United States v. Carol-Lisa Gutman

16-4189
United States v. Carol-Lisa Gutman
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
4th day of October, two thousand seventeen.
Present:
DEBRA ANN LIVINGSTON,
GERARD E. LYNCH,
Circuit Judges,
JED S. RAKOFF,
District Judge.*
_____________________________________
UNITED STATES OF AMERICA
Appellee,
v. 16-4189
CAROL-LISA GUTMAN,
Defendant-Appellant.
_____________________________________
For Defendant-Appellant: PAUL J. CONNOLLY, Law Office of Paul J. Connolly,
Delmar, New York.
For Plaintiff-Appellee: MICHAEL F. PERRY, Assistant United States Attorney,
for Richard S. Hartunian, United States Attorney for
the Northern District of New York, Syracuse, New
York.
*
Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting
by designation.
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Appeal from a judgment of the United States District Court for the Northern District of
New York (Scullin, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Carol-Lisa Gutman (“Gutman”) appeals from a final judgment of conviction of the
United States District Court for the Northern District of New York, entered on December 9,
2016. A jury found Gutman guilty of five counts of wire fraud (in violation of 18 U.S.C. § 1343),
two counts of federal employees’ compensation fraud (in violation of 18 U.S.C. § 1920), and one
count of theft of government money (in violation of 18 U.S.C. § 641). On appeal, Gutman
challenges the sufficiency of the evidence to sustain her conviction, and also argues that the
district court judge committed reversible error in responding to a jury note.
The government’s theory of the case was that Gutman, a former postal employee who
was injured on the job in 1987 and successfully applied to the United States Department of
Labor’s Office of Workers’ Compensation Programs (“OWCP”) for disability benefits, made
numerous false statements to her treating physicians between 2001 and 2016, knowing that these
statements would be the basis for the doctors’ annual reports to OWCP certifying her continued
physical disability, that her continued entitlement to these benefits turned on her condition, and
that she was legally obligated to be completely truthful with OWCP about her rate of recovery
and her physical capabilities. During the relevant period, Gutman received roughly $429,677 in
federal disability compensation. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
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I. Sufficiency of the Evidence
We review a sufficiency of the evidence challenge de novo. United States v. Silver, 864
F.3d 102, 113 (2d Cir. 2017). “A defendant who challenges the sufficiency of the evidence to
support [her] conviction bears a heavy burden.” United States v. Broxmeyer, 616 F.3d 120, 125 (2d
Cir. 2010) (quoting United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003)). We “must uphold
the conviction if any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Silver, 864 F.3d at 113 (quoting United States v. Vernace, 811 F.3d
609, 615 (2d Cir. 2016)). And we must “view the evidence in the light most favorable to the
government, crediting every inference that could have been drawn in the government’s favor, and
deferring to the jury’s assessment of witness credibility and its assessment of the weight of the
evidence.” Id. (quoting United States v. Babilonia, 854 F.3d 163, 174 (2d Cir. 2017) (internal
quotation marks omitted)). In short, we may only reverse the jury’s decision if the evidence of the
defendant’s culpability is truly “nonexistent or meager.” Broxmeyer, 616 F.3d at 125 (quoting
Jackson, 335 F.3d at 180).
On appeal, Gutman makes two principal arguments in attacking the sufficiency of the
evidence. First, she argues that the evidence could not sustain a violation of wire fraud, since the
evidence does not show that she had intent to defraud. Viewing the evidence in the light most
favorable to the government, however, we conclude that the jury had ample basis to conclude that
the element of intent to defraud had been established.
During the relevant period, Gutman was examined annually by two physicians: Dr. Neil
Lava until 2006, and Dr. George Forrest thereafter. Each doctor submitted annual reports to
OWCP. Dr. Lava reported annually that Gutman could not push, pull, lift, squat, kneel, or climb;
he testified that he based his assessment in large part on what Gutman herself told him. Dr.
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Forrest reported the same deficits, similarly basing his assessments on Gutman’s own reports of
her condition. In 2009, he told OWCP that Gutman “has been forced into a very unusual lifestyle
by her pain,” and in 2011 that she “cannot do any type of manual work.” Gov’t App’x at 79, 82.
And in both 2012 and 2013, Dr. Forrest reported that Gutman “does not participate in normal
household activities such as meal preparation, household cleaning, or household maintenance.”
App’x at 198–99, Gov’t App’x at 84–85.
Based on the evidence at trial, a reasonable jury could easily conclude beyond a
reasonable doubt that many of these statements were false. Video footage from September 2001
to April 2016 showed Gutman doing extensive work on her yard—including carrying large
containers of yard waste, lifting plants, gathering debris, and raking leaves. Gutman engaged in
all of these activities with little to no apparent pain or difficulty. Dr. Lava testified that had he
known the true extent of Gutman’s physical capabilities, he would have changed his report to
OWCP. In fact, “any amount of yard work,” he testified at trial, would have been inconsistent
with the activity restrictions he had listed on Gutman’s OWCP forms. App’x at 384. In addition
to the evidence of yard work, many of Gutman’s neighbors testified that they had seen Gutman
engage in other similar physical activities since her injury.
A reasonable jury could also conclude that Gutman understood full well that she was
obliged to be truthful with respect to her physical abilities. During the relevant period, she signed
and submitted at least eight forms in which she certified that:
“I know that anyone who fraudulently conceals or fails to report . . .
information which would have an effect on benefits, or who makes a false
statement or misrepresentation of a material fact in claiming a payment or
benefit . . . may be subject to criminal prosecution, from which a fine or
imprisonment, or both, may result. I understand that I must immediately report
to OWCP any improvement in my medical condition . . . .”
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Gov’t App’x at 6, 12, 19, 24, 29, 34, 44, 48, and 50 (emphasis added). Moreover, the jury also
heard evidence from which it could find that Gutman deliberately exaggerated the extent of her
limitations on multiple occasions when she met with Dr. Lava. As Dr. Lava testified after he
viewed a video of Gutman doing yard work:
Q. The way she was turning and moving [in the video], did it look different
than she looked in your office? A. Yes. Q. And please just explain how? A. So
she was always very uncomfortable [in my office]. She would never sit down
during our discussions and exams, she would always stand because her back
bothered her. She was always looking uncomfortable basically, and when she
turned, she turned on block, as if she was very stiff, and so that sort of posture
is counter to what I would think of to be able to push a pushmower. Q. And did
you see that same turning on block . . . on the video here? A. No. It looked
very normal.
App’x at 383. This evidence was more than sufficient to allow the jury to find that Gutman
intended to defraud OWCP, since fraudulent intent for purposes of 18 U.S.C. § 1343 “may be
proven through circumstantial evidence, including by showing that [a] defendant made
misrepresentations to the victim(s) with knowledge that the statements were false.” United States
v. Binday, 804 F.3d 558, 578 (2d Cir. 2015) (quoting United States v. Guadagna, 183 F.3d 122,
129 (2d Cir. 1999)).
Gutman also argues that the government failed to carry its burden in demonstrating
federal employees’ compensation fraud. As the district court judge explained to the jury, federal
employees’ compensation fraud consists of three elements: (1) “the defendant knowingly and
willfully made or caused to be made a false statement” to OWCP; (2) the false statement was
“material” to the defendant’s “continued receipt of federal Workers’ Compensation benefits”;
and (3) the defendant “received benefits in excess of $1,000 as a result.” App’x at 711. Gutman
insists that the evidence failed to establish any of the three elements. We disagree.
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First, as to count 6 of the indictment, Gutman claims that the evidence was insufficient to
support a finding that Gutman “caused” Dr. Forrest to make false statements to OWCP. She
notes that, at trial, Dr. Forrest insisted that he would not have changed his evaluation of Gutman
even if he had known about her physical activities. But the jury was not required to believe this
testimony, particularly given that Dr. Forrest had provided contrary testimony to the grand jury,
and was unable to account for the contradiction when confronted with the discrepancy on
cross-examination. Moreover, Dr. Forrest’s statement to OWCP that Gutman did not participate
in “normal household activities, such as . . . household maintenance,” App’x at 433, was clearly
refuted by the evidence presented at trial. A rational finder of fact could easily conclude that, by
knowingly allowing Dr. Forrest to make such a statement to OWCP, Gutman “caused” a false
statement to be made to the federal government.
Gutman also disputes that her alleged fabrications were “material.” We reject this
contention. “[A] concealment or misrepresentation is material if it has a natural tendency to
influence, or was capable of influencing, the decision of the decisionmaking body to which it was
addressed.” Kungys v. United States, 485 U.S. 759, 770 (1988) (internal quotation marks omitted).
Gutman’s statements—transmitted through Dr. Forrest—were certainly capable of influencing
OWCP’s decision about whether to continue her benefits, since, according to testimony
presented at trial, OWCP makes benefits decisions based on the extent of the worker’s residual
injury.
Finally, Gutman contends that she did not ultimately receive benefits in excess of $1,000 as
a result of her allegedly false statements. But the evidence clearly forecloses that argument:
Gutman received numerous monthly payments of over $2,400 after making her statements. The
jury could reasonably conclude that she would not have received some or all of these payments had
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she been candid with Dr. Forrest, Dr. Mohler, and OWCP about her physical capabilities. In sum,
Gutman’s sufficiency of the evidence challenge fails.
II. Faulty Jury Instruction
We next address Gutman’s jury instruction claim. Relevant to this claim, a number of the
defense’s exhibits at trial suggested that Gutman suffered from “atypical affective disorder,” and
one doctor briefly noted in her testimony that there may have been a connection between this
disorder and an individual’s perception of pain. The disorder, however, was not the subject of
other trial testimony, and in fact was never defined either in testimony or documents received in
evidence. During their deliberations, the jury sent a note to the district court judge that asked him
to define “atypical affective disorder.” The judge provided the following response:
[The definition of “atypical affective disorder” is] really not somethin’ I can
give to you. You have to rely upon whatever the evidence has been that’s been
produced and that you accept. But, importantly, if you look at the elements of
each of the charges, I don’t know if it’s really necessary that you have a
definition of that anyway to decide the elements of each of these charges. In
any event, you must read all of the instructions in their entirety when you make
a decision on them.
App’x 729–30. Gutman argues that the third sentence of this instruction constituted reversible
error.
We review a claim of error in a jury instruction de novo. United States v. Kozeny, 667
F.3d 122, 130 (2d Cir. 2011). “To secure reversal based on a flawed jury instruction, a defendant
must demonstrate both error and ensuing prejudice.” United States v. White, 552 F.3d 240, 246 (2d
Cir. 2009) (quoting United States v. Quinones, 511 F.3d 289, 313 (2d Cir. 2007)). Even assuming
arguendo that the judge erred, we find that the error was not prejudicial. Gutman did not argue at
trial that she was unaware of her physical capabilities, nor that her seemingly false or deceptive
conduct regarding these abilities arose from her disorder. And based on the evidence at trial,
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from September 2001 to April 2016, Gutman engaged in extensive yard work and daily
chores—with little to no visible strain—and concealed this fact from OWCP. She did not correct
Dr. Forrest’s statement to OWCP that she could not “do any type of manual work” or “physical
activity.” Gov’t App’x at 79, 82. And as described above, she may have even deliberately
exaggerated the extent of her injuries when she met with Dr. Lava. Gutman offers no explanation
as to how the record’s tangential references to “atypical affective disorder” undercut this
evidence of fraudulent intent. Nor does she proffer more than unsupported speculation as to how
the absence of a definition regarding the nature of this disorder might have raised a reasonable
doubt. Gutman acknowledges that “there was no actual definition of [atypical affective disorder]
in the record,” Br. for Def.-Appellant at 55, and the jury was specifically advised in the written
instructions that its verdict “must be based exclusively upon the evidence or the lack of evidence
in the case.” Gov’t App’x at 183 (emphasis added). In short, Gutman has wholly failed to
demonstrate prejudice.
* * *
We have considered Gutman’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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