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United States v. Seko

United States District Court, E.D. Virginia, Alexandria Division

May 30, 2017

UNITED STATES OF AMERICA,
v.
JEN SEKO, Defendant.

          MEMORANDUM OPINION

          JAMES C. CACHERIS UNITED STATES DISTRICT COURT JUDGE.

         This matter is before the Court on Defendant Jen Seko's (“Defendant” or “Seko”) Post-Verdict Motion for Judgment of Acquittal. [Dkt. 566.] Seko's Motion for New Trial and Motion for Arrest of Judgment[1] are also before the Court. [Dkt. 565.] Finally, Seko's Notices of Supplemental Authority [Dkts. 572, 573] and Notice of Adoption of Henderson's Second Motion for New Trial [Dkt. 576] have been received and considered. For the following reasons, the Court will deny Defendant's motion for judgment of acquittal and motion for new trial.

         I. Standard of Review

         A. Motion for Judgment of Acquittal

         Federal Rule of Criminal Procedure 29(c) provides, in relevant part, “if the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal.” Where such a motion is based on “insufficiency of the evidence, the conviction must be sustained if the evidence, when viewed in the light most favorable to the Government, is sufficient for any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.” United States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998).

         When ruling on a Rule 29(c) motion, “the trial court should only consider the sufficiency of the evidence presented in that trial, not what evidence is likely to be admitted or excluded in a future trial.” United States v. Mackins, 32 F.3d 134, 138-39 (4th Cir. 1994). The Government must be allowed “the benefit of all reasonable inferences from the facts proven to those sought to be established.” United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982) (citations omitted). “Furthermore, neither the district court nor the appellate court should consider a witnesses' credibility, but must assume that the jury resolved all contradictions in favor of the Government.” Romer, 148 F.3d at 364.

         B. Motion for New Trial

         Federal Rule of Criminal Procedure 33 provides, in relevant part, “the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33. The Fourth Circuit instructs that “a trial court should exercise its discretion to award a new trial sparingly, and a jury verdict is not to be overturned except in the rare circumstance when the evidence ‘weighs heavily' against it.” United States v. Smith, 451 F.3d 209, 216-17 (4th Cir. 2006) (citations omitted). Although while addressing a Rule 33 motion a district court “is not constrained by the requirement that it view the evidence in the light most favorable to the government, ” such a motion should only be granted when “the evidence weighs so heavily against the verdict that it would be unjust to enter judgment.” United States v. Arrington, 757 F.2d 1484, 1485 (4th Cir. 1985).

         II. Analysis

         A. Motion for Judgment of Acquittal

         i. Count One: Conspiracy

         Defendant first argues that this Court improperly admitted “the self-serving hearsay legal opinion of Postal Inspector Gonzalez . . . to establish (1) the existence of the charged fraud and conspiracy, (2) Ms. Seko's ‘knowledge' of the fraud and conspiracy, and (3) Ms. Seko's complicity in the fraud and conspiracy.” [Dkt. 566, ¶ 2 (hereinafter, “Def.'s Mot.”).] Defendant then instructs the Court to review its Motion for a New Trial and Arrest of Judgment [Dkt. 565] for further argument and explanation. Id., ¶¶ 2-3. As a result, the Court will address those arguments at length in Section II.B below. For now, the Court will simply note its continued ruling that these statements were not hearsay and were, therefore, admissible. See United States v. Martin, 2016 WL 4928669, at *5 (4th Cir. Sept. 16, 2016); United States v. Leake, 642 F.2d 715, 720 (4th Cir. 1981).

         The remainder of Defendant's argument on Count One focuses on the sufficiency of the evidence. First, Defendant contends that Postal Inspector Gonzalez's testimony was the only proof at trial regarding Seko's knowledge of the charged conspiracy. Def.'s Mot., ¶ 3. She asserts that no co-conspirators testified that they ever told her that they were defrauding homeowners, id., ¶ 6, and that she was only aware of a single customer complaint, [2] which she helped to rectify, id., ¶ 7. Second, Seko alleges that after the Postal Inspectors warned her about continuing to do business with Sammy Araya, she immediately stopped.[3] Id., ¶ 8. Finally, Defendant argues that the evidence at trial established that the mailers themselves contained no false representations, that no fraud occurred until the victims called the toll-free numbers listed on the mailers for help, and that she did not know about the false representations being made by the co-conspirators who answered those calls.[4] Id., ¶¶ 11-15. The Court disagrees with each of Seko's assessments.

         During nearly two weeks of trial, the Government presented sufficient evidence for a reasonable jury to have concluded that Defendant Seko joined the conspiracy, that she took actions in furtherance of that conspiracy, and that she did so with the knowledge that victim homeowners were being defrauded. Given the substantial amount of evidence presented at trial, the Court will not undertake to summarize every single piece of evidence that supported Seko's conviction. Rather, the Court will focus its analysis instead on the strongest pieces of evidence that could have led a rational jury to find Seko guilty beyond a reasonable doubt.

         To begin, Defendant Seko's co-conspirators testified at trial that Ms. Seko had knowledge of the fraudulent scheme or, at the very least, that she was deliberately ignorant to its objectives. For example, Joshua Johnson testified that the conspirators changed the names of their purported business frequently, which was confirmed by the documentary evidence. Johnson and Sabrina Rafo testified that Seko was paid solely in cash and cashier's checks. Nicholas Estilow testified about a conversation that Seko and Araya had in a bar where she expressed concern about her name being tied to the mailers. Johnson also testified that Seko discussed the Postal Inspectors' visits with her co-conspirators after those visits occurred. Based upon this testimony, a reasonable trier of fact could have concluded that Ms. Seko had knowledge of the criminal conspiracy, or was at least deliberately ignorant of its existence, even without having ever considered the effect of the Postal Inspectors' April 2013 caution on her state of mind.

         Furthermore, evidence admitted at trial unequivocally contradicts Defendant's argument that she immediately stopped doing business with Araya in April 2013. Johnson testified that Seko was aware that his two aliases (“Simon Andrews” and “Matt Kelly”) were both working for Araya. Although Johnson initially attempted to hide his affiliation with Araya from Seko, he later told her that he wanted to do the same thing as Araya, including using the same mailer. Johnson also testified that he did not try to disguise his voice when he switched aliases and that, when he met Seko in person as “Matt Kelly, ” she laughed with him about how he had previously used a different fake name (“Simon Andrews”) to do business with her. Additionally, Defendant Seko's own email records show that she knew she was continuing to conduct business with Araya. In September 2013, for example, she sent an email to Araya in reference to “Matt's job” and the number of “pieces” of mail she was sending out for him. Gov't Exh. 33-93. Defendant Seko also exchanged multiple emails with Araya regarding mailers being sent on his behalf, including “counts” of potential victims, draft mailers, details of mailing campaigns with tracking links, and the possibility of setting up new postal service permits. Gov't Exhs. 33-93, 33-95, 33-101, 33-108, 33-111. During the fall of 2013, Defendant Seko received voicemails from Araya regarding these mailing campaigns and how he should deliver payment to her. Gov't Exhs. 33-117 through 33-121. Evidence seized during the June 2014 search of Seko's business also could have been considered by the jury as evidence of her guilt. See, e.g., Gov't Exhs. 33-46 (spreadsheet file containing victim Paul H.'s personal information); 81-1 (mailer sent to Paul H. in May 2013); 34-1 (a document explaining how Defendant Seko pulled victim data from “RealtyTrac” on behalf of “Sammy” and his company, ABC Marketing); and 34-57 (handwritten notes listing contact information for “Sammy” and mentioning “misleading” mailers). Finally, Defendant Seko helped Araya to open a new bulk mailing permit, Permit 78, in another person's name (co-defendant Michael Henderson) in September 2013. Gov't Exh. 40-2. This permit was then used to send mailers until April 2015, Gov't Exh. 40-4, which included mailers sent on behalf of “Matt Kelly, ” Gov't Exh. 33-112, and one of Mr. Araya's aliases, “Paul Brown, ”[5] Gov't Exh. 33-113.

         Finally, testimony and documentary evidence established that the mailers themselves contained false representations. Danielle Johnson-Kutch testified, for example, that there were no geographic limitations under the Home Affordable Modification Plan (“HAMP”), although the mailers that Seko sent out falsely claimed that “we are only limited to a small number of approvals” or “participants in this area.” Gov't Exhs. 81-1, 70-2. Moreover, Johnson and Estilow testified that Seko provided her co-conspirators with the victims' contact information after sending out the initial mailers, even though the mailers stated that “we have been trying to reach you without success” and included a case manager and case number. Gov't Exhs. 41-8, 34-36. The Government also presented evidence of spreadsheets found on Defendant Seko's computer, which included thousands upon thousands of rows of potential victims. Although Defendant Seko clearly disputes whether any of the statements in her mailers were false and, if they were, whether they were material, those kinds of factual determination are-and were- properly reserved for the jury. The fact that jurors resolved these factual questions against Defendant Seko, finding her guilty of conspiracy, is entirely reasonable.

         Given the substantial weight of the evidence at trial, and Rule 29(c)'s requirement to view that evidence in the light most favorable to the Government, the Court holds that a reasonable trier of fact could have found Defendant Jen Seko guilty of conspiracy beyond a reasonable doubt. Accordingly, the Court denies Defendant's motion for a judgment of acquittal on Count One.

         ii. Counts Two-Six (Wire Fraud) and Counts Nine-Eleven (Mail Fraud)

         Defendant's next argument is that she should be acquitted of the eight substantive counts of mail fraud and wire fraud for which she was convicted.[6] As pointed out by the Government, Defendant's arguments dealing with these substantive counts largely repeat her prior arguments with respect to the conspiracy count, namely that she did not know “Matt Kelly” was working with Araya, that she stopped mailing for Araya in April 2013, and that the Government failed to prove that the mailings she sent later in the fall of 2013 were for Araya's mortgage modification companies. Def's Mot., ¶ 29. In addition, Defendant makes a series of arguments about how she did not personally commit the substantive offenses and, thus, should not have been held liable for them. Id., ¶¶ 30-33.

         As a preliminary matter, it is important to remind Defendant Seko about the Pinkerton doctrine, which imposes vicarious liability on a co-conspirator for any substantive offenses committed by other members of the conspiracy when those offenses take place during and in furtherance of the conspiracy. United States v. Aramony, 88 F.3d 1369, 1380 (4th Cir. 1996) (citing Pinkerton v. United States, 328 U.S. 640, 646-47 (1946)). Consequently, as long as the jury could have reasonably found beyond a reasonable doubt that one of Defendant Seko's co-conspirators committed the substantive offenses during and in furtherance of the conspiracy, that the offenses were committed at a time when Defendant Seko was a member of the conspiracy, and that the acts were reasonably foreseeable to her, she can most certainly be held criminally liable for them, even if she did not personally carry them out. With that framework in mind, the Court now turns to a discussion of each substantive count.

         1. Counts Two and Three (Victim David A.)

         Counts Two and Three deal with two wire communications sent to David A. in early April 2013. At trial, David A. testified that before exchanging these communications with Seko's co-conspirators, he received a mailer that falsely promised him mortgage modification assistance. He did not retain a copy of this mailer, but his personal information was later found in a spreadsheet of homeowners facing foreclosure on Seko's computer. See Gov't Exhs. 33-51, 33-51A.

         Defendant's main argument against her convictions for these two counts is directly tied to her ability to know exactly what the jury was thinking. Specifically, Defendant asserts that the jury convicted her of conspiracy based solely upon the caution she received from Postal Inspector Gonzalez on April 1, 2013. Def.'s Mot., ¶ 30. Because her mailer was sent to David A. prior to that date, her theory goes, she cannot possibly be held criminally liable for the wire fraud that took place in early April 2013.[7] Id. Moreover, Seko claims that her convictions for Counts Two and Three are inconsistent with her acquittals for Counts Seven and Eight, which likewise involve conduct that took place prior to April 2013. Id.

         As Defendant is well aware, the jury in this case returned a general verdict for all eleven counts in the Superseding Indictment. They made no specific factual findings about when they determined that Seko had joined the conspiracy. As the Fourth Circuit has previously acknowledged, because “discerning what facts were ‘necessarily determined' in a general jury verdict is no easy task, ‘[c]ourts have always resisted inquiring into a jury's thought processes.” United States v. Yearwood, 518 F.3d 220, 229 (4th Cir. 2008) (citing United States v. Powell, 469 U.S. 57, 67 (1984)). The Court likewise declines to speculate about the jury's conclusions today.

         Additionally, as pointed out by the Government, Defendant's “inconsistent-verdicts argument is baseless.” United States v. Louthian, 756 F.3d 295, 305 (4th Cir. 2014). “[I]t is well-settled that a defendant ‘cannot challenge his conviction merely because it is inconsistent with a jury's verdict of acquittal on another count.'” Id. at 305 (citing United States v. Thomas, 900 F.2d 37, 40 (4th Cir. 1990) (internal citation omitted)). “Indeed, an inconsistent verdict can result from mistake, compromise, or lenity, and a jury could just as likely err in acquitting as in convicting.” Id. Accordingly, this Court rejects Defendant Seko's argument that she should be acquitted on Counts Two and Three, based on her acquittal on Counts Seven and Eight.

         Given that there was sufficient evidence to convict Defendant Seko of conspiracy, that Government witnesses and documentary evidence established that Seko targeted David A. with an initial mailer, and that Seko's co-conspirators sent him the fraudulent wire communications at issue in Counts Two and Three, the Court hereby finds that a rational jury could have convicted Defendant Seko of the ...


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