASNIK,** District
Judge.
Defendant-Appellant Marcela Heredia appeals from her conviction and
sentence for seven counts of wire fraud in violation of 18 U.S.C. § 1343 (Counts 1–
7), four counts of aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1)
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
(Counts 8–11), and one count of making and subscribing a false return, statement,
or other document in violation of 26 U.S.C. § 7206(1) (Count 12). Specifically,
Heredia challenges that (1) the district court constructively amended Counts 8–11,
(2) the verdict form identified the wrong alleged victim for Count 9, (3) Count 11 is
unconstitutionally duplicitous, (4) the cumulative effect of errors warrant vacatur of
the convictions on Counts 9 and 11, and (5) the district court abused its discretion in
partially running the identity theft sentences consecutively. We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. When a defendant fails to object to
an indictment, jury instruction, or verdict form, we review for plain error. See United
States v. Arreola, 467 F.3d 1153, 1161 (9th Cir. 2006); United States v. Espino, 892
F.3d 1048, 1051 (9th Cir. 2018). “We review a district court’s construction and
interpretation of the Sentencing Guidelines de novo, its factual findings for clear
error, and its application of the Guidelines to the facts for abuse of discretion.”
United States v. Flores, 802 F.3d 1028, 1047 (9th Cir. 2015). For the following
reasons, we affirm her conviction and sentence.
A.
We first address Heredia’s constructive amendment claim for Counts 8–11.
“Under the ‘invited error’ doctrine, appellate review is barred if the appellant waived
his or her right to challenge an erroneous jury instruction on appeal.” United States
v. Hugs, 384 F.3d 762, 766–67 (9th Cir. 2004). Although Heredia concedes that she
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failed to raise a constructive amendment objection before the district court and
jointly submitted the jury instruction, her argument is not waived because the record
“does not show that defense counsel was aware that the jury instruction might be
erroneous.” Id. at 767.
Even if Heredia’s constructive amendment claim is not waived, we conclude
that it fails under plain error review. “We review a variance or constructive
amendment to an indictment that is not objected to at trial for plain error.” Id. at
766. “The burden is on the defendant to show the following: (1) an error or defect,
(2) that is clear or obvious, and (3) that affected the appellant’s substantial rights,
which in the ordinary case means he must demonstrate that it affected the outcome
of the district court proceedings.” Espino, 892 F.3d at 1051 (citation and internal
quotation marks omitted); see also Hugs, 384 F.3d at 768 (“[W]e can reverse only if
the record demonstrates that plain error affected a defendant’s substantial rights.”).
Under 18 U.S.C. § 1028A(a)(1), a defendant is guilty of aggravated identity
theft if “during and in relation to any felony violation enumerated,” she “knowingly
transfers, possesses, or uses, without lawful authority, a means of identification of
another person.” 18 U.S.C. § 1028A(a)(1). While the grand jury charged that
Heredia “did knowingly use a means of identification of another person without
lawful authority during and in relation to an unlawful activity,” the final jury
instruction read to the jury stated that in order for Heredia to be found guilty of the
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aggravated identity theft charges, the government must prove that “the defendant
knowingly transferred, possessed, or used without legal authority a means of
identification of another person.” Heredia argues that the district court
constructively amended Counts 8–11 because the grand jury only charged counts of
aggravated identity theft in violation of § 1028A(a)(1) under the “use” theory while
the final jury instructions at trial included theories of “transferring, possessing, or
using.”
Here, the district court did not constructively amend Counts 8–11. We have
repeatedly emphasized that an indictment “is constructively amended where ‘the
evidence presented at trial, together with the jury instructions, raises the possibility
that the defendant was convicted of an offense other than that charged in the
indictment.’” Arreola, 467 F.3d at 1162, quoting United States v. Streit, 962 F.2d
894, 899–900 (9th Cir. 1992). The language in the final jury instruction did not alter
the charging terms of the indictment so much that “the crime charged [in the
indictment] was substantially altered at trial, so that it was impossible to know
whether the grand jury would have indicted for the crime actually proved.” United
States v. Davis, 854 F.3d 601, 603 (9th Cir. 2017) (alteration in original), quoting
United States v. Adamson, 291 F.3d 606, 615 (9th Cir. 2002). Before giving the final
jury instructions, the district court explained to the jury: “You are here only to
determine whether the defendant is guilty or not guilty of the charges in the
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indictment. The defendant is not on trial for any conduct or offense not charged in
the indictment.” Consistent with the indictment, the jury verdict form also clearly
shows that the jury found Heredia in violation of 18 U.S.C. § 1028A(a)(1) and guilty
of “use of means of identification . . . during and in relation to committing wire
fraud.” The actual verdict form marked by the jury did not mention any violation of
18 U.S.C. § 1028A(a)(1) under either the transfer or possession theory.
Moreover, perhaps most importantly, the verdict form states that the use of
means of identification must be “during and in relation to committing wire fraud”
and relate back to Counts 2–7. The Government also made clear in its closing
argument that the aggravated identity theft counts are about how Heredia “used
people’s means of identification to commit wire fraud” and that “these counts relate
to specific wire fraud charges.” The connection between the wire fraud counts and
the identity counts ensured that there was no substantial alteration of the behavior
under which Heredia could have been convicted—the convictions for the identity
counts were tied to “use” for wire fraud. Indeed, there was no apparent evidence
presented at trial that would have allowed the jury to convict Heredia of uncharged
conduct, that is, unlawful possession or transfer in connection with wire fraud but
not unlawful use.
Thus, “considering the jury verdict form in light of the court’s instructions
and the trial as a whole, it is not likely that [the final jury instruction] affected the
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jury’s decision to convict.” Arreola, 467 F.3d at 1162 (holding that an erroneous
verdict form did not constructively amend the indictment because the trial judge
“properly instructed jurors,” parties reiterated the correct conviction requirements,
and the jurors had a copy of the correct requirements in the jury room). For the same
reasons, the challenged jury instruction also did not affect Heredia’s substantial
rights under plain error review.
B.
We next turn to Heredia’s claim that the verdict form identified the wrong
alleged victim for Count 9. It is undisputed that the verdict form erroneously
identified victim L.L. for Count 9, which should have referred to victim C.C. But
because Heredia did not object to the verdict form before the district court, we again
review for plain error. See Espino, 892 F.3d at 1051. We conclude that the error
did not affect Heredia’s substantial rights.
To be sure, the identity of the victim is important for an identity theft crime
and the verdict form clearly should not have identified the wrong victim. But there
is little risk that the jury misunderstood the verdict form due to the typo. Count 9
clearly refers back to Count 3, which alleges that Heredia committed wire fraud by
filing a tax return form for C.C. In addition, Count 9 states that the use of means of
identification was “[o]n or about July 9, 2013,” which would be consistent with C.C.
and not L.L.
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Moreover, “[w]hen looking at prejudice, ‘it is entirely appropriate to consider
the verdict form in conjunction with the jury instructions and the trial record as a
whole.’” Id. at 1053 (citation omitted). Here, there was little chance of prejudice
because the evidence pertaining to C.C.—who should have been listed for the
particular count at issue—was not particularly weak. Furthermore, at trial, the
Government repeatedly emphasized the relationship between the wire fraud counts
and the aggravated identity theft counts. In fact, during closing arguments, the
Government specifically stated that “Count 9 is alleging that the defendant
committed aggravated identity theft when she submitted [C.C.’s] 2012 return, and
that’s the wire alleged in Count 3.” Considering the jury instructions and trial record
as a whole, we conclude that the error in the verdict form did not likely confuse the
jury and affect Heredia’s substantial rights.
C.
We review Heredia’s claim that Count 11 is unconstitutionally duplicitous for
plain error because she also did not raise this objection before the district court. See
Arreola, 467 F.3d at 1161 (“Where a defendant fails to object to an indictment as
duplicitous before trial . . . , we review for plain error.”). We hold that this claim
fails because, even if there was an error, it did not affect Heredia’s substantial rights.
“Duplicity is the joining in a single count of two or more distinct and separate
offenses.” United States v. UCO Oil Co., 546 F.2d 833, 835 (9th Cir. 1976). The
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concern is that “a jury may find a defendant guilty on a count without having reached
a unanimous verdict on the commission of a particular offense,” which “may conflict
with a defendant’s Sixth Amendment rights and may also prejudice a subsequent
double jeopardy defense.” Id. Therefore, although there is “broad prosecutorial
discretion in the drafting of indictments,” the “foregoing considerations . . . reflect
fundamental due process rights of defendants” and provide limitations to what is a
permissible indictment. Id.Even if there was such an error here, it did not affect Heredia’s substantial
rights. One of the dangers of a duplicitous indictment is that a jury could convict
“without reaching unanimous agreement on a given set of facts.” United States v.
Kennedy, 726 F.2d 546, 548 (9th Cir. 1984). In this case, the risk is minimal. The
jury unanimously convicted Heredia of three separate counts of wire fraud (Counts
5–7) relating to three separate wire transmissions to the IRS for M.J.G./M.J.L. To
convict on Count 11, the jury must conclude that Heredia knowingly used
M.J.G./M.J.L.’s identification without legal authority and in relation to committing
wire fraud. It would be illogical for a jury to reach unanimous agreement and find
Heredia guilty on 3 counts of wire fraud but not agree that Heredia committed
aggravated identity theft with that same victim’s information for all three wire fraud
counts.
We also reject Heredia’s claim that the cumulative errors warrant vacatur on
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Counts 9 and 11. “Although individual errors looked at separately may not rise to
the level of reversible error, their cumulative effect may nevertheless be so
prejudicial as to require reversal.” United States v. Necoechea, 986 F.2d 1273, 1282
(9th Cir. 1993). When “all of the errors [a defendant] raises are subject to plain error
review,” the court “review[s] the cumulative impact of the possible plain errors for
plain error.” Id. at 1282–83. In particular, in cases “where the government’s case is
weak, a defendant is more likely to be prejudiced by the effect of cumulative errors.”
United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996).
Reviewing the cumulative impact of all the possible errors for plain error, we
conclude that the cumulative effect is not so prejudicial to rise to the level of reversal.
At the outset, none of these alleged errors affected Heredia’s substantial rights, and
the alleged errors do not seem related to one another. There is also no evidence in
the record that shows the government’s case is “weak,” as the jury convicted Heredia
of all counts. Thus, we conclude that the cumulative effects of any alleged errors
did not deprive Heredia of a fair trial and rise to the level of plain error requiring
reversal. See, e.g., Necoechea, 986 F.2d at 1283.
D.
Finally, reviewing “a district court’s construction and interpretation of the
Sentencing Guidelines de novo, its factual findings for clear error, and its application
of the Guidelines to the facts for abuse of discretion,” we hold that resentencing is
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not warranted. Flores, 802 F.3d at 1047. Heredia concedes that 18 U.S.C. § 1028A
gives the district court the discretion to impose a term of imprisonment concurrently
or consecutively to another term of imprisonment for an additional violation of
aggravated identity theft, provided that such discretion is exercised in accordance
with any applicable guidelines and policy statements issued by the Sentencing
Commission. See 18 U.S.C. § 1028A(b)(4). Nonetheless, Heredia argues that the
district court abused its discretion in considering the relevant sentencing factors and
misinterpreted the Guidelines in partially running her identity theft sentences
consecutively for two terms of 24 months each, instead of running all four counts
concurrently as one 24-month sentence. For the following reasons, we affirm the
sentence imposed.
First, abuse of discretion is a highly deferential standard. Prior to sentencing,
the Government requested consecutive sentences on all of the § 1028A counts for
an overall of 120 months while Heredia requested concurrent sentences on all of the
§ 1028A counts for an overall of 42 months. The district court struck a balance and
took the middle ground between the two requests. When deciding the sentence, the
district court judge considered “the nature and seriousness of the underlying
offenses, which are serious offenses, and did have not insignificant impact on the
victims of the identity theft,” and he acknowledged that “at least six victims testified
at trial,” so “there obviously could have been additional counts of aggravated
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identity.” Although the money involved in the wire fraud counts was admittedly
small, which might arguably make the crimes not “serious,” and although the district
court emphasized the victims of the identity theft crimes rather than the wire fraud
ones, its reasoning was not so clearly improper that there was an abuse of discretion.
Second, although it is possible that the district court erroneously interpreted
Sentencing Guideline Section 5G1.2, Comment Note 2(B), any error was clearly
harmless. The Guidelines recommend running § 1028A sentences concurrently
when the underlying offenses—here, the wire fraud counts—are groupable under
§ 3D1.2, though the Guidelines make clear that consecutive sentences are not
forbidden in every circumstance. See U.S.S.G. § 5G1.2, cmt. n.2(B)(ii) (“Generally,
multiple counts of 18 U.S.C. § 1028A should run concurrently with one another in
cases in which the underlying offenses are groupable under § 3D1.2.” (emphasis
added)). In applying these guideline provisions, the district court stated, “I am also
considering that the offenses are groupable, the aggravated identity charges.” The
reference to the identity charges, rather than to the underlying wire fraud charges,
raises the possibility that the district court failed to properly consider the “underlying
offenses.” But this was likely just imprecise wording, as the identity charges are not
subject to any sort of grouping analysis under the Guidelines and the court appeared
quite familiar with the applicable legal standards. Furthermore, any error was
harmless because this grouping factor correctly weighed in favor of concurrent
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sentences in the district court’s reasoning.
AFFIRMED.
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