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                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 12-13702
                             Non-Argument Calendar
                           ________________________

                  D.C. Docket No. 3:11-cr-00216-MMH-MCR-1


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

DEBORAH M. TOWNSEND,

                                                              Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                (April 8, 2013)

Before CARNES, BARKETT and FAY, Circuit Judges.

PER CURIAM:

      Deborah Townsend appeals her convictions for theft of government

property, in violation of 18 U.S.C. § 641 (Count 1); and Social Security fraud, in
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violation of 42 U.S.C. § 408(a)(4) (Count 2). For the reasons set forth below, we

affirm Townsend’s convictions.

                                         I.

      At trial, Robert Matthews, a claims representative for the Social Security

Administration (“SSA”), testified that Townsend received Social Security

disability insurance benefits (“DIB”). DIB recipients were required to report to the

SSA their employment, and the Internal Revenue Service (“IRS”) also provided

the SSA with DIB recipients’ available employment information. Townsend

reported to the SSA that she had begun working for Palm Coast Flooring Outlet

(“Palm Coast”) in June 2006. The SSA received a complaint from someone who

suspected fraud related to Townsend working while still receiving DIB. In

connection with the complaint, the SSA sent a request for information to Palm

Coast, which subsequently indicated that it had employed Townsend from May 23,

2002, to June 20, 2006. Matthews testified that, had Townsend reported her

employment in 2002 to the SSA, she would have stopped receiving DIB in

February 2004, and her benefits would have been terminated in November 2006,

rather than March 2011. Although Townsend was not automatically ineligible for

DIB by working at Palm Coast, her income exceeded the relevant work limits set

by the SSA for determining a recipient’s eligibility. After the government rested,

Townsend filed a motion for a judgment of acquittal on the basis that the


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government had failed to prove that she received a benefit to which she was not

entitled. The court denied the motion. The jury found Townsend guilty of both

counts of the indictment. Townsend renewed her motion, and the court denied it.

                                          II.

      On appeal, Townsend argues that the evidence at trial was insufficient to

convict her of either count of the indictment because no evidence showed that she

received DIB to which she was not entitled as a result of her employment.

According to Townsend, whether someone is entitled to DIB is dependent not just

on an individual’s work history, but rather is dependent on whether the individual’s

monthly income, except for all deductible expenses, is greater than the allowable

work limit. Townsend contends that, if an individual’s income without deductible

expenses was less than the applicable work limit, then the SSA does not cancel the

recipient’s DIB. Deductible expenses include impairment-related work expenses,

such as routine drugs and medical services. Townsend argues that the government

presented no evidence concerning Townsend’s medications or other

impairment-related work expenses, such that it could be determined whether her

earnings disqualified her from receiving benefits. Townsend contends that a

government witness at trial indicated that Townsend took several medications

during her employment and underwent radiation treatment. Townsend also argues,

for the first time, that she did not have the necessary intent to commit the offenses,


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as no evidence at trial showed that Townsend was aware that her employment

would affect her right to receive DIB.

      We review both a challenge to the sufficiency of the evidence and the

district court’s denial of a Fed.R.Crim.P. 29 motion for a judgment of acquittal de

novo. United States v. Gamory, 635 F.3d 480, 497 (11th Cir.), cert. denied, 132

S.Ct. 826 (2011). In considering the sufficiency of the evidence, we view the

evidence in the light most favorable to the government, with all inferences and

credibility choices made in the government’s favor, and affirm the conviction if,

based on this evidence, a reasonable jury could have found the defendant guilty

beyond a reasonable doubt. Id. It is not necessary that the evidence presented at

trial excludes every reasonable hypothesis of innocence or is wholly inconsistent

with every conclusion except that of a defendant’s guilt. Id. Although we

customarily review de novo the sufficiency of the evidence supporting a

conviction, where the defendant does not clearly object in the district court on a

specific basis, the district court can only be reversed on our finding of plain error.

See United States v. Joseph, No. 09-11984, manuscript op. at 17, 42 (11th Cir. Feb.

21, 2013) (reviewing for plain error a defendant’s insufficiency-of-the-evidence

argument).

      In reviewing whether the evidence is sufficient to support a conviction under

18 U.S.C. § 641, the government must establish the following three elements:


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(1) that the property belonged to the government; (2) that the defendant

fraudulently appropriated the property to her own use; and (3) that the defendant

did so knowingly and willfully with the intent either temporarily or permanently to

deprive the owner of the use of the property. United States v. McRee, 7 F.3d 976,

980 (11th Cir. 1993) (en banc). For sufficient evidence to support a conviction

under 42 U.S.C. § 408(a)(4), the government must establish that: (1) the defendant

knew of the occurrence of an event; (2) that event affected her initial or continued

right to payment of Social Security benefits; (3) she concealed or failed to disclose

the event; and (4) she had an intent to fraudulently secure payment in a greater

amount than was due or when no payment was due. 42 U.S.C. § 408(a)(4).

Because intent can be difficult to prove, the fact finder may infer it from

circumstantial evidence. See United States v. Nosrati-Shamloo, 255 F.3d 1290,

1292 (11th Cir. 2001) (addressing conviction for theft of mail, in violation of 18

U.S.C. § 1708).

      In determining a recipient’s countable earned income for the purposes of

eligibility to receive DIB, the SSA subtracts the reasonable costs to the recipient

for items and services that the recipient needs in order to work due to her

impairment. 20 C.F.R. § 416.976(a). However, the SSA indicates that it needs to

verify the recipient’s need for items or services for which deductions are claimed,




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and the amount of the charges for those items or services. Id. § 416.976(g). The

SSA also needs proof that the recipient paid for the items or services. Id.

      Here, the evidence showed that, had Townsend reported her income from

Palm Coast to the SSA, she would have stopped receiving benefits in February

2004 because she earned over the relevant work limit. However, because she did

not report her income to the SSA, she received $143,804.80 in benefits from

February 2004 to March 2011. Townsend argues that there is a possibility that,

had she had enough impairment-related expenses from 2002 to 2006 to reduce her

income below the work limits for every month for which she was employed by

Palm Coast, she would have been entitled to all of the DIB that she received,

notwithstanding the fact that she was working. Although there is evidence in the

record that Townsend was taking medication related to her impairments and that

she underwent radiation treatment at one point, no evidence at trial indicated that

she paid for the treatment herself or indicated the cost of the treatment. Further,

Matthews testified that such expenses were not automatically deductible, as a

claims representative needed to determine whether the expenses could even qualify

as deductible expenses. The SSA specifically requested from Townsend

information concerning her impairment-related expenses, but she never provided it,

such that a claims representative could review any expenses to determine whether

they were deductible. The SSA also requested to meet with her at least five times


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concerning her benefits, but she did not attend any of the scheduled appointments.

Lastly, even under her hypothetical, which she posed to Matthews at trial and

involved her having monthly impairment-related expenses of $1,500, Matthews

testified that her DIB still would have terminated in November 2006, in light of the

amount of income from her employment. Because the evidence need not exclude

every possible reasonable hypotheses of her guilt and need only be such that a

reasonable jury could find her guilty beyond a reasonable doubt, the evidence was

sufficient to show that Townsend received benefits to which she was not entitled.

See Gamory, 635 F.3d at 497.

      The evidence also was sufficient to show that Townsend knowingly

deprived the government of property and intended to fraudulently obtain DIB in an

amount greater than she was due. The evidence showed that Townsend did not

report her work with Palm Coast to the SSA until Palm Coast switched to a payroll

system, which involved Palm Coast reporting its employees’ income to the IRS.

Further, at the time that Townsend reported her employment, she misrepresented

the date she started her employment at Palm Coast, informing the SSA that she

began working for Palm Coast in June 2006, when she actually started in 2002. At

the time of her 1995 DIB application, the SSA informed her that she must report to

the SSA if she returned to work, as it may affect her eligibility to receive benefits.

Further, in 2005, the SSA again notified her that it was important that she report


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any changes concerning her return to work, and in 2006, the SSA sent her a work

history report requesting her to report her work, but she did not return the report.

She also missed several appointments with the SSA. Moreover, in 2011, she

admitted that she knew that she had to inform the SSA if she had been working.

This evidence illustrates that she knew that she should have been reporting her

work with Palm Coast to the SSA and that, by not reporting this information, she

was continuing to receive DIB to which she would not otherwise be entitled. Thus,

a reasonable jury could conclude beyond a reasonable doubt that Townsend

knowingly and willfully acted to deprive the government of property by way of

concealing her employment and intended, by fraudulent means, to continue to

receive DIB, despite knowing that she was no longer entitled to receive DIB.

Accordingly, the district court did not commit error, much less plain error, in

denying her motion for a judgment of acquittal based on her argument that the

evidence was not sufficient to establish intent.

      For the foregoing reasons, we affirm Townsend’s convictions.

      AFFIRMED.




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