                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-15-2008

USA v. Rivera
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2676




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"USA v. Rivera" (2008). 2008 Decisions. Paper 1748.
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                                                           NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ____________

                                 No. 06-2676
                                ____________

                      UNITED STATES OF AMERICA


                                       v.

                              EDWIN RIVERA,

                                                 Appellant.

                                ____________

                  On Appeal from United States District Court
                    for the District of Eastern Pennsylvania
                             D.C. No. 05-cr-00252-2
                  District Judge: Honorable Legrome D. Davis

                                ____________

                  Submitted Under Third Circuit LAR 34.1(a)
                              January 8, 2007

          Before: FISHER, HARDIMAN and ALDISERT, Circuit Judges.

                           (Filed: January 15, 2008)


                                ____________

                           OPINION OF THE COURT
                                ____________



HARDIMAN, Circuit Judge.
       Petitioner Edwin Rivera challenges the sufficiency of the evidence supporting his

convictions for mail fraud, wire fraud, and aiding and abetting.

                                             I.

       Because we write for the parties, we recite only the facts essential to our decision.

Rivera was employed by various home improvement companies that were owned in part

by his co-defendant, Brad Marks. After Marks pleaded guilty to mail and wire fraud, he

agreed to cooperate with the government and was the principal witness against Rivera.

At Rivera's trial, Marks described how he and Rivera defrauded homeowners by

convincing them to pay in advance the entire cost of their home improvement jobs.

Marks said that he and Rivera used funds to pay personal expenses, salaries, utilities, and

rent, and that anything left over would be used to perform work for the customer “that

was screaming the loudest to get their job done.” (App. 297).

       Marks also provided details of Rivera’s role in the companies, testifying that

Rivera circumvented the “staged funding” process by employing a number of illicit

tactics. One such tactic involved the use of “hold checks,” which were company checks

made payable to both the customer and the company. Marks explained that if a customer

was reluctant to give the company the staged funding checks up front, the company

would offer the customer a hold check, claiming the customer could then cash the check

if the work was not completed. This representation was false, however, because the

customer could not cash the hold check without the company’s approval, which was

never given. Marks testified that, although it was his idea to use hold checks, Rivera

                                             2
actually delivered them to the customers and was “very aware of the situation that the

checks would not be able to be used by the consumer.” (App. 307).

       Marks also described an incident in which he and Rivera “spiked” a job. On this

occasion, after a customer decided to cancel a contract, Rivera arranged for a crew to go

to the house when no one was present except the customer’s seventeen year-old nephew.

The crew demolished the customer’s kitchen with the expectation that the customer

would have no choice but to proceed with the job. Marks testified that this scheme

worked as planned and the customer was given a hold check.

       Marks also testified that Rivera pressured customers to turn over their checks and

badgered them when they were reluctant to do so. A customer testified that Rivera “was

coming over to my house, he was always coming at night and the afternoon - he was

constantly calling me at work.” (App. 51). Other customers testified that they trusted

Rivera because of their common Hispanic ethnicity while still others relinquished staged

funding checks because Rivera told them he was a Christian man.1



                                           III.




       1
         One customer even lied to a bank at Rivera’s request, stating that work on his
home was complete even though it had not yet begun. When asked why he trusted Rivera
despite the deceit, the customer replied “because he told me he was serious, trustworthy,
and that he was Christian.” (App. 116).

                                            3
       We view the evidence in the light most favorable to the verdict winner and will

affirm “if any rational juror could have found the elements of the crime beyond a

reasonable doubt.” United States v. Cartwright, 359 F.3d 281, 285-86 (3d Cir. 2004).

       Rivera claims that there was insufficient evidence to establish that he had the

requisite intent to engage in mail fraud, wire fraud, and aiding and abetting. In particular,

Rivera contends that he was merely a salesman rather than an officer of the companies;

that the companies were legitimate home improvement businesses rather than fraudulent

schemes; and that the companies’ alleged wrongdoing and ultimate failure was the

product of mismanagement by Marks and other officers.

       Though theoretically plausible, Rivera’s contentions are contrary to much of the

evidence presented against him at trial. Marks testified that he and Rivera discussed the

fact that the money received from a customer would not be used to pay for work on that

customer’s house; that Rivera would knowingly deliver hold checks to customers as

fictitious security for staged funding checks; and that Rivera would spike jobs to force

customers to go ahead with home improvement work. Furthermore, a customer testified

that Rivera convinced him to lie to a bank, falsely telling the bank that Rivera’s company

had completed the promised home improvement work so that the company would be paid.

Viewing this evidence in the light most favorable to the Government, it is clear that a

rational juror could conclude that Rivera had the requisite intent to defraud.

       In addition, we are unpersuaded by Rivera’s reference to United States v.

Pearlstein, 576 F.2d 531 (3d Cir. 1978). In Pearlstein, we reversed the convictions of

                                              4
salesmen working for a pen company which had engaged in fraud, finding that there was

insufficient evidence to establish that the salesmen knew of the fraud being perpetrated by

the company. In contrast to the salesmen in Pearlstein, Rivera was identified by Marks

and customers as not only aware of, but an active participant in, the fraudulent scheme.

                                           IV.

       For the foregoing reasons, we will affirm the judgment of the District Court.




                                            5
