United States v. Dominguez-Figueroa ( 2017 )

United States Court of Appeals
For the First Circuit
No. 16-1300
UNITED STATES OF AMERICA,
Appellee,
v.
RAÚL DOMÍNGUEZ-FIGUEROA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Lynch, Circuit Judges.
Heather Clark and Clark Law Office on brief for appellant.
Thomas F. Klumper, Assistant United States Attorney, Senior
Appellate Counsel, Mariana E. Bauzá-Almonte, Assistant United
States Attorney, Chief, Appellate Division, and Rosa Emilia
Rodríguez-Vélez, United States Attorney, on brief for appellee.
August 9, 2017
LYNCH, Circuit Judge. A jury convicted Raúl Domínguez-
Figueroa of three charges stemming from a fraudulent scheme to
obtain disability benefits from the Social Security Administration
("SSA"). He now appeals from both his convictions and his
sentence. Finding no merit to his arguments, we affirm.
I.
Domínguez is a lifelong resident of Ciales, Puerto Rico
and worked there from 1993 until 2010 as a welder for Thermo King,
a manufacturer of refrigeration units for tractor-trailers.
Between April 2008 and January 2009, Thermo King closed its Ciales
plant and transferred all the plant's employees, including
Domínguez, to a different plant in Arecibo, Puerto Rico. On
November 3, 2010, Domínguez submitted a written resignation
letter, which cited transportation problems as his reason for
resigning.
On February 8, 2011, Domínguez first visited Dr. Luis
Escabí-Pérez ("Dr. Escabí"), a psychiatrist, who had previously
worked as an SSA claims examiner -- and who would ultimately become
Domínguez's co-defendant in this prosecution. According to Dr.
Escabí's trial testimony,1 Domínguez showed symptoms consistent
with mild to moderate depression, not severe enough to prevent him
from working. Claimants are entitled to SSA disability benefits
1 Pursuant to a plea agreement, Dr. Escabí agreed to
testify at Domínguez's trial.
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only if their disability is so severe that they cannot work. See
42 U.S.C. § 423(d).
Nevertheless, Dr. Escabí further testified, he agreed to
help Domínguez obtain SSA disability benefits by (1) backdating
his first appointment to December 9, 2010; (2) exaggerating
Domínguez's symptoms, diagnosing him with severe depression, and
prescribing unnecessarily strong medications; and (3) scheduling
unnecessary monthly appointments until the SSA approved
Domínguez's application for benefits. Dr. Escabí knew, based in
part on his experience as an SSA claims examiner, that these
actions would help Domínguez obtain SSA approval for disability
benefits to which Domínguez was not entitled.2
On May 20, 2011, Domínguez applied for SSA disability
benefits via telephone. The SSA claims representative advised
Domínguez several times that the application was being submitted
under penalty of perjury. Domínguez told the representative that
his disabling depression had begun on December 9, 2010, and that
it had caused him to stop working. In July 2011, he mailed an
Adult Function Report to the SSA, using template answers provided
by Dr. Escabí that exaggerated Domínguez's true condition. On
July 24, 2011, Dr. Escabí submitted a Psychiatric Medical Report
2 Dr. Escabí's former secretary, in her own testimony at
Domínguez's trial, recalled that nearly all of Dr. Escabí's
patients between 2010 and 2013 were seeking Dr. Escabí's help in
obtaining SSA disability benefits through fraud.
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to the SSA, in which he, too, exaggerated the severity of
Domínguez's condition. Based on all this information, Domínguez
was approved for SSA disability benefits on February 28, 2012,
with a disability onset date of December 9, 2010. He was awarded
a retroactive payment of $10,437 and prospective monthly payments
of $1,187.
In September and October 2014, SSA officers conducted
surveillance of Domínguez and interviewed him. Their
investigation revealed that Domínguez had few or no symptoms of
the severe depression he and Dr. Escabí had continued to report to
the SSA: for example, he could interact and converse normally with
others, drive a car, carry out simple chores, be outside alone,
and withstand noise. SSA officers also visited Domínguez's
Facebook page and printed out several photos, all uploaded at times
when Domínguez had told the SSA he was disabled. The photos, some
of which depicted Domínguez socializing with others, reinforced
the officers' suspicion that he and Dr. Escabí had been
misrepresenting the severity of his depression.
On January 13, 2015, Domínguez and Dr. Escabí were
jointly indicted. The counts against Domínguez included
conspiring to defraud the United States (Count One), see 18 U.S.C.
§ 371, stealing government property (Count Three), see id. § 641,
and making material false statements in an application for
disability benefits (Count Five), see 42 U.S.C. § 408(a)(2). After
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an eight-day trial, in which Dr. Escabí testified as a government
witness, the jury found Domínguez guilty on Counts One, Three, and
Five, and found that the total amount of wrongfully obtained
disability payments was $87,268.
The district court sentenced Domínguez to ten months of
imprisonment and three years of supervised release, to be served
concurrently on all three counts, and ordered him to pay $87,268
in restitution. Domínguez did not object to the sentence.
II.
As to his convictions, Domínguez argues that there was
insufficient evidence to support the jury's verdict and that it
was error to admit the Facebook printouts into evidence at trial.
Neither argument has merit.
A. Sufficiency of the Evidence
We review de novo Domínguez's preserved challenge to the
sufficiency of the evidence supporting his convictions. See United
States v. George, 841 F.3d 55, 61 (1st Cir. 2016). Viewing the
evidence in the light most favorable to the government "and taking
all reasonable inferences in its favor," we ask whether "a rational
[jury] could find, beyond a reasonable doubt, that the prosecution
successfully proved the essential elements of the crime." Id.(quoting United States v. Chiaradio, 684 F.3d 265, 281 (1st Cir.
2012)).
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Domínguez claims that no rational jury could have
concluded that he possessed the mens rea associated with each of
the three crimes. Specifically, he argues that there was
insufficient evidence that he had the requisite specific intent to
participate in the conspiracy to defraud the SSA (Count One) or to
steal government funds to which he knew he was not entitled (Count
Three), and that there was insufficient evidence that he knew his
false statement to the SSA was false (Count Five).
A rational jury could easily have concluded that
Domínguez knowingly committed each of his crimes. His "culpable
state of mind can be readily gleaned from 'several strands of
circumstantial evidence' presented at trial." United States v.
Troisi, 849 F.3d 490, 494 (1st Cir. 2017) (quoting United States
v. Vega, 813 F.3d 386, 398 (1st Cir. 2016)). The jury was entitled
to credit Dr. Escabí's testimony that Domínguez was a knowing
participant in the scheme, see United States v. Patel, 370 F.3d
108, 112 & n.2 (1st Cir. 2004), and to "rely on plausible
inferences" drawn from the combination of that testimony and the
government's other evidence, Vega, 813 F.3d at 398 (quoting United
States v. Matthews, 498 F.3d 25, 31 (1st Cir. 2007)). Indeed, the
government provided ample corroboration for Dr. Escabí's testimony
about Domínguez's criminal intent, including the fraudulent Adult
Function Report, which Domínguez completed himself, and the photos
and testimony tending to show that Domínguez was minimally impaired
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-- or not impaired at all -- while receiving SSA payments. Viewed
together, these strands of evidence justified a compelling
inference that Domínguez was a knowing participant in the
fraudulent scheme, not an innocent bystander. See Troisi, 849
F.3d at 495–96 (holding that defendant's actions "'create[d] a
strong inference that she did not care' [about the scheme's
illegality] and that she therefore 'not only knew of the fraud,
but actively played a role in directing it'" (quoting Vega, 813
F.3d at 399)).
B. Admissibility of Facebook Printouts
Domínguez also argues that the district court erred by
admitting the Facebook printouts into evidence. Because the
government knew only when the photos had been uploaded to Facebook,
not when they had been taken, he argues that the printouts were
irrelevant, see Fed. R. Evid. 401, 402, or that their "probative
value [wa]s substantially outweighed by a danger of . . . unfair
prejudice," Fed. R. Evid. 403. We review these claims of
evidentiary error for abuse of discretion, mindful of the fact
that a district court's Rule 403 balancing is "subject to great
deference" on appeal. United States v. Jones, 689 F.3d 12, 21
(1st Cir. 2012) (quoting United States v. Bayard, 642 F.3d 59, 63
(1st Cir. 2011)).
There is no doubt that the printouts were relevant. The
images "d[id] not compel, but clearly permit[ted], an inference"
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that Domínguez was much healthier and more active during the
relevant years than he had led the SSA to believe. Id. The fact
that the government could not provide an exact date for the photos
was for the jury to weigh. As for Rule 403, Domínguez fails to
explain how the evidence caused him any unfair prejudice at all.
The printouts "were prejudicial only in the sense that they were
damaging" to Domínguez's defense; such damage "is not 'prejudice'
within the meaning of Rule 403." United States v. Pérez-González,
445 F.3d 39, 47 (1st Cir. 2006).3
Moreover, any error in admitting the Facebook printouts
was harmless. The jury had ample evidence of Domínguez's guilt,
with or without the printouts, so "it is highly probable that the
[purported] error [in admitting the printouts] did not influence
the verdict." United States v. Flemmi, 402 F.3d 79, 95 (1st Cir.
2005) (quoting United States v. Piper, 298 F.3d 47, 56 (1st Cir.
2002)).
III.
Domínguez also raises two challenges to his sentence.
He made neither objection at sentencing, and so "he faces the
3 We also reject Domínguez's argument, made for the first
time on appeal, that a Facebook comment by Miralles Domínguez-
Cely, included on one of the printouts, was inadmissible hearsay.
The comment was not hearsay at all: the government offered it to
provide context and timing for the accompanying photo, not "to
prove the truth of the matter asserted" in the comment. Fed. R.
Evid. 801(c)(2).
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'heavy burden' of plain-error review." United States v. Delgado-
López, 837 F.3d 131, 134 (1st Cir. 2016) (quoting United States v.
Ramos-Mejía, 721 F.3d 12, 14 (1st Cir. 2013)). We discern no
error, much less plain error.4
A. Explanation of Supervised Release Term
Domínguez first argues that the district court
procedurally erred by failing to explain why it imposed a
supervised release term at the high end of the applicable
Guidelines range, despite imposing a prison term at the low end of
the applicable Guidelines range. See 18 U.S.C. § 3553(c) ("The
court . . . shall state in open court the reasons for its imposition
of the particular sentence . . . ."); id. § 3583(c) (instructing
sentencing judges to consider specified § 3553(a) factors before
imposing a supervised release term).
The explanation was adequate. The judge confirmed that
he had considered the § 3553(a) factors, "a statement [that] is
entitled to significant weight," United States v. Santiago-Rivera,
744 F.3d 229, 233 (1st Cir. 2014), and he identified the specific
factors that he deemed most relevant, given the facts of
Domínguez's case. That explanation sufficed for both the prison
term and the supervised release term, which serve distinct
4 Because the arguments are meritless, we need not decide
whether Domínguez waived them or merely forfeited them. See
Delgado-López, 837 F.3d at 135 n.2.
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purposes, see United States v. Johnson, 529 U.S. 53, 59–60 (2000),
but are two components of a single sentence. We agree with the
Seventh Circuit that "[n]o part of § 3553(c) requires the district
court to bifurcate its consideration, discussion, and evaluation
of the § 3553(a) sentencing factors" whenever the court chooses to
impose a sentence that includes both an imprisonment component and
a supervised release component. United States v. Bloch, 825 F.3d
862, 869 (7th Cir. 2016).5
Moreover, the court's rationale is easily inferred from
the record. Domínguez's counsel argued for a sentence with a
shorter prison term and a longer supervised release term, and the
court evidently agreed. See United States v. Murphy-Cordero, 715
F.3d 398, 401–02 (1st Cir. 2013) (explaining that judge's reasoning
"can often be inferred by comparing what was argued by the parties
or contained in the presentence report with what the judge did"
5 Domínguez identifies no authority supporting his theory
that separate explanations are required whenever a district court
imposes a sentence involving both imprisonment and supervised
release. The Seventh Circuit is just one of several that have
rejected the theory. See United States v. Aplicano-Oyuela, 792
F.3d 416, 425 (4th Cir. 2015) (rejecting procedural
unreasonableness challenge to supervised release term and holding
that a "court's sentencing rationale . . . can support both
imprisonment and supervised release"); United States v. Oswald,
576 F. App'x 34, 35 (2d Cir. 2014) (unpublished summary order)
(same); United States v. Clark, 726 F.3d 496, 501–03 (3d Cir. 2013)
(same); United States v. Penn, 601 F.3d 1007, 1011–12 (10th Cir.
2010) (same); United States v. Presto, 498 F.3d 415, 419 (6th Cir.
2007) (same).
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(quoting United States v. Dávila-González, 595 F.3d 42, 48 (1st
Cir. 2010))).
B. Lump-Sum Restitution Payment
Domínguez also argues that the district court erred by
requiring him to pay restitution in a lump sum, despite the court's
finding that he was unable to pay a fine. This argument, too, is
meritless. The record shows that the court met its obligation to
consider Domínguez's financial condition. See United States v.
Salas-Fernández, 620 F.3d 45, 49 (1st Cir. 2010) (citing 18 U.S.C.
§ 3664(f)(2)). And because "impoverishment today is no assurance
of future poverty," it was not error "to take into account
[Domínguez's] future earning capacity." Id. (citation omitted).
Should Domínguez prove unable to meet his payment
obligations, he or the probation office may ask the district court
either to set a payment plan or to modify the restitution component
of the judgment.6 See 18 U.S.C. § 3583(e)(2); United States v.
de Jesús, 831 F.3d 39, 44 n.4 (1st Cir. 2016); United States v.
Lilly, 80 F.3d 24, 29 (1st Cir. 1996).
IV.
We affirm Domínguez's convictions and sentence.
6 Modification may be necessary in any event, as the
government points out, because the judgment is internally
inconsistent as to the amount of restitution owed.
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