United States v. Dauberman

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4035
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
WENDY B. DAUBERMAN,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:07-cr-00040-HEH-2)
Submitted: December 29, 2008 Decided: January 16, 2009
Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
I. Scott Pickus, Richmond, Virginia, for Appellant. Chuck
Rosenberg, United States Attorney, Sara E. Chase, Assistant
United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wendy B. Dauberman appeals her jury conviction and
forty-eight month sentence for one count of conspiracy to commit
theft of government property, in violation of 18 U.S.C. § 371(2006); two counts of aiding and abetting the theft of
government property, in violation of 18 U.S.C. §§ 2, 641 (2006);
and three counts each of aiding and abetting: (i) making false
statements affecting Social Security benefits; (ii) concealing
and failing to disclose material facts for Social Security
benefits; and (iii) representative payee misuse, in violation of
42 U.S.C. §§ 408(a) (2000) and 18 U.S.C. § 2 (2006). Dauberman
was convicted along with her son, Crist Dauberman, Jr. (“Crist,
Jr.”), for their roles in a scheme to fraudulently obtain Social
Security Administration (“SSA”) and Department of Veterans
Affairs (“VA”) payments intended for Dauberman’s husband, Crist
Dauberman, Sr. Finding no error, we affirm.
Dauberman first claims that the district court erred
in denying her Fed. R. Crim. P. 29 motions for judgment of
acquittal. We review the denial of a Rule 29 motion de novo.
See United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005).
When a Rule 29 motion is based on a claim of insufficient
evidence, the jury’s verdict must be sustained “if there is
substantial evidence, taking the view most favorable to the
Government, to support it.” United States v. Abu Ali, 528 F.3d
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210, 244 (4th Cir. 2008) (internal quotation marks and citations
omitted). This court “ha[s] defined ‘substantial evidence’ as
evidence that a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt.” Alerre, 430 F.3d at 693(internal quotation marks and citations omitted).
We “must consider circumstantial as well as direct
evidence, and allow the government the benefit of all reasonable
inferences from the facts proven to those sought to be
established.” United States v. Tresvant, 677 F.2d 1018, 1021
(4th Cir. 1982) (citations omitted). This court may not weigh
the evidence or review the credibility of the witnesses. See
United States v. Allen, 491 F.3d 178, 185 (4th Cir. 2007). If
the evidence “supports different, reasonable interpretations,
the jury decides which interpretation to believe.” United
States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994) (citations
omitted). A defendant challenging the sufficiency of the
evidence faces a heavy burden. See United States v. Beidler,
110 F.3d 1064, 1067 (4th Cir. 1997).
We have reviewed the record and find that the
Government’s evidence was sufficient to establish that Dauberman
conspired to convert and aided and abetted in the conversion of
government property in violation of 18 U.S.C. § 641 (2006).
United States v. Gill, 193 F.3d 802, 804 n.1 (4th Cir. 1999)
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(holding that the Government established the defendant intended
to steal from the Government because she intercepted the SSA
checks, endorsed them, and used the funds for her own benefit,
“thus preventing the money from reaching . . . the Government’s
intended beneficiary”).
We also find that Dauberman’s convictions for aiding
and abetting the concealment of material facts for SSA benefits,
aiding and abetting the making of false statements affecting SSA
benefits, and aiding and abetting representative payee misuse
did not result in her being convicted numerous times for the
same crime. It is true that an indictment charging a single
offense in several different counts is multiplicitous and
subjects a defendant to a risk of multiple sentences for a
single offense in violation of the Double Jeopardy Clause. See
United States v. Goodine, 400 F.3d 202, 207 (4th Cir. 2005). It
is nonetheless well-established that a defendant may be
convicted of separate offenses arising from a single act if each
charge requires proof of a fact that the other does not. See
Blockburger v. United States, 284 U.S. 299, 304 (1932);
Manokey v. Waters, 390 F.3d 767, 771-73 (4th Cir. 2004). We
find that although the different counts all stemmed from the
same representative payee reports submitted to the SSA, the
convictions about which Dauberman complains required different
proof to establish different elements.
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Moreover, we reject Dauberman’s assertion that she
could not have committed the crimes pertaining to the SSA
benefits because only Crist, Jr. was a representative payee at
the time of the acts alleged and, accordingly, only he had an
obligation to be truthful to the SSA. As an aider and abettor,
Dauberman could be guilty of the crimes with which she was
charged regardless of whether she had an independent obligation
to be truthful to the SSA. See United States v. Winstead,
708 F.2d 925, 927 (4th Cir. 1983) (“To prove the crime of aiding
and abetting the government must show that the defendant
knowingly associated himself with and participated in the
criminal venture.”).
Based on the foregoing, we affirm the district court’s
judgment and deny Dauberman’s requests to be appointed new
appellate counsel, for an order directing her current attorney
to return documents to her, and for an extension of time for new
appellate counsel to file a reply brief. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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