United States of America v. Fernando Jacobs

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Myron H. Bright, Senior Circuit Judge for the U.S.
Court of Appeals for the Eighth Circuit, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FERNANDO JACOBS,
Defendant - Appellant.
No. 11-50331
D.C. No.2:09-cr-1330-GHK-2
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
George H. King, District Judge, Presiding
Argued and Submitted November 9, 2012
Pasadena, California
Before: BRIGHT**, GRABER, and IKUTA, Circuit Judges.
Fernando Jacobs was a Supervisory Immigration Services Officer
(“supervisory officer”) with the United States Citizenship and Immigration
Services (“CIS”). Jacobs was convicted of four counts of honest services wire
FILED
JAN 23 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

-2-
fraud under 18 U.S.C. §§ 1343, 1346, based on his involvement in a scheme taking
bribes in exchange for immigration information and assistance. Jacobs raises two
issues on appeal, the insufficiency of the evidence on the required element of
materiality to support the wire fraud charges and the application of a sentencing
enhancement. We affirm.
Viewing the evidence in the light most favorable to the prosecution, we
conclude that a rational trier of fact could have found the element of materiality
proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319
(1979). There was sufficient evidence that Jacobs’s scheme to defraud CIS of his
honest services had a natural tendency to influence CIS or was capable of
influencing CIS. See United States v. Milovanovic, 678 F.3d 713, 727 (9th Cir.
2012) (en banc); see also United States v. Peterson, 538 F.3d 1064, 1072 (9th Cir.
2008) (citing Kungys v. United States, 485 U.S. 759, 770 (1988)). Jacobs admits
that, in one instance, his scheme did in fact influence CIS because Jacobs
compelled a subordinate officer to confer an immigration benefit in the form of
travel stamps on passports. We therefore affirm Jacobs’s convictions for honest
services wire fraud.
The district court did not err by applying a four-level sentencing
enhancement under Sentencing Guidelines § 2C1.1(b)(3). The Guidelines

-- 2 of 3 --

-3-
authorize a four-level increase in an offender’s base offense level for bribery
offenses involving any public official in a sensitive position. Sentencing
Guidelines Manual § 2C1.1(b)(3). The district court properly determined that
Jacobs held a sensitive position. Supervisory officers like Jacobs occasionally
adjudicate immigration benefits, such as petitions for residency and citizenship, but
the primary role of a supervisory officer is to supervise Immigration Services
Officers, ensuring that they properly apply immigration law in the adjudication of
benefits. As a supervisory officer, Jacobs had the authority to review important
decisions of officers, he had access to sensitive information, and he was able to
control the actions of subordinates. We therefore affirm Jacobs’s sentence,
including the four-level enhancement for holding a sensitive position.
AFFIRMED.

-- 3 of 3 --