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United States v. Roibal-Bradley

United States District Court, D. New Mexico

June 20, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JUANITA ROIBAL-BRADLEY, Defendant.

          Damon 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

          Susan Burgess Barrett (Barry) George Porter Burgess and Porter Law, LLC Albuquerque, New Mexico Attorneys for the Defendant

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Defendant's Motion for an Enlargement of Time to File an Appeal, filed April 24, 2017 (Doc. 101)(“Motion”). The Court held a hearing on May 8, 2017. The primary issue is whether the Court, pursuant to rule 4(b)(4) of the Federal Rules of Appellate Procedure, should grant Defendant Juanita Roibal-Bradley a ten-day extension to file a notice of appeal from the Court's Judgment, filed March 8, 2017 (Doc. 95)(“Judgment”). The Court concludes that Roibal-Bradley has not demonstrated excusable neglect or good cause to extend the deadline. Accordingly, the Court declines to grant the requested extension.

         FACTUAL BACKGROUND

         In a Plea Agreement, filed February 2, 2016 (Doc. 29)(“Plea Agreement”), Roibal-Bradley admitted the following facts. With respect to 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 admits:

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, 2011. 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.

         Plea Agreement ¶¶ 9.a-9.c, at 4-5 (paragraph numbering omitted). Regarding the Indictment's Counts II through XIII, 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 admits:

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 $250, 000.
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 whatsoever.” 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 assets.
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.

Plea Agreement ¶¶ 9.d-9.l, at 5-7 (paragraph numbering omitted).

         PROCEDURAL BACKGROUND

         On 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 over $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, in violation of 18 U.S.C. § 1957. See Indictment ¶ 1, at 4-5. On February 2, 2016, pursuant to a plea agreement, Roibal-Bradley entered guilty pleas to Counts I through XIII. See Plea Agreement at 1-11. In the Plea Agreement, the parties stipulated to a sentencing range of 0 to 39 months imprisonment, see Plea Agreement ¶ 11, at 7-8, and Roibal-Bradley waived her rights to appeal, or collaterally attack, her convictions or sentence, see Plea Agreement ¶ 14, at 9. The Court accepted the Plea Agreement on September 12, 2016, and sentenced Roibal-Bradley to 37 months imprisonment as to each count of conviction, to run concurrently. See Sentencing Minute Sheet at 1, filed September 12, 2016 (Doc. 55).

         On October 17, 2016, Jason Bowles, counsel for Roibal-Bradley since September 21, 2015, moved to withdraw as her counsel. See Sealed Motion to Withdraw as Counsel for Defendant at 1, filed October 12, 2016 (Doc. 60). The Court granted the motion on November 2, 2016, and directed the Clerk of the Court to appoint CJA counsel for Roibal-Bradley. See Order Allowing Withdrawal of Counsel at 1, filed November 2, 2016 (Doc. 74)(“Withdrawal Order”). That same day, Barrett Porter was appointed to represent Roibal-Bradley. See CJA Appointment of Attorney Barrett (Barry) George Porter for Juanita Roibal-Bradley, filed November 2, 2016 (Doc. 75)(text-only-entry)(“Appointment Order”).

         On March 8, 2017, the Court entered judgment, sentencing Roibal-Bradley to concurrent 37-month terms of imprisonment as to each of Counts I through XIII, dismissing Counts XIV through XXIII, and ordering restitution in the amount of $128, 744.35. See Judgment at 1-6. On March 14, 2017, pursuant to rule 36 of the Federal Rules of Criminal Procedure, the Court entered an amended judgment to correct a clerical error in the restitution it ordered. See Amended Judgment at 1-6, filed March 14, 2017 (Doc. 96)(“Amended Judgment”). In the Amended Judgment, the Court ordered restitution in the amount of $128, 771.35 -- a difference of $27.00. See Amended Judgment at 6.

         Roibal-Bradley filed a notice of appeal from the Court's Amended Judgment on March 28, 2017. See Notice of Appeal at 1, filed March 28, 2017 (Doc. 97). On April 18, 2017, the Tenth Circuit panel assigned to review the matter issued an order partially remanding the case. See United States v. Roibal-Bradley, No. 17-2042, Order, filed April 18, 2017 (10th Cir. Doc. 01019796780) (D.N.M. Doc. 100)(“Tenth Circuit Order”). The panel concludes that Roibal-Bradley's appeal is untimely under rule 4(b)(1)(A) of the Federal Rules of Appellate Procedure, because she filed her notice of appeal more than 14 days after the Court entered Judgment on March 8, 2017. See Tenth Circuit Order at 1 (citing United States v. Portillo, 363 F.3d 1161, 1165 & n.6 (11th Cir. 2004); United States v. Lewis, 921 F.2d 563, 565 (5th Cir. 1991)). The panel notes, however, that, although the appeal is untimely, “it was filed within the 30-day extension period the district court is authorized to grant under Fed. R. App. P. 4(b)(4) upon a finding of excusable neglect or good cause.” Tenth Circuit Order at 2 (citing United States v. Espinosa-Talamantes, 319 F.3d 1245, 1246 (10th Cir. 2003)). The panel therefore remands the case for the Court to “decide whether to grant Ms. Roibal-Bradley an extension of time to appeal.” Tenth Circuit Order at 2.

         1. The Motion for Extension ...


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