United States v. Catone

• Decision Date: 15 October 2014
• Docket Number: No. 13–4663.,13–4663.
• Citation: 769 F.3d 866
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Joseph CATONE, Jr., a/k/a Joe, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

769 F.3d 866

UNITED STATES of America, Plaintiff–Appellee

v.Joseph CATONE, Jr., a/k/a Joe, Defendant–Appellant.

No. 13–4663.

United States Court of Appeals, Fourth Circuit.

Argued: May 14, 2014.

Decided: Oct. 15, 2014.

ARGUED:Joshua B. Carpenter, Federal Defenders of Western North Carolina, Inc., Asheville, North Carolina, for Appellant.William Michael Miller, Office of the United States Attorney, Charlotte, North Carolina, for Appellee. ON BRIEF:Ross Hall Richardson, Acting Executive Director, Federal Defenders Of Western North Carolina, Inc., Charlotte, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Office of the United States Attorney, Charlotte, North Carolina, for Appellee.

Before TRAXLER, Chief Judge, and KEENAN and FLOYD, Circuit Judges.

Opinion

Affirmed in part, vacated in part, and remanded by published opinion. Judge FLOYD wrote the opinion, in which Chief Judge TRAXLER and Judge KEENAN joined.

FLOYD, Circuit Judge:

A jury convicted Joseph Catone, Jr., of one count of making a false statement in connection with his receipt of federal workers' compensation benefits, in violation of 18 U.S.C. § 1920. The district court imposed a sixteen-month term of imprisonment and ordered Catone to pay restitution in the amount of $106,411.83. Catone now appeals his conviction, his sentence of imprisonment, and the district court's restitution order. For the reasons that follow, we affirm Catone's conviction but vacate his sentence and the restitution order and remand for further proceedings.

I.

Catone began working for the United States Postal Service in 1977. On August 2, 2006, he submitted a claim for federal workers' compensation benefits under the Federal Employees' Compensation Act based on injuries arising from extended periods of driving. The Office of Workers' Compensation Programs (OWCP) awarded to Catone benefits regarding his claim of temporary aggravation of obstructive sleep apnea

, which he began receiving in March 2007.

To verify his continued eligibility for benefits, Catone submitted a “CA–1032” form to OWCP each year. The form instructed Catone to disclose whether, in the past fifteen months, he (1) “work[ed] for any employer”; (2) was “self-employed or involved in any business enterprise”; (3) earned “monetary or in-kind compensation” for “volunteer work”; or (4) was “unemployed for all periods.” Catone submitted CA–1032 forms in April 2008 and 2009, and each time he answered “no” to the first three questions and “yes” to the fourth question. From March 2007 to September 2009, Catone received $121,729.80 in benefits from OWCP.

Catone was indicted in May 2011 on three criminal charges stemming from his receipt of federal workers' compensation benefits. The first two counts charged Catone with making false statements in connection with his receipt of benefits, in violation of 18 U.S.C. § 1920, and the third count charged him with violating 18 U.S.C. § 1001(a)(2), which makes it unlawful to “knowingly and willfully ... make[ ] any materially false, fictitious, or fraudulent statement” to a federal official. The indictment alleged that Catone failed to disclose that he was employed by, and received income from, Angelo's Maintenance for custodial work that he performed at Hayes Performing Arts Center (the Center) during the period that he obtained federal benefits. As relevant to the third count, the indictment alleged that Catone knowingly made false statements during an interview with federal agents when he reported that he had not earned any income while receiving compensation benefits. Instead, during that interview, he informed federal investigators that his wife was employed by Angelo's Maintenance as a custodian and that he occasionally assisted her with performing custodial tasks while she cleaned the Center.

At trial, the government elicited testimony from three former employees of the Center, whose testimony collectively established that Catone often assisted his wife in cleaning the Center; that Catone was not employed or paid by the Center; and that the Center contracted with Angelo's Maintenance to provide cleaning services. The government also proffered testimony from an employee at the bank where Catone and his wife maintained a joint checking account. According to his testimony, the Catones' account included three checks written directly to Catone from Angelo's Maintenance. Two of the checks predated Catone's receipt of workers' compensation benefits and the third check, which Catone received while also receiving workers' compensation benefits, was for $635. The jury convicted Catone on count one, which alleged a violation of § 1920 based upon the CA–1032 form that Catone submitted in April 2008, and acquitted him on the two remaining counts.

A presentence investigation report (PSR) prepared by a probation officer concluded that Catone's conviction under § 1920 carried a statutory maximum sentence of five years' imprisonment. The probation officer further found that Catone was responsible for a loss amount of $128,124.75, which constitutes the entire amount of benefits Catone received from OWCP. Based on the loss-amount calculation, the PSR added ten levels to Catone's offense level pursuant to U.S.S.G. § 2B1.1(b)(1)(F), which provides for such an enhancement when the loss amount is greater than $120,000 but not greater than $200,000. The PSR calculated Catone's total offense level as 16, which, combined with a criminal history category of I, yielded an advisory Guidelines range of twenty-one to twenty-seven months' imprisonment. Finally, the PSR also recommended that Catone pay restitution in the amount of $106,411.83, which constitutes the entire amount of a forfeiture imposed by the Department of Labor in an administrative proceeding.

Prior to his sentencing, Catone filed several objections to the PSR, two of which are relevant here. First, he objected to the PSR's conclusion that his sentence carried a statutory maximum of five years' imprisonment, claiming that his conviction was for a misdemeanor with a one-year maximum because the jury never determined that the amount of benefits falsely obtained exceeded $1000. Second, Catone objected to the loss-amount calculation. In his view, the loss amount should have been based on the difference between the amount of benefits that he actually received and the amount that he would have received but for the false statement. The district court rejected Catone's objections, sentenced Catone to a sixteen-month term of imprisonment, and imposed restitution in the amount of $106,411.83.

II.

We first address Catone's challenge to his conviction. Catone argues that his conviction under § 1920 should be vacated because the government failed to disclose, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), evidence that undermined the government's theory that Catone willfully concealed the work he performed for Angelo's Maintenance. Because Catone did not raise this issue below, we review the claim for plain error. See United States v. Vinyard, 266 F.3d 320, 324 (4th Cir.2001). To establish plain error, Catone must show (1) that the court erred, (2) that the error is clear and obvious, and (3) that the error affected his substantial rights, meaning that it “affected the outcome of the district court proceedings.” United States v. Olano, 507 U.S. 725, 732–34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Even when this burden is met, we retain discretion whether to recognize the error and will deny relief unless the district court's error “seriously affects the fairness, integrity or public reputation of judicial proceedings.”Id. at 736, 113 S.Ct. 1770 (brackets omitted) (internal quotation marks omitted).

Catone bases his Brady claim on a “CA–7” form that he submitted to the Department of Labor in March 2007, which disclosed that he had performed a total of 14.6 hours of work for Angelo's Maintenance at a rate of $12.00 per hour. In his view, the CA–7 form undermined the government's theory that he had been willfully concealing from the OWCP the work that he performed for Angelo's Maintenance. Catone thus argues that the government's failure to produce the form as part of discovery constitutes a Brady violation that should be noticed on plain-error review.

To prevail on a Brady claim, a defendant must show that (1) the evidence is either exculpatory or impeaching, (2) the government suppressed the evidence, and (3) the evidence was material to the defense. United States v. McLean, 715 F.3d 129, 142 (4th Cir.2013). No Brady violation exists when the evidence is “available to the defense from other sources” or through a “diligent investigation by the defense.”

United States v. Higgs, 663 F.3d 726, 735 (4th Cir.2011) (internal quotation marks omitted). Accordingly, “[p]ublicly available information which the defendant could have discovered through reasonable diligence cannot be the basis for a Brady violation.” United States v. Willis, 277 F.3d 1026, 1034 (8th Cir.2002) (internal quotation marks omitted). Evidence is “material” only if it is “likely to have changed the verdict.” United States v. Bartko, 728 F.3d 327, 338 (4th Cir.2013).

Catone's Brady violation claim fails for numerous reasons. First, to establish a Brady violation, the exculpatory material must be known to the government but not to the defendant. See United States v. Roane, 378 F.3d 382, 402 (4th Cir.2004) (“[I]nformation actually known by the defendant falls outside the ambit of the Brady rule.”). As Catone is the individual who completed the CA–7 form and submitted it to the Department of Labor, the document was already known to him. Second, the CA–7 form is a publicly available document and could have been uncovered by a diligent investigation. As a senior claims examiner at the Department of Labor testified, Catone could have obtained a copy of his entire claims file by simply submitting a written request to the Department of Labor. See United...