United States Court of Appeals

United States Court of Appeals

For the First Circuit

No. 16-1002

UNITED STATES, Appellee, v.

VALENT?N VALD?S-AYALA, Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Aida M. Delgado-Col?n, U.S. District Judge]

Before

Howard, Chief Judge, Thompson and Barron, Circuit Judges.

Linda A. Backiel for appellant. Mariana E. Bauz?-Almonte, Assistant United States Attorney, Chief, Appellate Division, with whom Rosa Emilia Rodr?guez-V?lez, United States Attorney, and Mainon A. Schwartz, Assistant United States Attorney, were on brief, for appellee.

August 15, 2018

THOMPSON, Circuit Judge. For at least eight years Defendant Valent?n Vald?s-Ayala (Vald?s) exploited the desperation of individuals who were behind on their court-ordered child support payments. He did so by illusorily promising professional legal assistance in exchange for approximately $1,575 and then filing incomplete petitions in bankruptcy court to secure a stay on the Commonwealth of Puerto Rico's collection efforts. Eventually Vald?s's scheme attracted the attention of federal law enforcement officials which led to his trial and conviction on several fraudrelated offenses. On appeal he makes several claims of trial and sentencing error. For the reasons discussed herein, we affirm his convictions and the order of restitution imposed, but vacate his sentence of incarceration and remand to the district court for resentencing.

I. BACKGROUND A. Setting the Scene To understand how Vald?s exploited the bankruptcy and child support administration systems, it will help to understand the ways in which these systems have been designed to work. We use the testimony the jury heard at trial to paint the backdrop against which Vald?s operated his businesses. The jury trial included testimony from a varied cast of 34 witnesses culminating

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with Vald?s, himself, taking the stand.1 So a heads up to the

reader: There's a lot of factual detail to lay out before we can

get to our discussion of Vald?s's arguments on appeal.

1. Child Support Collection in Puerto Rico

In Puerto Rico, the Administracion para el Sustento de

Menores ("ASUME") governs child support determinations,

modifications, collections, and distributions.

When the

Commonwealth's trial court orders a non-custodial parent to pay

child support, ASUME is responsible for collecting the payment and

sending it on to the custodial parent. ASUME has several

collection tools at its disposal when a non-custodial parent misses

a scheduled payment, including retention of income tax refunds,

withholding of income, suspension of sport or professional

driver's licenses, and referrals to credit agencies. One

additional collection mechanism available to ASUME--the filing of

a contempt motion in the Commonwealth trial court--can result in

up to six months imprisonment for the delinquent parent.

For a parent in arrears wanting to put ASUME's collection

efforts on hold (thereby freezing past-due obligations), filing a

petition for Chapter 13 bankruptcy in the bankruptcy court does

the trick, at least temporarily. The reason: the filing generates

1 Because Vald?s challenges the sufficiency of the evidence to support some of his convictions, we will relay the facts of the case in the light most compatible with the jury's verdict. See United States v. Serunjogi, 767 F.3d 132, 139 (1st Cir. 2014).

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an immediate stay. It also kicks out an automatic notification to ASUME, giving it the status of a creditor needing to file a proof of claim. But notwithstanding the stay, the parent has a continuing obligation throughout the bankruptcy proceeding to pay the ongoing support obligations as they are due (i.e., payments that become due after filing the bankruptcy petition). If the parent fails to meet the recurring payment deadlines, then ASUME can seek dismissal of the bankruptcy petitioner's case. If dismissed, the entire child support arrears is immediately owed to ASUME.

2. Chapter 13 Bankruptcy A Chapter 13 petition may be filed by individuals who have a regular source of income but need some breathing room to reorganize and repay their debts. The bankruptcy process generates a plan for debt reorganization and repayment. Two major benefits favor filing: (1) the automatic stay, or freeze, on every creditor's attempt to collect a debt owed by the debtor, and (2) a discharge, or forgiveness, of some types of debts at the end of the case, meaning the debtor never has to repay these debts. But a child support debt is not one that can be forgiven (or, put in legal lingo, is "nondischargeable") and, in fact, has priority over the payment of other debts. So the debtor's obligation to pay past-due child support never disappears. For a non-custodial parent delinquent in child support payments, the automatic stay is

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oft times the primary benefit of a Chapter 13 filing. And the power of this benefit is not to be underestimated; if the debtor is imprisoned for contempt for failure to pay court-ordered child support, the stay generates a get-out-of-jail-for-free order during the pendency of the proceeding. It also triggers a handsoff order of the debtor's earnings, thereby shielding it from creditor reach.

A Chapter 13 petition can be prepared and filed by an attorney, by a petition preparer,2 or directly by the debtor, and it is supposed to include several documents. The three page petition itself covers general information about the debtor, an estimated number of creditors, an estimated sum of the debtor's assets and liabilities, the identity of the actual petition preparer, and whether the debtor has filed for bankruptcy within the last 8 years.3 Moreover, a petition preparer (if any) must file a certification disclosing how much the debtor paid for the preparer's assistance.

2 A bankruptcy petition preparer is "a person, other than an attorney for the debtor or an employee of such attorney under the direct supervision of such attorney, who prepares for compensation . . . a petition or any other document prepared for filing by a debtor in a United States bankruptcy court . . . ." 11 U.S.C. ? 110(a).

3 In addition, there are other separate forms, disclosures, and certifications which must be completed, depending upon the type of financial obligation involved.

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