Filed: Feb. 14, 2013
Latest Update: Mar. 26, 2017
Summary: 11-5368 United States v. Ulloa UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”
Summary: 11-5368 United States v. Ulloa UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”)..
More
11-5368
United States v. Ulloa
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 14th day of February, two thousand thirteen.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 AMALYA L. KEARSE,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 UNITED STATES OF AMERICA,
14 Appellee,
15
16 -v.- 11-5368
17
18 RICHARD ENRIQUE ULLOA,
19 Defendant-Appellant,
20 - - - - - - - - - - - - - - - - - - - -X
21
22 FOR APPELLANT: MOLLY CORBETT, Federal Public
23 Defender Office, Albany, New
24 York, for Lisa A. Peebles,
25 Acting Federal Public Defender.
26
27 FOR APPELLEES: RAJIT S. DOSANJH (Richard D.
28 Belliss, on the brief), for
1
1 Richard S. Hartunian, United
2 States Attorney for the Northern
3 District of New York, Syracuse,
4 New York.
5
6 Appeal from a judgment of the United States District
7 Court for the Northern District of New York (McAvoy, J.).
8
9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10 AND DECREED that the judgment of the district court be
11 AFFIRMED.
12
13 Defendant-Appellant Richard Ulloa appeals from a
14 conviction and sentence imposed by the United States
15 District Court for the Northern District of New York
16 (McAvoy, J.). Ulloa, an adherent of the “sovereign
17 citizens” movement,1 conducted a scheme chiefly involving
18 baseless liens and other fraudulent filings and documents
19 demanding money from his numerous victims. The jury
20 convicted Ulloa of seven counts of mail fraud under 18
21 U.S.C. §§ 1341 and 1349. He was sentenced to 60 months’
22 imprisonment on each count, to run concurrently. We assume
23 the parties’ familiarity with the underlying facts, the
24 procedural history, and the issues presented for review.
25
26 1. Ulloa argues that the government lacked sufficient
27 evidence of his intent to deceive. A defendant challenging
28 the sufficiency of the evidence “bears a heavy burden.”
29 United States v. Caracappa, 614 F.3d 30, 43 (2d Cir. 2010).
30 We “must credit every inference that could have been drawn
31 in the government’s favor, and affirm the conviction so long
32 as, from the inferences reasonably drawn, the jury might
33 fairly have concluded guilt beyond a reasonable doubt.”
34 United States v. Reifler,
446 F.3d 65, 94 (2d Cir. 2006)
35 (internal citations omitted).
36
1
The sovereign citizens are a loosely affiliated group
who believe that the state and federal governments lack
constitutional legitimacy and therefore have no authority to
regulate their behavior. The FBI has labeled the sovereign
citizens a domestic terrorist group. See “Sovereign
Citizens A Growing Domestic Threat to Law Enforcement,” FBI
Law Enforcement Bulletin (Sept. 2011), http://www.fbi.g
ov/stats-services/publications/law-enforcement-bulletin/sept
ember-2011/sovereign-citizens.
2
1 Conviction under the mail fraud statute, 18 U.S.C.
2 § 1341, requires the government to prove “(1) a scheme to
3 defraud victims of (2) money or property, through the (3)
4 use of the mails.” United States v. Walker, 191 F.3d 326,
5 334 (2d Cir. 1999). Ulloa contends that his conduct was
6 “open and frank” rather than deceptive, and that “[h]e
7 believed that he had been wronged and candidly sought
8 recompense for the injuries he suffered,” and thus lacked
9 the requisite intent. Appellant Br. 18. But the government
10 put forth several examples of Ulloa’s bad intent, including
11 a threat (acted upon) to harass a police officer, made
12 during a routine traffic stop, a statement to FBI agents
13 that his intent was revenge, and emails to credit ratings
14 agencies making them aware of the liens.
15
16 2. Ulloa contends that the government was required to
17 prove that the person deceived by the scheme was the same
18 person harmed by the scheme, and that the requisite showing
19 was not made because his victims were well aware that the
20 liens and other documents were fraudulent. This argument
21 misconstrues the elements of the offense. With respect to
22 the scheme-to-defraud element, “the government is not
23 required to show that the intended victim was actually
24 defrauded”; it is sufficient to show “that the defendant[ ]
25 contemplated some actual harm or injury.” United States v.
26 Wallach,
935 F.2d 445, 461 (2d Cir. 1991). Because the
27 evidence strongly suggests that Ulloa contemplated actual
28 harm or injury, his claim is meritless.
29
30 3. Ulloa challenges the procedural reasonableness of
31 his sentence. The district court decided that a calculation
32 of the victims’ actual loss (roughly $63,000) was a more
33 appropriate measure than the intended loss (approximately
34 $6.75 billion). The result was an offense level of 16, and
35 the Guidelines range was 21 to 27 months.2 The court,
36 however, determined that offense level 16 was inadequate
37 given the extent of the misconduct and increased the offense
38 level to 25, resulting in a Guidelines range of 57 to 71
39 months. The court then sentenced Ulloa to 60 months’
40 imprisonment on each count, to be served concurrently.
41
42 Ulloa challenges this sentence on the ground that the
43 court’s statement of reasons was based on Ulloa’s potential
2
Had the court used the intended loss figure, Ulloa’s
Guidelines range would have been 292 to 365 months.
3
1 to re-offend, not his actual conduct. However, at
2 sentencing and in its statement of reasons, the district
3 court did not intimate that its upward departure was based
4 on Ulloa’s likely recidivism, but rather on the fact that
5 the offense level substantially understated the seriousness
6 of the offense. This was not error. See U.S.S.G. § 2B1.1
7 cmt. n.19(A) (2012).
8
9 Ulloa also contends that the court’s sentence punished
10 him for his involvement in a political movement and
11 therefore infringed his First Amendment rights. However,
12 the First Amendment “‘does not erect a per se barrier’” to a
13 sentencing court’s admission of evidence regarding the
14 defendant’s beliefs, which may be relevant, e.g., to show
15 motive, to examine an aggravating factor, to illustrate
16 future dangerousness, or to rebut mitigating evidence.
17 United States v. Kane, 452 F.3d 140, 142-43 (2d Cir. 2006)
18 (per curiam) (quoting Dawson v. Delaware,
503 U.S. 159, 165
19 (1992)). Ulloa’s involvement in the sovereign citizens was
20 considered to show motive (his desire to punish anyone who
21 crossed him) and to rebut mitigating evidence (Ulloa’s claim
22 that he was delusional), both permissible considerations.
23
24 For the foregoing reasons, and finding no merit in
25 Ulloa’s other arguments, we hereby AFFIRM the judgment of
26 the district court.
27
28 FOR THE COURT:
29 CATHERINE O’HAGAN WOLFE, CLERK
30
4
