United States v. Albert Diroberto
686 F. App'x 458
| 9th Cir. | 2017Background
- Crystal Buck and Albert DiRoberto were convicted of wire/mail fraud for roles in 21st Century, a telemarketing operation selling loan-modification services to distressed homeowners.
- Evidence showed both made false representations (e.g., government program affiliation, guaranteed refunds, prequalification, specific modification terms) and continued making them after warnings.
- DiRoberto was marketing director and disseminated deceptive materials and scripts; he also misrepresented being an attorney/owner to victims.
- Defense sought to admit documents and to present evidence about bank misconduct; the district court excluded certain documentary evidence for discovery violations and limited inquiries about lenders’ conduct.
- At sentencing the court held DiRoberto responsible for the full losses suffered by all 21st Century customers during his tenure, applied a 2-level enhancement for misrepresenting government affiliation, and ordered restitution for the scheme-wide losses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to prove intent to defraud | Government: circumstantial evidence (false statements, pattern, warnings ignored) proves intent | Buck/DiRoberto: evidence insufficient to show intent | Affirmed: jury rationally could infer intent from misrepresentations and conduct |
| Jury instruction: knowledge of illegality | Gov: mail/wire fraud require knowledge of facts, not that conduct was illegal | DiRoberto: court should have required willfulness (knowledge illegality) | Affirmed: statutes don’t require knowledge of illegality; instruction correct |
| Jury instruction: deliberate ignorance (Jewell) | Gov: alternative theory; instruction permissible | DiRoberto: no evidence of deliberate avoidance; government argued actual knowledge | Affirmed: reasonable juror could find deliberate ignorance from facts; instruction proper |
| Exclusion of documentary evidence (Rule 16) | DiRoberto: documents showed belief in legitimacy; should be admitted | Gov: belated disclosure; discovery violation warranted exclusion | Affirmed: exclusion not abused; violation was willful/tactical; any error harmless since testimony allowed |
| Precluding bank-misconduct evidence | DiRoberto: barred evidence prevented good-faith defense | Gov: such evidence largely irrelevant to misrepresentations | Affirmed: defendant failed to proffer specifics; court reasonably limited irrelevant inquiry |
| Sentencing loss and restitution scope | Gov: DiRoberto responsible for scheme-wide losses and restitution under MVRA | DiRoberto: should be limited to victims of his specific convicted counts | Affirmed: court properly attributed all scheme losses as foreseeable and ordered restitution to all victims during his tenure; acquittal on conspiracy not controlling |
| Sentencing enhancement for government misrepresentation | Gov: materials showed misrepresentations of government affiliation | DiRoberto: disputed application | Affirmed: enhancement properly applied based on marketing materials and trial evidence |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (establishes standard for reviewing sufficiency of the evidence)
- Jewell, United States v., 532 F.2d 697 (9th Cir. 1976) (willful blindness/deliberate ignorance instruction standard)
- Heredia, United States v., 483 F.3d 913 (9th Cir. 2007) (district court discretion to give willful blindness instruction alongside actual knowledge)
- Rasheed, United States v., 663 F.2d 843 (9th Cir. 1981) (fraudulent intent can be proven circumstantially)
- Verduzco, United States v., 373 F.3d 1022 (9th Cir. 2004) (exclusion of evidence for willful discovery violations)
- Watts, United States v., 519 U.S. 148 (district court may consider acquitted conduct at sentencing)
- Thomsen, United States v., 830 F.3d 1049 (9th Cir. 2016) (restitution may include all losses from a scheme)
- Treadwell, United States v., 593 F.3d 990 (9th Cir. 2010) (misrepresenting agency/relationship supports enhancement)
- Farrell v. United States, 321 F.2d 409 (9th Cir. 1963) (effect of solicitations on recipients relevant to fraudulent nature)