United States v. Rivera-Ortiz

• Decision Date: 21 September 2021
• Docket Number: No. 19-1100,19-1100
• Citation: 14 F.4th 91
• Parties: UNITED STATES, Appellee, v. Ricardo RIVERA-ORTIZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

14 F.4th 91

UNITED STATES, Appellee,

v.Ricardo RIVERA-ORTIZ, Defendant, Appellant.

No. 19-1100

United States Court of Appeals, First Circuit.

September 21, 2021

Victor J. Gonzalez-Bothwell, with whom Eric Alexander Vos, Vivianne M. Marrero, Franco L. Pérez-Redondo, Liza L. Rosado-Rodríguez, and Iván Santos-Castaldo were on brief, for appellant.

Robert Paul Coleman III, Assistant United States Attorney, with whom B. Kathryn Debrason, Assistant United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, and W. Steven Muldrow, United States Attorney, were on brief, for appellee.

Before Howard, Chief Judge, Lipez and Thompson, Circuit Judges.

LIPEZ, Circuit Judge.

After suffering a work injury as a mechanic for the United States Postal Service ("USPS"), Ricardo Rivera-Ortiz began receiving worker's compensation and Social Security disability benefits. As a condition of receiving those benefits, Rivera had to file forms indicating whether he was undertaking any work or volunteer activities. At some point, after Rivera had been receiving benefits for years, the USPS Office of the Inspector General ("OIG") began investigating his case. It determined that he had continued working and volunteering with his union, the American Postal Workers' Union ("APWU"), without disclosing those activities as required. Rivera was eventually charged with making false statements on the relevant government forms, theft of government property, and failing to disclose an event that affected his right to Social Security payments. A jury found him guilty on all counts. He now challenges the sufficiency of the evidence to support the convictions, the exclusion of certain mitigating evidence, and some aspects of his sentence. We reject these challenges and affirm in all respects.

I.

A. Factual Background

The following facts come from the testimony and exhibits presented at trial. "Since one of the claims addressed in this opinion is a challenge to the sufficiency of the evidence, we recount the facts in the light most favorable to the verdict." United States v. Paz-Alvarez, 799 F.3d 12, 18 (1st Cir. 2015).

On May 25, 2005, while working as a maintenance mechanic for USPS, Rivera tripped on a mat and fell, hurting his neck and right knee. As a result of this incident, he filed a claim for compensation and disability benefits on June 3, 2005 with the Department of Labor, Office of Workers' Compensation Programs ("OWCP"). OWCP is responsible for administering the Federal Employees Compensation Act ("FECA"), which provides replacement wages to federal employees who, like Rivera, are injured on the job and unable to work as a result. See 5 U.S.C. §§ 8102, 8145 ; 20 C.F.R. § 10.1.

Rivera's FECA claim was approved. In 2006, he began receiving regular payments. In order to confirm that he remained eligible for benefits from OWCP, he had to periodically file various forms, including CA-1032 forms. A CA-1032 form covers the 15 months prior to the date of the form's completion. As relevant here, Part A ("EMPLOYMENT") asks (1) "Did you work for any employer during the past 15 months?"; (2) "Were you self-employed or involved in any business enterprise in the past 15 months?"; and (3) "If you answered ‘No’ to both questions 1 and 2, state whether you were unemployed for all periods during the past 15 months." The accompanying Part A instructions require the report of "ALL employment for which you received a salary, wages, income, sales commissions, piecework, or payment of any kind," as well as "ALL self-employment or involvement in business enterprises," including "providing services in exchange for money, goods, or other services." This section also requires reporting of "what you were paid," including the "value of such things as housing, meals, clothing, and reimbursed expenses."

Part B ("VOLUNTEER WORK") was worded slightly differently in different versions of the form. One version asks if the beneficiary "perform[ed] any volunteer work for which ANY FORM of monetary or in-kind compensation was received[.]" Another version asks if the beneficiary "perform[ed] any volunteer work including volunteer work for which ANY FORM of monetary or in-kind compensation was received[.]" Part D ("OTHER FEDERAL BENEFITS OR PAYMENTS") requires the listing of "any benefits received from the Social Security Administration (SSA) which you receive as part of an annuity under the Federal Employees' Retirement System (FERS)." An OWCP claims examiner explained at trial that all of this information was important because (1) evidence of capacity to perform work could lead to a reduction of OWCP benefits and (2) the receipt of other benefits could trigger an offset of OWCP benefits or those other benefits, so as to avoid overpayment (i.e., double-dipping).

Separately, Rivera filed a claim on March 20, 2007 for Social Security Disability Insurance ("SSDI") benefits. SSDI benefits are paid to individuals who are unable to perform work and meet other eligibility requirements. Although Rivera had applied for SSDI benefits back in 2005, his claim was denied. An SSA-generated summary of Rivera's 2007 SSDI application¹ revealed the following: (1) he was unable to work because of his disabling condition (based on his May 25, 2005 injury), (2) he had filed or intended to file for workers' compensation, but was currently not receiving benefits, and (3) he understood that making a false statement of a material fact in his application was a criminal act. As part of his application, Rivera also submitted a work history form. As relevant here, Rivera listed his employment as a maintenance worker for USPS (from December 2003 until the time of his injury in May 2005), but did not mention any other work activities undertaken during that period.

On November 2, 2007, Rivera was notified that his SSDI claim was approved, and he began receiving disability benefits. The approval notification stated that "[t]he decisions we made on your claim are based on information you gave us" and "[i]f this information changes, it could affect your benefits." It referred to an accompanying pamphlet that provided more information on "what must be reported and how to report[,]" including on "what to do if you go to work or if your health improves." The notification also informed Rivera that "[i]f you receive workers' compensation and/or public disability payments, we may have to reduce your Social Security benefits." It therefore instructed him to "[p]lease let us know as soon a decision is made on your claim for these payments."

In 2013, after Rivera had been receiving both OWCP and SSDI benefits for some years, the USPS Office of the Inspector General began an investigation into Rivera's receipt of OWCP payments. The investigation was triggered by reports that Rivera had been present at the local USPS headquarters and meeting with other employees there in connection with APWU activities. Rivera, as it happened, had long ties to the union, having served as its president from 2002 until 2004. He had also worked as a union steward, helping represent other employees, while he was employed as a flat sorter machine operator for USPS from 1995 until 2001. OIG was interested in whether Rivera was continuing to work for the union in some capacity without reporting that work to OWCP.

The OIG investigation produced evidence that, among other things:

(a) Rivera had repeatedly visited APWU and USPS headquarters in 2011-2013. At times, according to witness testimony, he appeared to be acting as a union official while doing so. An APWU security logbook also indicated that he made many visits to APWU headquarters between February 2011 and August 2013.

(b) Rivera had performed work for the APWU. He signed a contract with the union to work as part of the Election Committee for the union's 2013 election. Moreover, Rivera had received payments from APWU in 2011-2013, including reimbursements for APWU-related travel and expenses. For example, he received $160 in wages and $68 in meals and mileage reimbursement relating to work for the APWU election committee between July 31 and August 9, 2013. He was also nominated for an OWCP-sponsored injury compensation training course in Florida, which he attended in August 2013. According to his nomination letter, this was because he "currently work[s] processing Injury Compensation cases[.]"

(c) Rivera had helped fellow employees with various labor-related issues. For example, he helped represent at least 56 postal employees in various Equal Employment Opportunity complaints filed between 2005 and 2012, assisted one employee with an injury compensation claim in 2011, and wrote to the Merit Systems Protection Board on behalf of another employee's claim in 2012.

According to the government, however, Rivera never reported on his OWCP forms that he worked for the union. Indeed, on August 8, 2013, just over a month after Rivera had filed his latest CA-1032 form, undercover OIG employees (posing as a Department of Labor contractor and a translator) met with Rivera. They asked him to complete another CA-1032 while they reviewed the instructions together. As a government investigator explained at trial, this arrangement was designed to make sure that Rivera understood the "importance of being truthful on those forms" and that there was "no doubt" in his mind about what his answers were. When the interviewer asked whether, in the past fifteen months, Rivera had performed any work for an employer, had been self-employed or involved in any business enterprise, or had performed any volunteer work, Rivera said "no" each time and indicated similarly on the form. Likewise, according to the government, Rivera never reported his work or any income to the SSA.

B. Procedural History

Rivera was indicted on August 30, 2013 and eventually tried on the following five charges:

(a) three false statements counts ( 18 U.S.C. § 1001 ), corresponding to three allegedly fraudulent CA-1032s dated June 25, 2012,

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