United States Court of Appeals For the First Circuit
No. 19-1100
UNITED STATES,
Appellee,
v.
RICARDO RIVERA-ORTIZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]
Before
Howard, Chief Judge, Lipez and Thompson, Circuit Judges.
Victor J. Gonzalez-Bothwell, with whom Eric Alexander Vos, Vivianne M. Marrero, Franco L. Pérez-Redondo, Liza L. Rosado- Rodríguez, and Iván Santos-Castaldo were on brief, for appellant. Robert Paul Coleman III, Assistant United States Attorney, with whom B. Kathryn Debrason, Assistant United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, and W. Steven Muldrow, United States Attorney, were on brief, for appellee.
September 21, 2021 LIPEZ, Circuit Judge. After suffering a work injury as
a mechanic for the United States Postal Service ("USPS"), Ricardo
Rivera-Ortiz began receiving worker's compensation and Social
Security disability benefits. As a condition of receiving those
benefits, Rivera had to file forms indicating whether he was
undertaking any work or volunteer activities. At some point, after
Rivera had been receiving benefits for years, the USPS Office of
the Inspector General ("OIG") began investigating his case. It
determined that he had continued working and volunteering with his
union, the American Postal Workers' Union ("APWU"), without
disclosing those activities as required. Rivera was eventually
charged with making false statements on the relevant government
forms, theft of government property, and failing to disclose an
event that affected his right to Social Security payments. A jury
found him guilty on all counts. He now challenges the sufficiency
of the evidence to support the convictions, the exclusion of
certain mitigating evidence, and some aspects of his sentence. We
reject these challenges and affirm in all respects.
I.
A. Factual Background
The following facts come from the testimony and exhibits
presented at trial. "Since one of the claims addressed in this
opinion is a challenge to the sufficiency of the evidence, we
- 2 - recount the facts in the light most favorable to the verdict."
United States v. Paz-Alvarez, 799 F.3d 12, 18 (1st Cir. 2015).
On May 25, 2005, while working as a maintenance mechanic
for USPS, Rivera tripped on a mat and fell, hurting his neck and
right knee. As a result of this incident, he filed a claim for
compensation and disability benefits on June 3, 2005 with the
Department of Labor, Office of Workers' Compensation Programs
("OWCP"). OWCP is responsible for administering the Federal
Employees Compensation Act ("FECA"), which provides replacement
wages to federal employees who, like Rivera, are injured on the
job and unable to work as a result. See 5 U.S.C. §§ 8102, 8145;
20 C.F.R. § 10.1.
Rivera's FECA claim was approved. In 2006, he began
receiving regular payments. In order to confirm that he remained
eligible for benefits from OWCP, he had to periodically file
various forms, including CA-1032 forms. A CA-1032 form covers the
15 months prior to the date of the form's completion. As relevant
here, Part A ("EMPLOYMENT") asks (1) "Did you work for any employer
during the past 15 months?"; (2) "Were you self-employed or
involved in any business enterprise in the past 15 months?"; and
(3) "If you answered 'No' to both questions 1 and 2, state whether
you were unemployed for all periods during the past 15 months."
The accompanying Part A instructions require the report of "ALL
employment for which you received a salary, wages, income, sales
- 3 - commissions, piecework, or payment of any kind," as well as "ALL
self-employment or involvement in business enterprises," including
"providing services in exchange for money, goods, or other
services." This section also requires reporting of "what you were
paid," including the "value of such things as housing, meals,
clothing, and reimbursed expenses."
Part B ("VOLUNTEER WORK") was worded slightly
differently in different versions of the form. One version asks
if the beneficiary "perform[ed] any volunteer work for which ANY
FORM of monetary or in-kind compensation was received[.]" Another
version asks if the beneficiary "perform[ed] any volunteer work
including volunteer work for which ANY FORM of monetary or in-kind
compensation was received[.]" Part D ("OTHER FEDERAL BENEFITS OR
PAYMENTS") requires the listing of "any benefits received from the
Social Security Administration (SSA) which you receive as part of
an annuity under the Federal Employees' Retirement System (FERS)."
An OWCP claims examiner explained at trial that all of this
information was important because (1) evidence of capacity to
perform work could lead to a reduction of OWCP benefits and (2) the
receipt of other benefits could trigger an offset of OWCP benefits
or those other benefits, so as to avoid overpayment (i.e., double-
dipping).
Separately, Rivera filed a claim on March 20, 2007 for
Social Security Disability Insurance ("SSDI") benefits. SSDI
- 4 - benefits are paid to individuals who are unable to perform work
and meet other eligibility requirements. Although Rivera had
applied for SSDI benefits back in 2005, his claim was denied. An
SSA-generated summary of Rivera's 2007 SSDI application1 revealed
the following: (1) he was unable to work because of his disabling
condition (based on his May 25, 2005 injury), (2) he had filed or
intended to file for workers' compensation, but was currently not
receiving benefits, and (3) he understood that making a false
statement of a material fact in his application was a criminal
act. As part of his application, Rivera also submitted a work
history form. As relevant here, Rivera listed his employment as
a maintenance worker for USPS (from December 2003 until the time
of his injury in May 2005), but did not mention any other work
activities undertaken during that period.
On November 2, 2007, Rivera was notified that his SSDI
claim was approved, and he began receiving disability benefits.
The approval notification stated that "[t]he decisions we made on
your claim are based on information you gave us" and "[i]f this
information changes, it could affect your benefits." It referred
to an accompanying pamphlet that provided more information on "what
must be reported and how to report[,]" including on "what to do if
Rivera appears to have applied for SSDI benefits orally; 1
SSA "stored the application information electronically" and sent him a "summary of [his] statements" which we draw on here.
- 5 - you go to work or if your health improves." The notification also
informed Rivera that "[i]f you receive workers' compensation
and/or public disability payments, we may have to reduce your
Social Security benefits." It therefore instructed him to
"[p]lease let us know as soon a decision is made on your claim for
these payments."
In 2013, after Rivera had been receiving both OWCP and
SSDI benefits for some years, the USPS Office of the Inspector
General began an investigation into Rivera's receipt of OWCP
payments. The investigation was triggered by reports that Rivera
had been present at the local USPS headquarters and meeting with
other employees there in connection with APWU activities. Rivera,
as it happened, had long ties to the union, having served as its
president from 2002 until 2004. He had also worked as a union
steward, helping represent other employees, while he was employed
as a flat sorter machine operator for USPS from 1995 until 2001.
OIG was interested in whether Rivera was continuing to work for
the union in some capacity without reporting that work to OWCP.
The OIG investigation produced evidence that, among
other things:
(a) Rivera had repeatedly visited APWU and USPS headquarters
in 2011-2013. At times, according to witness testimony,
he appeared to be acting as a union official while doing
so. An APWU security logbook also indicated that he
- 6 - made many visits to APWU headquarters between February
2011 and August 2013.
(b) Rivera had performed work for the APWU. He signed a
contract with the union to work as part of the Election
Committee for the union's 2013 election. Moreover,
Rivera had received payments from APWU in 2011-2013,
including reimbursements for APWU-related travel and
expenses. For example, he received $160 in wages and
$68 in meals and mileage reimbursement relating to work
for the APWU election committee between July 31 and
August 9, 2013. He was also nominated for an OWCP-
sponsored injury compensation training course in
Florida, which he attended in August 2013. According to
his nomination letter, this was because he "currently
work[s] processing Injury Compensation cases[.]"
(c) Rivera had helped fellow employees with various labor-
related issues. For example, he helped represent at
least 56 postal employees in various Equal Employment
Opportunity complaints filed between 2005 and 2012,
assisted one employee with an injury compensation claim
in 2011, and wrote to the Merit Systems Protection Board
on behalf of another employee's claim in 2012.
According to the government, however, Rivera never reported on his
OWCP forms that he worked for the union. Indeed, on August 8,
- 7 - 2013, just over a month after Rivera had filed his latest CA-1032
form, undercover OIG employees (posing as a Department of Labor
contractor and a translator) met with Rivera. They asked him to
complete another CA-1032 while they reviewed the instructions
together. As a government investigator explained at trial, this
arrangement was designed to make sure that Rivera understood the
"importance of being truthful on those forms" and that there was
"no doubt" in his mind about what his answers were. When the
interviewer asked whether, in the past fifteen months, Rivera had
performed any work for an employer, had been self-employed or
involved in any business enterprise, or had performed any volunteer
work, Rivera said "no" each time and indicated similarly on the
form. Likewise, according to the government, Rivera never reported
his work or any income to the SSA.
B. Procedural History
Rivera was indicted on August 30, 2013 and eventually
tried on the following five charges:
(a) three false statements counts (18 U.S.C. § 1001),
corresponding to three allegedly fraudulent CA-1032s
dated June 25, 2012, June 25, 2013, and August 8, 2013,
(b) a theft of government property count (18 U.S.C. §§ 641-
642), alleging the theft of $6,209.70 in SSDI benefits
between "on or about" July 22, 2013 and August 30, 2013,
and
- 8 - (c) a failure to disclose count (42 U.S.C. § 408(a)(4)),
relating to his failure to tell the SSA, between "on or
about" July 22, 2013 and August 30, 2013, about his work
activities, which allegedly resulted in the receipt of
$7,808.80 in SSDI payments to which he was not entitled.
After a nearly two-week jury trial, Rivera was convicted on all
five counts. He was sentenced to three years of probation and
ordered to pay restitution of $4,139.80 to SSA.
II.
On appeal, Rivera makes four arguments. First, he claims
that there was insufficient evidence to support convictions on any
of the five counts. Second, he challenges the district court's
grant of a government motion in limine prohibiting Rivera from
presenting evidence that the "real fault" in the case lay with
USPS, OWCP, or SSA "for failing to prevent the fraud." Rivera
maintains that this ruling unfairly prevented him from presenting
significant exculpatory evidence. Third, Rivera argues that the
district court improperly calculated the relevant "loss amount"
attributable to his offenses, which led in turn to an excessive
offense level calculation under the Sentencing Guidelines.
Finally, Rivera claims that there was insufficient support for the
amount of restitution imposed. We discuss each argument in turn.
- 9 - A. Sufficiency of the Evidence
1. Standard of review
Rivera's sufficiency challenges were raised below in
pre-verdict motions for judgments of acquittal. When preserved,
sufficiency challenges present questions of law and are reviewed
de novo. United States v. Ayala-Vazquez, 751 F.3d 1, 17 (1st Cir.
2014). In conducting that review, we interpret the evidence in
the light most favorable to the jury's verdict. United States v.
Peña-Santo, 809 F.3d 686, 696 (1st Cir. 2015). We then ask
whether, viewing the evidence in that light, any reasonable jury
could have found that the government proved the essential elements
of its case beyond a reasonable doubt. Id.
But here, according to the government, a different
standard applies. The government says that, because Rivera did
not file a post-verdict motion for acquittal, he waived his
sufficiency claim. Waiver applies, the government maintains, even
though Rivera moved for acquittal based on insufficient evidence
after the close of the government's case -- and renewed that motion
after the close of his own.
In support of this position, the government relies
solely on a passing statement from United States v. Dudley, 804
F.3d 506 (1st Cir. 2015). There, we noted that the defendant had
waived his motion for judgment of acquittal by "fail[ing] to renew
[it] at the close of the entire case (after offering evidence in
- 10 - his defense) and following the guilty verdict." Id. at 519 (citing
United States v. Maldonado–García, 446 F.3d 227, 230 (1st Cir.
2006)). The government suggests that, rather than just explaining
why the claim was waived in that particular case, this line from
Dudley establishes a rule: that both a pre- and post-verdict motion
are needed to avoid waiver of a sufficiency challenge. But, as
made clear by the very case relied upon by Dudley in making that
statement, it is the "combine[d]" omission of a proper pre- and
post-verdict motion for acquittal that constitutes waiver.
Maldonado–García, 446 F.3d at 230; see also 2A Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure § 469 (4th ed.
2021) ("When defendant files the appropriate motion under Rule 29
during or after trial, then the standard of review for a
sufficiency of the evidence claim is de novo." (emphasis added)).
In other words, as we have said, when a defendant makes a proper
pre-verdict motion for acquittal on a particular count, the motion
is "not waived," even if he "fail[s] to contest his conviction as
to that count in his post-verdict motion." United States v. Pena,
586 F.3d 105, 111 n.5 (1st Cir. 2009).2 In short, we reject the
2 Reading Dudley as requiring both pre- and post-verdict motions for acquittal is unsustainable for a separate reason. Rule 29 itself provides that a defendant is "not required to move for a judgment of acquittal before the court submits the case to the jury as a prerequisite for making such a motion after jury discharge." Fed. R. Crim. P. 29(c)(3); see also United States v. Castro-Lara, 970 F.2d 976, 980 (1st Cir. 1992) (confirming that "a defendant who files a time[ly] post-trial motion for acquittal
- 11 - notion that a separate post-verdict motion under Rule 29(c) is
required to avoid waiver even after the filing of a proper pre-
verdict motion under Rule 29(a).
2. Analysis
(a) False statement charges
We first consider the three false statement charges
under 18 U.S.C. § 1001. To sustain a § 1001 conviction, "the
government must prove that the defendant (1) made a material, false
statement (2) in a matter within the jurisdiction of the government
(3) knowing that the statement was false." United States v.
Vázquez-Soto, 939 F.3d 365, 371 (1st Cir. 2019). Rivera concedes
(and conceded at trial) that he did not fill out the three CA-1032
forms correctly, but maintains that there was insufficient
evidence that (1) he knew the statements were false or (2) that
the false statements were material.
As to knowledge, Rivera argues that it was difficult to
understand and fill out the CA-1032 forms, and thus any false
statements were not knowingly false. He also points to his
interview with the undercover OIG investigator, where he openly
expressed an interest in working in some capacity. He also
suggests that he was generally open and unapologetic about his
ongoing work with the union. These statements and actions, Rivera
stands on the same footing as a defendant who moves for acquittal at the close of all the evidence").
- 12 - maintains, are inconsistent with the theory that he knowingly
filled out the forms incorrectly.
The jury, however, also heard testimony from a former
APWU president that Rivera had extensive experience as a union
official and assisted other members with OWCP issues. Indeed, he
was nominated for a special OWCP training course specifically
because he had experience processing injury compensation cases.
Additionally, the CA-1032 forms and related documents repeatedly
warned Rivera about the need to honestly disclose his work and
volunteer activities. For example, the CA-1032 form spelled out,
in all-caps, that "SEVERE PENALTIES MAY BE APPLIED FOR FAILURE TO
REPORT ALL WORK ACTIVITIES THOROUGHLY AND COMPLETELY." A
reasonable jury could infer, based on Rivera's extensive
experience and these repeated warnings, that he knew he had to
disclose his work and volunteer activities but chose not to. See
Vázquez-Soto, 939 F.3d at 372 ("Evidence of a defendant's culpable
state of mind may be 'gleaned from . . . circumstantial evidence
presented at trial.'" (quoting United States v. Troisi, 849 F.3d
490, 494 (1st Cir. 2017))).
Rivera's strongest argument is that he did not
specifically know that he had to disclose volunteer activities for
which he was not paid. One version of the CA-1032 form -- the
version completed by Rivera during the interview on August 8, 2013
-- is potentially somewhat confusing in this regard, as Part B
- 13 - ("VOLUNTEER WORK") asks if the beneficiary "perform[ed] any
volunteer work for which ANY FORM of monetary or in-kind
compensation was received[.]" Indeed, when the undercover OIG
agents mentioned volunteering, Rivera sought clarification:
MR. RIVERA: That's if I'm getting paid for it; right?
[AGENT 1]: Yeah, or your volunteer activities, you report -- you know, maybe you belong to American Legion if you're a vet. I don't know if they have it here.
MR. RIVERA: Yeah.
[AGENT 1]: Yeah. Some people -- like say you're the treasurer or whatever, you would need to report that, because you do work --
MR. RIVERA: Okay.
[AGENT 1]: -- for them. So --
[AGENT 2]: Church groups and stuff.
[AGENT 1]: Church groups, social organizations, real employment, like maybe you have a contract in business, or you do child care, whatever.
Rivera argues that this muddled exchange -- particularly the
agent's initial reply to Rivera's direct question about payment
-- reasonably suggests that Rivera thought he only had to report
paid volunteer activities.
However, for two of the counts -- Counts 1 and 3 -- this
argument is of no help, since Rivera had actually been paid some
wages for APWU work during the relevant time period (i.e., fifteen
months prior to the completion of each respective form). As for
- 14 - Count 2, there appears to be no evidence that he was paid wages
during the relevant period, but the evidence does show that Rivera
was reimbursed for at least one official union-related expense3 and
regularly logged into the APWU headquarters log-book during that
time. From this evidence, a reasonable jury could conclude -- as
the district court did in denying the motion for judgment of
acquittal on Count 2 -- that the evidence of official reimbursement
showed that Rivera was performing at least some kind of work for
the union during the relevant period. And, crucially, the language
of the specific form pertaining to Count 2 did not include the
arguably confusing language about paid volunteer work. That is,
it did not limit its definition of volunteer work to "volunteer
work" for which some kind of compensation was received; rather, it
asked whether Rivera "perform[ed] any volunteer work including
compensation was received" (first emphasis added). Therefore,
regardless of the lack of evidence of paid wages, a reasonable jury
could infer that Rivera was performing volunteer work during the
relevant period, was required to report that activity, and
knowingly failed to do so.
3 Specifically, Rivera was reimbursed for paying the $50 hospital deductible for a union member whom he took to the emergency room after she had a health incident at work.
- 15 - As to materiality, Rivera's argument is brief and
underdeveloped. He suggests, without elaboration, that the
government failed to show exactly how Rivera's benefits would be
impacted by the false statements. But an OWCP claims examiner
explained at trial that reporting work and volunteer activity is
important because evidence of capacity to perform work triggers
further review of a claim and could lead to a reduction of OWCP
benefits. This showing is sufficient. To establish materiality,
a statement "merely ha[s] to be of a type which would have a
'natural tendency' to influence an investigation in the
'abstract.'" United States v. Chen, 998 F.3d 1, 10 (1st Cir. 2021)
(quoting United States v. Phillipos, 849 F.3d 464, 473 (1st Cir.
2017)).
(b) Remaining counts
As mentioned, the final two counts both relate to
Rivera's receipt of Social Security benefits. Under 18 U.S.C.
§ 641, it is a crime to "embezzle[], steal[], purloin[], or
knowingly convert[] . . . money, or [a] thing of value of the
United States or of any department or agency." To win a conviction
on this count, the government had to produce evidence "sufficient
to allow a rational factfinder to conclude beyond a reasonable
doubt that [the defendant] had specific intent to 'steal . . . a
thing of value' from the United States." United States v. Donato-
Morales, 382 F.3d 42, 47 (1st Cir. 2004) (quoting 18 U.S.C. § 641).
- 16 - Under 42 U.S.C. § 408(a)(4), it is a crime for anyone (1) with
knowledge of an event affecting his or her initial or continued
right to an SSA payment (2) to conceal or fail to disclose that
event to the SSA (3) with an intent to secure payment fraudulently
(i.e., in an amount greater than was due to him or her or when no
payment was authorized). See United States v. Phythian, 529 F.3d
807, 812 (8th Cir. 2008).
Rivera challenges the intent element as to both counts,
claiming that there was no demonstrable intent on his part to
conceal his action or steal from or defraud SSA. But the
government introduced evidence that, when Rivera previously
applied for SSDI benefits (in 2005), he had listed his work as a
union steward, which he undertook as part of his USPS maintenance
job duties from 1995-2001. That 2005 claim was rejected, on the
grounds that he was able to perform at least one prior job. When
Rivera applied again in 2007, he omitted that information. A
reasonable jury could conclude that Rivera "learned his lesson"
and knowingly omitted that information in order to qualify the
second time around. Additionally, Rivera received pamphlets and
instructions making clear that he needed to report jobs or work
activity to SSA. A reasonable jury could likewise conclude that
Rivera was aware of his obligations but chose not to notify SSA in
order to protect his eligibility. Rivera makes no argument as to
why these inferences are unreasonable.
- 17 - B. Motion in Limine
We next consider whether the court properly granted the
government's motion prohibiting Rivera from presenting evidence
that the "real fault" in the case lay with USPS, OWCP, or SSA "for
failing to prevent the fraud." We review a district court's
decision to admit or exclude evidence for abuse of discretion.
See Torres-Arroyo v. Rullán, 436 F.3d 1, 7 (1st Cir. 2006). Under
that standard, we will overturn a particular ruling "only if it
plainly appears that the court committed an error of law or a clear
mistake of judgment." Id.
In this case, the district court repeatedly justified
its exclusionary ruling based on a concern that Rivera, in drawing
attention to the lack of action by the relevant agencies, might be
suggesting a kind of "blame-shifting" defense that would confuse
jurors. In considering the propriety of that ruling, we accept
Rivera's argument that the fact that "USPS, the DOL, OWCP, and SSA
knew that Mr. Rivera was performing duties as a Union
representative" could be relevant, insofar as their knowledge
could suggest that he lacked the requisitely culpable state of
mind. That is, his openness (and the corresponding lack of action
by the relevant agencies, despite their knowledge) might have
confirmed in his mind that "all was well" -- i.e., that he was
disclosing all that he needed to disclose and that he was not
required to report any of his union activities to either OWCP or
- 18 - SSA. "Relevancy, however, is a condition precedent to
admissibility, not an ironclad guarantee of admissibility."
Torres-Arroyo, 436 F.3d at 7. The Federal Rules of Evidence allow
a district court to exclude even relevant evidence if its
"probative value is substantially outweighed by a danger of . . .
confusing the issues [or] misleading the jury." Fed. R. Evid.
403; see also United States v. Schneider, 111 F.3d 197, 202 (1st
Cir. 1997) (finding "evidence [of intent that] may have been
relevant but only to a limited degree" was properly excluded when
"it had a substantial capacity to mislead the jury").
Here, the district court's overall concern of juror
confusion was reasonable. After all, whether or not particular
employees at the agencies were negligent or less-than-diligent in
reporting Rivera's work activities to anyone was not directly at
issue in this case. Particular employees may not have been
familiar with Rivera's status, scope of activities, or reporting
obligations. Indeed, they may have simply assumed that he was
actually reporting his activities as required.
With these general considerations in mind, we turn to
the questions that were ultimately precluded by the in limine
order. In making his argument here, Rivera has identified only
one specific line of witness questioning that he claims was
improperly barred. Namely, Rivera argues that he was prevented at
trial from asking Juan Delgado, a USPS human resources manager,
- 19 - whether Delgado should have notified DOL that Rivera was
volunteering. Rivera was also prevented from eliciting from
Delgado whether Rivera had asked him for a job. While Delgado's
failure to report Rivera's activities and Rivera's request to
Delgado for a job may have been slightly probative as to Rivera's
state of mind, both questions also raised some risk of juror
confusion, as they again arguably suggest that Delgado either had
some duty to report Rivera's request to the proper authorities or
that Rivera had somehow absolved himself by indicating his
willingness and ability to work to someone at USPS. Given that
there was ample other evidence of Rivera's openness about his
activities (e.g., that Rivera had been seen accompanying union
officials at USPS headquarters and, as the district court noted,
that Rivera met with various other USPS officials), additional
evidence of Rivera's openness with Delgado had limited probative
value. See United States v. Varoudakis, 233 F.3d 113, 122 (1st
Cir. 2000) (noting that "[t]he probative value of any particular
bit of evidence is obviously affected by the scarcity or abundance
of other evidence on the same point" (quoting 22 Charles A. Wright
& Kenneth A. Graham, Jr., Federal Practice and Procedure § 5250
(1978))). The district court therefore was "well within the ambit
of [its] discretion" in concluding that the probative value of
these questions was substantially outweighed by the danger of
misleading the jury. Torres-Arroyo, 436 F.3d at 7.
- 20 - C. Loss Calculation
We turn next to Rivera's argument against the loss
calculation the district court performed under the Sentencing
Guidelines. In doing so, "[w]e review the district court's
interpretation and application of the sentencing guidelines de
novo and factual findings for clear error." United States v.
Tavares, 705 F.3d 4, 24 (1st Cir. 2013) (quoting United States v.
Cortés–Cabán, 691 F.3d 1, 26 (1st Cir. 2012)).
We begin with some background. For crimes involving
larceny, embezzlement, or other forms of theft, the Sentencing
Guidelines recommend different offense levels based on the
monetary loss associated with the offense. See U.S. Sent'g
Guidelines Manual ("U.S.S.G.") § 2B1.1(b) (U.S. Sent'g Comm'n
2018). In this context, "loss" can include both "actual" and
"intended" loss. Id. § 2B1.1 cmt. 3(A). In this case, the district
court accepted that Rivera intended a loss of $899,328.38 -- the
total amount of OWCP and SSA benefits paid to Rivera since his
initial applications. That conclusion, in turn, led the court to
apply a 14-point enhancement to Rivera's total offense level.
Rivera claims that this intended loss amount (and corresponding
enhancement) was far too high.
We first confront one argument raised by the government.
It suggests that, even if the district court made a mistake in the
loss calculation, any mistake was harmless, since the district
- 21 - court departed downward from the guidelines recommendation and
imposed only a probationary sentence. But our precedents do not
permit us to assume harmlessness in this fashion. There is still
a reasonable possibility that the high guidelines range calculated
by the district court had an anchoring effect and influenced its
assessment of the appropriate punishment. See United States v.
Alphas, 785 F.3d 775, 780 (1st Cir. 2015) ("Although the court
below imposed a sentence beneath the bottom of the GSR [guideline
sentencing range], there is at least a possibility that the court
would have imposed an even more lenient sentence had it started
with a lower GSR."). Unlike United States v. Arif, 897 F.3d 1
(1st Cir. 2018), upon which the government relies, here there was
no statement by the district court to the effect that "regardless
of the Guidelines calculation," he or she would have "reach[ed]
the same result" as to the appropriate sentence. Id. at 12
(alteration in original) (second internal quotation marks and
citation omitted).
Proceeding to the merits of the loss calculation itself,
we find no error. The Sentencing Guidelines explain that, in cases
of government benefits fraud, loss "shall be considered to be not
less than the value of the benefits obtained by unintended
recipients or diverted to unintended uses." U.S.S.G. § 2B1.1 cmt.
3(F)(ii). In other words, a district court should try to parse
out which benefits were legitimately paid and which were not, and
- 22 - base the loss amount on only the latter. Id. ("For example, if
the defendant was the intended recipient of food stamps having a
value of $100 but fraudulently received food stamps having a value
of $150, loss is $50."); see also Alphas, 785 F.3d at 783 ("The
best way to gauge the seriousness of a fraud offense is to
determine how much the fraudster set out to swindle -- and no
fraudster sets out to swindle sums that he would have been paid
anyway.").
In Alphas, however, we recognized in our discussion of
intended loss that -- at least where "a defendant's claims [are]
demonstrably rife with fraud" -- "a sentencing court may use the
face value of the claims as a starting point in computing loss."
785 F.3d at 784. The burden of production then shifts to the
defendant, "who must offer evidence to show (if possible) what
amounts represent legitimate claims." Id. And then, finally,
"the sentencing court must determine the amount of loss that the
government (which retains the burden of proof) is able to
establish." Id. At the end of the day, the court "need only make
a reasonable estimate of the loss." U.S.S.G. § 2B1.1 cmt. 3(C).
Indeed, "[d]epending on the defendant's offer of proof, the court
might well conclude that the amount of loss is equal to the face
value of the submitted claims." Alphas, 785 F.3d at 784.
Here, the district court used the face value of Rivera's
total benefits as a starting point for the loss calculation, which
- 23 - the government had substantiated by introducing OWCP payment
history reports and Social Security beneficiary lists. As the
district court reasoned, using the face value of the claims was
appropriate given that, "ab initio," Rivera "had an obligation to
report . . . and because he didn't . . . everything is basically
an illegal amount he's receiving since that outset." The court
continued: "[H]ad he reported . . . [his benefits] could have been
recalculated, but because he didn't he's getting the benefit of
everything. And his intent is to get that entire benefit and you
just can't separate that."
Given the court's reasonable acceptance of the face
value of the benefits as the initial basis for the loss
calculation, it then fell to Rivera to establish which portion of
those amounts "represent[ed] legitimate claims." Alphas, 785 F.3d
at 784. On appeal, however, Rivera does not point to any evidence
delineating what portion of the benefits were legitimate, or even
how he could establish such a figure. Rather, he argues that it
remained the government's burden to show the amount of fraudulent,
as opposed to legitimate, claims. But that contention is
inconsistent with the framework outlined in Alphas. In light of
Rivera's failure to meet his evidentiary burden, we conclude that
the court reasonably concluded that the amount of loss was equal
to the face value of the claims.
- 24 - Rivera also briefly suggests that the loss calculation
was excessive because it included losses incurred outside of the
timeframe set forth in the indictment. But "[i]n calculating loss
amounts under the Guidelines, a district court evaluates losses
stemming from the conduct of conviction and any relevant conduct."
United States v. Curran, 525 F.3d 74, 78 (1st Cir. 2008) (emphasis
added). In cases like this one, "relevant conduct" includes
conduct that was "part of the same course of conduct or common
scheme or plan as the offense of conviction." U.S.S.G.
§ 1B1.3(a)(2).4 And, significantly, "[r]elevant conduct may
include both acquitted and uncharged conduct." United States v.
Cox, 851 F.3d 113, 121 (1st Cir. 2017). Against this background,
Rivera does not adequately explain why his earlier claims should
not be considered relevant conduct. See United States v. Bennett,
37 F.3d 687, 694 (1st Cir. 1994) (concluding district court erred
in refusing to consider amounts of uncharged fraudulent loans in
its loss calculation when they constituted relevant conduct).
D. Restitution Amount
Finally, we consider Rivera's challenge to the amount of
restitution imposed. Restitution orders imposed under the
4 This definition of relevant conduct governs because it applies to crimes that are "grouped" under U.S.S.G. § 3D1.2(d). Here, Rivera's five offenses -- all involving theft and fraud -- were grouped under that provision because the overall offense level was determined on "the basis of the total amount of harm or loss." U.S.S.G. § 3D1.2(d).
- 25 - Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C. § 3663A, are
generally reviewed only for an abuse of discretion, with their
underlying factual findings reviewed for clear error. See United
States v. Hensley, 91 F.3d 274, 277 (1st Cir. 1996). "[W]e
consider only whether the restitution award has 'a rational basis
in the record.'" United States v. González-Calderón, 920 F.3d 83,
85 (1st Cir. 2019) (quoting United States v. Salas-Fernández, 620
F.3d 45, 48 (1st Cir. 2010)).
Here, the government initially requested $899,328.38 in
restitution -- the same amount as the intended loss amount
discussed above, which in turn corresponded to the full amount of
SSA and OWCP benefits paid to Rivera. The district court, however,
decided that it could only impose restitution for the conduct
covered by the offenses of conviction. Hence, for the CA-1032
false statement charges, the court ruled that the government could
only recover for the losses caused between March 25, 2011, and
August 8, 2013, corresponding to the period of 15 months prior to
the execution of the false CA-1032 forms. Similarly, for the SSA-
related charges, the court determined that the government could
only recover for the losses caused between July 22, 2013 and August
30, 2013, the time period spelled out in the indictment for those
charges.
- 26 - The government attempted to comply with the court's
ruling, representing that $144,588.905 in OWCP benefits and
$4,139.80 in SSA benefits were paid during the relevant time
periods. But the district court then determined that the
government could not, as in the Guidelines loss-calculation
context, merely rely on the face value of the benefits paid.
Instead, the district court correctly noted that, in the
restitution context, the government had to demonstrate actual
losses. See United States v. Innarelli, 524 F.3d 286, 290 & n.4
(1st Cir. 2008) (explaining that intended loss can be used "for
purposes of determining a defendant's sentence" under the
Guidelines, but "for purposes of determining the restitution
portion of a defendant's punishment, only actual loss may be taken
into account"). The district court found the government had met
this standard as to the SSA benefits, but not as to the OWCP
benefits. It therefore ordered Rivera to pay only the $4,139.80
in restitution to SSA.
5 Even though the district court had explicitly limited OWCP restitution to benefits paid between March 25, 2011 and August 8, 2013, the government included amounts paid from March 25, 2011 until August 8, 2014 in its calculation of $144,588.90. The court referred to this figure without noting any incongruity. Since, as we explain below, the court ultimately ruled that restitution was limited to actual losses, which the government failed to establish as to all OWCP benefits, the discrepancy ultimately makes no difference. For the record, though, the government later stated the actual amount of OWCP benefits paid between March 25, 2011 and August 8, 2013 was $140,684.90.
- 27 - Given the posture of the case, our responsibility is
only to review the appropriateness of the final restitution amount
ordered. In challenging that amount of restitution, Rivera again
argues that the district court failed to determine whether some of
those payments were legitimate. Under the MVRA, there is a
causation standard: "restitution should not be ordered if the loss
would have occurred regardless of the defendant's misconduct
underlying the offense of conviction." United States v. Cutter,
313 F.3d 1, 7 (1st Cir. 2002); see also Alphas, 785 F.3d at 786
(requiring "a but-for connection between the defendant's fraud and
the victim's loss"). Thus, as Rivera suggests, if the SSA would
have paid Rivera some amount of SSDI benefits absent his
concealment, those funds should not be included in the restitution
order. In essence, they would not be attributable to Rivera's
false statements.
Here, however, there was some evidence that, absent
Rivera's concealment, he would have received no benefits at all.
As discussed above, Rivera originally included his work as a union
steward in his 2005 application for SSA benefits. That application
was denied. When he applied in 2007, he omitted that work, and
his application was approved. This sequence suggests that his
concealment of his union activities was the decisive factor in
whether he received SSDI benefits at all. As a result, the
district court could conclude that the total amount of SSDI
- 28 - benefits paid during the relevant period amounted to SSA's actual
loss. Said differently, Rivera's SSA application history
represents "a modicum of reliable evidence" that the district court
could rely on in determining the appropriate amount of restitution.
González-Calderón, 920 F.3d at 85 (quoting United States v.
Naphaeng, 906 F.3d 173, 179 (1st Cir. 2018)).
Affirmed.
- 29 -