Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
1-15-2008
USA v. Rivera
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2676
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"USA v. Rivera" (2008). 2008 Decisions. Paper 1748.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 06-2676
____________
UNITED STATES OF AMERICA
v.
EDWIN RIVERA,
Appellant.
____________
On Appeal from United States District Court
for the District of Eastern Pennsylvania
D.C. No. 05-cr-00252-2
District Judge: Honorable Legrome D. Davis
____________
Submitted Under Third Circuit LAR 34.1(a)
January 8, 2007
Before: FISHER, HARDIMAN and ALDISERT, Circuit Judges.
(Filed: January 15, 2008)
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OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
Petitioner Edwin Rivera challenges the sufficiency of the evidence supporting his
convictions for mail fraud, wire fraud, and aiding and abetting.
I.
Because we write for the parties, we recite only the facts essential to our decision.
Rivera was employed by various home improvement companies that were owned in part
by his co-defendant, Brad Marks. After Marks pleaded guilty to mail and wire fraud, he
agreed to cooperate with the government and was the principal witness against Rivera.
At Rivera's trial, Marks described how he and Rivera defrauded homeowners by
convincing them to pay in advance the entire cost of their home improvement jobs.
Marks said that he and Rivera used funds to pay personal expenses, salaries, utilities, and
rent, and that anything left over would be used to perform work for the customer “that
was screaming the loudest to get their job done.” (App. 297).
Marks also provided details of Rivera’s role in the companies, testifying that
Rivera circumvented the “staged funding” process by employing a number of illicit
tactics. One such tactic involved the use of “hold checks,” which were company checks
made payable to both the customer and the company. Marks explained that if a customer
was reluctant to give the company the staged funding checks up front, the company
would offer the customer a hold check, claiming the customer could then cash the check
if the work was not completed. This representation was false, however, because the
customer could not cash the hold check without the company’s approval, which was
never given. Marks testified that, although it was his idea to use hold checks, Rivera
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actually delivered them to the customers and was “very aware of the situation that the
checks would not be able to be used by the consumer.” (App. 307).
Marks also described an incident in which he and Rivera “spiked” a job. On this
occasion, after a customer decided to cancel a contract, Rivera arranged for a crew to go
to the house when no one was present except the customer’s seventeen year-old nephew.
The crew demolished the customer’s kitchen with the expectation that the customer
would have no choice but to proceed with the job. Marks testified that this scheme
worked as planned and the customer was given a hold check.
Marks also testified that Rivera pressured customers to turn over their checks and
badgered them when they were reluctant to do so. A customer testified that Rivera “was
coming over to my house, he was always coming at night and the afternoon - he was
constantly calling me at work.” (App. 51). Other customers testified that they trusted
Rivera because of their common Hispanic ethnicity while still others relinquished staged
funding checks because Rivera told them he was a Christian man.1
III.
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One customer even lied to a bank at Rivera’s request, stating that work on his
home was complete even though it had not yet begun. When asked why he trusted Rivera
despite the deceit, the customer replied “because he told me he was serious, trustworthy,
and that he was Christian.” (App. 116).
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We view the evidence in the light most favorable to the verdict winner and will
affirm “if any rational juror could have found the elements of the crime beyond a
reasonable doubt.” United States v. Cartwright, 359 F.3d 281, 285-86 (3d Cir. 2004).
Rivera claims that there was insufficient evidence to establish that he had the
requisite intent to engage in mail fraud, wire fraud, and aiding and abetting. In particular,
Rivera contends that he was merely a salesman rather than an officer of the companies;
that the companies were legitimate home improvement businesses rather than fraudulent
schemes; and that the companies’ alleged wrongdoing and ultimate failure was the
product of mismanagement by Marks and other officers.
Though theoretically plausible, Rivera’s contentions are contrary to much of the
evidence presented against him at trial. Marks testified that he and Rivera discussed the
fact that the money received from a customer would not be used to pay for work on that
customer’s house; that Rivera would knowingly deliver hold checks to customers as
fictitious security for staged funding checks; and that Rivera would spike jobs to force
customers to go ahead with home improvement work. Furthermore, a customer testified
that Rivera convinced him to lie to a bank, falsely telling the bank that Rivera’s company
had completed the promised home improvement work so that the company would be paid.
Viewing this evidence in the light most favorable to the Government, it is clear that a
rational juror could conclude that Rivera had the requisite intent to defraud.
In addition, we are unpersuaded by Rivera’s reference to United States v.
Pearlstein, 576 F.2d 531 (3d Cir. 1978). In Pearlstein, we reversed the convictions of
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salesmen working for a pen company which had engaged in fraud, finding that there was
insufficient evidence to establish that the salesmen knew of the fraud being perpetrated by
the company. In contrast to the salesmen in Pearlstein, Rivera was identified by Marks
and customers as not only aware of, but an active participant in, the fraudulent scheme.
IV.
For the foregoing reasons, we will affirm the judgment of the District Court.
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