     12-1535-cr
     United States v. Perez

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 7th day of May, two thousand thirteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                ROBERT D. SACK,
 9                              Circuit Judge,
10                JED S. RAKOFF,*
11                              District Judge.
12
13       - - - - - - - - - - - - - - - - - - - -X
14       UNITED STATES OF AMERICA,
15                Appellee,
16
17                    -v.-                                               12-1535-cr
18
19       CLOVER PEREZ,
20                Defendant-Appellant,
21       - - - - - - - - - - - - - - - - - - - -X
22



                *
                  The Honorable Jed S. Rakoff, United States
         District Judge for the Southern District of New York,
         sitting by designation.
                                                  1
 1   FOR APPELLANT:              Florian Miedel, New York, New
 2                               York.
 3
 4   FOR APPELLEE:               Niketh Velamoor, (James Pastore,
 5                               Jr., and Jennifer G. Rodgers, on
 6                               the brief) for Preet Bharara,
 7                               United States Attorney for the
 8                               Southern District of New York.
 9
10
11
12        Appeal from a judgment of the United States District
13   Court for the Southern District of New York (Aspen, J.**).
14
15        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
16   AND DECREED that the judgment of the district court be
17   AFFIRMED.
18
19        Defendant Clover Perez appeals her conviction and
20   sentence following a jury trial in the United States
21   District Court for the Southern District of New York (Aspen,
22   J.). Perez was convicted of several counts of fraud and
23   identity theft arising from a scheme in which she falsely
24   told undocumented immigrants that she could obtain legal
25   status for them. We assume the parties’ familiarity with
26   the underlying facts, the procedural history, and the issues
27   presented for review.
28
29        1.  Because Perez failed to object properly to the
30   district court’s jury instructions, we review those
31   instructions for plain error. See United States v. Kaiser,
32   609 F.3d 556, 564-65 (2d Cir. 2010). Under this standard,
33   Perez “must demonstrate that any error (1) is ‘clear or
34   obvious, rather than subject to reasonable dispute’; (2)
35   ‘affected [her] substantial rights’--i.e., ‘that there is a
36   reasonable probability that the error affected the outcome
37   of the trial’; and (3) ‘seriously affects the fairness,
38   integrity or public reputation of judicial proceedings.’”
39   Id. at 565 (quoting United States v. Marcus, 130 S. Ct.
40   2159, 2164 (2010)).
41


         **
            Judge Marvin E. Aspen, of the United States District
     Court for the Northern District of Illinois, sitting by
     designation.
                                  2
 1        As for the “uncalled witness” instruction, Perez has
 2   failed to show that there was a “reasonable probability”
 3   that the charge “affected the outcome of the trial.”
 4   Kaiser, 609 F.3d at 565. Perez suffered no prejudice from
 5   the instruction--even if it had been error to give the
 6   instruction at all--because there was no uncalled witness
 7   for Perez. See United States v. Caccia, 122 F.3d 136, 139
 8   (2d Cir. 1997) (requiring prejudice in similar
 9   circumstance). In fact, since the government called only a
10   few of the dozens of victims in this case, the charge far
11   more likely prejudiced the government, not Perez.
12
13        As for the “conscious avoidance” instruction, Perez
14   suffered no prejudice because the government proved actual
15   knowledge with overwhelming evidence. In fact, the district
16   court might well have declined to give the instruction on
17   that basis. See United States v. Kaplan, 490 F.3d 110, 127-
18   28 (2d Cir. 2007).
19
20        As for the “function-of-the-jury” instruction, when
21   viewed in the context of the jury charge as a whole, see
22   United States v. Zvi, 168 F.3d 49, 58 (2d Cir. 1999), there
23   was no error. The district court repeatedly instructed the
24   jury properly on the government’s burden.
25
26        2.  We review factual findings as to the loss amount
27   and the vulnerable victim enhancement for clear error. See
28   United States v. Uddin, 551 F.3d 176, 180 (2d Cir. 2009)
29   (loss amount); United States v. Patasnik, 89 F.3d 63, 72 (2d
30   Cir. 1996) (vulnerable victim enhancement).
31
32        The district court’s findings as to loss amount were
33   not clearly erroneous. Hearsay is admissible in sentencing
34   proceedings. United States v. Martinez, 413 F.3d 239, 242
35   (2d Cir. 2005). The district court therefore properly
36   considered the victims’ statements to investigators.
37   Moreover, the district court “need not [have] establish[ed]
38   the loss with precision but rather need[ed] only [to have]
39   ma[d]e a reasonable estimate of the loss, given the
40   available information.” Uddin, 551 F.3d at 180 (internal
41   quotation marks and citations omitted). The court was
42   therefore entitled to “extrapolat[e] the average amount of
43   loss from known data and apply[] that average to
44   transactions where the exact amount of loss is unknown.”
45   United States v. Bryant, 128 F.3d 74, 76 (2d Cir. 1997) (per
46   curiam).
47

                                  3
 1        The enhancement for vulnerable victims also was not
 2   clearly erroneous. As the district court found, the victims
 3   were not sophisticated in the area of immigration law.
 4   Moreover, their status as undocumented immigrants made it
 5   easy for Perez to prey on their desperation to gain legal
 6   status without being worried about her victims turning her
 7   in to the authorities. Thus, Perez “shape[d] the nature of
 8   the crime . . . to target a class of victims that are
 9   virtually all particularly vulnerable to that crime.”
10   United States v. McCall, 174 F.3d 47, 50 (2d Cir. 1998).
11
12        3.  We review the restitution order for plain error
13   because Perez did not object below. See United States v.
14   Coriaty, 300 F.3d 244, 252 (2d Cir. 2002). Although a
15   district court must conclude that restitution is appropriate
16   by a preponderance of the evidence, the calculation
17   “‘requires a delicate balancing of diverse, sometimes
18   incomparable[,] factors, some of which not only lack
19   certainty but may indeed be based on mere probabilities,
20   expectations, guesswork, even a hunch.’” United States v.
21   Rossi, 592 F.3d 372, 376 (2d Cir. 2010) (alteration in
22   original) (quoting United States v. Atkinson, 788 F.2d 900,
23   902 (2d Cir. 1986)). There was ample evidence to support
24   the conclusion that Perez routinely told people she could
25   get them legal status when she knew that was not true.
26   Perez offered no evidence that any victim was a
27   coconspirator.
28
29        For the foregoing reasons, and finding no merit in
30   Perez’s other arguments, we hereby AFFIRM the judgment of
31   the district court.
32
33                              FOR THE COURT:
34                              CATHERINE O’HAGAN WOLFE, CLERK
35




                                  4
