25 F.4th 309
5th Cir.2022Background
- Simone Swenson operated Sans Pareil Center for Children and Family Services and was indicted for a scheme of "double matching"—matching the same birth mother with more than one prospective adoptive family and collecting fees from both.
- At trial the jury acquitted Swenson on two wire-fraud counts and on one mail-fraud count (count 3), but convicted her on one mail-fraud count (count 4) tied to a $1,800 cashier’s check mailed Sept. 18, 2013 for birth-mother expenses. The district court later granted a judgment of acquittal as to count 3.
- The charged incident involved birth mother Ashley Smolt, the Neidriches (who sent the $1,800 check), and the Cuschieris (who had earlier paid $13,400 and later wired additional fees). Evidence showed overlapping communications with both families and emails suggesting rematching activity by Swenson. The $1,800 check was returned uncashed; no adoption resulted.
- The government presented testimony from the Neidriches, the Cuschieris, Smolt, a former Sans Pareil employee who described routine double matching, and a regulator who had investigated the agency. Swenson testified that the Neidriches were not matched (because they hadn’t paid) and denied knowing of an earlier match with the Cuschieris.
- The district court sentenced Swenson to 24 months’ imprisonment (below guidelines), applied a two-level vulnerable-victim enhancement (U.S.S.G. §3A1.1(b)(1)), and ordered $26,550 restitution to the Cuschieris; Swenson appealed conviction, enhancement, and restitution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for mail fraud (count 4) | Government: evidence shows a scheme to defraud by double matching; the Sept. 18 $1,800 mailing was incident to the scheme; Swenson had specific intent to obtain fees. | Swenson: timeline and communications show any misrepresentations occurred after the mailing; victims got what they paid for; insufficient proof of intent. | Affirmed. Viewing evidence in the light most favorable to verdict, a rational jury could find scheme, mailing nexus, and specific intent beyond a reasonable doubt. |
| Vulnerable-victim enhancement (U.S.S.G. §3A1.1(b)(1)) | Government: prospective adoptive families were unusually vulnerable (desperation, hope); Swenson knew or should have known. | Swenson: enhancement inappropriate. | Affirmed. District court’s factual finding of unusual vulnerability was plausible and not clearly erroneous. |
| Restitution including June $13,400 payment (related to acquitted count) | Government: restitution may cover losses ‘‘pursuant to’’ the fraudulent scheme; the Cuschieris’ June payment was rolled into and proximately harmed by the conduct underlying the convicted scheme. | Swenson: award improperly includes losses tied to conduct for which she was acquitted (count 3). | Affirmed. Under de novo review, the court held the June payment was part of the course of criminal conduct that directly harmed the Cuschieris and therefore could be included in restitution. |
Key Cases Cited
- United States v. Chapman, 851 F.3d 363 (5th Cir. 2017) (standard for reviewing sufficiency of the evidence).
- United States v. Evans, 892 F.3d 692 (5th Cir. 2018) (elements of mail fraud: scheme, use of mails, specific intent).
- Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639 (2008) (a mailing incident to an essential part of a scheme satisfies the mailing element).
- Loughrin v. United States, 573 U.S. 351 (2014) (nexus between means and intended loss in fraud).
- United States v. Ingles, 445 F.3d 830 (5th Cir. 2006) (causing mails to be used is satisfied where mail use is foreseeable in the ordinary course of business).
- United States v. Takhalov, 827 F.3d 1307 (11th Cir. 2016) (context on ‘‘received what they paid for’’ defense to fraud).
- United States v. Wilcox, 631 F.3d 740 (5th Cir. 2011) (standard and factors for applying the vulnerable-victim enhancement).
- United States v. Cothran, 302 F.3d 279 (5th Cir. 2002) (restitution may include losses from actions pursuant to a fraudulent scheme).
- United States v. Nolen, 472 F.3d 362 (5th Cir. 2006) (review standard for unpreserved restitution challenges).