United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED February 2, 2022 No. 20-20509 Lyle W. Cayce Clerk

United States of America,

Plaintiff—Appellee,

versus

Simone Swenson,

Defendant—Appellant.

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:15-CR-402-1

Before King, Costa, and Willett, Circuit Judges. King, Circuit Judge: Simone Swenson appeals her conviction for mail fraud under 18 U.S.C. § 1341. She also appeals the application of a vulnerable victims sentencing enhancement under U.S.S.G. § 3A1.1(b)(1) and the restitution imposed by the district court. Because we hold that there was sufficient evidence to support Swenson’s conviction and that the district court did not err in its sentencing, we AFFIRM. Case: 20-20509 Document: 00516189839 Page: 2 Date Filed: 02/02/2022

No. 20-20509

I. FACTS AND PROCEDURAL HISTORY On July 29, 2015, a grand jury indicted Simone Swenson on four counts of wire fraud and mail fraud based on a scheme to defraud prospective adoptive parents through her adoption agency, Sans Pareil Center for Children and Family Services, LLC (“Sans Pareil”). As alleged in the indictment, the heart of this scheme was Swenson’s practice of “double matching”—matching two prospective families with the same birth mother and receiving payments from both families. In September 2019, the case was tried before a jury. The jury returned a verdict of “not guilty” on the two wire fraud counts (counts 1 and 2), and a verdict of “guilty” on the two mail fraud counts (counts 3 and 4). The district court then granted Swenson’s motion for judgment of acquittal only as to count 3. The sole remaining count of conviction, count 4, stemmed from a check for $1,800 to pay for birth-mother expenses sent to Swenson on September 18, 2013. 1 That check, in turn, was related to the double matching of birth-mother Ashley Smolt with two different prospective birth families— Daniel and Christopher Cuschieri (the “Cuschieris”) and Annise and Jason Neidrich (the “Neidriches”). The Cuschieris had previously sent Swenson $13,400 in agency fees on June 7 for an adoption match with a potential birth mother; that match eventually fell through. Similarly, the Neidriches had paid Swenson $11,700 on July 1 for a match that eventually failed. After that failed match, the Neidriches were matched with birth- mother Smolt in mid-September. As part of that match, they were informed on September 12 by e-mail that their agency fees from the previous failed match would be rolled over, but that they needed to pay $1,800 for Smolt’s birth-mother expenses. Annise Neidrich also testified that, after this e-mail,

1 All relevant dates are in the year 2013.

2 Case: 20-20509 Document: 00516189839 Page: 3 Date Filed: 02/02/2022

No. 20-20509

later phone conversations sowed confusion about whether Swenson was requesting more than $1,800 for birth-mother expenses. Annise Neidrich also testified that, wh