FILED
NOT FOR PUBLICATION
DEC 4 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10614
Plaintiff-Appellee, DC No. CR 10-414 RMW
v.
MEMORANDUM*
EVELYN SINENENG-SMITH,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, District Judge, Presiding
Argued and Submitted April 18, 2017
San Francisco, California
Reargued and Resubmitted February 15, 2018
Pasadena, California
Before: TASHIMA, BERZON, and HURWITZ**, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
Judge Reinhardt, who was originally a member of this panel, died
after this case was reargued and resubmitted for decision. Judge Hurwitz was
randomly drawn to replace him. Judge Hurwitz has read the briefs, reviewed the
record, and watched video recordings of the oral arguments.
Evelyn Sineneng-Smith appeals her conviction on two counts of mail fraud
in violation of 18 U.S.C. § 1341.1 She contends that the evidence was insufficient
to uphold the verdict. We affirm.
Sineneng-Smith operated an immigration consulting firm in San Jose,
California. Her clients were mostly natives of the Philippines, unlawfully
employed in the home health care industry in the United States, who sought
authorization to work and adjustment of status to obtain legal permanent residence
(green cards). One of Sineneng-Smith’s main “services” was to assist clients with
applying for a “Labor Certification,” and then for a green card. The problem was
that Sineneng-Smith’s clients, Amelia Guillermo and Hermansita Esteban, were
not eligible to adjust their statuses to legal permanent residents through the Labor
Certification program. Sineneng-Smith told investigators that she knew that her
clients were ineligible to adjust their status through Labor Certification. Sineneng-
Smith’s mail fraud convictions stem from her sending through the U.S. mail
retainer agreements to Guillermo and Esteban, stating that Sineneng-Smith would
help them obtain legal permanent residence.
1
Sineneng-Smith was also convicted of violating of 8 U.S.C.
§ 1324(a)(1)(A)(iv). We address those convictions in a concurrently-filed opinion.
2
“To allege a violation of mail fraud under [18 U.S.C.] § 1341, it is necessary
to show that (1) the defendants formed a scheme or artifice to defraud; (2) the
defendants used the United States mails or caused a use of the United States mails
in furtherance of the scheme; and (3) the defendants did so with the specific intent
to deceive or defraud.” Miller v. Yokohama Tire Corp., 358 F.3d 616, 620 (9th
Cir. 2004) (internal quotation marks omitted). Sineneng-Smith only contests the
sufficiency of the evidence as to the first and third elements.
To satisfy the first element, the government must offer “[p]roof of an
affirmative, material misrepresentation,” United States v. Benny, 786 F.2d 1410,
1418 (9th Cir. 1986), or proof of “deceitful statements of half truths or the
concealment of material facts,” United States v. Woods, 335 F.3d 993, 998 (9th
Cir. 2003). The retainer agreements that Sineneng-Smith signed with Esteban and
Guillermo demonstrate her misrepresentations. The agreements stated that
Sineneng-Smith’s clients hired her “for purposes of assisting [them] to obtain
permanent residence through Labor Certification.” Because Guillermo and
Esteban had no chance of obtaining permanent residence through Labor
Certification, these statements were at least deceitful half truths that concealed
material facts. The facts were material because Esteban and Guillermo testified
3
that they would have left the country if Sineneng-Smith had told them that they
were not eligible for green cards.
As to the third element, Sineneng-Smith admitted that she knew that her
clients could not adjust their status through Labor Certification. She further
admitted that if she informed her clients of that fact, they would not have hired her.
This evidence is sufficient to support a finding that Sineneng-Smith intended to
defraud her clients.
• ! •
With respect to the mail fraud convictions, Counts 5 and 6, the judgment of
the district court is AFFIRMED.
4