NYU Al Jabery vs Con Agra Foods Inc Case Brief Case Study

INSTRUCTIONS FOR CASE BRIEF ASSIGNMENT
A case brief is a summary of a judicial decision. It is typically utilized by law
students in order to gather the most important information about a case. That way,
if they are called on to discuss the case in class, they can easily refer to it to access
the most relevant details. We will further discuss the use of case briefs during class.
In order to complete this assignment, choose ONE of the two cases assigned.
The full legal decisions are posted on Blackboard so there is no need for you to look
them up on your own.
Before beginning to brief your case, you must read the case in its entirety and
fully understand it. Then review Appendix A of your textbook and these instructions
before you begin.
CITATION (5 points):
Every case brief begins with a citation of the case.
A citation is a reference to the name of the parties (using last names only), the
court that decided the case, the publication where the case may be located and the
year of the decision. Your citation should be centered at the top of your case brief.
In appendix A, you will see the following information in the citation:
(1) the name of the case – Rosa and Raymond Parks Institute for Self
Development v. Target Corporation. If the parties are individuals, you would simply
use their last names. e.g., Smith v. Jones),
(2) basic publication information, including the case reporter volume, the
reporter abbreviation, and the first page number of the opinion- 812 F.3d 824 (see
case citation PowerPoint)
(3) the court that decided the case-11th Circuit
(4) the year of the decision- 2016
Generally speaking, a case brief consists of the following four sections:
FACTS (35 points)
This section must include a recitation of the facts of the case in your own
words. Please do not include every fact; rather focus on the important facts.
ISSUE (10 points)
What is the specific legal question that the court must resolve? The issue should be
set forth in the form of a question.
DECISION (5 points)
The court’s answer to the issue that you state above. It must begin with a “yes” or “no” and
then 1-2 sentences stating how the court decided.
REASON (40 points)
A detailed analysis of why the court held the way that it did. What facts and rules of law did
the court rely on in making its decision.
*Remaining 5 points- English usage, grammar and spelling
*Your brief must include all of these sections, just like the brief in Appendix A.
*Your brief should be 2-3 pages long, 12pt font, 1” margins on all sides.
*Please remember that your brief is in essence a summary of the court’s decision IN
YOUR OWN WORDS. Please note that copying and pasting the text of the decision
is not briefing a case and, accordingly, credit will not be given. Briefing involves the
student’s own analysis of the case and should reflect the student’s understanding of
the decision.
Date and Time: Sunday, April 11, 2021 4:36:00 PM EDT
Job Number: 141149205
Document (1)
1. United States v. Reyes-Rivera, 812 F.3d 79
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As of: April 11, 2021 8:36 PM Z
United States v. Reyes-Rivera
United States Court of Appeals for the First Circuit
January 29, 2016, Decided
No. 14-1712
Reporter
812 F.3d 79 *; 2016 U.S. App. LEXIS 1512 **
UNITED STATES OF AMERICA, Appellee, v. DILEAN
REYES-RIVERA, Defendant, Appellant.
Subsequent History: US Supreme Court certiorari
denied by Reyes-Rivera v. United States, 2016 U.S.
LEXIS 6883 (U.S., Nov. 14, 2016)
Prior History: [**1] APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO. Hon. Aida M. Delgado-Colón, Chief
U.S. District Judge.
Core Terms
sentence, district court, enhancement, guidelines,
investors, factors, wire fraud, calculated, two-point,
position of trust, imprisonment, plea agreement, plea
guilty, conceal, conspiracy to commit, sophisticated,
recommended, conspiracy, entities, argues
warranted
the
procedurally
and
substantively
reasonable 242-month sentence that was imposed; [2]The sentence was procedurally reasonable because
enhancements were properly imposed under U.S.
Sentencing Guidelines Manual §§ 3B1.3 and
2B1.1(b)(10)(C) based on abuse of a position of trust
due to defendant’s role, his exercise of considerable
authority and discretion, and his sophisticated means of
operating the scheme.
Outcome
Judgment affirmed.
LexisNexis® Headnotes
Criminal Law & Procedure > Criminal
Offenses > Fraud
Criminal Law & Procedure > Sentencing > Ranges
Case Summary
Criminal Law & Procedure > … > Inchoate
Crimes > Conspiracy > Penalties
Overview
Criminal Law & Procedure > … > Fraud > Wire
Fraud > Penalties
HOLDINGS: [1]-Defendant’s challenge to the sentence
imposed on his convictions for bank fraud and
conspiracy to commit wire fraud lacked merit, as his
participation as the mastermind of a large Ponzi scheme
involving over 230 people and millions of dollars
HN1[
] Criminal Offenses, Fraud
Conspiracy to commit wire fraud carries a statutory
maximum term of five years’ imprisonment. 18 U.S.C.S.
Page 2 of 11
812 F.3d 79, *79; 2016 U.S. App. LEXIS 1512, **1
§§ 371, 1343. Bank fraud carries a statutory maximum
term of 30 years’ imprisonment. 18 U.S.C.S. § 1344.
Criminal Law &
Procedure > Sentencing > Sentencing Guidelines
Governments > Legislation > Effect &
Operation > Operability
HN2[
] Sentencing, Sentencing Guidelines
When a defendant was sentenced on June 26, 2013,
the November 2012 version of the sentencing guidelines
applies. U.S. Sentencing Guidelines Manual §
1B1.11(a).
Criminal Law &
Procedure > … > Appeals > Standards of
Review > Abuse of Discretion
Criminal Law &
Procedure > Sentencing > Appeals > Proportionality
& Reasonableness Review
HN3[
] Standards of Review, Abuse of Discretion
An appellate court reviews a district court’s imposition of
a sentence for abuse of discretion. The analysis is twofold: the appellate court first determines whether the
sentence imposed is procedurally reasonable and then
determines whether it is substantively reasonable.
Criminal Law &
Procedure > … > Appeals > Standards of
Review > Abuse of Discretion
Evidence > Burdens of Proof > Allocation
Criminal Law &
Procedure > … > Appeals > Standards of
Review > Clear Error Review
Criminal Law &
Procedure > … > Appeals > Standards of
Review > Plain Error
Criminal Law &
Procedure > Sentencing > Sentencing Guidelines
HN4[
] Standards of Review, Abuse of Discretion
An appellate court reviews the district court’s
interpretation of the sentencing guidelines de novo and
its fact finding for clear error. When the defendant fails
to raise a procedural objection at sentencing, however,
it is reviewed only for plain error. To show plain error, a
defendant must establish: (1) that an error occurred; (2)
which was clear or obvious and which not only; (3)
affected the defendant’s substantial rights; but also (4)
seriously impaired the fairness, integrity, or public
reputation of judicial proceedings.
Criminal Law &
Procedure > Sentencing > Appeals > Proportionality
& Reasonableness Review
HN5[ ] Appeals, Proportionality & Reasonableness
Review
A sentence is procedurally reasonable if the district
court committed no significant procedural error, such as
failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory,
failing to consider the 18 U.S.C.S. § 3553(a) factors,
selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence including an explanation for any deviation from the
Guidelines range.
Criminal Law & Procedure > … > Sentencing
Guidelines > Adjustments &
Enhancements > Aggravating Role
HN6[
Role
] Adjustments & Enhancements, Aggravating
U.S. Sentencing Guidelines Manual § 3B1.3 provides
for a two-point enhancement if the defendant abused a
position of public or private trust in a manner that
significantly facilitated the commission or concealment
of the offense. For the enhancement to apply, the
district court must first decide that the defendant
occupied a position of trust and then find that he used
that position to facilitate or conceal the offense.
Criminal Law & Procedure > … > Sentencing
Guidelines > Adjustments &
Enhancements > Special Skills
Page 3 of 11
812 F.3d 79, *79; 2016 U.S. App. LEXIS 1512, **1
HN7[ ]
Skills
Adjustments & Enhancements, Special
U.S. Sentencing Guidelines Manual § 3B1.3, cmt.,
application n.1 states that a position of public or private
trust is one characterized by professional or managerial
discretion and that persons holding such positions
ordinarily are subject to significantly less supervision
than employees whose responsibilities are primarily
non-discretionary in nature. Section 3B1.3, application
n. 3 clarifies that the enhancement applies equally to
those holding a “sham position of trust.”
Criminal Law & Procedure > … > Sentencing
Guidelines > Adjustments &
Enhancements > Special Skills
HN8[ ]
Skills
Adjustments & Enhancements, Special
The adjustment under U.S. Sentencing Guidelines
Manual § 3B1.3, cmt., application n. 3 applies in a case
in which the defendant provides sufficient indicia to the
victim that the defendant legitimately holds a position of
private or public trust when, in fact, the defendant does
not. For example, the adjustment applies in the case of
a defendant who: (A) perpetrates a financial fraud by
leading an investor to believe the defendant is a
legitimate investment broker; or (B) perpetrates a fraud
by representing falsely to a patient or employer that the
defendant is a licensed physician. In making the
misrepresentation, the defendant assumes a position of
trust, relative to the victim, that provides the defendant
with the same opportunity to commit a difficult-to-detect
crime that the defendant would have had if the position
were held legitimately.
Criminal Law &
Procedure > Sentencing > Sentencing
Guidelines > Adjustments & Enhancements
Criminal Law &
Procedure > Sentencing > Appeals > Standards of
Review
HN10[ ] Sentencing Guidelines, Adjustments &
Enhancements
A defendant cannot agree to both a sentencing
enhancement and its factual predicate, reiterate that
agreement in open court, and later repudiate it merely to
suit his later convenience.
Criminal Law &
Procedure > Sentencing > Sentencing
Guidelines > Adjustments & Enhancements
HN11[ ] Sentencing Guidelines, Adjustments &
Enhancements
When neither an explicit prohibition against double
counting nor a compelling basis for implying such a
prohibition exists, clearly indicated sentencing
adjustments for seriousness of the offense and for
offender conduct can both be imposed, notwithstanding
that the adjustments derive in some measure from a
common nucleus of operative facts.
Criminal Law &
Procedure > Sentencing > Sentencing
Guidelines > Adjustments & Enhancements
HN12[ ] Sentencing Guidelines, Adjustments &
Enhancements
Criminal Law & Procedure > … > Sentencing
Guidelines > Adjustments &
Enhancements > Special Skills
HN9[ ]
Skills
Adjustments & Enhancements, Special
U.S. Sentencing Guidelines Manual § 2B1.1(b)(10)(C),
cmt., application n. 8(B) provides that conduct such as
hiding assets or transactions, or both, through the use of
fictitious entities, corporate shells, or offshore financial
accounts ordinarily indicates sophisticated means.
Sentencing enhancements serve different purposes.
Criminal Law & Procedure > … > Departures From
Guidelines > Downward Departures > Substantial
Assistance
HN13[ ]
Downward
Assistance
Departures,
Substantial
See U.S. Sentencing Guidelines Manual § 5K1.1.
Page 4 of 11
812 F.3d 79, *79; 2016 U.S. App. LEXIS 1512, **1
Criminal Law &
Procedure > Sentencing > Proportionality
Criminal Law &
Procedure > Sentencing > Imposition of
Sentence > Factors
Criminal Law &
Procedure > Sentencing > Imposition of
Sentence > Pronouncement
HN14[
] Imposition of Sentence, Factors
The fact that the court states that it considered all the 18
U.S.C.S. § 3553(a) factors is entitled to some weight. A
district court need not verbalize its evaluation of each
and every § 3553(a) factor.
HN17[
18 U.S.C.S. § 3553(a)(6) is primarily aimed at national
disparities, rather than those between co-defendants.
Unless two “identically situated defendants” receive
different sentences from the same judge, which may be
a reason for concern, the general rule of thumb is that a
defendant is not entitled to a lighter sentence merely
because his co-defendants received lighter sentences.
Criminal Law & Procedure > Appeals > Procedural
Matters > Briefs
HN18[
Criminal Law &
Procedure > Sentencing > Imposition of
Sentence > Factors
HN15[
] Imposition of Sentence, Factors
Merely raising potentially mitigating factors does not
guarantee a lesser sentence, and having discretion to
consider something does not entitle a defendant to force
the district court to factor the issue being considered
into its final decision.
Criminal Law &
Procedure > … > Appeals > Standards of
Review > Abuse of Discretion
Criminal Law &
Procedure > Sentencing > Appeals > Proportionality
& Reasonableness Review
HN16[
] Standards of Review, Abuse of Discretion
The substantive reasonableness of a sentence is
reviewed, considering the totality of the circumstances,
for abuse of discretion. A sentence will stand so long as
there is a plausible sentencing rationale and a
defensible result. The district court had plenty of reason
to sentence as it did.
Criminal Law &
Procedure > Sentencing > Imposition of
Sentence > Factors
] Imposition of Sentence, Factors
] Procedural Matters, Briefs
An attempt to incorporate by cross-reference does not
comport with the ordinary rule that claims made to an
appellate court must be presented fully in an appellate
brief and not by cross-reference to claims made in the
district court.
Counsel: Michael R. Hasse, for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney,
Chief, Appellate Division, with whom Rosa Emilia
Rodríguez-Vélez, United States Attorney, was on brief,
for appellee.
Judges: Before Lynch, Stahl, and Barron, Circuit
Judges.
Opinion by: LYNCH
Opinion
[*82] LYNCH, Circuit Judge. Dilean Reyes-Rivera
was the mastermind of a Ponzi scheme, operated
Page 5 of 11
812 F.3d 79, *82; 2016 U.S. App. LEXIS 1512, **1
largely in Puerto Rico, which defrauded over 230
vulnerable people out of approximately $22 million. In
2012, he pled guilty to bank fraud and to conspiracy to
commit wire fraud, and in 2013 he was sentenced to
concurrent terms of 60 months of imprisonment on the
wire fraud conspiracy count and 242 months on the
bank fraud count. He appeals, bringing a number of
challenges to his 242-month sentence, basically saying
the sentence is too high because his was only a “run-ofthe-mill” Ponzi scheme. Finding no error, we affirm.
I.
Because this sentencing appeal follows a guilty plea, we
draw the relevant facts from the plea agreement, the
change-of-plea colloquy, the presentence investigation
report (“PSR”), and the transcript [**2] of the
sentencing hearing. United States v. King, 741 F.3d
305, 306 (1st Cir. 2014).
Reyes-Rivera was the president of Global Reach
Trading (“GRT”), a for-profit corporation registered in
Florida and Puerto [*83] Rico that operated as a front
for an extensive Ponzi scheme. As president, ReyesRivera had access to and signatory authority on all GRT
bank accounts and business transactions. ReyesRivera’s younger brother, Jeffrey Reyes-Rivera
(“Jeffrey”), a licensed attorney in Puerto Rico, was one
of the incorporators of GRT as well as its accountant,
and was a co-defendant.
Between 2001 and 2007, the Reyes-Rivera brothers,
along with promoters and sales agents who worked for
GRT, solicited money from unsuspecting individuals,
mostly from Puerto Rico, by promising to invest the
money in low-risk, short-term, high-yield investment
programs. Investors were guaranteed a particular rate of
return, ranging between five percent and twenty
percent. Neither Reyes-Rivera, Jeffrey, nor GRT was
registered or licensed to offer or sell investments to the
general public by either the U.S. Securities and
Exchange Commission or the Office of the
Commissioner of Financial Institutions of Puerto Rico.
The money they secured from misled investors was not
actually invested [**3] but instead funded a Ponzi
scheme, in which they used the money they received
from later investors to pay “returns” to earlier investors.
The Reyes-Riveras took about $4.6 million from the
proceeds of the scheme to purchase or lease for their
own benefit luxury vehicles, houses, furniture, jewelry,
and trips.
During the course of the scheme, the Reyes-Riveras
also operated other entities, incorporated in Puerto
Rico, Antigua and Barbuda, and Florida, in order to
conduct businesses similar to GRT. In 2005, ReyesRivera, on behalf of one of these entities, WR4 Equity
Corporation, secured a mortgage loan with First Bank, a
federally insured financial institution, for approximately
$1.7 million with the use of fraudulent documents,
including personal financial statements and a GRT
financial statement.
To conceal the scheme, the Reyes-Riveras placed the
funds invested in GRT in eighteen different bank
accounts, held in their personal names and in the
names of their various entities, and with at least three
different banks in multiple countries. They also did not
refer to the investors’ signed investment contracts as
involving “securities.” Instead, they used various
misleading euphemisms [**4] like “Private Programs of
Commercial Paper” and “Special Private Placement
Programs.” In addition, they imposed a strict code of
confidentiality and non-disclosure on their investors.
Dilean Reyes-Rivera was the mastermind of the
operation. He admitted after his arrest that he influenced
Jeffrey to assist him in perpetrating the fraud and that
Jeffrey followed his instructions. He also stated that he
was the one who made all of the business decisions,
that Jeffrey always consulted him before making a
contract or bringing in a new investor, and that he never
actually explained the business to Jeffrey.1
When all was said and done, Reyes-Rivera had
defrauded more than 230 investors out of over $22
million. Many of these victims were retirees or
pensioners. The PSR includes summaries of victim
impact statements submitted by roughly fifty of ReyesRivera’s victims. The victims described how much they
invested and how many lost their life savings. Many now
suffer physical and emotional [**5] problems, such as
anxiety, high blood pressure, [*84] insomnia,
depression, and panic attacks. One victim described
becoming incapacitated and being hospitalized in a
psychiatric facility and placed on psychotropic
medications. Another became suicidal.
II.
On September 25, 2008, the Reyes-Riveras were
indicted by a grand jury on counts of conspiracy to
1 At
oral argument, Reyes-Rivera’s counsel stated that Jeffrey
was fully aware of the nature of the scheme. But this
representation is inconsistent with a contrary statement in the
PSR, to which Dilean did not object.
Page 6 of 11
812 F.3d 79, *84; 2016 U.S. App. LEXIS 1512, **5
commit securities fraud, conspiracy to commit wire
fraud, and conspiracy to commit money laundering, as
well as a forfeiture allegation. Reyes-Rivera alone was
also indicted on an additional count of bank fraud based
on the WR4 Equity Corporation mortgage loan. ReyesRivera fled and remained a fugitive until he was arrested
in Spain on September 6, 2009 and extradited to the
United States on October 18, 2010.
On November 21, 2012, the Reyes-Riveras entered into
a package plea deal. Dilean Reyes-Rivera pled guilty to
HN1[ ] conspiracy to commit wire fraud, which carries
a statutory maximum term of five years’ imprisonment,
18 U.S.C. §§ 371, 1343, and bank fraud, which carries a
statutory maximum term of thirty years’ imprisonment,
id. § 1344. He also admitted the forfeiture allegation. Id.
§ 982(a)(2)(A).
The plea agreement calculated Reyes-Rivera’s
guidelines sentencing range to be 121 to [**6] 151
months, based on the following: a base offense level of
seven, U.S.S.G. § 2B1.1(a)(1), a criminal history
category of I, a twenty-point enhancement because the
amount of loss exceeded $7 million, id. §
2B1.1(b)(1)(K), a four-point enhancement because more
than fifty victims were involved, id. § 2B1.1(b)(2)(B), a
two-point enhancement because Reyes-Rivera derived
more than $1 million in gross receipts from one or more
financial institutions, id. § 2B1.1(b)(15)(A), a two-point
enhancement for his leadership role in the scheme, id. §
3B1.1(c), and a three-point reduction for acceptance of
responsibility, id. § 3E1.1.2 The government, however,
agreed to recommend a sentence of between 72 and
136 months of imprisonment. The plea agreement also
stated that the government intended to seek full
restitution in the amount of $22 million. On November
21, 2012, a magistrate judge recommended that the
district court accept Reyes-Rivera’s guilty plea.3
2 HN2[
] Because Reyes-Rivera was sentenced on June 26,
2013, the November 2012 version of the sentencing guidelines
applies. See U.S.S.G. § 1B1.11(a).
3 The
PSR was filed on May 22, 2013. It calculated ReyesRivera’s guidelines sentencing range to be 235 to 293 months
of imprisonment. This calculation differed from the calculation
in the plea agreement because it [**7] imposed 1) a twentytwo-point enhancement for losses in excess of $20 million,
U.S.S.G. § 2B1.1(b)(1)(L); 2) a two-point enhancement for use
of sophisticated means, id. § 2B1.1(b)(10)(C); and 3) a fourpoint enhancement for Reyes-Rivera’s leadership role, id. §
3B1.1(a). The PSR also recommended restitution in the
amount of $22 million, and noted that if the court were to
Sentencing took place on June 26, 2013.4 Many of the
victims appeared and the [*85] district court heard
statements from those who wished to speak. The district
court calculated Reyes-Rivera’s guidelines sentencing
range to be 188 to 235 months, which is not
independently challenged on appeal. The district court
used a base offense level of seven and a criminal
history category of I. The court then imposed a twentypoint enhancement for amount of loss, a two-point
enhancement for Reyes-Rivera’s [**8] leadership role,
a four-point enhancement for the number of victims, a
two-point enhancement for gross receipts in excess of
$1 million, and a three-point reduction for acceptance of
responsibility, as recommended by the plea agreement.
It additionally imposed a two-point enhancement for use
of sophisticated means, as recommended by the PSR.
The court also, sua sponte, imposed a two-point
enhancement for abuse of a position of trust. Id. §
3B1.3.
After calculating the guidelines range and explaining its
consideration of the 18 U.S.C. § 3553(a) factors, the
court sentenced Reyes-Rivera to concurrent terms of
imprisonment of 60 months on the wire fraud conspiracy
count [**9] and 242 months on the bank fraud count. In
choosing to impose a seven-month upward variance,
the district court placed particular emphasis on the “pain
and suffering” that Reyes-Rivera caused his victims,
recounting in detail the physical, emotional, and
financial harm inflicted upon them. Restitution was also
ordered in the amount of $10,629,021.01. This appeal
followed.
Jeffrey, who was not indicted on the bank fraud count
and so only pled guilty to the wire fraud conspiracy
count, was sentenced to 48 months of imprisonment by
consider a variance, it could factor in the severe harm caused
to the victims of the scheme and the fact that Reyes-Rivera
remained a fugitive before his arrest and extradition. ReyesRivera filed objections to the enhancements for amount of
loss, sophisticated means, and leadership role; the $22 million
restitution recommendation; and the statement of factors that
might support a variance.
4 Before
sentencing, Reyes-Rivera filed a sentencing
memorandum raising the issue of sentencing disparity,
referencing three cases — two from within the District of Puerto
Rico and one from the Southern District of New York — that he
alleged were substantially similar to his case and resulted in
sentences similar to the lower end of what was recommended
in the plea agreement. His sentencing memorandum also
urged the district court to consider his efforts to assist the
government in investigating the scheme and his “fruitful efforts
to rehabilitate.”
Page 7 of 11
812 F.3d 79, *85; 2016 U.S. App. LEXIS 1512, **9
the same judge.5
III.
HN3[ ] We review a district court’s imposition of a
sentence for abuse of discretion. United States v.
Clogston, 662 F.3d 588, 590 (1st Cir. 2011). Our
analysis is two-fold: “we first determine whether the
sentence imposed is procedurally reasonable and then
determine
whether [**10]
it
is
substantively
reasonable.” Id.
HN4[ ] We review the district court’s interpretation of
the guidelines de novo and its fact finding for clear error.
United States v. O’Connell, 252 F.3d 524, 528-29 (1st
Cir. 2001). When the defendant fails to raise a
procedural objection at sentencing, however, we review
only for plain error. United States v. Millán-Isaac, 749
F.3d 57, 66 (1st Cir. 2014). To show plain error, a
defendant must establish: “(1) that an error occurred (2)
which was clear or obvious and which not only (3)
affected the defendant’s substantial rights, but also (4)
seriously impaired the fairness, integrity, or public
reputation of judicial proceedings.” United States v.
Duarte, 246 F.3d 56, 60 (1st Cir. 2001).6
A. Procedural Reasonableness
HN5[ ] A sentence is procedurally reasonable if “the
district court committed no [*86] significant procedural
error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the §
3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the
chosen sentence — including an explanation [**11] for
any deviation from the Guidelines range.” United States
v. Martin, 520 F.3d 87, 92 (1st Cir. 2008) (quoting Gall
v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 169 L.
Ed. 2d 445 (2007)). Reyes-Rivera launches several
5 The
judgment entered on June 12, 2014 in Jeffrey ReyesRivera’s case states that he was sentenced to 48 months of
imprisonment. However, Dilean Reyes-Rivera, in his brief
before this court, represents that Jeffrey was sentenced to 58
months. Citing Reyes-Rivera’s brief, the government also
places Jeffrey’s sentence at 58 months. In any event, whether
Jeffrey was sentenced to 48 or 58 months does not impact our
resolution of the case.
6 The
parties are correct that the waiver of appeal provision in
Reyes-Rivera’s plea agreement does not bar the instant
appeal because the sentencing judge did not sentence ReyesRivera in accordance with the plea agreement’s recommended
sentence.
attacks on the procedural reasonableness of his
sentence, only some of which are preserved, and all of
which we reject.
1. Abuse of Position of Trust Enhancement
Reyes-Rivera argues that the district court erred in
imposing an enhancement for abuse of a position of
trust, saying he does not meet the qualifications. HN6[
] U.S.S.G. § 3B1.3 provides for a two-point
enhancement “[i]f the defendant abused a position of
public or private trust . . . in a manner that significantly
facilitated the commission or concealment of the
offense.” For the enhancement to apply, “the district
court must first decide that the defendant occupied a
position of trust and then find that he used that position
to facilitate or conceal the offense.” United States v. Gill,
99 F.3d 484, 489 (1st Cir. 1996).
HN7[ ] Application note 1 to § 3B1.3 states that a
position of public or private trust is one “characterized
by professional or managerial discretion” and that
“[p]ersons holding such positions ordinarily are subject
to significantly less supervision than employees whose
responsibilities are primarily non-discretionary in
nature.” U.S.S.G. § 3B1.3 cmt. n.1; see United States v.
Chanthaseng, 274 F.3d 586, 589 (1st Cir. 2001).
Application note 3 clarifies that the enhancement
applies equally to those holding a “sham [**12] position
of trust.” United States v. Haber, 251 F.3d 881, 891
(10th Cir. 2001).
HN8[ ] This adjustment also applies in a case in
which the defendant provides sufficient indicia to
the victim that the defendant legitimately holds a
position of private or public trust when, in fact, the
defendant does not. For example, the adjustment
applies in the case of a defendant who (A)
perpetrates a financial fraud by leading an investor
to believe the defendant is a legitimate investment
broker; or (B) perpetrates a fraud by representing
falsely to a patient or employer that the defendant is
a
licensed
physician.
In
making
the
misrepresentation, the defendant assumes a
position of trust, relative to the victim, that provides
the defendant with the same opportunity to commit
a difficult-to-detect crime that the defendant would
have had if the position were held legitimately.
U.S.S.G. § 3B1.3 cmt. n.3; see United States v.
Ghertler, 605 F.3d 1256, 1265-66 (11th Cir. 2010)
(explaining the history and purpose of application note
3).
Page 8 of 11
812 F.3d 79, *86; 2016 U.S. App. LEXIS 1512, **12
Reyes-Rivera asserts that he did not possess any
professional or managerial discretion because he was
just an “investment lender, or salesman,” which “did not
in any way give him any special ability to commit a
difficult-to-detect wrong.” He argues that all fraud
schemes require some level of trust between the
fraudster and [**13] the victim, and so “the mere fact
that the victim-investors in this case may have trusted . .
. Reyes-Rivera is not sufficient to justify the application
of this increase.” See United States v. Hirsch, 239 F.3d
221, 227 (2d Cir. 2001).
He understates his role, and the district court committed
no error. Reyes-Rivera [*87] “in fact exercised
considerable authority and discretion” at GRT. United
States v. Sicher, 576 F.3d 64, 72 (1st Cir. 2009). He
was not a simple salesman; he was the president of,
what appeared to be, a legitimate investment company.
He retained access to and signatory authority on all
GRT bank accounts and business transactions.7
As to the question whether he “used [his] position to
facilitate or conceal the offense,” id. at 71 (quoting Gill,
99 F.3d at 489), it is close to self-evident that ReyesRivera was able to operate and conceal his scheme in
large part because he held himself out as the president
of a purportedly legitimate investment company. The
district court found that Reyes-Rivera [**14] used his
position to “seek[] persons to trust in his ability to do
investments and to receive the monies to be placed
under his trust . . . in promise of a high yield return.” The
court further characterized Reyes-Rivera as having
“invite[d] [the victims] as president of a corporation that
was doing this type of investment when [he was] lying to
them in terms of [his] abilities, [his] potential or the
investments.”
Reyes-Rivera had also previously held a valid license to
sell securities for a prior employer. As the district court
found, “his training in securities, the experience he had
gained allowed him to step in, make all of these
representations concerning this huge, magnificent
investment he was offering out there.” This fits neatly
into application note 3.
Several of his victims stated that he in fact betrayed
7 As
for his actual authority, Reyes-Rivera conceded that
Jeffrey followed all of his instructions, that Reyes-Rivera was
the one who made all the business decisions, and that Jeffrey
always consulted him before making a contract or bringing in a
new investor. In fact, he admitted that he never even
explained the business to Jeffrey.
their trust. And Reyes-Rivera recognized at sentencing
that “they trusted in me.” See id. at 73 (While “testimony
by individuals that they trusted someone who betrayed
their trust does not itself establish that the position was
a position of trust[, t]he testimony . . . is not irrelevant.”).
The enhancement was correctly applied.
2. Sophisticated Means Enhancement
Reyes-Rivera argues that the [**15] district court erred
in imposing a two-point enhancement for his use of
“sophisticated means” in operating the scheme.
U.S.S.G. § 2B1.1(b)(10)(C). HN9[ ] Application note
8(B) provides: “[c]onduct such as hiding assets or
transactions, or both, through the use of fictitious
entities, corporate shells, or offshore financial accounts .
. . ordinarily indicates sophisticated means.” Id. § 2B1.1
cmt. n.8(B). The district court found, in accordance with
application note 8(B), that Reyes-Rivera operated
several different corporate entities with bank accounts at
various institutions in several countries “in order to
conceal the illegal nature and source of funds [the
Reyes-Riveras] had received from GRT.” Reyes-Rivera
appears to have accepted this finding on appeal,
conceding that “this enhancement was part of his
stipulated conduct.” Either way, there was no error in
the district court’s finding.
His argument on appeal instead urges this court to
“apply a relative scale in making findings as to
sophistication,” claiming that relative to other Ponzi
schemes, his was just “run-of-the-mill.” He candidly
admits that he has “no judicial, statutory, or regulatory
support” for his theory. On this admission, we agree.
There is no error.
[*88] 3. Overlapping [**16] Enhancements
Reyes-Rivera makes two related arguments to the effect
that the district court erred by imposing a series of
enhancements that are “substantively overlapping.”
Both of these arguments are raised for the first time on
appeal, and so the government argues they are
waived.8 See United States v. Torres-Landrua, 783 F.3d
8 Simply
to say that Reyes-Rivera did not raise the issue in the
trial court is insufficient to establish waiver. See United States
v. Walker, 538 F.3d 21, 23 (1st Cir. 2008). The arguments
may well be waived, though. Reyes-Rivera not only failed to
object to the series of enhancements, but he also affirmatively
agreed in his plea agreement to four of the six enhancements
Page 9 of 11
812 F.3d 79, *88; 2016 U.S. App. LEXIS 1512, **16
58, 66 (1st Cir. 2015); United States v. Falu-Gonzalez,
205 F.3d 436, 440 (1st Cir. 2000).
The arguments, whether waived or not, still fail plain
error review. Reyes-Rivera’s first argument is that the
district court engaged in impermissible “double
counting.” He [**17] is wrong. HN11[ ] “[W]hen
‘neither an explicit prohibition against double counting
nor a compelling basis for implying such a prohibition
exists, clearly indicated adjustments for seriousness of
the offense and for offender conduct can both be
imposed, notwithstanding that the adjustments derive in
some measure from a common nucleus of operative
facts.'” United States v. McCarty, 475 F.3d 39, 46 (1st
Cir. 2007) (quoting United States v. Lilly, 13 F.3d 15, 20
(1st Cir. 1994)); see United States v. Fiume, 708 F.3d
59, 62 (1st Cir. 2013) (“Given the Commission’s
proclivity for indicating when double counting is
forbidden, we are reluctant to infer further such
instances out of thin air.”).
Reyes-Rivera does not point to any explicit prohibition
against applying these enhancements as double
counting and offers no compelling explanation for
inferring
a
prohibition.
HN12[ ]
Sentencing
enhancements serve different purposes, see Lilly, 13
F.3d at 18-19, and we see no plain error in the court’s
determination that each of these enhancements
applied.9
Reyes-Rivera’s second argument is that the district
accounting for twenty-eight of the thirty-two enhancement
points he received. See United States v. Rivera-Orta, 500 F.
App’x 1, 3 (1st Cir. 2013) (HN10[ ] “A defendant cannot
agree to both an enhancement and its factual predicate,
reiterate that agreement in open court, and later repudiate it
merely to suit his later convenience.”); United States v.
Serrano-Beauvaix, 400 F.3d 50, 56 (1st Cir. 2005). “These
actions ring not of ‘oversight, inadvertence, or neglect in
asserting a potential right,’ but rather of a deliberate course of
conduct.” United States v. Gaffney-Kessell, 772 F.3d 97, 100
(1st Cir. 2014) (quoting United States v. Eisom, 585 F.3d 552,
556 (1st Cir. 2009)).
court erred by not granting a “downward departure”10 in
light of the allegedly overlapping enhancements, citing
United States v. Jackson, 346 F.3d 22, 26 (2d Cir.
2003). We will treat this issue under the topic of
substantive reasonableness below.
4. Cooperation with the Government
Reyes-Rivera next argues that “the sentencing court
should have considered [*89] and reduced [his]
offense level or at least have imposed the agreed upon
sentence because of [his] complete and candid
cooperation [with the government], in accordance with
U.S.S.G. § 5K1.1.”11 Though the parties acknowledged
Reyes-Rivera’s assistance in the plea agreement, §
5K1.1 is inapplicable. That provision states: HN13[ ]
“Upon motion of the government stating that the
defendant has provided substantial assistance in the
investigation or prosecution of another person who has
committed an offense, the court may depart from the
guidelines.” U.S.S.G. § 5K1.1. Reyes-Rivera does not
identify any motion from [**19] the government stating
that he provided substantial assistance. Neither is there
a mention of one in the sentencing transcript or in his
sentencing memorandum. And on appeal, he raises no
challenge to the government’s decision not to file such a
motion. See United States v. Mulero-Algarin, 535 F.3d
34, 38-39 (1st Cir. 2008).
He may be arguing that the district court should have
considered, on the record, his assistance to the
government and accordingly given him a lower
sentence. See United States v. Pacheco, 727 F.3d 41,
47 (1st Cir. 2013) (recognizing government cooperation
as section 3553(a) factor). This amounts to an argument
that the district court did not properly consider the
section 3553(a) factors. We reject the argument. The
district court stated that it considered the section
3553(a) factors. See United States v. Madera-Ortiz, 637
10 It
is not clear from his brief if Reyes-Rivera is arguing that
the district court should have granted a downward departure
or a downward variance. These terms have different
meanings. See United States v. Vega-Santiago, 519 F.3d 1, 3
(1st Cir. 2008) (en banc). Either way, we reject his claim.
9 At
one point in his brief, Reyes-Rivera takes aim at the
amount of loss enhancement. He argues that the district court
miscalculated the amount of loss, pointing to a debate at
sentencing about the proper restitution amount. He offers
$8,154,700 as the appropriate figure. But the twenty-point
enhancement he received under U.S.S.G. § 2B1.1(b)(1)(K)
applies to an amount of loss in excess [**18] of $7 million. So
the enhancement plainly applies.
11 The
government makes no attempt to respond to this
argument in its brief. This, along with the government’s twosentence, perfunctory response to Reyes-Rivera’s abuse of
trust argument, compels us to repeat the warning issued in
United States v. Villanueva Lorenzo, 802 F.3d 182, 187 n.5
(1st Cir. 2015): “The government risks losing a case it should
not lose . . . with that kind of advocacy.”
Page 10 of 11
812 F.3d 79, *89; 2016 U.S. App. LEXIS 1512, **19
F.3d 26, 31 (1st Cir. 2011) (HN14[ ] “[T]he fact that the
court stated that it had considered all the section
3553(a) factors is entitled to some weight.” (quoting
United States v. Davila-Gonzalez, 595 F.3d 42, 49 (1st
Cir. 2010))). And after carefully reviewing the sentencing
transcript, we are confident that the district court [**20]
gave sufficient consideration to the section 3553(a)
factors, and it did not err by not expressly stating on the
record its consideration of Reyes-Rivera’s assistance to
the government. A district court need not verbalize its
evaluation of each and every section 3553(a) factor.
See Davila-Gonzalez, 595 F.3d at 49; United States v.
Quinones-Medina, 553 F.3d 19, 26-27 (1st Cir. 2009).
HN15[ ] “Merely raising potentially mitigating factors
does not guarantee a lesser sentence,” DavilaGonzalez, 595 F.3d at 49, and “having discretion to
consider something does not entitle a defendant to force
the district court to factor the issue being considered
into its final decision,” Pacheco, 727 F.3d at 48.
B. Substantive Reasonableness
HN16[ ] The substantive reasonableness of a
sentence is reviewed, considering the totality of the
circumstances, for abuse of discretion. United States v.
Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015). A
sentence will stand so long as there is “a plausible
sentencing rationale and a defensible result.” Martin,
520 F.3d at 96. The district court had plenty of reason to
sentence as it did.
1. Disproportionality
Reyes-Rivera’s first argument is that the district court
erred by giving him a sentence that was, as he says,
“grossly disproportionate” to the sentence that was
given to his brother, Jeffrey, and to sentences given to
defendants in cases he [*90] claims involved similar
conduct.12 See 18 U.S.C. § 3553(a)(6); see also United
States v. Reyes-Santiago, 804 F.3d 453, 468 (1st Cir.
2015) (addressing claim under the rubric of [**21]
substantive reasonableness).
HN17[ ] Section 3553(a)(6) “is primarily aimed at
national disparities, rather than those between co-
12 Reyes-Rivera
tries to characterize this as a procedural error,
claiming the district court failed to consider the issue of
disparity. See 18 U.S.C. § 3553(a)(6). But elsewhere in his
briefing, he admits that “the court commented on the issue of
disparity.” Indeed, the court expressly asked defense counsel
at sentencing to address the disparity issue raised in the
sentencing memorandum.
defendants.” United States v. Marceau, 554 F.3d 24, 33
(1st Cir. 2009). “Unless two ‘identically situated
defendants’ receive different sentences from the same
judge, which may be a reason for concern, our general
rule of thumb is that a ‘defendant is not entitled to a
lighter sentence merely because his co-defendants
received lighter sentences.'” United States v. RiveraGonzalez, 626 F.3d 639, 648 (1st Cir. 2010) (quoting
United States v. Wallace, 573 F.3d 82, 97 (1st Cir.
2009)).
Dilean Reyes-Rivera and Jeffrey were not identically
situated. First, and most importantly, they pled guilty to
different offenses. Reyes-Rivera pled guilty to both bank
fraud and conspiracy to commit wire fraud, the first of
which carries a maximum term of thirty years of
imprisonment, see 18 U.S.C. § 1344. Jeffrey pled guilty
only to conspiracy to commit wire fraud, which means
that Jeffrey could not have been sentenced to more
than the [**22] five-year statutory maximum permitted
for that crime, see id. §§ 371, 1343. Second, as the
district court found, Reyes-Rivera “was considered the
leader, organizer of the criminal activity.” Reyes-Rivera
admitted that Jeffrey followed his instructions and that
he never even explained the business to Jeffrey. The
district court acted well within its discretion in giving
Reyes-Rivera a harsher sentence than Jeffrey. See
Reyes-Santiago, 804 F.3d at 467 (“We have routinely
rejected disparity claims . . . because complaining
defendants typically fail to acknowledge material
differences between their own circumstances and those
of their more leniently punished confederates.”).
As to national disparity, Reyes-Rivera’s sentencing
memorandum briefly discussed three cases from the
District of Puerto Rico and the Southern District of New
York that he alleged were substantially similar to his
case, each of which resulted in a sentence of fifty-one
months or fewer. In response, the district court stated:
I will say that you have done an excellent job in
raising the issue of disparity within the same
districts. I do know that the cases that you have
cited involve perhaps huge amounts of money. I
don’t know what the role of each one of
those [**23] defendants was. I don’t know how
persuasive the arguments or the background of this
defendant was in terms of prognosis for
rehabilitation, their entire background, how many
people were effected [sic].
The district court plainly considered Reyes-Rivera’s
section 3553(a)(6) argument, and it gave an adequate
Page 11 of 11
812 F.3d 79, *90; 2016 U.S. App. LEXIS 1512, **23
explanation for why Reyes-Rivera’s case “was not in the
same camp” as those he offered. United States v.
García-Ortiz, 792 F.3d 184, 192 (1st Cir. 2015).13
[*91] 2. Upward Variance
Reyes-Rivera claims that the district court erred by
imposing a seven-month upward variance to account for
the impact that his Ponzi scheme had on his victims. He
claims that “the conduct described to the Court by the
various vocal victims was already fully considered and
calculated in the advisory guideline offense level,
and [**24] the various enhancements recommended in
the defendant’s sentence guidelines calculation that was
set forth in the plea agreement.” He also makes a
related second argument: “A close examination of the
District Court’s comments about the guidelines suggests
that the sentencing judge saw the guidelines sentencing
as a mandatory base-line from which the court was to
steeply upwardly depart.”14
The first argument fails. The district court gave a
plausible and sensible rationale for placing particular
weight on victim impact and correctly noted — contrary
to Reyes-Rivera’s claim — that certain aspects of victim
impact are not expressly contemplated in the guidelines:
Mr. Reyes made the victims believe that he was
selling high yield investment products in retirement
plans. Instead, he was basically aware that all of
this was leading to a scheme. The victims were
mostly retired employees, unemployed individuals,
persons [**25] that basically disposed of whatever
they had, including their houses, credit lines, in
order to make these investments. . . .
In general, most of . . . the victims mortgaged their
properties, had to go back to work after being in
retirement. Some of them have incurred in
additional expenses, paying for psychiatric or
psychological treatment. Some of them have
attempted suicide. Some have suffered cardiac
arrest and symptoms. . . .
The guidelines do factor in the characteristics of the
crime, economic loss, the number of victims, but all
of that that you heard about is not factored in. All
those other expenses, it’s not even factored in in
the amounts that they are calculating for restitution
purposes. And those are losses that they have
experienced at this time.
The court also considered the “blatant disregard”
manifested by Reyes-Rivera when he refused to return
$5000 to an investor who needed the money to take
care of a bedridden cancer patient. This explanation
was more than adequate enough to justify the relatively
minor seven-month variance.
The second argument is easily disposed of as well.
Reading the sentencing transcript as a whole, it is
obvious from statements in the record [**26] that the
district court did not consider the guidelines to be a
mandatory baseline.
3. Overlapping Enhancements
Because the district court provided a plausible and
sensible rationale for the sentence it imposed, we find
no abuse of discretion in its decision not to adjust
downward to counteract the effect of the various
enhancements it correctly applied.
[*92] IV.
We affirm.
13 Reyes-Rivera’s
brief on appeal simply “incorporates the
arguments set forth and submitted in the sentencing
memorandum.” That does not work. HN18[ ] “Such an
attempt to incorporate by cross-reference does not comport
with our ordinary rule that claims made to this court must be
presented fully in an appellate brief and not by cross-reference
to claims made in the district court.” Lawrence v. Gonzales,
446 F.3d 221, 226 (1st Cir. 2006); see also Fed. R. App. P.
28(a)(8). “By failing to develop” this argument on appeal,
Reyes-Rivera “has waived [his] claim.” Universal Ins. Co. v.
Office of Ins. Comm’r, 755 F.3d 34, 38-39 (1st Cir. 2014).
14 It
is not true that the district court “steeply upwardly
depart[ed].” The district court, as we have found, correctly
calculated the guidelines sentencing range to be 188 to 235
months. In sentencing Reyes-Rivera to 242 months, the
district court only imposed a seven-month upward variance.
End of Document
Date and Time: Sunday, April 11, 2021 4:34:00 PM EDT
Job Number: 141149164
Document (1)
1. Al-Jabery v. Conagra Foods, Inc., 2007 U.S. Dist. LEXIS 79080
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As of: April 11, 2021 8:34 PM Z
Al-Jabery v. Conagra Foods, Inc.
United States District Court for the District of Nebraska
October 24, 2007, Decided; October 24, 2007, Filed
4:06CV3157
Reporter
2007 U.S. Dist. LEXIS 79080 *; 101 Fair Empl. Prac. Cas. (BNA) 1633
NAIM H. AL-JABERY, Plaintiff, vs CONAGRA FOODS,
INC., Defendant.
Core Terms
pork, national origin, deposition, interpreter, touch,
religious belief, sanitation, employees, plant, ham, prima
facie case, no evidence, interview, religion, production
line, undisputed, human resources manager, religious,
clean, processing plant, summary judgment,
accommodation, supervision, terminated, pages, pick
Counsel: [*1] For Naim H. Al-Jabery, Plaintiff: Joy A.
Shiffermiller, SHIFFERMILLER LAW FIRM, Lincoln, NE.
For Con Agra Foods, Inc., Defendant: Jennifer R.
Deitloff, Patrick J. Barrett, MCGRATH, NORTH LAW
FIRM, Omaha, NE.
Judges: Richard G. Kopf, United States District Judge.
Opinion by: Richard G. Kopf
Opinion
MEMORANDUM AND ORDER
Naim H. Al-Jabery (Al-Jabery) is a Muslim. Although he
is now an American citizen, he emigrated from Iraq. The
plaintiff’s ability to speak English is limited.
Using the services of his own interpreter, Al-Jabery
made a written application in English for a position in
“[s]anitation/or any” job at ConAgra’s ham processing
plant in Lincoln, Nebraska. He got the job. However,
when he was later ordered to work on the pork
processing line, he refused to follow his supervisor’s
direction to report to the line and he lost his position.
Al-Jabery claims that he was discriminated against on
the basis of his religion and his national origin. Among
other things, the plaintiff asserts that he has a firmly and
sincerely held religious belief that precludes him from
even touching pork products. ConAgra has filed a
motion for summary judgment. The motion will be
granted.
I. BACKGROUND
The material undisputed facts are [*2] these:
1. Al-Jabery is a male, he is a Muslim and he is from
Iraq. (Filing 45 at CM/ECF page 1 and P B 2 (Order on
Final Pretrial Conference) (Uncontroverted Facts).)
Although controverted, I assume for purposes of the
motion for summary judgment that the plaintiff “has
firmly [and sincerely] held religious beliefs that preclude
him from touching pork products.” (Id. at CM/ECF page
2 and P C 2 (Plaintiff’s Stated Issues).) 1
1 Law
professor Marci Hamilton, who was a law clerk to Justice
Sandra Day O’Connor, a visiting scholar at the Princeton
Theological Seminary, and counsel for the prevailing party in
City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157, 138 L.
Ed. 2d 624 (1997) (successfully challenging the Religious
Freedom Restoration Act), casts doubt on the theological
validity of the plaintiff’s assertion. “Experts say . . . that the
Page 2 of 6
2007 U.S. Dist. LEXIS 79080, *2
2. During [*3] the relevant times, ConAgra Foods, Inc.,
a Delaware corporation, operated a ham processing
plant in Lincoln, Nebraska under the name “Cook’s
Family Foods.” (Id. at CM/ECF page 1 and P B 3.)
3. On August 5, 2003, Al-Jabery applied for employment
at the plant and submitted an employment application in
English stating that he wanted to be considered for
“[s]anitation/or any” position at the plant. (Id. at CM/ECF
page 2 and P B 6.) On August 26, 2003, the plaintiff was
hired for a sanitation position, working as an “Equipment
Cleaner.” (Id. at P B 7.)
4. The sanitation job required Al-Jabery to clean
machines that processed pork, and it is undisputed that
the plaintiff actually did that work. (Ex. E, Al-Jabery
Dep., at CM/ECF page 21 and deposition page 51.) 2
Al-Jabery claims that he was not compelled to actually
pick up pork as a part of his sanitation job while working
the evening shift, and, for present purposes, I assume
that claim is true. Nevertheless, it also undisputed that
the policy of ConAgra, as recounted by the human
resources manger, clearly required that sanitation
workers, and not production line workers, remove pork
that had fallen to the floor of the processing plant when
[*4] required to do so by management:
The Company’s Sanitation Standard Operating
Procedures (SSOP) and Good Food Manufacturing
Practices (GMP) require production line workers to
refrain from picking product and scraps off the floor
and sanitation employees are required to do this
task. All employees, including Mr. Al-Jabery,
received a copy of these policies at the time of hire,
and the employees signed an acknowledgment
form agreeing to comply with the policies.
(Ex. B., Kevin Bartels Aff., at CM/ECF page 6 P 4.)
5. Despite the fact that the plaintiff became an American
citizen prior to his employment with ConAgra (Ex. E, AlJabery Dep., at CM/ECF page 18 and deposition page
10) and thus may be presumed to speak and
understand English to some degree, Al-Jabery took an
Muslim religion does not prohibit . . . touching pork” as
opposed to “eating the pork.” Marci Hamilton, The Dangers of
Accommodation of Religion Based on Religious Status, As
Opposed to Religiously Motivated Practice, And the Duty of
Religious Individuals to Obey the Law, (April 5, 2007) (italics in
original),
available
at
http://writ.news.findlaw.com/hamilton/20070405.html.
2 The
exhibits referred to in this opinion may be found at filing
31, the defendant’s index of evidence. The plaintiff offered no
additional evidence.
interpreter from Catholic Social Services to interpret for
him during the employment interview. (Id. at CM/ECF
page 19 and deposition page 15.) The interpreter filled
out the written application for the plaintiff. (Id. at
CM/ECF page 20 and deposition page 40.) Al-Jabery
did not [*5] understand the words spoken by the
ConAgra representative during the interview because
they were spoken in English, and, instead, he relied
upon the interpreter to translate the words into Arabic.
(Id. at CM/ECF page 19 and deposition pages 15-16.) In
the same vein, Al-Jabery does not know what the
interpreter said in English to the ConAgra representative
when conveying Al-Jabery’s words to the interviewer.
(Id.)
6. During his deposition, the plaintiff stated that he not
know the present whereabouts of the interpreter, and he
thought that the interpreter may be outside the country.
(Id. at CM/ECF page 20 and deposition page 40.) In any
event, there is no evidence in the record from the
interpreter about what the interpreter actually said to the
ConAgra representative or what the interpreter actually
said to Al-Jabery. Although Al-Jabery asserts that he
told the interpreter that he would not touch meat
because of his religion when he interviewed for the job,
there is no evidence that the interpreter actually
conveyed that information to the interviewer. On the
contrary, the ConAgra interviewer, after consulting her
written notes, has sworn that Al-Jabery “told me that he
preferred not [*6] to work with meat[,]” but he “made no
indication that his request was more than personal
preference, and [he] made no mention of his religious
beliefs.” (Ex. D, Cheryl Lindner Aff., at CM/ECF page 16
P 4.)
7. According to the human resources manager, the
standard hiring practices of the company typically call
for the applicant to be informed during the initial
interview that ConAgra processes ham and ham
products. (Ex. B., Kevin Bartels Aff., at CM/ECF page 6
P 5.) For these types of positions, ConAgra does not
hire applicants “who refuse to handle pork and pork
products because it is an essential function of most jobs
in a ham plant.” (Id.)
8. Other Muslims work at the plant and some of them
have worked on the production line. (Id. at CM/ECF
page 8 P 12.) No Muslim workers “have ever indicated”
to the human resources manager “that their religion
precludes them from touching pork.” (Id.) However,
ConAgra does endeavor to accommodate the religious
beliefs of its Muslim employees. For example, Muslims
were allowed to pray at work, to clean up before
Page 3 of 6
2007 U.S. Dist. LEXIS 79080, *6
prayers, to extend their rest periods during Ramadan in
order to break their fast, and, during Ramadan, not to
work with exposed meat while [*7] they were fasting if
they preferred not to do so. (Ex. C., Chasity Rutjens Aff.,
at CM/ECF page 13 P 9.)
9. Not only did ConAgra have a general policy of being
sensitive to its Muslim employees, it specifically treated
Al-Jabery in a kindly fashion. For example, on March 15,
2005, the human resources manager approved the
plaintiff’s request for a leave of absence from March 14,
2005 to May 30, 2005 so that the plaintiff could visit his
family in Iraq. (Ex. B, Kevin Bartels Aff., at CM/ECF
page 6 P 6.)
10. There were no problems between Al-Jabery and
ConAgra until shortly after Al-Jabery returned from Iraq.
By then, and instead of working the night shift, Al-Jabery
was working the second shift. (Ex. E, Al-Jabery Dep., at
CM/ECF page 22 and deposition page 54). For about
three weeks prior to June 14, 2005, the plaintiff had
been supervised by Chasity Rutjens, a female. (Id. at
CM/ECF page 23 at deposition page 58.) Prior to June
14, 2005, the plaintiff had no problems with Rutjens or
the male supervisor before her. (Id. at CM/ECF page 23
and deposition pages 57-58.)
11. On June 14, 2005, Rutjens advised the human
resources manager, Kevin Bartels, that the plaintiff was
taking unauthorized [*8] breaks and the plaintiff’s direct
supervisor had been unable to locate the plaintiff for
approximately one hour. (Ex. B, Kevin Bartels Aff., at
CM/ECF page 6 P 8.) Rutjens told Bartels that she was
contemplating reassigning the plaintiff to the pork
production line where he could be more closely
monitored. (Id.) By the next day, June 15, 2005, Rutjens
had confirmed with two Vietnamese employees who
worked on the sanitation crew that Al-Jabery had been
missing from an area the sanitation crew was expected
to clean and two other supervisors had told her that “AlJabery had a pattern of wondering off and taking
excessive breaks.” (Ex. C, Chasity Rutjens Aff., at
CM/ECF page 12 P 6-7.) Accordingly, she told AlJabery that she was transferring him to the pork
production line. (Id. P 7.) Al-Jabery protested, and
Rutjens took the plaintiff to Bartels, the human
resources manager. Bartels supported Rutjens and told
Al-Jabery that he must report to the pork production line,
but that he would receive the same pay, hours and
benefits. (Ex. B, Kevin Bartels Aff., at CM/ECF page 7 P
9.) Due largely to Al-Jabery’s limited ability to speak
English, what precisely was said by Al-Jabery, Rutjens
and [*9] Bartels on June 15, 2005, is the subject of
some dispute, but there is no evidence that Al-Jabery
told Bartels or Rutjens that he could not work on the
pork line because of his religious beliefs. (E.g., Ex. B,
Kevin Bartels Aff. at CM/ECF page 8 P 12; Al-Jabery
Dep., Exhibit E, CM/ECF page 24 and deposition pages
63-64.) In the end, and on June 15, 2005, Al-Jabery
refused to report to the pork production line, left the
facility and was termed a “voluntary quit” by ConAgra for
refusing the transfer. (Ex. B, Kevin Bartels Aff., at
CM/ECF page 7 P 9.)
12. Al-Jabery does not dispute that his Vietnamese
coworkers told management that he was absent from
the work area. (Ex. E, Al-Jabery Dep., at CM/ECF page
23 and deposition page 60.) Rather, he offers the
excuse that he was taking the trash out. (Id.) Nor does
he dispute what the other supervisors supposedly told
Rutjens.
13. During this litigation, when the plaintiff was asked
what accommodation he wanted from ConAgra, he
answered: “I sought not to be required to touch pork.”
(Ex. F at CM/ECF page 31 and Answer 14 (Pl.’s
Answers to Interrogs.).) In his deposition, the plaintiff
also stated that he would have taken a position in a part
of [*10] the plant that also processed beef since his
religion did not preclude him from coming into contact
with beef. (Ex. E, Al-Jabery Dep., at CM/ECF page 25
and deposition page 68.). However, the human
resources manager has sworn that “[t]here were no
other positions in the plant for which Mr. Al-Jabery was
qualified, that would not require him to be in direct
contact with pork.” (Ex. B, Kevin Bartels Aff. at CM/ECF
pages 7-8 P 11). Al-Jabery has presented no evidence
to dispute the truth of that statement.
14. There is no evidence that the plaintiff was treated
less favorably than similarly situated employees who
held different religious beliefs or whose national origin
was different than Al-Jabery’s national origin. (E.g., Ex.
B, Kevin Bartels Aff., at CM/ECF page 8 P 13.)
II. ANALYSIS
Remembering that he has no direct evidence of
discrimination, the plaintiff makes two claims. Relying on
Title VII, the plaintiff claims he was discriminated
against on the basis of his religion and on the basis of
his national origin. (Filing 45 at CM/ECF pages 2-5, P C
(Order on Final Pretrial Conference, Controverted and
Page 4 of 6
2007 U.S. Dist. LEXIS 79080, *10
Unresolved Issues).) 3
Giving Al-Jabery the benefit of the doubt, he cannot
establish a prima facie case for either claim. Even if he
could, ConAgra has also established that it acted for a
legitimate non-discriminatory reason and Al-Jabery has
no evidence that would permit a reasonable jury to
conclude otherwise. See, e.g., Al-Zubaidy v. TEK
Industries, Inc., 406 F.3d 1030, 1037 (8th Cir. 2005) (in
the absence of direct evidence of discrimination,
McDonnell Douglas burden shifting analysis applied to
the claim of Shiite Muslim of Iraqi descent who asserted
that he was fired, for among other reasons, because of
his religion and national origin).
A. Al-Jabery’s Failure to Make a Prima Facie Case
Religion
In order to make a prima facie case of religious
discrimination under Title VII the plaintiff must present
evidence that would allow a reasonable jury to conclude
that (1) he had a bona fide religious belief that conflicted
with an employment requirement; (2) he informed the
defendant of his belief; and (3) the defendant disciplined
or fired the plaintiff because he did not comply with the
requirement. See, e.g., Wilson v. U.S. West Commc’ns,
58 F.3d 1337, 1340 (8th Cir. 1995) (sustaining
[*12] judgment for employer requiring employee to
obscure anti-abortion button despite the claim that doing
so would force her to violate her religious belief that she
was required to bear “living witness” to the sanctity of
the unborn). In this case, the plaintiff has failed to
present competent evidence that he informed ConAgra
that he could not touch pork. Therefore, he cannot make
out the second element of his prima facie case.
The person who interviewed Al-Jabery has sworn that
he made no claim that he could not touch pork for
religious reasons, and Al-Jabery has failed to produce
his interpreter to dispute that statement. Furthermore,
Al-Jabery completed an employment application that
indicated he would perform any job. Given the fact that
he was applying for a job in a ham processing plant, it
strains credulity to believe that he also told ConAgra
that he did not mean what his application clearly stated.
3 The
plaintiff’s state law claim was abandoned in the pretrial
[*11] conference order. Id.
Still further, there is no evidence that any other Muslim
employee held the religious views that Al-Jabery held
regarding touching pork. Indeed, the evidence is that the
other Muslim employees made no such assertions to
ConAgra. As a result, there was no reason for ConAgra
to assume [*13] that since the plaintiff was a Muslim it
was obvious that he could not touch pork. Finally, when
he was reassigned to the pork line there is no evidence
that he told Rutjens or Bartels that he could not do so
for religious reasons.
Al-Jabery does claim that when he worked on the night
shift he cleaned machines, but he was not required to
actually pick up pork. For the sake of this motion, I
assume that assertion to be true. However, the fact that
the plaintiff was allowed to perform one particular task
and not another does not prove that ConAgra knew that
the plaintiff held a particular religious belief about the
task he did not perform. Indeed, it was the general and
preexisting policy of ConAgra that all sanitation
employees were required to pick up pork when it fell to
the ground if required by management to do so. In short,
the fact that one supervisor allowed Al-Jabery to do one
thing (clean machines that touched pork) does not mean
that ConAgra knew that Al-Jabery’s religious beliefs
precluded him from doing another job (touching pork).
National Origin
In order to establish a prima facie case of national origin
discrimination under Title VII, and in the absence of
direct evidence [*14] of discrimination, the plaintiff must
show that (1) he is a member of a protected class; (2)
he was qualified for the position and performed his
duties adequately; and (3) he suffered an adverse
employment action under circumstances that would
permit a fact finder to infer that unlawful discrimination
had been at work. See, e.g., Habib v. NationsBank, 279
F.3d 563, 566 (8th Cir. 2001) (sustaining summary
judgment against employee who claimed she was
terminated, for among other reasons, because she was
a Muslim of Pakistani national origin). The plaintiff
cannot show that he performed his duties adequately,
and he cannot show that he was terminated under
circumstances that would permit a reasonable fact
finder to infer that his national origin was the real reason
for the discharge.
It is undisputed that two Vietnamese coworkers
confirmed that Al-Jabery was not where he was
expected to be and it is undisputed that two other
supervisors complained that Al-Jabery had a pattern of
Page 5 of 6
2007 U.S. Dist. LEXIS 79080, *14
taking excessive breaks. Even though the plaintiff
claims he could have offered an excuse had he been
given the opportunity to do so, there was no reason for
Rutjens or Bartels to disbelieve the information they
[*15] had received from two supervisors and two
coworkers. As a result, the plaintiff cannot prove the
second element of his prima facie claim of national
origin discrimination.
Furthermore, it is apparent that the plaintiff cannot
establish the third element of his national origin claim,
that is, that he was terminated under circumstances that
would permit a fact finder to infer that unlawful
discrimination had been at work. The undisputed
evidence is that Bartels treated the plaintiff favorably
and allowed him to travel to Iraq for an extended period
of time immediately prior to the incident in question.
Insofar as Rutjens is concerned, she supervised the
plaintiff for three weeks prior to the incident in question
without the slightest suggestion that she harbored any
animus for people of Iraqi national origin.
B. ConAgra’s Undisputed Showing of Justification
Religion
Even if the plaintiff had made out a prima facie case of
religious discrimination, ConAgra has provided
uncontroverted evidence that it could not offer Al-Jabery
an accommodation without suffering an undue hardship.
See, e.g., Seaworth v. Pearson, 203 F.3d 1056, 1058
(8th Cir. 2000) (assuming that the plaintiff had
established [*16] prima facie case of religious
discrimination, but holding that a requirement that
defendants restructure their method of operation to treat
the plaintiff as an independent contractor, rather than an
employee, so that the plaintiff would not be required to
provide a social security number in violation of his
religious beliefs was an unreasonable accommodation
because the cost of “restructuring” would be more than
minimal).
Essentially, Al-Jabery seeks to be the only person at a
ham processing plant who was not required to touch
pork even if the needs of the company demanded it. As
a matter of law, this would have caused a fundamental
restructuring in how ConAgra operated its ham plant
because it is obvious that the cost to ConAgra would
have been more than minimal. Plainly put, a ham plant
cannot be efficiently run by catering to the idiosyncratic
desires of a Muslim worker not to touch the plant’s main
product. 4
The plaintiff seems to argue that he could have been left
in his sanitation position and allowed to clean machinery
without also being required to pick up pork. He argues
that he was allowed to do so on the night shift, and, so
he asserts, the prior allowance proves that such an
accommodation could have been made on the second
shift without undue difficulty. Among others, the most
obvious problem with this argument is that the reason
for moving the plaintiff to the pork line in the first place
was because he needed more supervision than could
be provided on the sanitation crew. In short, the cost of
this accommodation-allowing the plaintiff to remain in a
position where management believed he could not be
adequately supervised-is, on its face, more than
minimal.
National Origin
Assuming, for the sake of argument, that Al-Jabery
could make a prima facie claim of national origin
discrimination, ConAgra has proven that its reason for
the proposed transfer was not a pretext. There is no
counter evidence that would allow a jury to conclude
otherwise.
Even if one assumes that Al-Jabery’s unarticulated
excuse for being missing was true and that Al-Jabery
was otherwise [*18] a good worker, ConAgra was
entitled to act on the statements of two Vietnamese coworkers and two supervisors who suggested, in one
way or another, that Al-Jabery was frequently missing
and thus required greater supervision. See, e.g., Azimi
v. Jordan’s Meats, Inc., 456 F.3d 228, 242, 246 (1st Cir.
2006) (sustaining summary judgment for meat packer
on claim by Muslim immigrant from Afghanistan that he
had been wrongly terminated in retaliation for making a
claim that he had been subjected to a hostile work
environment because of his religious beliefs and ethnic
background; employer admitted that the plaintiff had
made a prima facie case, but the employer also
presented unchallenged evidence that the company had
terminated the plaintiff for specific incidents of
misconduct).
4I
also note that despite the plaintiff’s suggestion that he was
willing to work on the beef line, Bartels has sworn that there
was no position available for which the plaintiff was qualified
that did not require the employee to touch pork. The plaintiff
has produced no counter [*17] evidence on that point.
Page 6 of 6
2007 U.S. Dist. LEXIS 79080, *17
In other words, in assessing “pretext,” the court’s focus
must be on the perception of the decision maker, that is,
whether the employer believed its stated reason to be
credible. Id. at 246. Although the employer’s good faith
belief is not automatically conclusive, it is not enough for
a plaintiff merely to question the employer’s justification.
Id. At the summary judgment stage, the employee must
present specific [*19] facts which would enable a jury to
find that the reason given is not only a sham, but a
sham intended to hide the employer’s real and unlawful
motive of discrimination. Id. In summary, given the
absence of counter evidence from the plaintiff, no
reasonable jury could disbelieve ConAgra that it
transferred Al-Jabery because of supervision concerns
and not because he was a Muslim from Iraq.
IT IS ORDERED that the motion for summary judgment
(filing 30) is granted and judgment will be entered by
separate document.
October 24, 2007.
BY THE COURT:
s/ Richard G. Kopf
United States District Judge
End of Document
Al-Jabery two claims, discrimination based on his
religion and national origin, have no substantial evidence to
push for a prima case. Throughout the deposition, the
defendant was firm as they acted on the legitimate reason for
Al-Jabery termination of employment. His discrimination case
had no merit as his counter-evidence were somewhat
inconclusive. Furthermore, his failure to produce the
interpreter as a viable witness played in the defendant’s
favour. Al-Jabery inability to speak English hindered his
comprehension of the interview and thus could not clarify his
religious position. However, the interviewer swore the
plaintiff had not indicated mention of his religious distinction
of not handling pork and, as such, made Al-Jabery claims
baseless.
Furthermore, ConAgra revealed that it was steadfast at
including employee religious beliefs in its programs, thus not
discriminatory. Still, no evidence of other employees sharing
the same beliefs as Al-Jabery in handling pork. Record states
Muslim employees had not previously indicated their
religious potions on handling pork. The defendant, after that,
had no reason to assume Al-Jabery could touch pork.
Additionally, there was no evidence that Al-Jabery was
reassigned in the pork production line could not carry out his
responsibility due to religious reasons.
Al-Jabery prima case failed because, to make a case of
religious discrimination under Title VII, the plaintiff had to
show evidence that indicated he had religious beliefs that
differed with ConAgra requirements. Secondly, if he had
informed the defendant of his religious beliefs and lastly if the
defendant acted harshly by the termination of employment
because of failure to comply with the requirements, these
claims were thrown out because the plaintiff failed to present
concrete evidence to convince a jury of a discrimination case.
Additionally, the plaintiff had initially applied to perform any
task and the essential function of a ham plant involved pork.
With the help of his interpreter, Al-Jabery agreed
wholesomely on taking a job at ConAgra. Failure to produce
the interpreter was crucial to dispute the defendant’s statement
of no claim that Al-Jabery could not touch pork.
Because of insufficient evidence, the defendant failed to
establish merit for a prima facie case of national origin
discrimination under Title VII. The plaintiff could have made
a case if he was a member of a protected class secondly if he
was hired based on qualifications and had performance to
show for it. Lastly, if the company had taken action under
which a permit fact finder to suppose unlawful bias at work.
However, the plaintiff was not hired based on his
qualifications, and he cannot attest that he was fired due to
national origin. The Vietnamese co-workers confirmed Al-
Jabery absenteeism, and his supervisors had established a
pattern of irresponsible behaviour through excessive breaks.
Reference
Grisham, J. G., & Day, F. L. Labor and Employment
Law. Engage, 80.

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