United States v. Tribble , 209 F. App'x 332 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4805
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRIAN L. TRIBBLE,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. W. Craig Broadwater,
District Judge. (CR-03-64)
Argued: September 21, 2006 Decided: December 15, 2006
Before WILKINS, Chief Judge, KING, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Barry Philip Beck, POWER, BECK & MATZUREFF, Martinsburg,
West Virginia, for Appellant. Paul Thomas Camilletti, OFFICE OF
THE UNITED STATES ATTORNEY, Martinsburg, West Virginia, for
Appellee. ON BRIEF: Thomas E. Johnston, United States Attorney,
Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brian L. Tribble appeals from his convictions and sentence in
the Northern District of West Virginia on multiple counts of mail
fraud, wire fraud, and workers’ compensation fraud.1 Following his
jury trial in March of 2003, Tribble was sentenced to twenty-four
months of imprisonment, plus restitution of more than $92,000. He
makes five contentions of error: first, that the prosecution
constructively amended the indictment; second, that he was
prejudiced by a variance between the indictment and the proof;
third, that the court erred in admitting evidence of prior acts;
fourth, that the evidence fails to support the verdict; and,
finally, that the court erroneously concluded, in calculating his
Guidelines sentencing range, that the loss caused by his criminal
activity included payments received after he had been indicted. As
explained below, we reject each of these contentions and affirm.
I.
A.
Tribble began working for the United States Postal Service
(the “USPS”) in 1987.2 On June 20, 1996, while working as a mail
1
Tribble was convicted of twenty-six offenses: five counts of
mail fraud, in violation of 18 U.S.C. § 1341; nineteen counts of
wire fraud, in contravention of 18 U.S.C. § 1343; and two counts of
workers’ compensation fraud, in violation of 18 U.S.C. § 1920.
2
The factual predicate for Tribble’s convictions is drawn from
the trial record, and is spelled out in the light most favorable to
the prosecution. See United States v. Pasquantino, 336 F.3d 321,
2
handler at a USPS facility in Dulles, Virginia (the “Dulles
facility”), Tribble suffered a work-related injury to his neck,
right shoulder, and back when the door of a defective metal bulk
mail container struck his head. Claiming that this injury rendered
him unable to continue in his USPS job, he applied for compensation
benefits under the Federal Employees’ Compensation Act. On October
2, 1996, it was determined that Tribble’s injuries were such that
he could not perform any aspect of his job. Thereafter, on January
30, 1997, the Department of Labor (the “DOL”) Office of Workers’
Compensation Programs (the “OWCP”) approved his claim and notified
Tribble that he was entitled to compensation benefits.
As a recipient of federal workers’ compensation benefits,
Tribble was required to periodically file with the OWCP its Form
EN1032, on which he was obliged to report any employment he had
undertaken or income he had earned in the preceding fifteen months.
Each Form EN1032 required that Tribble acknowledge his obligation
to “immediately report to OWCP any improvement in [his] medical
condition.” J.A. 699.3 Tribble would receive each Form EN1032 by
mail from the OWCP, and he returned the completed Forms to the OWCP
in the same manner. At no time during his receipt of compensation
332 (4th Cir. 2003) (en banc).
3
Citations herein to “J.A. ___” refer to the contents of the
Joint Appendix filed by the parties in this appeal.
3
benefits did Tribble report any improvement in his medical
condition.
In 2001, in connection with a request from Tribble that the
OWCP pay for treatments on his lower back, the OWCP referred him
for an independent medical examination. On June 5, 2001, Dr.
Ernest Rubbo evaluated Tribble and determined that he was able to
return to work, subject to certain restrictions. Those
restrictions included sitting, reaching, or climbing no more than
four hours per day; and pushing, pulling, or lifting no more than
twenty-five pounds. Dr. Rubbo did not indicate that Tribble’s
ability to drive an automobile was limited.
After Dr. Rubbo decided that Tribble could perform restricted
work, the USPS, on October 4, 2001, offered Tribble a limited-duty
position at the Dulles facility, tailored to his particular
limitations. A commute to the Dulles facility would have required
Tribble to drive approximately forty-nine minutes each way from his
home in Rippon, West Virginia. Tribble declined the job at the
Dulles facility, however, asserting that his medical condition made
him unfit for the daily commute. In support of his decision, he
submitted a statement from his attending physician that “any long
drive [would] be bothersome to his sciatic nerve,” and another
statement from his family physician that he “would have
considerable pain if required to drive that far.” J.A. 890, 900.
4
B.
On December 4, 2003, Tribble was indicted by the grand jury in
northern West Virginia on charges arising from the fraudulent
receipt of federal workers’ compensation benefits. See J.A. 19-34.
The Indictment specified that Tribble had suffered a work-related
injury on June 20, 1996, and that it had been determined that he
was unable to perform his job with the USPS. It charged that,
beginning on or about December 2, 2000, Tribble had devised a
scheme and artifice to defraud the DOL and the USPS by making
material and false representations concerning his medical condition
(the “Scheme”). As part of the Scheme, Tribble allegedly had
committed mail fraud by using the mail to receive blank Forms
EN1032 from the OWCP and send fraudulently completed Forms to the
OWCP; federal workers’ compensation fraud by submitting fraudulent
Forms EN1032 without reporting improvements in his medical
condition; and wire fraud by receiving workers’ compensation
payments via wire transfers to his bank account.
Beginning on March 28, 2005, the district court conducted a
four-day jury trial on the twenty-six counts in the Indictment.
The Government presented, inter alia, evidence of Tribble’s general
capacity to perform work, evidence directed toward his ability to
drive long distances, and evidence that he had planned to defraud
the workers’ compensation system.
5
1.
The prosecution’s evidence of Tribble’s capacity to perform
strenuous physical activity included the following: Alfonzo
Painter, a coworker of Tribble’s at the Dulles facility, testified
that the week after Tribble’s 1996 injury, he had performed
substantial handiwork on Painter’s house with no sign of pain or
physical limitation. David Leroy, a neighbor of Tribble’s in
Rippon, testified that, in the summer of 2001, he paid Tribble to
install siding, and over the years saw Tribble perform extensive
gardening and yard work. Multiple witnesses testified that Tribble
regularly hunted deer and fished while receiving compensation
benefits. Special Agent David Stelzer of the USPS’s Inspector
General (the “IG”) testified that, in August of 2003, Tribble went
on an all-day deep-sea fishing expedition, during which he caught
and handled several large fish (including a forty-pound amber jack)
with no sign of pain. The jury saw video from that expedition, and
heard testimony from another government investigator that Tribble
appeared physically robust while fishing, expressing an interest in
continuing even after other participants had become fatigued and
asked to return to shore. Stelzer further testified that, on the
long automobile trip from West Virginia to the fishing expedition,
Tribble had stopped at his brother’s residence in Portsmouth,
Virginia, and performed construction work on a nearby home; and
that, on the return leg of that trip, Tribble stopped again to help
6
replace gutters and downspouts at his brother’s Portsmouth home.
Finally, IG Analyst Bruce Barry, who posed as a prospective
employer and interviewed Tribble, testified that Tribble had
discussed a trip to his parents’ home in Kitty Hawk, North
Carolina, after his deep-sea fishing trip, during which he spent
three days clearing large trees and other debris left by a
hurricane.
2.
The prosecution also introduced evidence that Tribble was able
to drive the distance from Rippon to the Dulles facility. Special
Agent Stelzer testified that Tribble had, on multiple occasions,
driven approximately two hours and forty minutes to Pendleton
County, West Virginia, to hunt deer. Stelzer also related that, in
late August and early September 2003, Tribble, in the course of his
deep-sea fishing trip, had driven approximately five hours to his
brother’s home in Portsmouth, another hour-and-a-half from there to
his parents’ home in Kitty Hawk, back to Portsmouth, and then back
home to Rippon. IG Analyst Barry testified that, by Tribble’s
account, he had driven all night (from 12:30 a.m. until 7:30 a.m.,
with a brief break at his brother’s home) to Kitty Hawk to help his
parents clean up hurricane debris; and that he had driven to
Warrenton, Virginia (fifty minutes from Rippon) to hunt. Tribble’s
wife testified that he makes the drive to Kitty Hawk approximately
three times each year; that he can drive from Rippon to Warrenton;
7
and that they had recently taken a driving vacation to Wisconsin.
In an October 23, 2003 exchange with another undercover
investigator, Tribble asserted that he could drive about forty-five
minutes — approximating the commute to Dulles that Tribble, in
2001, had told the USPS he could not endure. Importantly,
Tribble’s wife worked at the Dulles facility, and he was able,
during the period after his injury, to regularly drive her to work
and return to pick her up.
3.
The Government also presented evidence that Tribble planned to
defraud the federal workers’ compensation program. In September
1996, shortly after his injury and a month after their divorce,
Tribble told his ex-wife that postal inspectors were likely to
visit her, and that if she said nothing to them, she and Tribble
could receive five million dollars. IG Analyst Barry, working
undercover as an outfitter of hunting and fishing expeditions,
pretended to be interested in hiring Tribble. Tribble expressed
interest to Barry in working as a hunting guide or a crew member on
a fishing boat, but refused to begin work until after he received
an expected disability retirement award, stating that to do
otherwise might jeopardize his benefits.
Robin Blake of the DOL’s Inspector General posed as a nurse
conducting an OWCP-ordered medical evaluation of Tribble. She
examined and interviewed Tribble on October 23, 2003, shortly after
8
his deep-sea fishing expedition and his trip to remove his parents’
hurricane debris. Tribble advised Blake that he could no longer
hunt or fish, could undertake physical activity for brief periods
of time only, and had “been reduced to a couch potato.” J.A. 311.
Tribble also informed Blake that he wanted to receive a disability
retirement award, but not until December 5, 2003, when he would
reach twenty years’ employment with the USPS. Tribble sought
favorable treatment from Blake on his benefits claim, and told her
that, if he did not receive it, he would complain that the claim
had been handled in an inappropriate manner.
4.
Tribble’s evidence consisted primarily of testimony from
various medical personnel. Dr. Albert Thomas, a pain management
specialist who examined Tribble in March of 2003, testified that
Tribble suffered pain in his lower back and that he had recommended
Tribble continue to observe light duty restrictions. Elaina
Putrello, a physical therapist who examined Tribble in February of
2004, testified that he could lift, push, pull, and carry less at
the time she examined him than he could in 1999. Dr. Belote,
Tribble’s primary care physician, testified that Tribble’s physical
condition had declined from 1999 to 2004, and that even if Tribble
could occasionally drive forty-five minutes or more, he was unable
to do so on a daily basis.
9
5.
Tribble’s constructive amendment and prejudicial variance
contentions are first raised on appeal, not having been presented
to the district court and preserved at trial. As a result, two
aspects of the trial proceedings that were peripheral at the time
are now more significant. First, in his opening statement, the
prosecutor, Assistant United States Attorney (“AUSA”) Camilletti,
discussed the issue of whether Tribble had suffered a work-related
injury, stating as follows:
Some of you are going to decide [Tribble] received a work
related injury, and that’s fine. Some of you are going
to decide he didn’t get any injury, and that’s fine.
What the Government is saying is that Mr. Tribble can get
himself to work. And we’re going to put on evidence to
convince you that he can get himself to work.
J.A. 55. Second, during the presentation of the Government’s case,
another prosecutor, AUSA Morgan, questioned John Peters, Tribble’s
former supervisor at the Dulles facility, regarding the
circumstances surrounding Tribble’s injury. Morgan first asked
about a letter Tribble had been presented around the time he was
injured, notifying him that he could be terminated for chronic
absenteeism. Peters responded that Tribble refused to accept the
letter. When the letter was admitted into evidence, the following
exchange ensued:
Q: The defendant was injured at the [Dulles] center?
A: No, he was not.
10
Q: Do you know when that happened in relation to him
being provided with a notice of this removal?
A: A matter of minutes, I think. Within the hour after
this letter was issued.
J.A. 100.
On March 31, 2005, after considering the trial evidence and
the instructions, and deliberating for approximately an hour, the
jury convicted Tribble on all twenty-six counts.
C.
At sentencing, the district court was obliged to calculate the
pecuniary loss Tribble’s offenses had caused (in order to ascertain
his offense level and to decide on restitution). In this regard,
Tribble suggested that the amount of loss should not include
benefits he received after being indicted on December 4, 2003. In
support of that view, he advised the court that he had sought
guidance from the Probation Office after the Indictment, concerning
what he should do with the compensation payments he continued to
receive. Tribble did not advise the court of any guidance he
received, but he continued to accept compensation payments.
The court found that the amount of loss caused by Tribble’s
offenses included payments received from October 2001, when Tribble
declined the USPS’s limited-duty job offer, through the date of his
convictions, totalling $92,082. The court sentenced Tribble to
11
restitution of that amount, in addition to twenty-four months of
imprisonment.4
Tribble has appealed his convictions and sentence, and we
possess jurisdiction under 28 U.S.C. § 1291.
II.
When an appellant has failed to first present his contentions
of error to the district court, we review them for plain error
only. See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S.
725, 731-32 (1993). A defendant seeking to overturn a ruling under
the plain-error test bears the burden of showing (1) that an error
occurred, (2) that it was plain, and (3) that it affected his
substantial rights. Olano, 507 U.S. at 732. In any event, the
correction of plain error lies within our discretion, which we
4
The appellate briefs do not reflect, nor can we accurately
discern from the Joint Appendix, exactly how much of the loss
amount of $92,082 was attributable to benefits Tribble received
after the Indictment. The court, however, calculated the loss as
the sum of all benefits Tribble received from October 2001 through
March 2005, and approximately forty percent of that period was
after Tribble’s December 2003 indictment. From that, we can
conclude that if Tribble’s post-indictment benefits had been
excluded from the loss amount, his offense level would likely have
fallen from fifteen to thirteen. See Presentence Investigation
Report 9 (J.A. 970) (adding eight levels to Tribble’s base offense
level of seven, because loss was between $70,000 and $120,000);
U.S.S.G. § 2B1.1(b) (2004) (providing for offense level increase of
eight where loss is between $70,000 and $120,000, but only six
where loss is between $30,000 and $70,000). An offense level of
thirteen, along with Tribble’s criminal history category of I,
would produce an advisory Guidelines range of twelve to eighteen
months, rather than the range of eighteen to twenty-four months
that resulted from the sentencing court’s computation. See
U.S.S.G. ch. 5, pt. A (2004) (sentencing table).
12
“should not exercise . . . unless the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.”
Id. (internal quotation marks and alteration omitted).
We review a trial court’s rulings on admissibility of evidence
for abuse of discretion, and find error only if such a ruling was
“arbitrary and irrational.” United States v. Chin, 83 F.3d 83, 87
(4th Cir. 1996). In reviewing a contention concerning the
sufficiency of evidence in support of a conviction, we view the
evidence in the light most favorable to the Government, and inquire
whether there is evidence that a reasonable finder of fact could
accept as adequate and sufficient to establish the defendant’s
guilt beyond a reasonable doubt. See United States v. Burgos, 94
F.3d 849, 862 (4th Cir. 1996) (en banc); see also Glasser v. United
States, 315 U.S. 60, 80 (1942) (“The verdict of a jury must be
sustained if there is substantial evidence, taking the view most
favorable to the Government, to support it.”). Finally, we review
de novo a sentencing court’s interpretation of what constitutes a
“loss” under the Guidelines. United States v. Hughes, 401 F.3d
540, 557 (4th Cir. 2005). If the Guidelines have been correctly
applied, we will, in the absence of clear error, accept a
sentencing court’s calculation of loss. Id.13
III.
A.
In pursuing this appeal, Tribble first contends that his
convictions should be reversed because the Government
constructively amended the Indictment against him. The Indictment
specified that Tribble had suffered a workplace injury, and Tribble
contends that AUSA Camilletti constructively amended the
allegations by telling the jury, in his opening statement, that it
could convict even though “[s]ome of you are going to decide he
didn’t get any injury.” J.A. 55. Tribble’s contention in this
regard is without merit. In United States v. Floresca, 38 F.3d 706(4th Cir. 1994), we discussed the applicable standard for whether
an indictment has been constructively amended. We there recognized
that “[a] constructive amendment to an indictment occurs when
either the government (usually during its presentation of evidence
and/or its argument), the court (usually through its instructions
to the jury), or both, broadens the possible bases for conviction
beyond those presented by the grand jury.” 38 F.3d at 710.5
AUSA Camilletti’s statement to the jury (to which no objection
was made) was not a constructive amendment because it did not
broaden the possible bases on which the jury could have convicted
Tribble. Notably, Camilletti did not advise the jury that it could
5
There is no dispute in this proceeding as to the adequacy and
correctness of the jury instructions.
14
convict Tribble based upon a finding that he did not sustain the
initial injury claimed. What he said was quite different: that
whether Tribble had suffered an injury in the first place was
immaterial to proving the essential elements of the offenses
charged. And, in that regard, he was correct. The Indictment
specified that Tribble “suffered a work-related injury,” but only
as prefatory factual information in its Introduction. J.A. 19. As
such, the jury was not obliged to determine, in order to convict,
that Tribble had actually suffered the workplace injury mentioned
in the Indictment. See United States v. Sarihifard, 155 F.3d 301,
309-10 (4th Cir. 1998) (noting that conviction requires only that
jury unanimously find elements of offenses charged, not that it
find every aspect of indictment to be true). Since the jury was
not required to find that Tribble had suffered a work-related
injury, Camilletti’s reiteration of that point was not a
constructive amendment. And, because there was no error in this
regard, Tribble is unable to satisfy the plain error standard of
review. See United States v. Olano, 507 U.S. 725, 732 (1993)
(establishing that existence of error is first essential element of
plain error).
B.
In a closely related contention, Tribble maintains that, even
if the Government did not constructively amend the Indictment, it
prejudiced his trial by attempting to prove facts that materially
15
varied from those alleged. In this regard, he contends that the
prosecution actually sought to prove that he did not suffer the
work-related injury specified. This contention is also misplaced,
however, and so we reject it as well.
The Government’s theory of Tribble’s guilt was that, during
the period after he declined the USPS’s limited-duty job offer at
the Dulles facility, he improved enough to be able to commute to
Dulles, and that he failed to report to the USPS that his medical
condition had improved. Tribble acknowledges on appeal that the
Government’s proof focused on his ability to drive; indeed, he
cites five instances in the Government’s opening statement, and
five in its closing argument, in which the prosecution asserted
that Tribble’s guilt was established because he “could get himself
to work.” Appellant’s Br. 25-26 (citing J.A. 55, 65, 67, 69, 644,
652, 653, 654, 656, 657). By contrast, the record is void of any
support for Tribble’s view that the Government sought to prove he
was never injured. Tribble relies on the prosecution’s opening
statement, but AUSA Camilletti’s assertions therein were not
inconsistent with the allegations of the Indictment.
Tribble also points to the testimony of John Peters, one of
his supervisors at the Dulles facility. When AUSA Morgan asked
Peters, “The defendant was injured at the center?” Peters replied,
“No, he was not.” But when Morgan asked Peters when Tribble’s
injury had occurred, Peters responded that it occurred “[w]ithin
16
the hour” after Tribble received the letter notifying him that his
attendance at work was unsatisfactory. J.A. 100. Shortly
thereafter, on cross-examination, Peters again acknowledged that
Tribble had been injured. Id. at 101. Thus, the Government did
not assert that Tribble had suffered no injury at all, and Peters
did not take that position. Since Tribble’s contention that the
prosecution tried to show he was never injured is inconsistent with
the record, the proof did not vary from the Indictment. And, as
noted above, supra Part III.A, the absence of any error terminates
our plain error analysis in the Government’s favor. See Olano, 507
U.S. at 732.
C.
Tribble’s third contention of error relates to the trial
court’s decision to admit evidence of Tribble’s conduct that
occurred prior to the beginning of the Scheme. The Indictment
charged that the Scheme began on December 2, 2000, and the
Government presented evidence of actions Tribble took before that
date, including renovations he performed on his neighbor’s house,
and his statement to his ex-wife that if she said nothing to
inquiring postal inspectors, they could receive five million
dollars. Tribble moved to exclude this evidence on the basis of
Federal Rule of Evidence 404(b), which makes inadmissible
“[e]vidence of other crimes, wrongs, or acts . . . to prove the
character of a person in order to show action in conformity
17
therewith.” The court ruled, however, that the pre-Scheme evidence
was not offered to prove character, but to “lay the foundation as
to how [Tribble] got where he was in 2000,” when the Scheme began.
J.A. 46. Thus, the court concluded that such evidence was
“admissible for other purposes” than proof of character, as
contemplated in Rule 404(b). In so ruling, the court relied on
United States v. Chin, where we determined that Rule 404(b) does
not bar the admission of evidence of acts that are “inextricably
intertwined” with or “necessary preliminaries” to the crime
charged. 83 F.3d 83, 88 (4th Cir. 1996). In this situation, the
court was well within its discretion in ruling that the evidence of
Tribble’s pre-Scheme conduct satisfied that standard.
Tribble contends that the trial court’s ruling was erroneous,
but the basis for that contention is one we have already rejected.
He maintains that the only purpose for the evidence of his pre-
Scheme conduct was to show that he was never injured in the first
place. Thus, in his view, the pre-Scheme evidence was not
inextricably intertwined with, or a necessary preliminary to, the
Scheme. As we have already explained, however, the record belies
Tribble’s position that the Government sought to show he was never
injured. See supra Part III.A-B. And the trial court’s ruling
that the pre-Scheme evidence would assist the jury in understanding
the offenses charged was neither arbitrary nor irrational. The
pre-Scheme evidence was part and parcel of Tribble’s general course
18
of conduct during the Scheme, and was thus “inextricably
intertwined” with the Scheme itself. As a result, such evidence
helped place the Scheme in context, and it shed light on the
motives underlying the offenses charged. Cf. Old Chief v. United
States, 519 U.S. 172, 186-89 (1997) (explaining importance of
narrative integrity in admissibility determinations). In these
circumstances, the trial court did not abuse its discretion in
admitting evidence of Tribble’s pre-Scheme conduct.
D.
Tribble’s next appellate contention is that there was
insufficient evidence to support the verdict of the jury. In this
regard, Tribble maintains that the jury was not entitled to find
that he had misrepresented his ability to commute to the Dulles
facility, because even though the Government presented evidence of
his ability to drive long distances, the evidence was insufficient
to show that he could do so on a daily basis. He also asserts that
the evidence established that his medical condition had worsened
during the time he received compensation benefits, and the jury
thus could not reasonably find that he failed to report
improvements in his medical condition to the OWCP. As explained
below, we reject both assertions.
First, there was ample evidence for the jury to conclude that
Tribble misrepresented his ability to commute to Dulles. In making
the contrary assertion, Tribble relies on Dr. Belote, his primary
19
care physician, who testified that Tribble could drive long
distances occasionally, but could not do so every day. The jury,
however, was not obliged to credit that testimony. The prosecution
presented evidence that Tribble could and did drive long distances
with no apparent limitations, and that he intended to defraud the
workers’ compensation program. The Government’s evidence also
showed that Tribble had misled his medical care providers in order
to obtain diagnoses that would support his receipt of compensation
benefits. On that basis, the jury was entitled to find that Dr.
Belote, even if testifying in good faith, had been misled by
Tribble and that his evidence was not reliable.
Second, Tribble maintains that there was insufficient evidence
that he failed to report improvements in his medical condition,
because his doctors had testified that his overall physical
condition actually worsened during the time he received benefits,
and the Government did not present contradictory evidence. His
contention in this regard misses the point of the prosecution,
however, which focused not on his general physical condition, but
rather on his ability to drive himself to a USPS job at the Dulles
facility. The evidence showed that, in 2001, Tribble advised the
USPS he could not take a job at Dulles because he could not
tolerate the necessary driving; that at some point thereafter he
was able to tolerate such driving; and that he never told the
Government that his ability to drive was better than he had
20
reported in 2001. Whatever the trajectory of Tribble’s overall
physical state, the jury was entitled to conclude that he failed to
report an improvement in his ability to drive to work. There is
accordingly no merit in Tribble’s contention on this point.
E.
Finally, Tribble maintains that, in connection with
sentencing, the district court erred in computing the amount of
loss his offenses had caused, because its calculation of loss
included benefits he received after he was indicted. He asserts
that the correct measure of loss is the reasonably foreseeable
pecuniary harm resulting from his offenses, and that it was not
reasonably foreseeable that the Government would continue to pay
benefits to him after he was indicted. Tribble thus contends that
the court’s loss computation should properly have included only
those benefits paid prior to his indictment.
Tribble’s contention on this point must also be rejected,
because the sentencing court correctly applied the Guidelines in
its handling of this issue. Under the Guidelines, the “actual
loss” caused by an offense is “the reasonably foreseeable pecuniary
harm that resulted from the offense.” U.S.S.G. § 2B1.1, comment.
(n.3(A)(I)) (2004). In this situation, it was entirely reasonable
for Tribble to foresee that he would continue to receive benefits
until he was actually convicted. Like any accused, a defendant
charged with workers’ compensation fraud is innocent until proven
21
guilty. Consistent therewith, the pertinent statute requires that
compensation benefits be terminated when a beneficiary is convicted
of a fraud scheme relating thereto. See 5 U.S.C. § 8148(a).6
Tribble has failed to explain why the OWCP was required to deviate
from that procedure here. Indeed, he does not contend that the
OWCP (or any other government agency) gave him any basis for such
an expectation. As a result, this final contention is also without
merit.
IV.
Pursuant to the foregoing, we reject Tribble’s various
assignments of error and affirm his convictions and sentence.
AFFIRMED
6
Pursuant to the applicable statute, “[a]ny individual
convicted of a violation of section 1920 of title 18 [workers’
compensation fraud] . . . shall forfeit (as of the date of such
conviction) any entitlement to any benefit such individual would
otherwise be entitled to under this subchapter or subchapter III
[including the federal workers’ compensation benefits Tribble
received] for any injury occurring on or before the date of such
conviction.” 5 U.S.C. § 8148(a).
22