United States v. Perry

• Decision Date: 01 July 2014
• Docket Number: No. 13–4012.,13–4012.
• Citation: 757 F.3d 166
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Christopher George PERRY, f/k/a Christopher Parry, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

757 F.3d 166

UNITED STATES of America, Plaintiff–Appellee,

v.Christopher George PERRY, f/k/a Christopher Parry, Defendant–Appellant.

No. 13–4012.

United States Court of Appeals, Fourth Circuit.

Argued: March 20, 2014.

Decided: July 1, 2014.

ARGUED:Heather H. Martin, Quinn Emanuel Urquhart & Sullivan, LLP, Washington, D.C., for Appellant. Sandra Wilkinson, Office of the United States Attorney, Baltimore, MD, for Appellee. ON BRIEF:James D. Wyda, Federal Public Defender, Office of the Federal Public Defender, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Office of The United States Attorney, Baltimore, MD, for Appellee.

Before DUNCAN, AGEE, and WYNN, Circuit Judges.

Affirmed by published opinion. Judge WYNN wrote the opinion, in which Judge DUNCAN and Judge AGEE joined.

WYNN, Circuit Judge:

A federal jury convicted Christopher Perry of three counts of fraud related to his receipt of Social Security and healthcare benefits. On appeal, Defendant argues that the district court should have dismissed the indictment because it did not include essential elements of the fraud charges and was barred by the statute of limitations. In addition, Defendant contends that the government failed to prove that he engaged in a scheme or artifice to defraud the government. For the reasons that follow, we disagree and affirm the district court's judgment.

I.

In December 1995, Defendant applied for Social Security disability insurance benefits. In his application, Defendant agreed to report to the Social Security Administration (“SSA”) if his medical condition improved such that he could work or if he returned “to work whether as an employee or a self-employed person.” J.A. 454. SSA approved the application and found that Defendant had been eligible for disability benefits as of October 1, 1995. Sometime thereafter, in 1996 or 1997, Defendant started receiving payments.

Yet in 1996, Defendant began working at Macy's. And, with the exception of 2001 to 2004, he worked for a variety of employers including Hertz Corporation, L & J Cleaning, and Nordstrom until 2007. In 1999, SSA sent Defendant a form requesting information about his employment, but there is no record of any response. In 1999 and 2000, SSA employees added notations to Defendant's file because Defendant's posted earnings in 1997 and 1998 were above the allowable income for benefits recipients.

In January 2006, Defendant began to receive fully subsidized prescription drug benefits under the Medicare Part D program. His eligibility was based on the SSA's understanding that Defendant's only income was from his Social Security disability benefits. Later, in August 2006, Defendant received a letter from Medicare seeking to verify that he was not receiving income from sources other than his Social Security disability benefits and thus continued to be entitled to benefits. Defendant did not respond to this inquiry.

In April 2007, Defendant applied for the Low Income Subsidy (“LIS”) program. The LIS is an additional benefit for Medicare Part D beneficiaries that pays co-pays on expensive medicines for individuals with a “lack of income” and is based on an “official poverty determination.” J.A. 774. In essence, it is “an extra layer of benefit” complementing Medicare Part D prescription drug benefits. J.A. 773. Despite being employed by Hertz at the time of his application, Defendant reported that he “expect[ed] no earnings this year.” J.A. 779. In addition, Defendant stated in his application that he was receiving no income other than Social Security disability.

In June 2007, Defendant was accepted into the Federal Career Intern Program, a two-year paid training program to become a Benefits Technical Examiner with the SSA. This job involved reviewing applications for disability benefits and compiling information regarding the eligibility of individuals for disability benefits. At the time, Defendant continued submitting claims for Medicare benefits during the period from June 2007 to 2009.

In July 2007, SSA's review of IRS records reflected that Defendant was receiving income. SSA thus sent Defendant a work activity report form asking about Defendant's employment history in March 2008. Defendant completed the form and returned it in July 2008, reporting some, but not all, of his employment from the previous years.

In 2009, SSA twice sent employment inquiries to Defendant to determine whether he was receiving any work-related expenses or subsidies from SSA. Then, SSA sent Defendant a letter advising him that his benefits would cease, but also that he could submit additional evidence about his employment status within ten days. Defendant failed to respond to these inquiries, and SSA then terminated his benefits.

In March 2012, the government charged Defendant in a three-count indictment with Social Security fraud, federal health benefit program fraud, and health care fraud. Defendant moved to dismiss the indictment, and the district court denied the motion but directed the government to file a bill of particulars “to delineate specifically the employment Defendant ha[d] failed to report.” J.A. 132. The government responded by identifying Defendant's specific employers during the period that he was receiving benefits.

Defendant went to trial in September 2013. At the close of evidence, he moved for judgment of acquittal on the basis of the statute of limitations, but his motion was denied. The jury found Defendant guilty on all three counts. After the district court sentenced Defendant to concurrent terms of 24 months on Count One, 12 months on Count Two, and 24 months on Count Three, he appealed.

On appeal, Defendant argues that Counts One and Two of the indictment were unconstitutionally defective because they failed to specify the “event” that triggered his obligation to disclose his employment to the government; that the indictment failed to allege specific intent for all three counts; that the indictment failed to allege a scheme or artifice to defraud the government on Count Three; and that the indictment is time-barred by the statute of limitations. Defendant also challenges the sufficiency of the evidence on Count Three. We address each argument in turn.

II.

Defendant first contends that the district court erred in denying his motion to dismiss the indictment because Counts One and Two were unconstitutionally defective. “We review the district court's factual findings on a motion to dismiss an indictment for clear error, but we review its legal conclusions de novo.” United States v. Woolfolk, 399 F.3d 590, 594 (4th Cir.2005).

“When a criminal defendant challenges the sufficiency of an indictment prior to the verdict,”—as Defendant did here—“we apply a heightened scrutiny” to ensure that every essential element of an offense has been charged. United States v. Kingrea, 573 F.3d 186, 191 (4th Cir.2009). Specifically,

[a]n indictment must contain the elements of the offense charged, fairly inform a defendant of the charge, and enable the defendant to plead double jeopardy as a defense in a future prosecution for the same offense.... [T]he indictment must include every essential element of an offense,....

Id. (citations and quotation marks omitted); accord United States v. Resendiz–Ponce, 549 U.S. 102, 108, 127 S.Ct. 782, 166 L.Ed.2d 591 (2007).

“It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as ‘those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the [offense] intended to be punished.’ ” Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) (quoting United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1882)); accord United States v. Lockhart, 382 F.3d 447, 449 (4th Cir.2004). However, any general description based on the statutory language “must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific [offense], coming under the general description, with which he is charged.” Hamling, 418 U.S. at 117–18, 94 S.Ct. 2887 (quotation mark omitted); see also Russell v. United States, 369 U.S. 749, 765, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962) (noting that an indictment must “descend to particulars” where the definition of an offense includes generic terms (quotation marks omitted)). “Thus, the indictment must also contain a statement of the essential facts constituting the offense charged.” United States v. Quinn, 359 F.3d 666, 673 (4th Cir.2004) (quotation marks omitted).

In this case, Count One charges Defendant with Social Security fraud, in violation of 42 U.S.C. § 408(a)(4), and Count Two charges Defendant with federal health benefit program fraud, in violation of 42 U.S.C. § 1320a–7b. Both statutes penalize anyone who “conceals or fails to disclose” any event affecting his right to disability or health benefits and payments “with an intent fraudulently to secure” greater benefits or payments than are due or when no benefit or payment is authorized. 42 U.S.C. § 408(a)(4); 42 U.S.C. § 1320a–7b(a)(3).

Count One of the indictment charged that Defendant, from about 1996 through about September 2009,

having knowledge of the occurrence of any event affecting his initial or continued right to any payment under Subchapter II of Title 42 (Disability InsuranceBenefits), did conceal and fail to disclose said events with intent to fraudulently secure payment in a greater amount than is due and when no payment is authorized; to wit, the defendant concealed and failed to disclose his employment and earnings to the Social Security Administration.

J.A. 14. Similarly, Count Two charged that Defendant, from about April 1998 through about September 2009,

having knowledge of the occurrence of any event affecting his initial and continued right to any benefit and payment under a federal health care program, did...