United States v. Gomez Accime

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 16, 2008
THOMAS K. KAHN
No. 06-16516
CLERK
________________________

D. C. Docket No. 05-60181-CR-JAL

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus

GOMEZ ACCIME,
Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(May 16, 2008)

Before WILSON, COX and BOWMAN,* Circuit Judges.

PER CURIAM:

*
Honorable Pasco Bowman, II, United States Circuit Judge for the Eighth Circuit, sitting
by designation.
Gomez Accime appeals his convictions by a jury on two counts of mail

fraud, 18 U.S.C. § 1341, and two counts of making false statements in connection

with immigration documents, id. § 1546(a), arguing that the evidence was

insufficient to support his convictions, that the district court erroneously denied his

motions for mistrial, and that the court improperly ruled on certain evidentiary

matters. Accime also appeals his 96-month sentence, arguing that the district court

improperly calculated his guidelines sentencing range and that his sentence was

unreasonable. We affirm Accime's convictions and sentence.

We review the sufficiency of the evidence supporting a criminal conviction

de novo, viewing the evidence in the light most favorable to the government,

granting the government all reasonable inferences to be drawn from the evidence,

and affirming if a reasonable jury could have returned a guilty verdict based on the

evidence. United States v. Ramirez, 426 F.3d 1344, 1351 (11th Cir. 2005) (per

curiam). To establish a violation of § 1341, the government was required to prove

that Accime participated in a scheme to defraud and used the mails for the purpose

of executing the scheme. To establish a violation of § 1546(a), the government

was required to prove that Accime submitted an application required by the

immigration laws or regulations knowing that such application contained a material

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false statement.1

The evidence, including testimony from alien applicants and undercover

officers, established that from approximately June 2004 through July 2005,

Accime, as executive director of the Haitian-American Community Help

Organization ("HACHO"), mailed more than 10,000 I-765 forms (Applications for

Employment Authorization) to immigration authorities on behalf of his alien

clients, on which forms Accime personally transcribed certain immigration status

codes that Accime knew to be false. The evidence also established that Accime

charged $450 for completing and filing each application, representing to the client

that the application would be approved even though Accime knew the application

would be rejected by immigration authorities. Accime argues that his immigration-

document conviction is unsupported by the evidence because his purpose in filing

the I-765 forms was to receive corresponding I-797 forms denying employment

authorization, which the aliens would then use to obtain Florida driver's licenses.

Accime's allegedly innocent motives in filing the false documents are

irrelevant—§ 1546(a) does not require proof of specific intent, only proof that false

statements were made knowingly. See United States v. Polar, 369 F.3d 1248, 1252

1
The jury instructions included a requirement that the false statement be made "willfully."
This error was harmless since the jury convicted Accime despite the higher standard of proof to
which the government was held. See United States v. Polar, 369 F.3d 1248, 1252 (11th Cir.
2004) (rejecting willfulness as element of § 1546(a) violation).

3
(11th Cir. 2004) (rejecting willfulness as an element of a § 1546(a) violation). The

evidence was sufficient to support Accime's convictions of mail fraud and making

false statements in connection with immigration documents.

We review the district court's denial of Accime's motions for mistrial for

abuse of discretion. Ramirez, 426 F.3d at 1353. Any prejudice Accime may have

suffered due to Intelligence Specialist Larry Hill's testimony was cured by the

court's instruction to the jury to disregard the objectionable comment. See id. at

1352 (noting that jury is presumed to follow court's instructions). The testimony of

Special Agent James Wolynetz was properly admitted as background information

to explain the origin of the HACHO investigation, see United States v. Johnson,

741 F.2d 1338, 1340 n.2 (11th Cir. 1984), cert. denied, 471 U.S. 1117 (1985), and

provided no basis for a mistrial. The prosecutor's closing argument that it was not

feasible to call all 10,000 alien victims of Accime's fraud was not objectionable

and did not provide a basis for a mistrial because a prosecutor is permitted to rebut

defense counsel's attacks on the government's conduct of the case if necessary to

remove any taint cast upon the government. See United States v. Avery, 760 F.2d

1219, 1224 (11th Cir. 1985), cert. denied, 474 U.S. 1055 (1986). In short, the

district court did not abuse its discretion by denying Accime's multiple motions for

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mistrial.2

We review the district court's evidentiary rulings for abuse of discretion.

See Ramirez, 426 F.3d at 1354. Cumulative error may result from improper

evidentiary rulings if a defendant's substantial rights are affected, id. at 1353, but

there can be no cumulative error if there is no individual error, United States v.

Waldon, 363 F.3d 1103, 1110 (11th Cir.) (per curiam), cert. denied, 543 U.S. 867

(2004). Here, the district court did not abuse its discretion by permitting Special

Agent Christopher Durant to testify regarding his undercover attempts to obtain a

green card from HACHO because such testimony was neither unduly prejudicial

nor irrelevant. The district court properly rejected Accime's attempt to testify

regarding what immigration authorities had told deceased HACHO employee

James Louis Deckle about the immigration status codes to be entered on the I-765

forms. This testimony did not fall under an exception to the hearsay exclusion; it

did not reflect Accime's "then existing state of mind" because Accime was not the

declarant. Fed. R. Evid. 803(3). In sum, we hold that the district court's

evidentiary rulings were not an abuse of its discretion.3

2
We decline to consider Accime's arguments alleging several hearsay violations under
Crawford v. Washington, 541 U.S. 36 (2004), because Accime did not raise these arguments
before the district court. See United States v. Dupree, 258 F.3d 1258, 1259 (11th Cir. 2001)
(noting that appellate court has discretion to consider arguments first raised on appeal).
3
Because Accime neglected to present any meaningful argument in connection with his
references to Rule 801(d)(2) of the Federal Rules of Evidence, we consider the issue abandoned.

5
We review a district court's interpretation and application of the sentencing

guidelines de novo, and we review the court's factual findings related thereto for

clear error. Polar, 369 F.2d at 1255. Accime first argues that pursuant to a cross-

reference in the § 2B1.1 general fraud guideline, the district court was required to

calculate his advisory guidelines sentence using § 2L2.1, the immigration

document offense guideline, because his convictions involved falsified

immigration documents. U.S.S.G. § 2B1.1(c)(3)(C) (2005). The § 2B1.1(c)(3)(C)

cross-reference requires application of another guidelines section only when "the

conduct set forth in the count of conviction establishes an offense specifically

covered by another guideline." Commentary to this section further instructs that

the cross-reference applies when a "defendant is convicted of a general fraud

statute, and the count of conviction establishes an offense involving fraudulent

conduct that is more aptly covered by another guideline." Id. § 2B1.1 cmt. n.15.

In the circumstances of this case, we conclude that the district court properly

calculated Accime's sentence using § 2B1.1. Accime was convicted of defrauding

thousands of his alien clients by charging each $450 to complete and submit

application forms for work permits that Accime knew would be rejected. The crux

of Accime's scheme was to defraud his clients, even if the method by which he

See Fed. R. App. P. 28(a)(9); Flanigan's Enters., Inc. v. Fulton County, Ga., 242 F.3d 976, 987
n.16 (11th Cir. 2001) (per curiam), cert. denied, 536 U.S. 904 (2002).

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achieved this goal was the submission of falsified immigration documents. We

conclude that in this case, § 2B1.1 was the applicable guideline.

We also conclude that the district court properly calculated Accime's

advisory guidelines sentence taking into account relevant acquitted conduct that the

government proved by a preponderance of the evidence. See United States v.

Duncan, 400 F.3d 1297, 1304 (11th Cir.), cert. denied, 546 U.S. 940 (2005). The

district court's consideration of Accime's acquitted conduct did not violate the

Sixth Amendment because Accime's sentence does not exceed what was authorized

by the jury verdict. See id. Accime was sentenced to 96 months' imprisonment but

could have been sentenced to up to 20 years' imprisonment for each mail-fraud

conviction and up to 10 years' imprisonment for each immigration-document

conviction without violating the Sixth Amendment. See 18 U.S.C. §§ 1341,

1546(a).

The district court did not clearly err in determining that Accime was

responsible for a $3.2 million loss amount based on the records seized from

HACHO revealing that Accime filed over 10,000 work-permit applications and

that he generally charged $450 per application. See United States v. Walker, 490

F.3d 1282, 1300 (11th Cir. 2007) (observing that "reasonable estimate of the loss

amount" is permissible), cert. denied, 76 U.S.L.W. 3492 (U.S. Mar. 17, 2008) (No.

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07-749). Accime is not entitled to offset this loss amount by the costs incurred in

running his scheme. See U.S.S.G. § 2B1.1 cmt. n.3(D) (enumerating permissible

exclusions from loss amount) and cmt. n.3(E) (enumerating permissible credits

against loss amount); United States v. Marvin, 28 F.3d 663, 664–65 (7th Cir. 1994)

(reasoning that costs of running a fraudulent scheme are not legitimate business

expenses to reduce loss amount).

The district court properly denied Accime a two-level decrease in his base-

offense level for acceptance of responsibility because this was not the "rare

situation[]" in which a defendant who puts the government to its burden of proof at

trial is nevertheless entitled to the decrease. U.S.S.G. § 3E1.1, cm. n.2. Nor did

the court err by imposing a four-level increase in Accime's base-offense level

based on Accime's leadership role in an "otherwise extensive" operation continuing

for over a year and involving 10,000 applications and $3.2 million in proceeds.

U.S.S.G. § 3B1.1(a); see United States v. Holland, 22 F.3d 1040, 1046 (11th Cir.

1994) (noting that factors relevant to the extensiveness determination include the

length and scope of the criminal activity), cert. denied, 513 U.S. 1109 (1995).

Finally, we conclude that the district court's 96-month sentence was not

unreasonable. As noted above, the court properly calculated an advisory

guidelines range of 168 to 210 months' imprisonment, ultimately imposing a

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sentence below that range after considering the 18 U.S.C. § 3553(a) factors. See

Gall v. United States, 128 S. Ct. 586, 594 (2007) (directing appellate courts to

review the reasonableness of sentences under abuse-of-discretion standard).

For the foregoing reasons, we affirm Accime's convictions and sentence.