United States v. Domínguez-Figueroa

LYNCH, Circuit Judge.

A jury convicted Raúl Dominguez-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.

Dominguez is a lifelong resident of Cía-les, 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 Dominguez, to a different plant in Arecibo, Puerto Rico. On November 3, 2010, Dominguez submitted a written resignation letter, which cited transportation problems as his reason for resigning.

On February 8; 2011, Dominguez first visited Dr. Luis Escabí-Pérez (“Dr. Esca-bf’), a psychiatrist, who’ had previously worked as an SSA claims' examiner—ahd who would- ultimately become Dominguez’s co-defendant in this prosecution. According to Dr. Escabi’s trial testimony,¹ Dominguez showed symptoms consistent with mild to moderate depression, not severe enough to prevent him from working. Claimants are entitled to SSA disability benefits only if their disability is so severe that they cannot work. See 42 U.S.C. § 423(d).

Nevertheless, Dr. Escabi further testified, he agreed to help Dominguez obtain SSA disability benefits by (1) backdating his first appointment to December 9, 2010; (2) exaggerating Dominguez’s symptoms, diagnosing him with severe depression, and prescribing unnecessarily strong medications; and (3) scheduling unnecessary monthly appointments until the SSA approved Dominguez’s application for benefits. Dr. Escabi knew, based in part on his experience as an SSA claims examiner, that these actions would' help Dominguez obtain SSA approval for disability benefits to which Dominguez was not entitled.²

On May 20, 2011, Dominguez applied for SSA disability benefits via telephone. The SSA claims representative advised Dominguez several times that the application was being submitted under penalty of perjury. Dominguez 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. Escabi that exaggerated Dominguez’s true condition. On July 24, 2011, Dr. Escabi submitted a Psychiatric Medical Report to the SSA, in which he, too, exaggerated the severity of Dominguez’s condition. Based on all this information,. Dominguez 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 Dominguez and interviewed him. Their investigation revealed that Dominguez had few or no symptoms of the severe depression he and Dr. Escabi 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 Dominguez’s Facebook page and printed out several photos, all uploaded at times when Dominguez had told the SSA he was disabled. The photos, some of which depicted Dominguez socializing with others, reinforced the officers’ suspicion that he and Dr. Escabi had been misrepresenting the severity of his depression.

On January 13, 2015, Domínguez and Dr. Escabi were jointly indicted. The counts against Dominguez 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 an eight-day trial, in which Dr. Escabi testified as a government witness, the jury found Dominguez 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 Dominguez 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. Dominguez did not object to the sentence.

II.

As to his convictions, Dominguez 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 Dominguez’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)).

Dominguez 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 Dominguez 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. Escabfs testimony that Dominguez 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; Escabfs testimony about Dominguez’s criminal intent, including the fraudulent Adult Function Report, which Dominguez completed himself, and the photos and testimony tending to show that Dominguez was minimally impaired— or not impaired at all—while receiving SSA payments. Viewed together, these strands of evidence justified a compelling inference that Dominguez 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

Dominguez also argues that the district court erred by admitting the Face-book 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 evi-dentiary 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 permitted], an inference” that Dominguez 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, Dominguez 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 Dominguez’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 Dominguez’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.

Dominguez also raises two challenges to his sentence. He made neither objection at sentencing, and so “he faces the ‘heavy burden’ of plain-error review.” United States v. Delgado-López, 837 F.3d 131, 134 (1st Cir. 2016) (quoting United States v. Ramos-Mejia, 721 F.3d 12, 14 (1st Cir. 2013)). We discern no error, much less plain error.⁴

A. Explanation of Supervised Release Term

Dominguez 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 Dominguez’s case. That explanation sufficed for both the prison term and the supervised release term, which serve' distinct purposes, see United States v. Johnson, 529 U.S. 53, 59-60, 120 S.Ct. 1114, 146 L.Ed.2d 39 (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. Dominguez’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” (quoting United States v. Dávila-González, 595 F.3d 42, 48 (1st Cir. 2010))).

B. Lump-Sum Restitution Payment

Dominguez 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 Dominguez’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 [Dominguez’s] future earning capacity.” Id. (citation omitted).

Should Dominguez 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 Dominguez’s convictions and sentence.

1 . Pursuant to a plea agreément, Dr.-Escabi agreéd to testify at Dominguez’s trial.

2 . Dr. Escabfs former secretary, in her own testimony at Dominguez's trial, recalled that nearly all of Dr. Escabfs patients between 2010 and 2013 were seeking Dr. Escabi's help in obtaining SSA disability benefits through fraud.

3 . We also reject Dominguez’s argument, made for the first time on appeal, that a Facebook comment by Miralles Dominguez-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” iri the comment. Fed. R. Evid. 801(c)(2).

4 . Because the arguments are meritless, we need not decide whether Dominguez waived them or merely forfeited them. See Delgado-López, 837 F.3d at 135 n.2.

5 .Dominguez 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 Fed.Appx. 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).

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.