United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 21, 2003
___________________
Charles R. Fulbruge III
No. 02-41461 Clerk
___________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BEATRICE B. MARTINEZ,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(C-02-CR-96-1-S)
_______________________________________________________________
Before KING, Chief Judge, and HIGGINBOTHAM and BARKSDALE, Circuit
Judges.
PER CURIAM:*
Beatrice Martinez appeals her convictions for failing to
disclose an event affecting her right to Supplemental Security
Income, in violation of 42 U.S.C. § 1383a(a)(3)(A), and
embezzlement from a federal agency, in violation of 18 U.S.C. §
641. At issue is whether the evidence was sufficient for each
conviction. AFFIRMED IN PART; VACATED IN PART; REMANDED.
*
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this opinion should not be published and is not precedent except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.
I.
In 1989, 1990, and April 1992, Martinez applied to the Social
Security Administration (SSA) for Supplemental Security Income
(SSI). On each occasion, her application was rejected because her
husband’s income was too high.
Martinez again applied in July 1992 (prior to that
application, an Administrative Law Judge had determined Martinez
was disabled). That application was again denied due to Martinez’
husband’s income.
On 21 April 1995, when Martinez filed a fifth SSI application,
she stated to the SSA that her husband had moved out of their house
on 1 April. Although she stated the husband would continue to pay
bills, her resulting loss of income qualified her for SSI. She
began to receive it on 1 May. During the earlier 21 April meeting,
Vicent, an SSA representative, had explained to Martinez that she
could not qualify for April benefits because her husband had lived
in the house for one day that month.
In July 1995, Vicent asked Martinez whether her circumstances
had changed since 1 May. No record exists of Martinez’ response
(file was lost), but the SSA took no steps then to terminate her
benefits. Martinez continued to receive SSI.
In October 2000, Hurd, another SSA representative, spoke with
Martinez to review her SSI eligibility. Martinez told Hurd: her
husband had moved back into their house on the weekend following
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her April 1995 application (before 1 May); they had co-habitated
since then; and, during her July 1995 conversation with Vicent,
Martinez had told Vicent about her husband’s return.
Martinez was indicted for: (1) failing to disclose an event
affecting her right to SSI; and (2) embezzlement. The Government
presented, inter alia, Vicent’s testimony that: although she did
not specifically remember doing so with Martinez, it was Vicent’s
standard practice to tell applicants they must report any change of
circumstance; and she would have terminated Martinez’ eligibility
had Martinez told her in July 1995 about her husband’s return.
Martinez did not testify; nor did she call any witnesses. A jury
found her guilty on both counts; she was sentenced, inter alia, to
five-years probation and restitution in the amount of the SSI paid
— $21,476.60.
II.
Martinez maintains the evidence was insufficient to support
either the failure-to-disclose or embezzlement conviction. In
reviewing sufficiency of the evidence, we determine, after viewing
all the evidence and reasonable inferences drawn therefrom in the
light most favorable to the verdict, whether a reasonable juror
could find the evidence established guilt beyond a reasonable
doubt. E.g., United States v. Bieganowski, 313 F.3d 264, 275 (5th
Cir. 2002), cert. denied, 123 S. Ct. 1956 (2003). “[I]n a case
depending on circumstantial evidence[,] if ‘the evidence viewed in
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the light most favorable to the prosecution 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”.
Id. (quoting United States v. Brown, 186 F.3d 661, 664 (5th Cir.
1999)).
A.
To convict under § 1383a(a)(3)(A), “the government must show
... the defendant knew [s]he was legally obligated to disclose
certain information”. United States v. Phillips, 600 F.2d 535, 536
(5th Cir. 1979) (construing then 42 U.S.C. § 408(d) which is
similar to § 1383a(a)(3)(A)). Moreover, the Government obviously
must prove the defendant failed to disclose that information.
Finally, it must prove “the defendant knew that by withholding the
information [s]he would receive greater payments than [s]he was
entitled to”. Id. Martinez contends the Government’s evidence did
not establish any of these elements.
1.
Vicent testified that she customarily advised SSI applicants
of their obligation to report changes of income and whether anyone
moved into, or out of, their house. Although Vicent could not
specifically remember advising Martinez of that obligation, there
was no testimony indicating Martinez’ application was an exception
to the customary practice. Based on Vicent’s uncontroverted
testimony, a reasonable juror could find, beyond a reasonable
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doubt, that Martinez had been told of her obligation to report her
husband’s return.
2.
Vicent also testified that, had Martinez told her in July 1995
that her husband had returned, Vicent would have taken action to
avoid Martinez’ being overpaid. Yet, no record was made and
Martinez continued to receive benefits.
Hurd testified about her 2000 conversation with Martinez,
during which Martinez had told Hurd that she had told Vicent that
her husband returned immediately after the April 1995 application.
Martinez seeks benefit from this testimony. However, viewing
credibility choices in the light most favorable to the verdict, see
e.g., United States v. Griffin, 324 F.3d 330, 356 (5th Cir. 2003),
it was not unreasonable for the jury to reject Martinez’ self-
serving statement to Hurd.
Martinez also points out that: the lost July 1995 review
asked Martinez whether anyone had moved into her house as of 1 May
1995; and Martinez’ husband had returned prior to that date. While
this may show Martinez did not affirmatively lie to Vicent in July
1995, it does not bear on Martinez’ failure otherwise to disclose
that information.
Restated, when viewed in the light most favorable to the
verdict, a reasonable juror could find, beyond a reasonable doubt,
that Vicent’s testimony about SSA’s standard procedures was
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sufficient to show that Martinez failed to disclose her husband’s
return.
3.
Having concluded Martinez was aware of her obligation to
disclose her husband’s return and failed to do so, a reasonable
juror could find, beyond a reasonable doubt, that the failure
resulted from Martinez’ fraudulent intent. As noted, before her
successful application in April 1995, Martinez had applied for SSI
on four occasions. Each time, she was denied SSI because her
husband’s income was too high. Only when her husband was no longer
in the house was her application accepted. The record is unclear
as to what Martinez was told about the reasons for the previous
denials; however, Assistant District Manager Garcia testified that
SSI applications would be scrutinized to determine if applicants
met the “need” requirement for SSI before they were examined to
determine whether they were disabled. As noted, Martinez was
denied SSI at this preliminary stage for her first three
applications. It is reasonable for a jury to conclude that
Martinez understood the change in circumstances to have driven the
April 1995 SSI award.
Moreover, Martinez stated to Vicent during their April 1995
conversation: “I understand that I am not eligible for April 1995
[benefits] because of [my husband’s] income”. Because of the
evidence showing Martinez’ knowledge of the adverse effect her
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husband’s income had on her SSI applications, a reasonable juror
could find, beyond a reasonable doubt, that Martinez’ failure to
disclose that information to the SSA was based on fraudulent
intent.
Martinez contends that such intent is undercut by the fact
that she was referred to the SSA Agent in April 1995 and did not
seek SSI. This is of no moment. Assuming Martinez had no
fraudulent intent when she applied for SSI in April 1995 (her
husband having left), her fraudulent intent concerns her subsequent
failure to disclose his return.
B.
Embezzlement is: “the fraudulent appropriation of property by
a person to whom such property has been intrusted, or into whose
hands it has lawfully come”. Moore v. United States, 160 U.S. 268,
269 (1895). It is distinguished from larceny by the fact that the
wrongfully taken property was within the defendant’s lawful
control. See United States v. Sayklay, 542 F.2d 942, 944 (5th Cir.
1976). As described supra, the Government’s evidence showed that
Martinez’ possession of SSI, from May 1995 forward, was not lawful
by virtue of her failing to disclose her husband’s return in late
April 1995.
Accordingly, the embezzlement and “failure to disclose” counts
are mutually exclusive because Martinez could not have lawfully
possessed (and therefore embezzled) the very benefits that she had
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fraudulently obtained. The Government contends Martinez lawfully
possessed the checks merely because it sent them to her. Yet, the
Government’s theory of Martinez’ failure to disclose shows that her
receipt was fraudulent, not lawful. See id. (“Unlike funds in
possession of a bank president or a teller, the funds [defendant]
stole were not entrusted to her in any capacity whatever for the
use and benefit of [her employer].”).
III.
For the foregoing reasons, Martinez’ convictions are AFFIRMED
IN PART and VACATED IN PART. This case is remanded to district
court for resentencing consistent with this opinion.
AFFIRMED IN PART; VACATED IN PART; REMANDED
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