                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            DEC 4 2018
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-10614

              Plaintiff-Appellee,                DC No. CR 10-414 RMW

 v.
                                                 MEMORANDUM*
EVELYN SINENENG-SMITH,

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Northern District of California
                    Ronald M. Whyte, District Judge, Presiding

                      Argued and Submitted April 18, 2017
                            San Francisco, California
                   Reargued and Resubmitted February 15, 2018
                              Pasadena, California

Before:      TASHIMA, BERZON, and HURWITZ**, Circuit Judges.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              Judge Reinhardt, who was originally a member of this panel, died
after this case was reargued and resubmitted for decision. Judge Hurwitz was
randomly drawn to replace him. Judge Hurwitz has read the briefs, reviewed the
record, and watched video recordings of the oral arguments.
      Evelyn Sineneng-Smith appeals her conviction on two counts of mail fraud

in violation of 18 U.S.C. § 1341.1 She contends that the evidence was insufficient

to uphold the verdict. We affirm.

      Sineneng-Smith operated an immigration consulting firm in San Jose,

California. Her clients were mostly natives of the Philippines, unlawfully

employed in the home health care industry in the United States, who sought

authorization to work and adjustment of status to obtain legal permanent residence

(green cards). One of Sineneng-Smith’s main “services” was to assist clients with

applying for a “Labor Certification,” and then for a green card. The problem was

that Sineneng-Smith’s clients, Amelia Guillermo and Hermansita Esteban, were

not eligible to adjust their statuses to legal permanent residents through the Labor

Certification program. Sineneng-Smith told investigators that she knew that her

clients were ineligible to adjust their status through Labor Certification. Sineneng-

Smith’s mail fraud convictions stem from her sending through the U.S. mail

retainer agreements to Guillermo and Esteban, stating that Sineneng-Smith would

help them obtain legal permanent residence.




      1
            Sineneng-Smith was also convicted of violating of 8 U.S.C.
§ 1324(a)(1)(A)(iv). We address those convictions in a concurrently-filed opinion.
                                          2
      “To allege a violation of mail fraud under [18 U.S.C.] § 1341, it is necessary

to show that (1) the defendants formed a scheme or artifice to defraud; (2) the

defendants used the United States mails or caused a use of the United States mails

in furtherance of the scheme; and (3) the defendants did so with the specific intent

to deceive or defraud.” Miller v. Yokohama Tire Corp., 358 F.3d 616, 620 (9th

Cir. 2004) (internal quotation marks omitted). Sineneng-Smith only contests the

sufficiency of the evidence as to the first and third elements.

      To satisfy the first element, the government must offer “[p]roof of an

affirmative, material misrepresentation,” United States v. Benny, 786 F.2d 1410,

1418 (9th Cir. 1986), or proof of “deceitful statements of half truths or the

concealment of material facts,” United States v. Woods, 335 F.3d 993, 998 (9th

Cir. 2003). The retainer agreements that Sineneng-Smith signed with Esteban and

Guillermo demonstrate her misrepresentations. The agreements stated that

Sineneng-Smith’s clients hired her “for purposes of assisting [them] to obtain

permanent residence through Labor Certification.” Because Guillermo and

Esteban had no chance of obtaining permanent residence through Labor

Certification, these statements were at least deceitful half truths that concealed

material facts. The facts were material because Esteban and Guillermo testified




                                           3
that they would have left the country if Sineneng-Smith had told them that they

were not eligible for green cards.

      As to the third element, Sineneng-Smith admitted that she knew that her

clients could not adjust their status through Labor Certification. She further

admitted that if she informed her clients of that fact, they would not have hired her.

This evidence is sufficient to support a finding that Sineneng-Smith intended to

defraud her clients.

                                     •   !     •

      With respect to the mail fraud convictions, Counts 5 and 6, the judgment of

the district court is AFFIRMED.




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