                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           NOV 23 2018
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   17-30244

              Plaintiff-Appellee,                D.C. No.
                                                 4:16-cr-00043-BMM-1
 v.

DEBORAH JOY DURAND,                              MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                     Brian M. Morris, District Judge, Presiding

                          Submitted November 5, 2018**
                                Portland, Oregon

Before: FERNANDEZ and IKUTA, Circuit Judges, and SESSIONS,*** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
              The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
      Deborah Joy Durand appeals her convictions following a bench trial for

fraudulent acts in violation of 18 U.S.C. §§ 1920, 1343, 287, and 641.

      Viewing the evidence in the light most favorable to the prosecution, a finder

of fact could reasonably determine that Durand’s statements to Dr. James Hood

regarding the extent of her impairments and pain were false. Because Dr. Hood’s

diagnosis of Durand as permanently disabled was based on her false statements,

and the government relied on Dr. Hood’s flawed diagnosis in classifying Durand as

permanently disabled, Durand was not entitled to rely on either the diagnosis or the

government’s classification. For the same reason, neither the diagnosis nor the

government’s classification constituted entrapment by estoppel which prevented

Durand from returning to work. See United States v. Batterjee, 361 F.3d 1210,

1216 (9th Cir. 2004). Because Durand had certified that she would immediately

inform the government of any improvement in her medical condition, she was not

entitled to continue collecting benefits until the government asked her for follow-

up information or offered her appropriate employment. Although Durand and her

witnesses testified that she was in fact permanently disabled, the factfinder was

free to credit the contrary evidence. See United States v. Nevils, 598 F.3d 1158,

1164–65 (9th Cir. 2010) (en banc).




                                          2
      A reasonable factfinder could also conclude that Durand was guilty of fraud

for filing 31 claims for medically-related travel reimbursement to locations that

had no corresponding records of medical appointments or prescription-pickups by

Durand. Although Durand testified that the claims she filed were legitimate

despite the lack of corresponding records, the factfinder was free to not believe her.

United States v. Williams, 435 F.2d 642, 645–46 (9th Cir. 1970). Accordingly, the

evidence introduced at trial was sufficient for a rational finder of fact to find the

essential elements of the crimes beyond a reasonable doubt. See Nevils, 598 F.3d

at 1163–65; United States v. Spears, 631 F.2d 114, 117 (9th Cir. 1980).

AFFIRMED.




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