UNITED STATES OF AMERICA v. ALBA PENA, a/k/a Alba Toribio UNITED STATES OF AMERICA v. INDRANIS ROCHEFORD

Zuniga, Pena, and Rocheford were each indicted, on July

16, 2015, in the United States District Court for the District of

Massachusetts on various counts of wire fraud in violation of 18

U.S.C. § 1343. That indictment charged Zuniga and the sisters

with eight separate counts of wire fraud, based on a "[s]cheme to

defraud" that, according to the superseding indictment, began in

2009 and extended through 2013. The indictment also included a

forfeiture allegation.

The indictment began by describing the alleged

fraudulent scheme and the role that Zuniga and the sisters

allegedly played in it. Specifically, the indictment alleged that

Zuniga and the two sisters "devised and intended to devise" the

scheme in order "to defraud and for obtaining money . . . from .





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. . the victim-immigrants . . . by causing and fraudulently

inducing [them] to pay significant sums of money in exchange for

immigration status documents which [Zuniga, Pena, and Rocheford]

promised that Zuniga could secure on their behalf." The indictment

further alleged that "[t]o accomplish this" fraud, Zuniga and the

two sisters "falsely and fraudulently represented to the victim

immigrants that Zuniga worked for United States immigration

authorities and could obtain legal immigration status documents

for each immigrant-victim in exchange for payments ranging from

$8,000 to $14,000." And, the indictment also alleged, "[i]n

reliance" on these false and fraudulent representations, "the

victim-immigrants made payments directly to [Zuniga, Pena, and

Rocheford] or to parties specifically designated by" them "in

various ways, including but not limited to, interstate bank

deposits and interstate wire transfers."

The indictment then set forth the eight specific counts

of wire fraud. Each count corresponded to a separate wire transfer

or electronic bank deposit that allegedly had been made in

furtherance of the scheme. In addition, each of those wire

transactions was allegedly made, as payment for the fraudulent

services, by one of the immigrant victims of the scheme either to

Rocheford or to another person that the schemers had designated to

receive the funds.





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Zuniga pleaded guilty to the counts against her on

January 28, 2016. The government then issued superseding

indictments that set forth the same eight counts against Pena and

Rocheford, who each then proceeded to trial. Their joint trial

began on January 9, 2017.

At trial, the government introduced testimony from 20

immigrants who stated that they had been victims of the alleged

fraudulent scheme. Six of them testified to making the wire

transfers or bank deposits as payment for the fraudulent

immigration services referenced in the indictment's eight counts.

The District Court instructed the jury as to both principal and

aiding and abetting liability as to all of the counts against the

two sisters. The jury found Pena guilty of all but one of the

counts against her and Rocheford guilty of all but three of the

counts against her. Pena and her sister moved under Rule 29 of

the Federal Rules of Criminal Procedure for a judgment of

acquittal, but their motions were denied.

At sentencing, the District Court sentenced Pena to 35

months in prison and three years of supervised release. The

District Court sentenced Rocheford to 33 months in prison and three

years of supervised release. Each sister was required to pay

$739,850 in restitution.









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II.

We turn first to Rocheford's sufficiency challenge, in

which she seeks to overturn all five of her convictions. In order

to prove that a defendant has committed wire fraud in violation of

18 U.S.C. § 1343, the government must prove the following: "(1)

a scheme or artifice to defraud using false or fraudulent

pretenses; (2) the defendant's knowing and willing participation

in the scheme or artifice with the intent to defraud; and (3) the

use of the interstate wires in furtherance of the scheme." United

States v. Appolon, 715 F.3d 362, 367 (1st Cir. 2013).

Our review of the denial of Rocheford's Rule 29 motion

is de novo. United States v. Gómez-Encarnación, 885 F.3d 52, 55

(1st Cir. 2018). "Under such a review, 'we must affirm unless the

evidence, viewed in the light most favorable to the government,

could not have persuaded any trier of fact of the defendant's guilt

beyond a reasonable doubt.'" Id. (quoting United States v.

Acevedo, 882 F.3d 251, 258 (1st Cir. 2018)).

Rocheford does not dispute that the evidence sufficed to

show the existence of the fraudulent scheme described in the

indictment, which alleged a wide-ranging effort to cheat

immigrants by obtaining payments from them in return for the

immigration services that Zuniga falsely and fraudulently promised

them. Rocheford also does not dispute that the evidence sufficed

to show that the wire transfers and bank deposits referenced in





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the counts underlying the convictions at issue were made by victims

of the scheme as payment for the fraudulent services. Thus, she

does not challenge that the wire transfers were made in furtherance

of that scheme or even that it was foreseeable that such

transactions would occur in the scheme's "ordinary course." United

States v. Vázquez-Botet, 532 F.3d 37, 64 (1st Cir. 2008) (citing

United States v. Benmuhar, 658 F.2d 14, 16-17 (1st Cir. 1981)).

Rocheford focuses instead on the second of the elements

of the offense that we have just described. She contends that the

government failed to meet its burden to prove that she was a

knowing and willful participant in the fraudulent scheme alleged

in each count. Specifically, Rocheford contends that, based on

the evidence, "[a]t most, the jury could have found only that

Rocheford allowed Zuniga to use her bank account, and that

Rocheford thought that Zuniga had some ability to help people

resolve immigration issues." But, we do not agree.

The government introduced evidence that showed that

Rocheford helped her mother recruit new immigrants to obtain the

promised immigration services in return for payment, assisted with

administrative tasks like filling out the immigrants' applications

for the status documents, and sometimes directly received payment

from immigrants for the promised services either in person or via

electronic transfer. In fact, the government introduced evidence

that supportably showed that Rocheford had facilitated payments





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for her mother's services from two people who testified not only

to being victims of the scheme, but also to having made the

specific wire transfers and bank deposits that are referenced in

three of the five counts at issue. The government also introduced

evidence, referenced in the remaining counts under review, that

another person who had been a victim of the alleged fraudulent

scheme also made a bank deposit directly into Rocheford's bank

account in furtherance of that scheme.

Thus, the evidence amply showed that Rocheford was an

active participant in the scheme as a whole, received bank deposits

from all three victims named in the counts against her, and even

had a hand in facilitating the payments from two of those three

named victims. And Rocheford does not contest that the evidence

sufficed to show that the scheme was in fact fraudulent.

Against that background, Rocheford's contention that the

evidence did not suffice to show that she knew that her mother's

promises about the services that she could provide were false and

fraudulent is unpersuasive. We are obliged to consider the

evidence in the light most favorable to the verdicts. See United

States v. DiRosa, 761 F.3d 144, 150 (1st Cir. 2014). And, from

that vantage point, we conclude that the evidence plainly sufficed

to permit the jury to infer that Rocheford, given her close ties

to her mother and her broader involvement in the fraudulent scheme,

was a knowing and willful participant in the scheme to defraud





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alleged in the counts underlying the convictions that she

challenges. See id. at 151-52 (holding that, even where there was

no evidence that the defendant did any of the "heavy lifting" of

directly defrauding the victim, a jury could reasonably infer

active participation in a wire fraud scheme, in part, from the

defendant's proximity to the fraud and the fact that his wife's

bank account received proceeds from the fraud); United States v.

Ritz, 548 F.2d 510, 522 (5th Cir. 1977) ("The fact of the close

association of the several parties and their association with

Robert, Sr. the father who was the source of four of the bills is,

one circumstance from which the jury might infer knowledge."). In

fact, the record supportably shows that Rocheford, in the course

of assisting her mother in carrying out the scheme, spent the funds

given to her by victims on personal expenses after telling the

victims that the money was being used to pay for their immigration

papers, and obfuscated when victims became suspicious of Zuniga's

actions. And Rocheford does not dispute that, if the jury was

entitled to reject her contention that her involvement in the

scheme was undertaken in good faith, then the convictions that she

challenges rested on sufficient evidence.

Pena, for her part, challenges the sufficiency of the

evidence as to only five of the seven counts of which she was

convicted. But we see no merit in her challenge either.





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The government introduced ample evidence to show that

Pena was a knowing and willful participant in what the indictment

described as -- and the evidence at trial revealed to be -- a wide

ranging scheme to lure numerous immigrants into paying for

immigration services that Zuniga falsely and fraudulently promised

to provide them. In fact, Pena does not challenge her convictions

on two of the counts alleging her participation in that scheme.

To be sure, those counts reference wire transactions

that were made by immigrants other than the immigrants involved in

the counts underlying the convictions that she now challenges on

appeal. And, Pena contends, that fact is significant because the

government failed to prove any tie between her and the three

immigrant-victims who testified about the particular transfers and

deposits that are referenced in those counts.

Pena contends for that reason that convictions on those

counts cannot be sustained. But, we do not agree. Pena is right

that the record fails to show that she directly assisted her mother

in luring those particular victims to pay for fraudulent

immigration services or that she otherwise had any direct contact

with them. In fact, the evidence does not even show that funds

from those victims were directly deposited or transferred into

Pena's account by those victims. The evidence sufficed to show

only that, initially, Rocheford received those victims' funds and

that, subsequently, she transferred a portion of those funds into





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Pena's bank account. But, while Pena contends that, "the possible

transfer of ill-gotten gains" from her sister's account into her

own was not enough "to prove that Pena participated or assisted in

defrauding any of these three individuals," the government's case

against Pena as to the convictions at issue does not depend simply

on her receipt of "ill-gotten gains" standing alone.

The government put forth evidence of Pena's and

Rocheford's knowing and willful participation in the broader

fraudulent scheme to defraud numerous immigrants, as well as

evidence that the three immigrants who made the transfers and bank

deposits referenced in the counts underlying the convictions at

issue were victims of that broader scheme. In addition, the

government put forth evidence that showed that Rocheford

transferred funds to Pena just days after she had received funds

from those victims. And, the evidence also showed, the funds that

Rocheford transferred to Pena were in amounts that a jury could

reasonably find indicated that Rocheford was transferring to her

sister funds that the victims had paid to her in return for the

false and fraudulently promised immigration services. Notably,

Pena provides no explanation for why Rocheford otherwise would

have transferred these funds to her bank account were it not for

Pena's involvement in the fraudulent scheme.

Therefore, when the evidence is considered in the light

most favorable to the verdicts, a jury could reasonably find that





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Rocheford was transferring funds from these three victims to Pena

due to Pena's role as a participant in the scheme to defraud those

victims as part and parcel of the broader scheme, rather than out

of sisterly affection. And, when considered in that same verdict

friendly light, a jury could also supportably find that Pena knew

that she was receiving those funds from Rocheford in consequence

of her participation in that same broader scheme. See DiRosa, 761

F.3d at 150; Ritz, 548 F.2d at 522.

As a result, the evidence was sufficient to sustain the

convictions. We have made clear, after all, that there is no

requirement under § 1343 that a defendant know the actual

identities of the victims of the fraudulent scheme for there to be

sufficient evidence that the defendant knowingly and willfully

participated in perpetrating the scheme. See United States v.

Tum, 707 F.3d 68, 75 (1st Cir. 2013). And, similarly, there is no

requirement that a defendant actively participate in defrauding a

particular victim of a broader scheme to defraud numerous victims

if the evidence otherwise suffices to show that the defendant

actively participated in the formulation and carrying out of that

same scheme. See United States v. Appolon, 695 F.3d 44, 59 (1st

Cir. 2012) (affirming multiple counts of wire fraud where, as here,

the defendant did not directly participate in the fraudulent acts

underlying those specific counts, but nonetheless received





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payments as a result of those frauds and actively participated in

the broader fraudulent scheme).

III.

We turn, then, to Pena's fallback contention, in which

she argues that the District Court erred by not allowing her to

testify as to statements made by Zuniga that were aimed at

demonstrating Pena's state of mind and thus that her convictions

must be vacated because she was prejudiced in her ability to mount

a "good faith" defense to the wire fraud charges. We see no merit

to this contention either.

Pena challenges the District Court's decision to sustain

the government's objections to her attempts to introduce testimony

concerning four types of conversations between herself and Zuniga.

She describes this testimony as having involved: conversations

between Pena and Zuniga about one of the victims, Isabel Morales;

conversations between Pena and Zuniga regarding Pena's familiarity

with Zuniga's purported boss, Mr. Williams; conversations between

Pena and Zuniga regarding "the source of the money in their shared

bank account"; and confrontations between Pena and Zuniga

regarding Pena's suspicions about Zuniga's fraud.

The parties dispute whether Pena properly preserved

below the challenges that she now makes on appeal to the District

Court's evidentiary rulings concerning this testimony. The

government, relying on the "bedrock rule of trial practice that,





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to preserve for appellate review a claim of error premised on the

exclusion of evidence, the aggrieved party must ensure that the

record sufficiently reflects the content of the proposed

evidence," Williams v. Drake, 146 F.3d 44, 49 (1st Cir. 1998),

contends that she has not preserved them. Accordingly, the

government contends that, insofar as the challenges are not waived,

they are forfeited and thus our review of them is only for plain

error. Pena responds that she has properly preserved these

challenges because the "thrust" of the testimony that she contends

was improperly excluded is "obvious" from the record, and so there

is no waiver or forfeiture.

We may assume, favorably to Pena, that our review is for

abuse of discretion rather than for plain error. We may assume,

too, that, as Pena contends, the testimony that she was barred

from giving was excluded in consequence of erroneous evidentiary

rulings by the District Court. For, even with those assumptions

in place, we still see no basis for concluding that the convictions

must be vacated, as Pena has not shown that she was prejudiced by

the erroneous evidentiary rulings that she claims that the District

Court made. See United States v. Sabean, 885 F.3d 27, 41 (1st

Cir. 2018) (noting that under the harmless error standard, "[w]hen

. . . an alleged error is not of constitutional dimension, we may

affirm a conviction so long as we have 'fair assurance . . . that

the judgment was not substantially swayed by the error'" (quoting





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United States v. Melvin, 730 F.3d 29, 39 (1st Cir. 2013))); cf.

United States v. Padilla, 415 F.3d 211, 220-21 (1st Cir. 2005)

(noting that, under the plain error test, the error's prejudicial

effect on the proceeding must have been "substantial and

injurious").

We start with Pena's challenge to what she contends was

the District Court's error in preventing her from testifying about

what she describes as "conversations between Pena and Zuniga about

Isabel Morales." Pena contends that this testimony was potentially

significant because it would support her "good faith" defense by

showing that she thought her mother was actually trying to help

Morales and her son obtain immigration status documents.

We may assume, as Pena contends, that the District Court

permitted her to testify only about the "topic" of the conversation

and not about "what was said." And we may assume that such a

ruling was in error. But still, the record shows that, with

respect to her conversation with her mother about Morales, Pena

did testify that she genuinely believed in consequence of that

conversation that her mother could help Morales and Morales's son

because she "was really knowledgeable [about] the immigration

process." Thus, Pena was able to testify that she sincerely

believed her mother was trying to help Morales's family when her

mother met with her.





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To the extent that Pena has in mind some additional

testimony that she would have provided if the District Court had

ruled other than it did, moreover, it is not the least bit obvious

what that testimony would be. All we know from her defense

counsel's colloquy with the District Court is that she wanted to

testify about "why [Morales] came to her house, or her

understanding and her state of mind of why she took the action

that she did." Yet, Pena did not provide a proffer describing the

substance of that testimony below. We are thus left with no means

of discerning prejudice. See United States v. Rivera Rangel, 466

F.3d 158, 163 n.3 (1st Cir. 2006) (noting that the Court could not

"credit [the appellant's] speculation" that they were harmed by

the exclusion of evidence without an offer of proof).

Second, Pena contends that the District Court committed

reversible error in precluding her from testifying about whether

"she had heard of Mr. Williams, one of Zuniga’s purported big

immigration bosses." Pena appears to contend that this testimony

would have been significant because it would have showed that she

believed that her mother was employed by a reputable immigration

service provider.

But, again, Pena has not shown any prejudice, even

assuming that she could show that the District Court erred with

respect to this aspect of the testimony. In particular, the record

shows that, on direct examination, Pena was permitted to testify





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that she learned about Mr. Williams as a small child. Moreover,

soon after Pena gave that testimony, she testified, in response to

questions from her defense counsel, both that she thought that her

mother was getting paid by Mr. Williams and that her mother had

received payment from him in exchange for immigration services.

As Pena does not identify what additional testimony pertaining to

whether "she had heard of Mr. Williams, one of Zuniga’s purported

big immigration bosses," that she was barred from giving, let alone

how the alleged bar would have been prejudicial after accounting

for the testimony about Mr. Williams that Pena was able to provide,

we again see no basis for vacating the convictions.

Pena's third set of challenges to the District Court's

allegedly wrongful exclusion of her testimony concern what she

describes as "Pena's questions to Zuniga about the source of the

money in their shared bank account and Zuniga's responses to those

questions." But, this set of challenges runs into the same

obstacles as the challenges previously addressed.

The record shows that Pena was permitted to testify that

she did not know where Zuniga's money came from and that she did

not believe that the money came from Zuniga's immigration clients.

As Pena did not provide any proffer below about what additional

testimony she would have provided in connection with this line of

questioning if she had been permitted to respond more fully, we do





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not see on what basis we could find prejudice sufficient to vacate

the convictions.

Finally, Pena challenges what she contends was the

wrongful exclusion by the District Court of what she describes as

"testimony about the substance of Pena's [confrontation with]

Zuniga when she became suspicious." But, once again, she cannot

show prejudice.

In particular, the record shows that Pena was able to

testify that, during her confrontations with Zuniga, her mother

was "angry," "didn't like to be confronted," "yell[ed]," reminded

Pena how much she had been there for her, and told Pena that she

"cannot distrust her." As Pena provided no indication below --

and provides none on appeal -- of what more information she would

have shared that would have materially advanced her "good faith"

defense beyond what is already in the record, this challenge also

fails, even if reviewed only for abuse of discretion.1

1 On appeal, Pena for the first time also frames her challenge to the District Court's evidentiary rulings in federal constitutional terms. She points out that, under the Fifth and Sixth Amendments of the United States Constitution, a defendant is entitled to a "meaningful opportunity to present complete defense" to allegations of guilt. Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 484 (1984)). Pena argues that, because the District Court sustained the government's hearsay objections and excluded this testimony, she was unable to establish that she participated in Zuniga's wire fraud scheme in "good faith," which would have provided a complete defense to liability for this crime. See United States v. Dockray, 943 F.2d 152, 155 (1st Cir. 1991). She thus contends that the





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Because we do not find any merit in Pena's contention

that the District Court committed reversible error by excluding

the testimony that she identifies, we must also reject Rocheford's

follow-on challenge, in which she contends that we must vacate her

convictions insofar as we find that Pena's must be vacated due to

the District Court's rulings as to that same testimony. We thus

turn to the next issue, which concerns a challenge that only

Rocheford brings.

IV.

Rocheford contends that her convictions should be

vacated because the District Court erred in failing to give a

particular instruction concerning unanimity. We disagree.

At trial, just prior to instructing the jury on the

specific elements of wire fraud and of aiding and abetting, the

District Court instructed the jury that it had to "separately

consider the evidence against each defendant on each offense

government must show that any errors by the District Court in excluding testimony were harmless beyond a reasonable doubt. See United States v. Mulinelli-Navas, 111 F.3d 983, 992 (1st Cir. 1997). But, because Pena did not raise any constitutional objections at trial, these claims were not properly preserved. Our review is thus only for plain error. United States v. Cianci, 378 F.3d 71, 107 (1st Cir. 2004). And she cannot meet her burden to show prejudice under that demanding standard for the same reasons that we set forth in explaining that she has not shown prejudice sufficient to meet the ordinary prejudice standard that we apply in reviewing for abuse of discretion non-constitutional challenges to evidentiary rulings of the sort that are at issue here.





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charged" and that its "decision on any one defendant on any one

offense, whether guilty or not guilty, should not influence [its]

decision on any other defendant or offenses," as "[e]ach defendant

and each offense should be considered separate." The District

Court then instructed the jury that it had to be unanimous in

deciding to convict or acquit on a given count.

While deliberating, the jury had several questions for

the judge. One of them was: "Does each defendant need to be

directly involved in each count?" After that question, Rocheford

requested that the District Court instruct the jury that "whatever

they agree on, they all need to agree for a Defendant per each

count." The District Court declined to provide that instruction,

but did reinstruct the jury on the elements of wire fraud and

aiding and abetting.

The jury also asked: "Is it required for each defendant

to have direct involvement on each charge individually, or is

knowledge of the greater scheme enough?" After that question,

Rocheford "renewed [her] request for the separate unanimity

instruction." The District Court again declined to provide the

requested unanimity instruction, further instructed the jury that

"[d]irect involvement is not a legal term that is in play in this

case," and again asked the jury to "re-visit the elements" of the

charged offenses.





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"The standard of review for claims of instructional

error is not monolithic." United States v. De La Cruz, 835 F.3d

1, 12 (1st Cir. 2016). Where an instructional error claim turns

on a question of legal sufficiency, such as whether the District

Court failed to give an instruction that was required by law, our

review of the District Court's refusal to give the requested

instruction is de novo. Id. However, where an instructional error

claim turns on the District Court's phrasing or word choice, our

Court reviews that decision only for abuse of discretion. Id.

Given that Rocheford's claim addresses the District Court's

failure to provide what, according to her, was a required unanimity

instruction, de novo review is appropriate in this instance. See

United States v. Lee, 317 F.3d 26, 35 (1st Cir. 2003). In addition,

our Court will only require a new trial where we find that an

instructional error was prejudicial. See Tatro v. Kervin, 41 F.3d

9, 14 (1st Cir. 1994).

It is not clear from the face of the requested

instruction in this case -- which would have told the jurors that

"whatever they agree on, they all need to agree for a Defendant

per each count" -- what more it would have added to the unanimity

instructions that were given that would have benefited Rocheford.

And, if the rejection of the requested instruction was not

prejudicial, then it was not reversible error for the District

Court to refuse to give it. See id.





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At oral argument on appeal, Rocheford's counsel did

attempt to argue that the unanimity instruction that she requested

would have added something. Specifically, she contended that it

would have instructed the jury that each juror had to agree that

Rocheford did "X" -- with "X" being the specific act(s) or

occurrence(s) the jurors all agree provided the basis for finding

each element of an offense of conviction was present -- on a

specific date.

But, Rocheford's challenge to the District Court's

refusal to give the instruction cannot be premised on that basis.

The Supreme Court "has 'never suggested that in returning general

verdicts'" in a wire fraud case such a Rocheford's that "the jurors

should be required to agree on as single means of commission, any

more than the indictments were required to specify one alone."

United States v. LaPlante, 714 F.3d 641, 647 (1st Cir. 2013)

(quoting United States v. Hernandez–Albino, 177 F.3d 33, 40 (1st

Cir. 1999)). After all, "[t]he requirement that a jury must come

to a unanimous agreement 'on the principal facts underlying its

verdict -- what courts have tended to call the elements of the

offense . . . does not extend to subsidiary facts —- what [the

Supreme Court] has called brute facts.'" LaPlante, 714 F.3d at

647 (alteration in original) (quoting Lee, 317 F.3d at 36); see

also United States v. Reeder, 170 F.3d 93, 105 (1st Cir. 1999)

(following Schad v. Arizona, 501 U.S. 624, 631 (1991)) (noting a





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jury must agree unanimously that the government has proven all the

elements of the offense, but it "need not agree on the means by

which all the elements were accomplished").2

V.

There remains, then, only Rocheford's challenge to her

sentence. She argues that the District Court erred in finding the

$739,852 loss amount used to support the application of a 14-level

sentencing enchantment under the United States Sentencing

Guidelines for a loss of more than $550,000 and less than

$1,500,000, pursuant to U.S.S.G. § 2B1.1(b)(1)(H)-(I), and a

restitution order, pursuant to U.S.S.G. § 5E1.1(a)(1) and the

Mandatory Victim Restitution Act ("MVRA"), 18 U.S.C. §§ 3663A,

3664.

This loss amount, set forth in the Pre-Sentencing Report

("PSR"), was comprised of the total loss to 57 victims who paid

Pena, Rocheford and Zuniga as part of the scheme. On appeal,

Rocheford argues that the proper amount for sentencing and

restitution purposes is $17,534, which equals the losses solely

associated with the counts for which she was convicted.

2 We also agree with the government that Rocheford's reliance on United States v. Newell, 658 F.3d 1, 23 (1st Cir. 2011), is misplaced, as the duplicity issues present there -- i.e., the consolidation of multiple complete offenses under single counts -- are not present in Rocheford's case.





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We review preserved objections to a district court's

interpretation and application of the sentencing guidelines de

novo and its factual findings for clear error. United States v.

Curran, 525 F.3d 74, 78 (1st Cir. 2008). The government contends

that Rocheford's arguments were not preserved below and should be

reviewed for plain error only. But, even assuming that the issue

was preserved, Rocheford's argument should fail.

Rocheford presses two arguments for why the $739,852

loss amount is incorrect. First, she argues that the loss

attributable to her must be limited to "the sum of the amounts

listed in the counts Rocheford was convicted for" because

"Rocheford was not convicted as a co-conspirator of Zuniga." But,

as the government points out, our precedent supports the conclusion

that a restitution amount or sentencing enhancement, in the case

of jointly undertaken criminal activity, may be based on "the

amount of loss attributable to, or reasonably foreseeable by, a

defendant, and may not rely solely on what was charged in the

jointly undertaken criminal activity count of an indictment."

United States v. Codarcea, 505 F.3d 68, 72 (1st Cir. 2007)

(internal quotation marks omitted) (quoting United States v.

Pizaro-Berríos, 448 F.3d 1, 7 (1st Cir. 2006)); see also United

States v. Matos, 611 F.3d 31, 44 (1st Cir. 2010) ("[P]ursuant to

the MVRA, 18 U.S.C. § 3663A, where the defendant's criminal conduct

includes 'an offense that involves as an element a scheme,





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conspiracy, or pattern of criminal activity,' a victim is defined

as 'any person directly harmed by the defendant's criminal conduct

in the course of the scheme, conspiracy, or pattern,'" and "the

district court may order restitution without regard to whether the

conduct that harmed the victim was conduct underlying the offense

of conviction." (quoting 18 U.S.C. § 3663A(a)(2) (2008))).

Second, Rocheford argues that "the losses the court . .

. attributed to the defendant are too remote -- factually and

temporally -- from the discre[te] incidents and circumstances

surrounding her convictions." To support this argument, Rocheford

contends that the restitution amount of $739,852 wrongly overlooks

the fact that the jury did not convict Rocheford on all counts.

Rocheford fails to develop any specific argument,

however, as to why any amount over $17,534 is necessarily too

"factually and temporally" remote to support an order of

restitution or sentencing enhancement. And while the jury may

have been unable to conclude beyond a reasonable doubt that

Rocheford was responsible for the wire transfers mentioned in the

counts for which she was acquitted (counts 4 and 8), for purposes

of sentencing, the District Court was required to apply the less

stringent preponderance of the evidence standard. See Curran, 525

F.3d at 78. Under that less stringent standard, the record

sufficed to permit the District Court to find Rocheford responsible

for those (and other) transfers by victims.

We, therefore, affirm Pena's and Rocheford's convictions

and sentences.