UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20198
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
BERNIDA FAY WRIGHT, also known as Bernida Steele,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(00-CR-451)
July 3, 2002
Before SMITH, BENAVIDES, and PARKER, Circuit Judges.
PER CURIAM:*
Bernida Fay Wright was tried before a jury and convicted of
six counts of fraud to obtain federal employee’s compensation in
violation of 18 U.S.C. § 1920, and one count of making false
statements to a government officer in violation of 18 U.S.C. §
1001(a)(2). On appeal, Wright argues that the evidence supporting
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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her conviction under all seven counts was insufficient, and that
the district court erred in permitting evidence of her prior
conviction in state court for theft of welfare benefits. For the
reasons stated below, we affirm.
I. BACKGROUND
Wright was employed by the United States Postal Service
(hereinafter “USPS”) on several occasions between 1985 and 1997.
She was a temporary employee, and her dates of service were
generally limited to a few months or weeks at a time. Following
each separation from the USPS, Wright submitted an application for
re-employment.
Wright reported to State Farm Insurance that, on November 18,
1994, an unidentified Hispanic male driving a red and black truck
backed into her vehicle, and sped away. Wright obtained a
diagnosis indicating a cervical spine strain, a thoracic spine
strain, and a third lumbar sacral spine strain. On November 28,
1994, a pre-employment physical was performed on Wright. At the
time of the physical Wright did not mention any injuries related to
the November 18th accident, and the doctor determined that she was
capable of performing heavy lifting duties for the USPS. After
receiving a clean bill of health, Wright submitted an application
for re-employment to the USPS on November 29, 1994. Wright was
rehired on December 5, 1994, and worked for the USPS until December
31, 1994.
On January 30, 1995, Wright reported the November 18th
accident to State Farm Insurance claiming neck and back injuries
(“neck pop” and “upper and lower back was in pain”). In
conjunction with her claim to State Farm Insurance, Wright reported
that she had been gainfully and continuously employed at Custom
Fabric Upholstery since October 1990 as a receptionist earning $225
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a week but that she could not work from November 18, 1994, to
January 30, 1995, due to injuries sustained in the accident.
Wright subsequently received a settlement from State Farm Insurance
in the amount of approximately $4,600.
On April 19, 1995, Wright submitted another application to the
USPS for re-employment indicating that she had been involved in a
single automobile accident occurring on December 19, 1994, when a
white cargo van backed into her vehicle and sped away. Wright was
rehired by the USPS on June 24, 1995. Wright reported that on July
4, 1995, she was involved in a third automobile accident when a
pickup truck ran into her vehicle in a grocery store parking lot
and then fled.
On Monday, July 10, 1995, Wright reported for work at the USPS
Oak Forest Dispatching Dock in Houston, Texas. At approximately
10:45 A.M., Wright’s supervisor, Sheila Applin, observed Wright
brushing off her pants. Wright told Applin that she had fallen but
was okay, and Wright worked the remainder of the day. On July 12,
1995, Wright sought medical treatment at a Houston clinic. Later
that day, Wright telephoned to inform Applin that she had been
injured in the fall on July 10th, and to inquire about medical
forms. When Wright returned to the postal station, she was walking
with the assistance of a cane. While at the postal station, Wright
filed a Federal Employee’s Notice of Traumatic Injury and Claim for
Continuation of Pay/Compensation (hereinafter “Form CA-1”) claiming
“pain in [her] lower back, [and] muscle spasms [in her] center
back, neck, shoulders, and thighs.”
The following day, July 13, 1995, Wright sought medical
attention from a chiropractor, Dr. Burdett, for injuries sustained
in the July 4th accident. Dr. Burdett continued to treat Wright
until mid August. Wright never told Dr. Burdett that she had
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fallen at the postal station on July 10, 1995. While receiving
treatment from Dr. Burdett, Wright was also receiving treatment
from two other doctors, Dr. Shafie and Dr. Watkins, for her alleged
fall at the postal station. Wright continued to receive medical
treatment for approximately the next two years.
On August 10, 1995, Wright reported the July 4th accident to
Farmer’s Insurance claiming injuries which she described as “neck
pop and have pains lower center back, left right shoulders,
buttocks, left/right thighs, left/right legs, pinched nerves,
tissue/muscle damage.” In conjunction with the report to Farmer’s
Insurance, Wright claimed employment at Custom Fabric Upholstery
earning $300 a week as a receptionist but indicated that she was
not able to work between July 5, 1995 and July 28, 1995 due to
injuries sustained in the accident. In late August 1995, Wright
was examined by Dr. Barnes at the request of the USPS. In his
report dated August 31, 1995, Dr. Barnes’s described Wright as “a
lady with a history compatible with lumbar strain with a good deal
of non-physiologic findings which are probably indicative of some
emotional component here.” The report concluded with an
expectation for a full recovery in approximately one month.
Between January 15, 1996, and April 15, 1997, Wright submitted
four claims to the USPS seeking reimbursement for travel expenses
(hereinafter “Form 1164”) claiming a total of 114 trips to various
doctors encompassing more than 10,000 miles. In April 1997, United
States Postal Inspection Service began investigating Wright in
connection with her fall, and her application for and receipt of
benefits. During the investigation, Wright was videotaped on
several occasions between April 1997 and January 1998. In April
and May of 1997, Wright was videotaped moving furniture at Custom
Fabric Upholstery. In July 1997, Wright was videotaped at a
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physical therapy clinic using a cane, and later that day at a Kmart
store without the use of a cane. Wright enrolled at a fitness
center in October 1997, and frequented the facility through
December 1997.
On February 8, 1999, Wright was convicted in Texas state court
for theft of medicaid, food stamps, and AFDC (Aid for Families with
Dependent Children) benefits. Wright received a two year jail term
for her conviction. The two year term was subsequently suspended,
and Wright was placed on community supervision for five years.
On July 5, 2000, Wright was indicted in federal court on seven
counts of fraud and making false statements in violation of 18
U.S.C. §§ 1001(a)(2) and 1920. A jury convicted Wright on all
seven counts on October 24, 2000. Following her conviction, Wright
was sentenced to a term of 21 months imprisonment and three years
supervised release on each of the seven counts, all counts running
concurrently, payment of $52,740.43 in restitution, and a $700
special assessment.
II. STANDARD OF REVIEW
“This Court reviews jury verdicts with great deference and
evaluates the evidence in the light most favorable to the verdict
and affords the government the benefit of all reasonable inferences
and credibility choices.” United States v. McCauley, 253 F.3d 815,
818 (5th Cir. 2001) (internal quotations and citations omitted).
“In reviewing a challenge to the sufficiency of the evidence, we
must determine whether a rational trier of fact could have found
that the evidence established guilt beyond a reasonable doubt.”
United States v. Barton, 257 F.3d 433, 439 (5th Cir. 2001) (citing
United States v. Mergerson, 4 F.3d 337, 341 (5th Cir. 1993). “If
the evidence viewed in the light most favorable to the prosecution
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gives equal or nearly equal circumstantial support to a theory of
guilt and a theory of innocence, a defendant is entitled to a
judgment of acquittal.” United States v. Brown, 186 F.3d 661, 664
(5th Cir. 1999) (internal quotations omitted) (quoting United
States v. Schuchmann, 84 F.3d 752, 754 (5th Cir. 1996). We review
a district court’s evidentiary rulings in a criminal case under a
heightened abuse of discretion standard. See United States v.
Bentley-Smith, 2 F.3d 1368, 1377 (5th Cir. 1993) (citation
omitted).
III. DISCUSSION
On appeal, Wright claims the evidence supporting her
conviction under all seven counts is insufficient, and that the
district court erred in admitting evidence of her prior conviction
for theft of welfare benefits. Counts One through Six, Count
Seven, and the admission of Wright’s prior conviction are each
addressed in turn below.
A. 18 U.S.C. § 1920 Violations - Counts One Through Six
Count One of the indictment alleged that Wright falsified Form
CA-1 in violation of 18 U.S.C. § 1920 by misrepresenting the
circumstances of her purported injury at the Oak Forest Dispatching
Dock. Counts Two through Five alleged that Wright submitted false
claims for reimbursement for travel expenses (hereinafter “Form
1164”) in violation of 18 U.S.C. § 1920 by misrepresenting the
number of times she traveled to the doctor’s office, associated
costs, and her mileage. Count Six alleged that Wright submitted a
false certified declaration of employment (hereinafter “Form EN-
1032”) in violation of 18 U.S.C. § 1920 in that she falsely
declared that she had not been employed, self-employed, or involved
in any business enterprise for the 15 months prior to October 27,
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1997.
Proving that Wright committed an offense under 18 U.S.C. §
19201 requires the government to show that she: 1) made or used a
false statement or report in connection with the application for or
receipt of compensation or other benefit or payment under
Subchapters I or III of Chapter 81 of Title 5 of the United States
Code; 2) knew the statement or report to be false, fictitious, or
fraudulent; and 3) knowingly and willfully falsified, concealed, or
covered up the statement or report. 18 U.S.C. § 1920.
Wright contends that the government failed to produce any
evidence pertaining to Count One. Specifically, Wright asserts
that the government failed to show that she did not suffer an
injury on July 10, 1995, and that her Form CA-1 contained
materially false, fictitious, and fraudulent statements. Wright
submitted Form CA-1 stating that the “20 lbs. hamper wheels locked
as I was pushing it and threw me back. I lost my balance off the
curve and fell on the concrete.” The government, however,
presented photographs showing that there was no curb that Wright
could have fallen off of at the Oak Forest facility, but rather a
gentle slope from the building’s foundation to the parking lot
falling approximately four inches over a span of approximately five
1
Section 1920, entitled “False statement or fraud to obtain
Federal employee’s compensation,” states in relevant part:
Whoever knowingly and willfully falsifies, conceals, or covers up
a material fact, or makes a false, fictitious, or fraudulent
statement or representation, or makes or uses a false statement or
report knowing the same to contain any false, fictitious, or
fraudulent statement or entry in connection with the application
for or receipt of compensation or other benefit or payment under
subchapter I or III of chapter 81 of title 5, shall be guilty of
perjury.
18 U.S.C. § 1920.
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feet. Wright’s supervisor, Sheila Applin, testified that she saw
Wright brushing off her pants but did not see her fall. Applin
testified that Wright informed her of the fall but stated that she
was “okay,” and continued working for the remainder of the day.
Applin further testified that upon hearing of the accident she
immediately inspected the hamper, and found that the wheels
operated properly. Additional evidence was presented showing that
the Oak Forest facility used 40 pound hampers, and did not use 20
pound hampers as indicated on Wright’s Form CA-1.
The government presented evidence of Wright’s automobile
accident in November of 1994 where she filed an insurance claim for
back injuries. The government also presented evidence of Wright’s
automobile accident on July 4, 1995, only six days prior to her
purported fall at the postal facility, and again Wright submitted
an insurance claim for back injuries. Additionally, the government
presented testimony from Dr. Barnes who described Wright as having
a history compatible with lumbar strain but also a good deal of
non-physiologic findings which were probably indicative of an
emotional component. Finally, Dr. Barnes testified that he
expected Wright to be fully recovered in approximately one month.
Wright maintains that the government’s evidence was
insufficient to show that the information submitted on Forms 1164
was false as alleged in Counts Two through Five. For the time
period between January 15, 1996, and April 15, 1997, Wright
submitted four Forms 1164 seeking reimbursement for toll expenses,
other costs, and mileage for a total of 114 trips traveling more
than 10,000 miles to various doctors. Jan Tarpley, a United States
Postal Inspector, testified that her investigation and review of
the physician’s records revealed that during the period in
question, 58 of the claimed trips did not occur, and the mileage
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for every visit claimed by Wright was overstated. Wright argues,
however, that testimony from her doctors revealed inadequacies in
their record keeping concerning patient visits in that some sign-in
sheets were missing. Wright also argues that Inspector Tarpley’s
own investigation indicated that she was entitled to $297.09 in
reimbursement for visits which were not claimed.
We are not persuaded by Wright’s arguments regarding Counts
Two through Five. Counts Two through Five involve false
representations concerning reimbursement for costs and mileage
submitted on Form 1164. Trips which were not reported are not
relevant to a charge under 18 U.S.C. § 1920. Furthermore,
Inspector Tarpley testified that in performing her calculations on
the number of visits Wright made to the doctor’s office, she was
given credit for a claimed visit if the sign-in sheet for that
particular day was missing.
Wright argues that the government failed to produce any
evidence that she was employed, self-employed, or involved in any
business enterprise for the 15 months prior to her submission of
Form EN-1032 on October 27, 1997, as alleged in Count Six. The
government, however, contends that Inspector Tarpley’s video tapes
of Wright moving furniture at her husband’s upholstery shop in
April and May of 1997 are evidence of her employment within the
time period in question. The government further contends that
Wright “repeatedly claimed to insurance companies that she was
gainfully employed during the 15-month period antedating October
27, 1997.”
Although the government did present evidence that Wright
claimed gainful employment to insurance companies, the claims made
by Wright covered the time periods from October 1990 to January
1995, and July 5, 1995, to July 28, 1995. These time periods do
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not fall within the 15 month period prior to Wright’s submission of
Form EN-1032 on October 27, 1997. The video tapes, however,
provide evidence that Wright moved furniture at a place of
business. The jury was entitled to make the reasonable factual
inference that she did so for pay. See Denton v. Morgan, 136 F.3d
1038, 1044 (5th Cir. 1998) (jury entitled to make “reasonable
factual inferences”).
Form CA-1, Forms 1164, and Form EN-1032 were all submitted in
connection with the application for or receipt of compensation or
other benefits or payments under Title 5 of the United States Code.
The government presented evidence in support of its arguments that
Wright knowingly and wilfully submitted the forms containing
information which she knew to be false. Finding the government’s
evidence to be credible, the jury determined that the government
satisfied its burden under 18 U.S.C. § 1920. Viewing the
government’s evidence in the light most favorable to the jury’s
verdict, and affording the government the benefit of all reasonable
inferences, we find the evidence sufficient for a reasonable trier
of fact to find guilt beyond a reasonable doubt on Counts One
through Six.
B. 18 U.S.C. § 1001(a)(2) Violations - Count Seven
Count Seven alleged that Wright made false statements to a
government officer in violation of 18 U.S.C. § 1001(a)(2) when she
told Inspector Tarpley, that she had: 1) done nothing to worsen her
medical condition; 2) reported all of her injuries to the USPS on
USPS employment applications; 3) actually visited a doctor on each
date that she claimed reimbursement for mileage; 4) not worked
since 1995; and 5) never worked at Custom Fabric Upholstery.
Wright contends that the jury’s findings of guilt on Count Seven is
inconsistent with the jury’s findings of guilt on Count One in that
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Wright could not be guilty of making a false statement concerning
the worsening of her medical condition if she did not actually
suffer an injury as alleged in Count One. Wright also contends
that the government failed to show any evidence that she knowingly
made materially false, fictitious, and fraudulent statements when
she claimed that she had not worked since 1995, or ever worked at
Custom Fabric Upholstery. Finally, Wright maintains that the
government’s evidence was insufficient to show that she knowingly
made materially false, fictitious, and fraudulent statements when
she claimed that she had actually gone to the doctor on each date
she claimed reimbursement for mileage because some of the doctor’s
sign-in sheets were missing.
Proving the commission of an offense under 18 U.S.C. §
1001(a)(2)2 requires the government to show that Wright: 1)
knowingly and willfully; 2) made a statement; 3) to a federal
agency; 4) that was false; 5) and material. 18 U.S.C. §
1001(a)(2); See also United States v. Puente, 982 F.2d 156, 158
(5th Cir. 1993). A statement is material if it had a natural
tendency to influence the decision of the decision making body to
which it was addressed. See Kungys v. United States, 485, U.S.
759, 772 (1988). It is not necessary for the government to prove
that Wright committed each act listed in a particular count of the
2
Section 1001(a)(2), entitled “Statements or entries generally,”
states:
Except as otherwise provided in this section, whoever, in any
matter within the jurisdiction of the executive, legislative, or
judicial branch of the Government of the United States, knowingly
and willfully makes any materially false, fictitious, or fraudulent
statement or representation shall be fined under this title or
imprisoned not more than 5 years, or both.
18 U.S.C. 1001(a)(2).
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indictment. Rather, “the verdict stands if the evidence is
sufficient with respect to any one of the acts charged.” United
States v. Mann, 161 F.3d 840, 857 (5th Cir. 1998) (citation
omitted).
Count Seven pertains to statements Wright made to Inspector
Tarpley concerning her eligibility for receipt of compensation and
other benefits under Title 5 of the United States Code. The first,
second, third, and fifth elements were satisfied for all acts
contained in Count Seven when Wright gave her statements to
Inspector Tarpley during their interview. The government presented
evidence of the fourth element, falsity of the statements, with
respect to at least two of the acts alleged in Count Seven.
Specifically, the government presented evidence in Wright’s own
handwriting where she claimed employment as a receptionist at
Custom Fabric Upholstery on two separate occasions. The government
also presented evidence that Wright failed to visit a doctor on
each date that she claimed reimbursement for mileage, and that the
mileage for each visit was overstated. Therefore, we find the
evidence sufficient for a reasonable trier of fact to find Wright
guilty beyond a reasonable doubt on Count Seven.
C. Admission of Evidence
Wright argues that the district court erred in admitting
extrinsic evidence under Rule 404(b) of the Federal Rules of
Evidence for the purpose of showing lack of mistake or accident.
Specifically, Wright maintains that the testimony regarding her
prior conviction in state court for theft of welfare benefits, and
the introduction of a certified copy of the conviction were
irrelevant, unfairly prejudicial, and thus inadmissible under Rules
403 and 404(b) of the Federal Rules of Evidence.
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Under Rule 403, evidence which is otherwise relevant “may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by consideration of undue delay, waste of time, or
needless presentation of cumulative evidence.” FED. R. EVID. 403.
Rule 404(b) reads:
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in
order to show action in conformity therewith. It
may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence
of mistake or accident, provided that upon request
by the accused, the prosecution in a criminal case
shall provide reasonable notice in advance of the
trial, or during the trial if the court excuses
pretrial notice on good cause shown, of the
general nature of any such evidence it intends to
introduce at trial.
FED. R. EVID. 404(b).
The government argues that the evidence in question was
admissible under Rule 404(b) for the purpose of showing that
Wright’s submission of various forms containing false information
was not a mistake or accident. The government contends that
Wright’s counsel opened the door for the admission of the evidence
in her opening statement when she told the jury:
And what they have to prove to you beyond a
reasonable doubt is that Ms. Wright had the
specific intent to defraud, not that she filled
out forms sloppily or did it by accident or maybe
she didn’t remember what day she actually went to
the doctor since she went so often.
Wright asserts that she rested after the government’s case-in-
chief, called no witnesses, and presented no evidence requiring
rebuttal. Wright maintains that she was not raising mistake or
accident as a defense but merely informing the jury of the
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government’s legal burden at trial. The government argues,
however, that Wright placed absence of mistake at issue when she
pleaded not guilty to Counts One through Seven.
In United States v. Beechum, 582 F.2d 898, 911 (5th Cir.
1978), we established a two-part test for determining the
admissibility of evidence under Rule 404(b). “First, the extrinsic
offense evidence must be relevant to an issue other than [the]
defendant’s character. Second, the evidence must possess probative
value that is not substantially outweighed by its undue prejudice
and must also meet the other requirements of Fed. R. Evid. 403.”
Bentley-Smith, 2 F.3d at 1377.
Wright pleaded not guilty to all seven counts, and by doing
so, she placed absence of mistake at issue, and thereby satisfied
the first prong of the Beechum test. See United States v. Alarcon,
216 F.3d 416, 424 (5th Cir. 2001) (citing United States v. Doggett,
230 F.3d 160, 167 (5th Cir. 2000). The second prong of the Beechum
test presents a close call. Nevertheless, we are mindful of the
fact that the probative value of an extrinsic offense correlates
positively with its likeness to the offense charged. See Beechum,
582 F.2d at 915. In light of the district court’s limiting
instructions upon entry of the evidence and at the close of the
case, the defense counsel’s comments in her opening statement, and
the similarity between the extrinsic evidence and the offenses
charged in the instant case, we find no abuse of discretion on the
part of the district court in admitting evidence of Wright’s prior
conviction.3
3
We note that on appeal, Wright asserts that the district court
failed to perform an on-the-record balancing test between the
probative and prejudicial value of the evidence in question.
“Normally, the trial court must explicitly perform this analysis on
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IV. CONCLUSION
For the foregoing reasons, we AFFIRM Wright’s convictions.
the record; however, if the party objecting to the admission fails
to request this analysis, the trial court need not perform it on
the record.” Alarcon, 216 F.3d at 424. The record reveals no
request for an on-the-record balancing analysis.
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