United States District Court, D. New Mexico
December 6, 2016
UNITED STATES OF AMERICA, Plaintiff,
JUANITA ROIBAL-BRADLEY, Defendant.
P. Martinez United States Attorney Holland S. Kastrin
Assistant United States Attorney United States Attorney's
Office Albuquerque, New Mexico Attorneys for the Plaintiff
United States of America.
Bowles Bowles Law Firm Albuquerque, New Mexico and Barrett
(Barry) George Porter Burgess and Porter Law, LLC
Albuquerque, New Mexico Attorneys for the Defendant.
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on Defendant Juanita
Roibal-Bradley's Sealed Sentencing Memorandum at
1, filed August 24, 2016 (Doc. 44)(“PSR
Objections”). The Court held a sentencing hearing on
September 12, 2016, and restitution hearings on December 2,
2016, and December 5, 2016. The primary issues are whether
the Court should, pursuant to the Mandatory Victim
Restitution Act, 18 U.S.C. § 3663A (“MVRA”),
order Roibal-Bradley to pay restitution: (i) to Joseph K.
Swezey Jr. in the amount of $90, 772.44, for fees J. Swezey
paid to RFM Research, LLC, and Jackson Kelly, PLLC, to assist
in recovering his inheritance; and (ii) to Tina R. Swezey in
the amount of $20, 135.51, for fees T. Swezey paid to RFM
Research to assist in recovering portions of her inheritance.
The Court overrules Roibal-Bradley's objections and
imposes the recommended restitution awards, because
Roibal-Bradley's conduct actually caused the Swezeys to
retain the services of RFM Research and Jackson Kelly, and
because a preponderance of the evidence supports the award
Plea Agreement, filed February 2, 2016 (Doc. 29)(“Plea
Agreement”), Roibal-Bradley admitted the following
facts. Regarding Count I of the Indictment, filed September
10, 2015 (Doc. 1)(“Indictment”), which charges
Roibal-Bradley with fraudulently receiving Social Security
Disability Insurance Benefits to which she was not entitled,
in violation of 42 U.S.C. § 408(a)(4)(1), see
Indictment ¶¶ 1-2, at 1-2, Roibal-Bradley admitted:
Between on or about September 18, 2007, and continuing
through on or about March 23, 2011, in the District of New
Mexico and elsewhere, I had knowledge of an event affecting
my initial and continuing right to any payment of Social
Security Disability Insurance Benefits, and I knowingly
failed to disclose this event to the Social Security
Administration, with the intent to fraudulently secure
payment in a greater amount than was due and when no payment
was authorized. . . .
On or about September 18, 2007, I submitted an application to
the Social Security Administration for Disability Insurance
Payments. As part of the application process, I claimed that
my disability prevented me from engaging in any work. Based
on my representations that I was not capable of gainful
employment, on March 25, 2008, the Social Security
Administration began paying me disability benefits, and
continued to pay me such benefits until March 23, 2001.
During the entire time I was receiving Social Security
Disability Insurance Payments, I was working fulltime as a
mediator or supervising attorney at the New Mexico
Worker's Compensation Administration and I did conceal
and fail to disclose to the Social Security Administration
that I was capable of such full-time, gainful employment.
As a result of my failure to disclose to the Social Security
Administration my ability to engage in full-time work, I
fraudulently received Social Security Disability Insurance
Benefits to which I was not entitled, in an amount in excess
of $40, 000.
Agreement ¶¶ 9.a-9.c, at 4-5 (paragraph numbering
omitted). Regarding Counts II through XIII of the Indictment,
which charge Roibal-Bradley with devising and executing a
wire fraud scheme and artifice to defraud the Estate of
Joseph King Swezey Sr. of more than $250, 000.00, in
violation of 18 U.S.C. § 1343, see Indictment
¶¶ 1-7, at 2-4, Roibal-Bradley admitted:
Between or about March 19, 2012, and on or about June 30,
2013, in the District of New Mexico and elsewhere, I
knowingly and with intent to defraud devised and executed a
scheme and artifice to defraud individuals and the Estate of
J.S., and to obtain money from individuals and the Estate of
J.S. by false and fraudulent pretenses, representations, and
promises, and, for the purpose of executing my scheme and
artifice, caused writings and signals to be transmitted in
interstate commerce via wire. . . .
On March 19, 2012, J.S. passed away. One of J.S.'s
daughters was named administrator of his estate. In addition
to the administrator, J.S. was survived by another daughter
and a son. J.S.'s estate was worth at least $850, 000 and
was to be split equally among his three children. Instead, I
devised and executed a wire fraud scheme and artifice wherein
I defrauded the Estate of J.S. of an amount in excess of
The administrator knew that I had been a licensed attorney in
New Mexico. The administrator did not know that I was not
permitted to practice law, having been suspended from the
practice of law by the New Mexico Supreme Court, and
specifically ordered to “not engage in the private
practice of law nor accept any fees for legal services
I did not tell the administrator that I was not allowed to be
a lawyer and I held myself out as an attorney to the
administrator. I prepared an attorney engagement agreement on
the letterhead I used when I was authorized to practice law,
“Juanita Roibal Law Offices, ” and I had the
administrator sign that agreement. Under the terms of that
agreement, I was to provide legal services to the Estate of
J.S., including locating and distributing the estate's
I did participate in locating the assets of the Estate of
J.S. The administrator received the assets her father had
left to her.
In executing my scheme and artifice to defraud, I had the
administrator transfer in interstate commerce by wire the
remaining assets of the Estate of J.S. from financial
institutions located outside of New Mexico to a personal
account I held at U.S. New Mexico Federal Credit Union in New
Mexico. In all, between April 18, 2012, and August 15, 2012,
I had the administrator deposit into my personal account 11
wire transfers totaling $571, 948.98. The administrator wire
transferred the estate's assets to me based on my
representations that I, in my purported role as attorney for
the estate, would distribute the fund to J.S.'s rightful
heirs, the administrator's brother and sister.
I did distribute some of the estate's assets to the
administrator's sister and brother but instead of
distributing the rest of the estate's assets to their
rightful owners, the administrator's brother and sister,
I withdrew some of the estate's assets from my credit
union account for my personal use. In all, I stole in excess
of $250, 000 from the estate and its heirs. . . .
On or about the following dates in 2012: April 18, April 27,
May 3, May 10, May 11, June 20, June 26, July 6, July 20,
July 23, and August 15, I executed my scheme and artifice by
knowingly and with intent to defraud, causing the
administrator of the Estate of J.S. to transfer in interstate
commerce by wire $571, 948.98 of the estate's assets from
financial institutions located outside of New Mexico to my
personal accounts at U.S. New Mexico Federal Credit Union in
New Mexico. Instead of distributing those assets to the
estate's rightful heirs, I defrauded the estate of an
amount in excess of $250, 000 and put those stolen assets to
my own use.
Additionally, on or about June 7, 2013, I engaged in a
telephone conversation, via interstate wire, with J.S.'s
son, during which I attempted to deter the son from alerting
authorities or taking legal action by falsely claiming I was
entitled to invest the funds, that I had invested the funds,
and that I would distribute the funds as requested.
Agreement ¶¶ 9.d-9.l, at 5-7 (paragraph numbering
September 10, 2015, a grand jury returned a twenty-three
count indictment against Roibal-Bradley. See
Indictment at 1-8. Count I charges Roibal-Bradley with
fraudulently receiving Social Security Disability Insurance
Benefits to which she was not entitled, in violation of 42
U.S.C. § 408(a)(4)(1). See Indictment
¶¶ 1-2, at 1-2. Counts II through XIII charge
Roibal-Bradley with devising and executing a wire fraud
scheme and artifice to defraud the Estate of Joseph King
Swezey Sr. of more than $250, 000.00, in violation of 18
U.S.C. § 1343. See Indictment ¶¶ 1-7,
at 2-4. Counts XIV through XXIII charge Roibal-Bradley with
knowingly engaging in a series of monetary transactions in
property criminally derived from wire fraud worth more than
$10, 000.00. See Indictment ¶ 1, at 4-5. On
February 2, 2016, pursuant to a plea agreement,
Roibal-Bradley entered guilty pleas as to Counts I through
XIII. See Plea Agreement at 1-11.
United States filed a Presentence Investigation Report on
June 17, 2016. See Presentence Investigation Report
at 1, filed June 17, 2016 (Doc. 34)(“PSR”). In
the PSR, the United States recommends that the Court award
restitution to J. Swezey, Joseph King Swezey Sr.'s son,
in the amount of $90, 772.44, and restitution to T. Swezey,
Joseph King Swezey Sr.'s daughter, in an unspecified
amount. See PSR ¶ 81, at 19. The United States
subsequently filed a Supplemental Memorandum recommending
restitution to T. Swezey in the amount of $20, 135.51.
See Supplemental Memorandum at 1, filed November 18,
2016 (Doc. 84)(“Suppl. Memo”). Both award amounts
purportedly reflect payments that the Swezeys made to RFM
Research and Jackson Kelley for assistance in recovering
inheritance money which Roibal-Bradley, acting as attorney
for the estate of the Swezeys' father, fraudulently
caused to be wired into her personal checking account.
See United States' Response to Defendant's
Objections and Sentencing Memorandum at 5, filed August 31,
2016 (Doc. 46)(“PSR Response”).
filed a sentencing memorandum objecting to the PSR's
recommended restitution awards on August 24, 2016.
See PSR Objections at 1. Roibal-Bradley disputes the
PSR's recommendations and “demands proof of
such.” PSR Objections at 1. Roibal-Bradley contends
that the Disciplinary Board of the Supreme Court of New
Mexico already effectuated full restitution to the Swezeys,
and that RFM Research and Jackson Kelly's efforts on the
Swezeys' behalf “have not been correlated to the
result, in terms of payment of restitution, and what [they]
actually did for the money.” PSR Objections at 2.
United States responded to Roibal-Bradley's PSR
Objections on August 31, 2016. See PSR Response at
1. The United States contends that “‘[t]he MVRA
expressly contemplates reimbursement for ‘expenses
incurred during participation in the investigation . . . of
the offense . . . .'” PSR Response at 5 (quoting 18
U.S.C. § 3663A(b)(4)). The United States asserts that
“[t]his is exactly the type of expense incurred by the
S. Estate heirs when they paid approximately $91, 000 to RFM
Research LLC (RFM) and Jackson-Kelly to assist them in
recovering their inheritance.” PSR Response at 5. The
United States argues that “the S. Estate heirs would
not have needed to expend this money if Ms. Roibal-Bradley
ha[d] disbursed their inheritance as demanded by law,
professional rules of conduct, and basic human
decency.” PSR Response at 5. Finally, responding to
Roibal-Bradley's argument that the Disciplinary Board of
the Supreme Court of New Mexico accomplished full
restitution, the United States contends that “the fact
that the S. Estate heirs did not obtain repayment of this
money as part of the New Mexico Disciplinary Board
proceedings does not mean that they are not entitled to it as
part of these criminal proceedings.” PSR Response at 6.
replied on September 6, 2016. See Sealed Reply to
United States' Response to Defendant's Objections and
Sentencing Memorandum at 1, filed September 6, 2016 (Doc.
49)(“PSR Reply”). Roibal-Bradley's primary
argument is that “it seems that the amounts sought to
be charged to Ms. Bradley are grossly excessive for the work
performed.” Sealed Reply to United States' Response
to Defendant's Objections and Sentencing Memorandum at
2-3, filed September 6, 2016 (Doc. 49)(“PSR
Reply”). She contends that RFM Research's statement
that a one-third contingency fee is the
“‘industry standard' for recovery of estate
assets is completely unsupported.” PSR Reply at 2. She
presses that the “New Mexico Disciplinary Board . . .
and the Supreme Court were the entities, which actually
obtained the estate monies back, and not RFM or
Jackson-Kelly.” PSR Reply at 2. Roibal-Bradley concedes
that “expenses incurred in the investigation of the
offense are recoverable, ” but asserts that
“[t]he services actually performed . . . appear to be
$5, 000 or less of actual work even at an hourly rate of
$300-$500.” PSR Reply at 2-3. Accordingly,
Roibal-Bradley “requests this Court order a reasonable
amount of expenses for collection owing, but not the $90, 000
amount.” PSR Reply at 3.
have no inherent power to order restitution; they may only do
so as authorized by statute.” United States v.
Gordon, 480 F.3d 1205, 1210 (10th Cir. 2007). The MVRA
enumerates several categories of offenses and authorizes
restitution in “sentencing proceedings for convictions
of, or plea agreements, relating to charges for”
offenses in those categories, where “an identifiable
victim or victims has suffered a physical injury or pecuniary
loss.” 18 U.S.C. § 3663A(c)(1). The United States
Court of Appeals for the Tenth Circuit has stated that
“the principal aim of  restitution is to ensure that
crime victims, to the extent possible, are made whole for
their losses.” United States v. Ferdman, 779
F.3d 1129, 1132 (10th Cir. 2015)(citing United States v.
James, 564 F.3d 1237, 1246 (10th Cir. 2009)). See
Paroline v. United States, 134 S.Ct. 1710, 1726
(2014)(“The primary goal of restitution is remedial or
compensatory.”)(citation omitted). Accordingly, an
order of restitution aims to “restor[e] victims to the
position they occupied before the crime” and not
“unjustly enrich crime victims or provide them a
windfall.” United States v. Ferdman, 779 F.3d
at 1132 (citing Hughey v. United States, 495 U.S.
411, 416 (1990)).
MVRA authorizes restitution in this case. Pursuant to §
3663A(c)(1)(A)(ii), restitution is mandatory for “any
offense committed by fraud or deceit.” Further, the
Swezeys are “identifiable . . . victims [who] suffered
a physical injury or pecuniary loss.” 18 U.S.C. §
3663A(c)(1)(B). Thus, the issue is whether the PSR's
recommended awards are appropriate.
order of restitution imposed under the MVRA cannot
“provide incidental, consequential, or pain and
suffering awards, ” but only awards for losses
“actually caused by the defendant's offense.”
United States v. Shengyang Zhou, 717 F.3d 1139, 1154
(10th Cir. 2013)(internal quotation marks and citations
omitted). See United States v. Gordon, 480 F.3d at
1211 (stating that “restitution may only be ordered for
losses caused by the offense of conviction”);
United States v. Quarrell, 310 F.3d 664, 680 (10th
Cir. 2002)(“A restitution order must be based on
actual loss.”)(emphasis in original).
Accordingly, in considering “whether a defendant is
required to pay restitution under the MVRA the district court
must determine  whether the crime of conviction or plea . .
. was the proximate cause of the damage.” United
States v. West, 646 F.3d 745, 751 (10th Cir. 2011). The
Tenth Circuit has stated that the causation inquiry centers
on “‘whether there was an intervening cause and,
if so, whether this intervening cause was directly related to
the offense conduct.'” United States v.
Speakman, 594 F.3d 1165, 1172 (10th Cir. 2010)(quoting
United States v. Wilfong, 551 F.3d 1182, 1187 (10th
the PSR recommends restitution only for losses
“actually caused, ” United States v.
Shengyang Zhou, 717 F.3d at 1154, by
Roibal-Bradley's offense. But for Roibal-Bradley's
theft of the Swezeys' inheritance money, they would not
have needed to retain RFM Research's and Jackson
Kelley's services, thereby incurring the one-third
contingency fee. The recommended awards reflect only the
actual loss of that contingency fee, not any
“incidental, consequential, or pain and suffering
awards.” United States v. Shengyang Zhou, 717
F.3d at 1154. See PSR Response at 5 (stating that
RFM Research and Jackson Kelly charged J. Swezey roughly $91,
000.00 “to assist them in recovering their
inheritance”); Suppl. Memo at 1 (stating that T. Swezey
paid roughly $20, 000.00 to RFM Research to regain portions
of her inheritance). Further, the Swezeys' hiring of RFM
Research and Jackson Kelly is not an intervening cause,
see United States v. Speakman, 594 F.3d at 1172,
because the MVRA expressly provides for reimbursement for
“expenses incurred during participation in the
investigation or prosecution of the offense, ” 18
U.S.C. § 3663A(b)(4). Regardless, even if hiring RFM
Research and Jackson Kelly was an intervening cause, the
hiring was “directly related to the offense
conduct.” United States v. Speakman, 594 F.3d
at 1172 (internal quotation marks and citation omitted).
disputes none of this analysis. Indeed, she concedes that
“expenses incurred in the investigation of the offense
are recoverable . . . .” PSR Reply at 2.
Roibal-Bradley's main objection to the PSR's
recommended restitution awards is that the “amounts
sought to be charged . . . are grossly excessive for the work
performed.” PSR Reply at 2-3. She presses that RFM
Research's assertion “that a 1/3 contingency fee is
the ‘industry standard' for recovery of estate
assets is completely unsupported” and that “[t]he
services actually performed by these entities . . . appear to
be $5, 000 or less of actual work even at an hourly rate of
$300-$500.” PSR Reply at 2-3. Thus, “she objects
to the [PSR's] restitution amount, and requests this
Court order a reasonable amount of expenses for collection
owing, but not in the $90, 000 amount.” PSR Reply at 3.
3664 of Title 18 of the United States Code governs a district
court's issuance and enforcement of an order of
restitution under the MVRA. See 18 U.S.C. §
3663A(d). Pursuant to § 3664(e), “[a]ny dispute as
to the proper amount . . . of restitution shall be resolved
by the court by a preponderance of the evidence. The burden
of demonstrating the amount of loss sustained by the victim
as a result of the offense shall be on . . . the
Government.” The Tenth Circuit has cautioned that the
district court cannot “simply ‘rubber stamp'
a victim's claim of loss based upon a measure of value
unsupported by the evidence.” United States v.
Ferdman, 779 F.3d at 1133. Still, the MVRA does not
require a district court to calculate a victim's loss
with “exact” precision, United States v.
Parker, 553 F.3d 1309, 1323 (10th Cir. 2009), and
“[a] district court ‘may resolve restitution
uncertainties with a view towards achieving fairness to the
victim so long as it still makes a reasonable determination
of appropriate restitution rooted in a calculation of
actual loss, '” United States v.
Ferdman, 779 F.3d at 1133 (quoting United States v.
Gallant, 537 F.3d 1202, 1252 (10th Cir. 2008))(emphasis
in United States v. Ferdman but not in United
States v. Gallant).
“preponderance of the evidence, ” 18 U.S.C.
§ 3664(e), supports the PSR's recommended
restitution amounts. The Swezeys assigned to RFM Research
one-third of their inheritance shares in exchange for RFM
Research's assistance in reclaiming their funds.
See Summary of Services and Actions by RFM Research
LLC in the Estate Case of Joseph King Swezey Sr. at 1, filed
August 31, 2016 (Doc. 46-1)(“RFM Summary”).
Jackson Kelley and RFM Research had a separate agreement,
whereby Jackson Kelly would receive ten percent of RFM
Research's one-third contingency fee. See RFM
Summary at 1; Contingency Fee Agreement with Jackson Kelly
PLLC at 1-4, filed August 11, 2016 (Doc. 41-4). From February
2012 to May 2015, RFM Research researched probate records,
searched for and located Joseph King Swezey Sr.'s heirs,
investigated Joseph King Swezey Sr.'s estate, contacted
the Disciplinary Board of the Supreme Court of New Mexico
which disbarred Roibal-Bradley and ordered her to make
restitution, and worked with Roibal-Bradley's attorney to
effect restitution. See RFM Summary at 1. RFM
Research notes that the industry standard contingency fee for
similar work is “one-third of the assets recovered,
” and that “[t]his case was more complicated as
it also involved an Administratrix, who did not perform her
duties, action by the Disciplinary Board and protracted
recovery of the assets from T. Roibal-Bradley.” RFM
Summary at 2.
objects that there is no evidence that a “1/3
contingency fee is the ‘industry standard'”
for such work. PSR Reply at 1. The Court disagrees.
Genealogical “heir finders” such as RFM Research
routinely “attempt to collect contingency fees as high
as 50 per cent from estate or trust beneficiaries or the
estates or trusts themselves.” Michael S. Ramage,
Fees and Forensic Geneology, Forensic Genealogy News
(Dec. 2011). See Allan Friedman, Heir-Hunting
Agreements: Recommendations for the Extension of Probate
Court Jurisdiction, 6 Conn. Prob. L.J. 87, 90 (1991)(stating
that heir finders typically take twenty-five to fifty percent
of the inheritance); In re Estate of Maxson, 413
N.Y.S.2d 676, 677 (1979)(noting that an heir finder, upon
finding such heirs, “reveals their good fortune . . .
on their agreement to compensate him, usually in the amount
of 50% of their inheritance”). Many courts uphold such
fees. See, e.g., Sparne v.
Altshuler, 80 R.I. 96, 90 A.2d 919 (1952)(upholding
one-third contingency fee agreement in consideration for
providing genealogical information to establish
plaintiff's right to inheritance); Estate of
Katze-Miller v. Int'l Equity Research, 158 Wis.2d
559, 463 N.W.2d 853 (Ct. App. 1990)(upholding genealogical
heirship search and investigative/attorney services in
exchange for forty percent interest in heirs'
distributive shares); Jones v. Walker, 660 A.2d 76,
78 & n. 4 (Pa. Super. 1995)(noting that a firm received
thirty-five percent of inheritance after contacting three
paternal cousins who were missing heirs to the estate);
Nelson v. McGoldrick, 896 P.2d 1258, 1260
(1995)(holding that an agreement which refused to give any
information to enable an heir to locate property unless she
promised to give the finder fifty percent of the estate was
not illegal or void as against public policy). Some courts
subject these fees to a discretionary reasonableness
standard, meaning that the court examines the amount of time
and effort that the firm expended while considering the
success of the firms' work. See, e.g.,
Estate of Atkinson, 7 Phila. 106 (1981); In re
Devlin, 182 A.D.2d 322, 588 N.Y.S.2d 316 (App. Div.
the above cases as guidance, the Court concludes that RFM
Research's one-third contingency fee for three years'
work to successfully recover the Swezeys' inheritance was
reasonable and not “grossly excessive” as
Roibal-Bradley insists. PSR Reply at 2. Accordingly, the
Court concludes that, pursuant to MVRA § 3663A, Roibal
Bradley must pay restitution to J. Swezey in the amount of
$90, 772.44 and restitution to T. Swezey in the amount of
$20, 135.51. The Court notes that these awards, which are
“rooted in a calculation of actual loss, ” are
imposed “with a view towards achieving fairness to the
victim[s].” United States v. Ferdman, 779 F.3d
at 1133 (emphasis and citation omitted).
ORDERED that: (i) Roibal-Bradley's objections to the
PSR's recommended restitution awards to J. Swezey and T.
Swezey in Defendant Juanita Roibal-Bradley's
Sealed Sentencing Memorandum at 1, filed August 24,
2016 (Doc. 44), are overruled; and (ii) Roibal-Bradley must
pay restitution to J. Swezey in the amount of $90, 772.44 and
restitution to T. Swezey in the amount of $20, 135.51.