United States Court of Appeals

for the Fifth Circuit ____________

No. 23-50218

____________

United States of America, 

Plaintiff—Appellee, 

versus

Josephine Casandra Perez-Gorda, 

Defendant—Appellant. 

______________________________

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 5:17-CR-845-2 

______________________________

Before Ho, Duncan, and Oldham, Circuit Judges.

James C. Ho, Circuit Judge:

Josephine Perez-Gorda appeals her federal convictions for fraud. Her

husband Justin suffered a brain injury while on duty abroad with the United 

States Army. Following his return to the United States, he and Perez-Gorda 

repeatedly told providers and caregivers at the U.S. Department of Veterans 

Affairs that he could not walk or take care of himself. Based on these 

representations, the couple received government benefits—including a new 

home and new car. Perez-Gorda also received a caregiver stipend. But in 

fact, Justin was more mobile and self-sufficient than he and Perez-Gorda had 

represented. They were charged with fraud and conspiracy.

United States Court of Appeals

Fifth Circuit

FILED

September 19, 2024

Lyle W. Cayce

Clerk

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After Justin’s death in 2022, a grand jury returned a superseding

indictment against Perez-Gorda. The grand jury indicted Perez-Gorda on 

fourteen counts of wire fraud under 18 U.S.C. § 1343; mail fraud under 18 

U.S.C. § 1341; health care fraud under 18 U.S.C. § 1347; conspiracy to 

commit health care fraud under 18 U.S.C. § 1349; and various associated 

aiding and abetting offenses under 18 U.S.C. § 2. A jury voted to convict her 

on all counts. Following the jury verdicts, the district court sentenced PerezGorda to forty-six months in prison. 

In this appeal, Perez-Gorda correctly points out that the jury 

instructions on wire and mail fraud in her trial have been rendered erroneous 

by intervening circuit precedent. But she did not object to the instructions at 

trial, and we see no reasonable possibility that a jury would have acquitted 

under the proper instructions. Her other challenges are unavailing as well. 

We accordingly affirm. 

I.

Perez-Gorda primarily challenges the district court’s instructions to 

the jury. A conviction for wire fraud or mail fraud requires a showing that 

the defendant acted with “specific intent to defraud.” United States v. 

Hoffman, 901 F.3d 523, 545 (5th Cir. 2018) (citing United States v. Kuhrt, 788 

F.3d 403, 413–14 (5th Cir. 2015) and United States v. Brooks, 681 F.3d 678, 

700 (5th Cir. 2012)); 18 U.S.C. §§ 1341, 1343. During Perez-Gorda’s trial, 

the district court instructed the jury that a “specific intent to defraud” means 

“a conscious, knowing intent to deceive or cheat someone.” That instruction 

was consistent with pattern instructions in effect at the time of the trial. 

After Perez-Gorda’s conviction, and while this appeal was pending, 

the Fifth Circuit clarified that specific intent in this context requires an intent 

to both “deceive and cheat” someone. United States v. Greenlaw, 84 F.4th 

325, 351 (5th Cir. 2023) (quoting United States v. Miller, 953 F.3d 1095, 1103 

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(9th Cir. 2020)). Perez-Gorda argues that the misstatement of the law in her 

jury instruction requires vacatur and a new trial on the wire fraud and mail 

fraud counts. 

But Perez-Gorda did not object to the instruction at trial. So we 

review it only for plain error. See Henderson v. United States, 568 U.S. 266, 

272 (2013). The Government concedes that the instruction was obviously 

erroneous under intervening precedent. The only question is whether the 

error affected Perez-Gorda’s “substantial rights.” United States v. Olano, 

507 U.S. 725, 732 (1993).

An error affects substantial rights only when a defendant can “show a 

reasonable probability that, but for the error, the outcome of the proceeding 

would have been different.” Molina-Martinez v. United States, 578 U.S. 189, 

194 (2016) (cleaned up). 

Perez-Gorda does not make this showing here. Indeed, she does not 

even attempt to argue that a correct instruction had a reasonable probability 

of changing the outcome. Instead, she maintains only that the jury “could” 

have returned a different verdict if instructed properly. And regardless, the 

jury considered evidence that she sought benefits with the intent to both 

deceive and cheat—that is, to deprive the government “of money or property

by means of deception.” Greenlaw, 84 F.4th at 351 (quoting Miller, 953 F.3d 

at 1103). The jury heard evidence that Perez-Gorda claimed that Justin could 

not walk or perform basic life tasks, despite claiming at other times that he 

could walk and perform home improvement projects. The jury also heard 

evidence that the Department of Veterans Affairs awarded Perez-Gorda the 

highest tier of caregiver benefits after she told them Justin could not be left 

alone—but that Perez-Gorda then left him alone for nine days while she 

vacationed at Disneyworld. And it heard evidence that she traded in the car

that she had requested from Veteran Affairs to accommodate Justin’s 

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mobility—for a new Escalade without the corresponding adaptive 

equipment. 

We do not see a reasonable probability that the jury would have voted 

to acquit on this evidence under the proper instructions.

II.

Perez-Gorda raises other, ancillary challenges, none of them availing. 

She challenges statements from a federal agent during the grand jury 

proceedings implying that Justin was still alive and that his injury was 

comparable to a concussion sustained in a game of football. She argues that 

these statements prejudiced the grand jury, which indicted her. But she fails 

to show they were “capable of influencing the grand jury’s decision.” United 

States v. Cessa, 861 F.3d 121, 141 (5th Cir. 2017) (cleaned up). Proceedings 

against Perez-Gorda were already underway for the charges against her and 

Justin. Moreover, none of the indictments depend on her husband’s death, 

which took place after the operative events.

Perez-Gorda also challenges the jury verdicts themselves, arguing that 

they were not supported by substantial evidence. We affirm a jury verdict as 

long as a “rational trier of fact could have found the essential elements of the 

crime beyond a reasonable doubt.” United States v. Vargas-Ocampo, 747 F.3d 

299, 303 (5th Cir. 2014). Perez-Gorda gives reasons why a jury could have 

chosen not to convict her, but she does not show that no reasonable jury could 

convict. We think a rational jury could have found Perez-Gorda guilty of 

fraud: as noted above, the jury heard evidence that Perez-Gorda requested

and received benefits based on Justin’s immobility despite knowing he could 

walk, that she requested and received benefits based on his inability to take 

care of himself even though she knew that he could take care of himself, and 

that some of the benefits did more to help her than Justin. 

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Finally, Perez-Gorda also challenges her sentence. The district court 

adjusted Perez-Gorda’s sentence upward by two levels based on a finding 

that she was an “organizer, leader, manager, or supervisor” of another 

participant in the criminal activity. U.S.S.G. § 3B1.1(c). This was a factual 

finding, see United States v. Gonzales, 436 F.3d 560, 584 (5th Cir. 2006), so 

we review it for clear error. See United States v. Hernandez-Galvan, 632 F.3d 

192, 196 (5th Cir. 2011). This finding is not clearly erroneous. The record 

could convince a reasonable fact-finder that Perez-Gorda supervised Justin 

in the fraudulent activity: evidence showed that Perez-Gorda researched 

benefits, exercised control over the couple’s finances, attended all of Justin’s

medical appointments, and demanded that neighbors, family, and medical 

providers contact him only through her. 

We affirm.

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