STATE OF NEW JERSEY v. VERELI SOTELO

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VERELI SOTELO,

Defendant-Appellant.

________________________________________

December 24, 2013

 

Submitted September 30, 2013 Decided

 

Before Judges Yannotti and St. John.

 

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-11-1120.

 

Joseph E. Krakora, Public Defender, attorney for appellant (M. Virginia Barta, Designated Counsel, on the brief).

 

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Defendant Vereli Sotelo was tried before a jury and found guilty of multiple counts of conspiracy to commit theft by deception. Defendant appeals from the amended judgment of conviction entered by the trial court on August 26, 2011. We affirm.

I.

Defendant and her husband, co-defendant Enoc "Tito" Sotelo, emigrated from Peru to the United States.1 Tito was issued a United States permanent residency card (residency card) and became a naturalized citizen in 2000. Defendant obtained legal residency by virtue of her marriage to Tito.

In October 2001, Tito was hired by Captain Henry J. Thibault, a pastor with the Salvation Army who had been sent to Plainfield to establish a congregation. Thibault did not speak Spanish, and hired Tito to assist him with outreach in the largely-Hispanic community. Tito became an Acting Corps Sergeant Major, akin to a "head Deacon" in other denominations. Although he was not authorized to perform religious ceremonies, he served as Thibault's right-hand man and was respectfully styled "Pastor" by the Spanish-speaking congregants. Defendant was not employed by the Salvation Army, but the congregants nevertheless referred to her as "Pastora."

From the commencement of his employment through 2004, Tito served the Spanish-speaking community of the Plainfield Salvation Army without incident. In early 2005, however, Tito began to approach undocumented aliens within the congregation about helping them obtain residency cards. He explained that he had a contact at "Immigration" as well as an attorney named Oscar Ruiz in Miami, Florida who could expedite the process. Tito informed responsive individuals that it would cost $4000 for a residency card, along with an additional donation to the church. In time, Tito explained, the members would receive what he described as a "torch," that is, a document from Immigration purportedly demonstrating its acceptance of the citizenship application. When these "torches" arrived, Tito would conspicuously distribute them in front of the congregation.

Many individuals, several of whom testified at trial, accepted Tito's representations and went to his home with the $4000 sum in cash as directed. Defendant was almost always present at these exchanges, and would collect the money and count it. Another woman, Denise Gallo, also collected and counted the payments. During one of these visits, defendant was observed "writing notes about how much money people were giving her husband." After these payments, Tito explained to the payors that the money would be sent along to Immigration. Members were also instructed to show support for the church by attending services and offering tithes. Some were told that Tito was going to get them a job at the Salvation Army. Tito informed others that regular attendance at church would be "evidence" for Immigration.

On multiple occasions, Tito told the applicants that they were required to travel to Miami in order to speak with attorney Ruiz. Defendant helped arrange these trips, collecting transportation costs and taking members to the airport. She also travelled to Florida, joining her husband and Ruiz at a closed-door meeting.

Martha Reyes, a congregant who paid Tito for a residency card, testified that, in preparation for such a trip, Tito had provided her with an identification card containing the Salvation Army logo. Both Tito's and defendant's photographs appeared on the back of the card. However, Reyes did not make the journey to Miami because Tito apparently learned that authorities had grown suspicious of "so many people going with the Salvation Army identification." After that, there were no more trips to Miami and future applications were handled by Tito at his home.

Those individuals who received "torches" discovered that their listed addresses and educational levels had been falsified. The "torches" indicated Florida residences and the members were described as having advanced university degrees.

By early 2006, both the English and Spanish media published reports about a fraud at the Salvation Army whereby undocumented aliens were promised residency cards. Several members thereafter asked for their money back, but Tito refused to do so. For her part, defendant informed the congregants that they should "not . . . believe that this was a fraud and that it would be [proven false] once the papers arrived." After the news broke, Tito addressed the congregation and, as one congregant explained at trial

[W]hat came out . . . in the news on TV it was a lie, and he he told us that the papers were coming. As a matter of fact that day he called the attorney on the phone, on the speakerphone, Oscar Ruiz, and he told us that he was the immigration attorney and not to worry because the papers were coming.

 

A Union County grand jury indicted defendant, Tito, Gallo and Ruiz on November 12, 2010. The indictment, in pertinent part, charged defendant with five counts of theft by deception, N.J.S.A. 2C:20-4 (counts eight, nine, eleven, fifteen and eighteen), each count referencing a specific victim. Additionally, in count nineteen, defendant and her three co-defendants were charged with conspiracy to commit theft by deception, N.J.S.A. 2C:5-2.

At trial, multiple victims of the alleged scheme testified to the foregoing facts. Additionally, the State presented the testimony of David Caudill, an attorney specializing in immigration fraud detection at the United States Citizenship and Immigration Service (USCIS).

Caudill explained that, ordinarily, a person seeking legal permanent residency must first receive "some form of invitation" from a relative or employer to initiate the process, followed by an application to the government for approval or denial. Special circumstances, however, sometimes justify a waiver from the usual procedures. To qualify under the national interest or extraordinary ability category, an applicant would need to have "worldwide renown" or "skills [that] are so highly needed that the government might seek to bring them." On the other hand, people who possess only secondary or vocational school training generally do not qualify for such a waiver and rarely apply without a sponsored invitation.

In 2009 and 2010, Caudill was asked to search the USCIS files, in connection with the Union County Prosecutor's Office investigation into the Salvation Army matter, for I-1402 applications submitted on behalf of specified individuals. Of those individuals whose files he was able to locate, Caudill learned that none of their alien-worker petitions had been granted. Based on the way the forms were filled out, Caudill opined that no attorney appeared to be involved in their preparation or filing.

The files also contained an I-797C form, a notice receipt produced when an I-140 is filed electronically. This form, however, does not indicate approval of an applicant's petition. Embedded on the I-797C is a watermark of the Statue of Liberty holding a torch.

The applications uncovered during the investigation, all seeking a national interest waiver, were prepared by the attorney Ruiz and mostly listed identical addresses in Florida. Deficiency notices were sent to addresses connected to Ruiz in response to the alien worker applications, many of which were returned as undeliverable. As a result, the government considered these applications abandoned and denied them.

After the State rested, the defense presented the testimony of a single witness, Anna Soto. Soto, another congregant who had paid for assistance in obtaining a residency card, placed the blame for the fraud solely on Ruiz and Gallo.

During summation, the prosecutor made the following remarks:

The worst thing about this case is that it reeks of arrogance, it reeks of ["]I'm better than you because I have my papers and you don't.["] As my husband said over the weekend when I was talking to him about this case, there's something particularly despicable about preying on powerless people that you believe are in no position to complain because they're in this country illegally.

 

And if the worst thing these witnesses wanted . . . was just to be able to stay in this country as legal residents, aren't we victimizing them twice if we tell them that these defendants are not guilty of committing the crime?

 

The judge sustained defense counsel's timely objection, but did not give a curative instruction. However, the judge's instructions to the jury before deliberations included the usual admonition that arguments and comments by the attorneys during trial do not constitute evidence and are not controlling.

On January 13, 2011, the jury found defendant guilty of conspiracy to commit theft by deception on counts eight, nine, eleven, fifteen and eighteen, as lesser-included offenses to theft by deception, as charged in the indictment. Defendant was also convicted of conspiracy to commit theft by deception as charged in count nineteen.

The judge sentenced defendant on April 29, 2011. Defendant received an aggregate term of six years imprisonment: three years on count eight; a concurrent three-year term on counts nine, eleven, eighteen and nineteen; and a consecutive term of three years on count fifteen. The judge entered an amended judgment of conviction on August 26, 2011, and this appeal ensued.

Defendant raises the following issues for our consideration:

POINT I

 

PROSECUTORIAL MISCONDUCT IN SUMMATION DEPRIVED DEFENDANT OF DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. I, PARA. 10.

 

POINT II

 

DEFENDANT'S CONSPIRACY CONVICTIONS MUST BE REVERSED BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO ESTABLISH HER AGREEMENT TO COMMIT THEFT BY DECEPTION.

 

POINT III

 

DEFENDANT'S CONSPIRACY CONVICTIONS ON COUNTS EIGHT, NINE, ELEVEN, FIFTEEN AND EIGHTEEN MUST MERGE WITH HER CONSPIRACY CONVICTION ON COUNT NINETEEN BECAUSE OF THE RULE PROHIBITING FRACTIONALIZATION OF CONSPIRACY OFFENSES.

 

II.

Before us, defendant contends that the prosecutor's comments in summation amounted to prosecutorial misconduct that requires reversal, and the judge's instructions did not cure the problem. We disagree.

"New Jersey courts have commented repeatedly on the special role filled by those entrusted with the responsibility to represent the State in criminal matters, observing that the primary duty of a prosecutor is not to obtain convictions but to see that justice is done." State v. Smith, 212 N.J. 365, 402-03 (2012). A prosecutor is duty-bound "to prove the State's case based on the evidence and not to play on the passions of the jury or trigger emotional flashpoints, deflecting attention from the hard facts on which the State's case must rise or fall." State v. Blakney, 189 N.J. 88, 96 (2006).

Prosecutors are nevertheless granted "considerable leeway" in making "vigorous and forceful" arguments during summation. State v. Smith, 167 N.J. 158, 177 (2001); see also State v. Mahoney, 188 N.J. 359, 376-77 (2006) (prosecutors are permitted to vigorously rebut specific arguments made by defense counsel). "Whether particular prosecutorial efforts can be tolerated as vigorous advocacy or must be condemned as misconduct is often a difficult determination to make" and will be assayed "in the context of the entire trial." State v. Negron, 355 N.J. Super. 556, 576 (App. Div. 2002). Where a defendant challenges comments made in the course of closing arguments, "[o]ur task is to consider the fair import of the State's summation in its entirety." State v. Jackson, 211 N.J. 394, 408-09 (2012) (internal quotation marks omitted).

That a reviewing court finds prosecutorial misconduct existent, however, does not end its inquiry. Smith, supra, 167 N.J. at 181. To warrant reversal, the wrongdoing "must have been 'so egregious that it deprived the defendant of a fair trial.'" Ibid. (quoting State v. Frost, 158 N.J. 76, 83 (1999)). That is, the infraction must "substantially prejudice the defendant's fundamental right to have a jury fairly evaluate the merits of his [or her] defense." State v. Roach, 146 N.J. 208, 219 (internal quotation marks omitted), cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). Improper comments by a prosecutor require reversal "when they 'so infect[] the trial with unfairness as to make the resulting conviction a denial of due process.'" Jackson, supra, 211 N.J. at 409 (quoting State v. Koedatich, 112 N.J. 225, 338 (1998)).

We are guided in our assessment of the significance of improper prosecutorial remarks by three factors: "(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Ibid. (quoting Smith, supra, 167 N.J. at 182).

Here, the prosecutor in summation relayed to the jury an out-of-court comment by her husband that "there's something particularly despicable about preying on powerless people that you believe are in no position to complain because they're in this country illegally." This was clearly improper. Also unsettling was the rhetorical question put to the jury, "[A]ren't we victimizing [the defrauded witnesses] twice if we tell them that these defendants are not guilty of committing the crime?"

Timely objection to each statement was made and sustained by the judge. Although the judge did not immediately issue a curative instruction, his pre-deliberation charges instructed the jury members to disregard the contested remarks and cautioned them that arguments made by the attorneys are not evidence.

Both remarks came perilously close to an entreaty that the jury should protect undocumented immigrants as a group, just the sort of commentary we rebuked in State v. Acker, supra, 265 N.J. Super. at 356. There, we concluded that the defendant was deprived of a fair trial because the prosecutor flagrantly argued that it was the jury's function to protect young victims of alleged sexual offenses "as a group." Ibid. We found the "clear import" of the prosecutor's extensive comments "was that unless the jury convicted defendant, the jurors would violate their oaths." Id. at 356-57.

Though we believe the disputed comments were improper, they did not substantially prejudice defendant so as to deprive her of the right to a fair trial. Unlike Acker, the prosecutor here did not specifically tell the jury it was their job to protect undocumented immigrants as a group.

We turn to the adequacy of the evidence and defendant's contention that her motions for dismissal and judgment of acquittal on the conspiracy counts should have been granted.

Our review of a trial court's denial of a motion for acquittal under Rule 3:18-1 is de novo, and we apply the same standard. State v. Bunch, 180 N.J. 534, 548-49 (2004).

When examining a motion for judgment of acquittal at the close of the State's case, a court must determine

[W]hether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

 

[State v. Reyes, 50 N.J. 454, 458-59 (1967).]

 

The same standard is applicable to a motion for dismissal filed at the close of all the evidence. See R. 3:18-1; State v. Morrison, 188 N.J. 2, 13 (2006). In reviewing such motions, a court "may not consider any evidence adduced by the defense in determining if the State had met its burden as to all elements of the crime charged." Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 3:18 (2013). Accordingly, we confine our analysis to the adequacy of the evidence presented by the State and all reasonable inferences derived therefrom.

Under N.J.S.A. 2C:5-2(a), a defendant is guilty of conspiracy to commit a crime with another person if the defendant purposefully promotes or facilitates its commission, and either

(1) Agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or

 

(2) Agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

 

The agreement to perpetrate a particular crime, rather than its actual commission, "is at the heart of a conspiracy charge." State v. Samuels, 189 N.J. 236, 245-46 (2007). Conspiracy is often proven circumstantially "[b]ecause the conduct and words of co-conspirators [are] generally shrouded in silence, furtiveness and secrecy." Id. at 246 (internal quotation marks omitted).

As our Supreme Court recently observed, "[j]uries are routinely instructed that they may draw logical inferences from the evidence presented to them and that circumstantial evidence is of as equal weight as direct evidence." State v. Cagno, 211 N.J. 488, 512 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 877, 184 L. Ed. 2d 687 (2013). Such inferences are tested "by the rules of ordinary reasoning such as govern mankind in the ordinary affairs of life." Samuels, supra, 189 N.J. at 246 (quoting State v. Graziani, 60 N.J. Super. 1, 13-14 (App. Div. 1959), aff'd, 31 N.J. 538, cert. denied, 363 U.S. 830, 80 S. Ct. 1601, 4 L. Ed. 2d 1524 (1960)).

Here, the evidence against defendant, though predominantly circumstantial, was legally sufficient. Multiple witnesses testified that defendant was present when they paid Tito for residency cards, and, in most instances, defendant collected, counted and distributed the money. Arandaldo Guardao, one of the theft victims, testified that he observed defendant quickly sort through a pile of money twelve inches high and three-and-a-half feet wide, and then furtively disseminate the cash to others. There was additional testimony that defendant documented the collected sums and also facilitated trips to Florida for persons seeking the permanent residency cards. Defendant's photograph adorned the back of a Salvation Army identification badge created in connection with such a trip. Thus, there was sufficient circumstantial evidence from which a rational jury could have found beyond a reasonable doubt that defendant had agreed to, and facilitated, the commission of theft by deception. Therefore, we affirm defendant's convictions on those counts in the indictment.

Finally, defendant contends that the conspiracy convictions on counts eight, nine, eleven and fifteen should have merged with the conspiracy conviction on count nineteen for sentencing purposes because all of the counts arose from a single, continuous conspiracy. We agree.

With respect to a conspiracy with multiple objectives, N.J.S.A. 2C:5-2(c) provides:

If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship.

 

By its plain terms, the statute prohibits "fractionalization of conspiracy offenses if there is a multiplicity of objectives." Cannell, New Jersey Criminal Code Annotated, comment 8 on N.J.S.A. 2C:5-2 (2013). Thus, we must determine whether the thefts by deception from each individual victim were "the object of the same . . . conspiratorial relationship."

In State v. Kamienski, 254 N.J. Super. 75 (App. Div.), certif. denied, 130 N.J. 18 (1992), we reviewed the sentences of two defendants convicted of separate counts of conspiracy to possess cocaine with the intent to distribute, among other charges.3 Id. at 79-80. Though the conspiracy counts covered an identical time period and incorporated the same statutory provision, they referenced different sets of co-conspirators, locations and underlying acts. Id. at 80, 113 15.

At sentencing, the trial judge denied defendants' motion to merge the two conspiracy counts, finding them "separate in time, fact and scope." Id. 114. The judge reasoned that the scope of the first conspiracy was to acquire possession of cocaine in Jersey, whereas the second conspiracy's scope was "to share in the cocaine without being caught." Ibid.

Applying the Davis flexible-merger analysis on appeal,4 we concluded that the conspiracies merged and reversed. Id. at 115. We found that only one conspiracy existed, "the single purpose of [which] was to obtain the cocaine for distribution." Id. at 114. We emphasized that each conspiracy count "charged the same time interval and objective," and reasoned that the asserted conspiratorial acts could only "be read as charging a continuing conspiracy." Id. at 114-15. Therefore, we determined that the trial court erred by fractionalizing one conspiracy into two discrete conspiracies. Id. at 115. As a remedy, we vacated the sentence on one of the conspiracy counts, merged it with the other count and remanded to the trial judge for reconsideration of the sentence. Id. at 116.

Here, it is clear that the trial judge's charging, and the jury's conviction, of conspiracy as a lesser-included offense to the theft-by-deception counts had the effect of fractionalizing a single, continuous conspiracy. All acts performed by defendant and her co-defendants furthered a general and unified plan to take money and give the false impression that the conspirators could obtain residency cards for the victims. Each theft by deception occurred during the same blanket time period between May and December 2005, and each was an integral component of a larger scheme to defraud congregants who had entered the country illegally. Indeed, as count nineteen of the indictment demonstrates, all of the defendants were charged with "creating or reinforcing the false impression that one or more of them could help individuals who were [undocumented aliens] obtain . . . residency cards." Thus, it was plain error not to merge the conspiracy counts for sentencing.

Accordingly, we vacate the sentences imposed on counts eight, nine, eleven, fifteen and eighteen and remand to the trial court for reconsideration of the sentence on count nineteen. The trial court is directed to merge counts eight, nine, eleven, fifteen and eighteen with count nineteen to reflect defendant's conviction of a single count of conspiracy. The judge is free to reconsider the sentence imposed on count nineteen. Kamienski, supra, 254 N.J. at 116.

In conclusion, we affirm the verdict of the jury on all counts. The matter is remanded to the Law Division for resentencing on count nineteen and for the entry of an amended judgment of conviction in conformity with this opinion. We do not retain jurisdiction.

1 Defendant was tried jointly with her husband.

2 The I-140 form, titled "Petition for an alien worker," is the standardized form used by "[v]irtually every[]" alien worker to obtain work authorization in the United States.

3 Although three defendants had been convicted, only two of them raised the issue on appeal.

4 State v. Davis, 68 N.J. 69 (1975). The Davis flexible approach entails an analysis of factors such as: (1) the time and place of each conspiracy; (2) whether the proof submitted for one conspiracy was a necessary ingredient for a conviction under the other; (3) the intent or purpose of the defendants at the time of the two alleged conspiracies; and (4) whether one conspiracy was an integral part of the larger scheme under the other conspiracy. Id. at 81; see also Kamienski, supra, 254 N.J. Super. at 114.