United States Court of Appeals For the First Circuit

No. 16-1300

UNITED STATES OF AMERICA,

Appellee,

v.

RAÚL DOMÍNGUEZ-FIGUEROA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Howard, Chief Judge, Torruella and Lynch, Circuit Judges.

Heather Clark and Clark Law Office on brief for appellant. Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States Attorney, on brief for appellee.

August 9, 2017 LYNCH, Circuit Judge. A jury convicted Raúl Domínguez-

Figueroa of three charges stemming from a fraudulent scheme to

obtain disability benefits from the Social Security Administration

("SSA"). He now appeals from both his convictions and his

sentence. Finding no merit to his arguments, we affirm.

I.

Domínguez is a lifelong resident of Ciales, Puerto Rico

and worked there from 1993 until 2010 as a welder for Thermo King,

a manufacturer of refrigeration units for tractor-trailers.

Between April 2008 and January 2009, Thermo King closed its Ciales

plant and transferred all the plant's employees, including

Domínguez, to a different plant in Arecibo, Puerto Rico. On

November 3, 2010, Domínguez submitted a written resignation

letter, which cited transportation problems as his reason for

resigning.

On February 8, 2011, Domínguez first visited Dr. Luis

Escabí-Pérez ("Dr. Escabí"), a psychiatrist, who had previously

worked as an SSA claims examiner -- and who would ultimately become

Domínguez's co-defendant in this prosecution. According to Dr.

Escabí's trial testimony,1 Domínguez showed symptoms consistent

with mild to moderate depression, not severe enough to prevent him

from working. Claimants are entitled to SSA disability benefits

1 Pursuant to a plea agreement, Dr. Escabí agreed to testify at Domínguez's trial.

- 2 - only if their disability is so severe that they cannot work. See

(d).

Nevertheless, Dr. Escabí further testified, he agreed to

help Domínguez obtain SSA disability benefits by (1) backdating

his first appointment to December 9, 2010; (2) exaggerating

Domínguez's symptoms, diagnosing him with severe depression, and

prescribing unnecessarily strong medications; and (3) scheduling

unnecessary monthly appointments until the SSA approved

Domínguez's application for benefits. Dr. Escabí knew, based in

part on his experience as an SSA claims examiner, that these

actions would help Domínguez obtain SSA approval for disability

benefits to which Domínguez was not entitled.2

On May 20, 2011, Domínguez applied for SSA disability

benefits via telephone. The SSA claims representative advised

Domínguez several times that the application was being submitted

under penalty of perjury. Domínguez told the representative that

his disabling depression had begun on December 9, 2010, and that

it had caused him to stop working. In July 2011, he mailed an

Adult Function Report to the SSA, using template answers provided

by Dr. Escabí that exaggerated Domínguez's true condition. On

July 24, 2011, Dr. Escabí submitted a Psychiatric Medical Report

2 Dr. Escabí's former secretary, in her own testimony at Domínguez's trial, recalled that nearly all of Dr. Escabí's patients between 2010 and 2013 were seeking Dr. Escabí's help in obtaining SSA disability benefits through fraud.

- 3 - to the SSA, in which he, too, exaggerated the severity of

Domínguez's condition. Based on all this information, Domínguez

was approved for SSA disability benefits on February 28, 2012,

with a disability onset date of December 9, 2010. He was awarded

a retroactive payment of $10,437 and prospective monthly payments

of $1,187.

In September and October 2014, SSA officers conducted

surveillance of Domínguez and interviewed him. Their

investigation revealed that Domínguez had few or no symptoms of

the severe depression he and Dr. Escabí had continued to report to

the SSA: for example, he could interact and converse normally with

others, drive a car, carry out simple chores, be outside alone,

and withstand noise. SSA officers also visited Domínguez's

Facebook page and printed out several photos, all uploaded at times

when Domínguez had told the SSA he was disabled. The photos, some

of which depicted Domínguez socializing with others, reinforced

the officers' suspicion that he and Dr. Escabí had been

misrepresenting the severity of his depression.

On January 13, 2015, Domínguez and Dr. Escabí were

jointly indicted. The counts against Domínguez included

conspiring to defraud the United States (Count One), see

, stealing government property (Count Three), see

§ 641,

and making material false statements in an application for

disability benefits (Count Five), see

(a)(2). After

- 4 - an eight-day trial, in which Dr. Escabí testified as a government

witness, the jury found Domínguez guilty on Counts One, Three, and

Five, and found that the total amount of wrongfully obtained

disability payments was $87,268.

The district court sentenced Domínguez to ten months of

imprisonment and three years of supervised release, to be served

concurrently on all three counts, and ordered him to pay $87,268

in restitution. Domínguez did not object to the sentence.

II.

As to his convictions, Domínguez argues that there was

insufficient evidence to support the jury's verdict and that it

was error to admit the Facebook printouts into evidence at trial.

Neither argument has merit.

A. Sufficiency of the Evidence

We review de novo Domínguez's preserved challenge to the

sufficiency of the evidence supporting his convictions. See United

States v. George,

(1st Cir. 2016). Viewing the

evidence in the light most favorable to the government "and taking

all reasonable inferences in its favor," we ask whether "a rational

[jury] could find, beyond a reasonable doubt, that the prosecution

successfully proved the essential elements of the crime."

(quoting United States v. Chiaradio,

(1st Cir.

2012)).

- 5 - Domínguez claims that no rational jury could have

concluded that he possessed the mens rea associated with each of

the three crimes. Specifically, he argues that there was

insufficient evidence that he had the requisite specific intent to

participate in the conspiracy to defraud the SSA (Count One) or to

steal government funds to which he knew he was not entitled (Count

Three), and that there was insufficient evidence that he knew his

false statement to the SSA was false (Count Five).

A rational jury could easily have concluded that

Domínguez knowingly committed each of his crimes. His "culpable

state of mind can be readily gleaned from 'several strands of

circumstantial evidence' presented at trial." United States v.

Troisi,

(1st Cir. 2017) (quoting United States

v. Vega,

(1st Cir. 2016)). The jury was entitled

to credit Dr. Escabí's testimony that Domínguez was a knowing

participant in the scheme, see United States v. Patel,

, 112 & n.2 (1st Cir. 2004), and to "rely on plausible

inferences" drawn from the combination of that testimony and the

government's other evidence, Vega,

(quoting United

States v. Matthews,

(1st Cir. 2007)). Indeed, the

government provided ample corroboration for Dr. Escabí's testimony

about Domínguez's criminal intent, including the fraudulent Adult

Function Report, which Domínguez completed himself, and the photos

and testimony tending to show that Domínguez was minimally impaired

- 6 - -- or not impaired at all -- while receiving SSA payments. Viewed

together, these strands of evidence justified a compelling

inference that Domínguez was a knowing participant in the

fraudulent scheme, not an innocent bystander. See Troisi, 849

F.3d at 495–96 (holding that defendant's actions "'create[d] a

strong inference that she did not care' [about the scheme's

illegality] and that she therefore 'not only knew of the fraud,

but actively played a role in directing it'" (quoting Vega,

)).

B. Admissibility of Facebook Printouts

Domínguez also argues that the district court erred by

admitting the Facebook printouts into evidence. Because the

government knew only when the photos had been uploaded to Facebook,

not when they had been taken, he argues that the printouts were

irrelevant, see Fed. R. Evid. 401, 402, or that their "probative

value [wa]s substantially outweighed by a danger of . . . unfair

prejudice," Fed. R. Evid. 403. We review these claims of

evidentiary error for abuse of discretion, mindful of the fact

that a district court's Rule 403 balancing is "subject to great

deference" on appeal. United States v. Jones,

(1st Cir. 2012) (quoting United States v. Bayard,

(1st Cir. 2011)).

There is no doubt that the printouts were relevant. The

images "d[id] not compel, but clearly permit[ted], an inference"

- 7 - that Domínguez was much healthier and more active during the

relevant years than he had led the SSA to believe.

The fact

that the government could not provide an exact date for the photos

was for the jury to weigh. As for Rule 403, Domínguez fails to

explain how the evidence caused him any unfair prejudice at all.

The printouts "were prejudicial only in the sense that they were

damaging" to Domínguez's defense; such damage "is not 'prejudice'

within the meaning of Rule 403." United States v. Pérez-González,

(1st Cir. 2006).3

Moreover, any error in admitting the Facebook printouts

was harmless. The jury had ample evidence of Domínguez's guilt,

with or without the printouts, so "it is highly probable that the

[purported] error [in admitting the printouts] did not influence

the verdict." United States v. Flemmi,

(1st Cir.

2005) (quoting United States v. Piper,

(1st Cir.

2002)).

III.

Domínguez also raises two challenges to his sentence.

He made neither objection at sentencing, and so "he faces the

3 We also reject Domínguez's argument, made for the first time on appeal, that a Facebook comment by Miralles Domínguez- Cely, included on one of the printouts, was inadmissible hearsay. The comment was not hearsay at all: the government offered it to provide context and timing for the accompanying photo, not "to prove the truth of the matter asserted" in the comment. Fed. R. Evid. 801(c)(2).

- 8 - 'heavy burden' of plain-error review." United States v. Delgado-

López,

(1st Cir. 2016) (quoting United States v.

Ramos-Mejía,

(1st Cir. 2013)). We discern no

error, much less plain error.4

A. Explanation of Supervised Release Term

Domínguez first argues that the district court

procedurally erred by failing to explain why it imposed a

supervised release term at the high end of the applicable

Guidelines range, despite imposing a prison term at the low end of

the applicable Guidelines range. See

(c) ("The

court . . . shall state in open court the reasons for its imposition

of the particular sentence . . . .");

§ 3583(c) (instructing

sentencing judges to consider specified § 3553(a) factors before

imposing a supervised release term).

The explanation was adequate. The judge confirmed that

he had considered the § 3553(a) factors, "a statement [that] is

entitled to significant weight," United States v. Santiago-Rivera,

(1st Cir. 2014), and he identified the specific

factors that he deemed most relevant, given the facts of

Domínguez's case. That explanation sufficed for both the prison

term and the supervised release term, which serve distinct

4 Because the arguments are meritless, we need not decide whether Domínguez waived them or merely forfeited them. See Delgado-López,

n.2.

- 9 - purposes, see United States v. Johnson,

, 59–60 (2000),

but are two components of a single sentence. We agree with the

Seventh Circuit that "[n]o part of § 3553(c) requires the district

court to bifurcate its consideration, discussion, and evaluation

of the § 3553(a) sentencing factors" whenever the court chooses to

impose a sentence that includes both an imprisonment component and

a supervised release component. United States v. Bloch,

(7th Cir. 2016).5

Moreover, the court's rationale is easily inferred from

the record. Domínguez's counsel argued for a sentence with a

shorter prison term and a longer supervised release term, and the

court evidently agreed. See United States v. Murphy-Cordero,

, 401–02 (1st Cir. 2013) (explaining that judge's reasoning

"can often be inferred by comparing what was argued by the parties

or contained in the presentence report with what the judge did"

5 Domínguez identifies no authority supporting his theory that separate explanations are required whenever a district court imposes a sentence involving both imprisonment and supervised release. The Seventh Circuit is just one of several that have rejected the theory. See United States v. Aplicano-Oyuela,

(4th Cir. 2015) (rejecting procedural unreasonableness challenge to supervised release term and holding that a "court's sentencing rationale . . . can support both imprisonment and supervised release"); United States v. Oswald,

(2d Cir. 2014) (unpublished summary order) (same); United States v. Clark,

, 501–03 (3d Cir. 2013) (same); United States v. Penn,

, 1011–12 (10th Cir. 2010) (same); United States v. Presto,

(6th Cir. 2007) (same).

- 10 - (quoting United States v. Dávila-González,

(1st

Cir. 2010))).

B. Lump-Sum Restitution Payment

Domínguez also argues that the district court erred by

requiring him to pay restitution in a lump sum, despite the court's

finding that he was unable to pay a fine. This argument, too, is

meritless. The record shows that the court met its obligation to

consider Domínguez's financial condition. See United States v.

Salas-Fernández,

(1st Cir. 2010) (citing

(f)(2)). And because "impoverishment today is no assurance

of future poverty," it was not error "to take into account

[Domínguez's] future earning capacity."

(citation omitted).

Should Domínguez prove unable to meet his payment

obligations, he or the probation office may ask the district court

either to set a payment plan or to modify the restitution component

of the judgment.6 See

(e)(2); United States v.

de Jesús,

, 44 n.4 (1st Cir. 2016); United States v.

Lilly,

(1st Cir. 1996).

IV.

We affirm Domínguez's convictions and sentence.

6 Modification may be necessary in any event, as the government points out, because the judgment is internally inconsistent as to the amount of restitution owed.

- 11 -