                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 05-4805



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

           versus


BRIAN L. TRIBBLE,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. W. Craig Broadwater,
District Judge. (CR-03-64)


Argued:   September 21, 2006             Decided:    December 15, 2006


Before WILKINS, Chief Judge, KING, Circuit Judge, and HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


ARGUED: Barry Philip Beck, POWER, BECK & MATZUREFF, Martinsburg,
West Virginia, for Appellant. Paul Thomas Camilletti, OFFICE OF
THE UNITED STATES ATTORNEY, Martinsburg, West Virginia, for
Appellee. ON BRIEF: Thomas E. Johnston, United States Attorney,
Martinsburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Brian L. Tribble appeals from his convictions and sentence in

the Northern District of West Virginia on multiple counts of mail

fraud, wire fraud, and workers’ compensation fraud.1 Following his

jury trial in March of 2003, Tribble was sentenced to twenty-four

months of imprisonment, plus restitution of more than $92,000.         He

makes five contentions of error:        first, that the prosecution

constructively   amended    the   indictment;   second,   that   he   was

prejudiced by a variance between the indictment and the proof;

third, that the court erred in admitting evidence of prior acts;

fourth, that the evidence fails to support the verdict; and,

finally, that the court erroneously concluded, in calculating his

Guidelines sentencing range, that the loss caused by his criminal

activity included payments received after he had been indicted. As

explained below, we reject each of these contentions and affirm.


                                   I.

                                   A.

     Tribble began working for the United States Postal Service

(the “USPS”) in 1987.2     On June 20, 1996, while working as a mail


     1
      Tribble was convicted of twenty-six offenses: five counts of
mail fraud, in violation of 18 U.S.C. § 1341; nineteen counts of
wire fraud, in contravention of 18 U.S.C. § 1343; and two counts of
workers’ compensation fraud, in violation of 18 U.S.C. § 1920.
     2
      The factual predicate for Tribble’s convictions is drawn from
the trial record, and is spelled out in the light most favorable to
the prosecution. See United States v. Pasquantino, 336 F.3d 321,

                                    2
handler   at   a   USPS   facility   in   Dulles,   Virginia   (the   “Dulles

facility”), Tribble suffered a work-related injury to his neck,

right shoulder, and back when the door of a defective metal bulk

mail container struck his head. Claiming that this injury rendered

him unable to continue in his USPS job, he applied for compensation

benefits under the Federal Employees’ Compensation Act. On October

2, 1996, it was determined that Tribble’s injuries were such that

he could not perform any aspect of his job.         Thereafter, on January

30, 1997, the Department of Labor (the “DOL”) Office of Workers’

Compensation Programs (the “OWCP”) approved his claim and notified

Tribble that he was entitled to compensation benefits.

     As a recipient of federal workers’ compensation benefits,

Tribble was required to periodically file with the OWCP its Form

EN1032, on which he was obliged to report any employment he had

undertaken or income he had earned in the preceding fifteen months.

Each Form EN1032 required that Tribble acknowledge his obligation

to “immediately report to OWCP any improvement in [his] medical

condition.”    J.A. 699.3    Tribble would receive each Form EN1032 by

mail from the OWCP, and he returned the completed Forms to the OWCP

in the same manner.       At no time during his receipt of compensation




332 (4th Cir. 2003) (en banc).
     3
      Citations herein to “J.A. ___” refer to the contents of the
Joint Appendix filed by the parties in this appeal.

                                      3
benefits    did    Tribble     report       any    improvement        in   his   medical

condition.

     In 2001, in connection with a request from Tribble that the

OWCP pay for treatments on his lower back, the OWCP referred him

for an independent medical examination.                    On June 5, 2001, Dr.

Ernest Rubbo evaluated Tribble and determined that he was able to

return     to    work,    subject      to       certain   restrictions.             Those

restrictions included sitting, reaching, or climbing no more than

four hours per day; and pushing, pulling, or lifting no more than

twenty-five pounds.           Dr. Rubbo did not indicate that Tribble’s

ability to drive an automobile was limited.

     After Dr. Rubbo decided that Tribble could perform restricted

work, the USPS, on October 4, 2001, offered Tribble a limited-duty

position    at    the    Dulles   facility,         tailored     to    his   particular

limitations.      A commute to the Dulles facility would have required

Tribble to drive approximately forty-nine minutes each way from his

home in Rippon, West Virginia.                  Tribble declined the job at the

Dulles facility, however, asserting that his medical condition made

him unfit for the daily commute.                  In support of his decision, he

submitted a statement from his attending physician that “any long

drive [would] be bothersome to his sciatic nerve,” and another

statement       from    his   family     physician        that    he       “would   have

considerable pain if required to drive that far.”                      J.A. 890, 900.




                                            4
                                          B.

     On December 4, 2003, Tribble was indicted by the grand jury in

northern West Virginia on charges arising from the fraudulent

receipt of federal workers’ compensation benefits. See J.A. 19-34.

The Indictment specified that Tribble had suffered a work-related

injury on June 20, 1996, and that it had been determined that he

was unable to perform his job with the USPS.                  It charged that,

beginning on or about December 2, 2000, Tribble had devised a

scheme and artifice to defraud the DOL and the USPS by making

material and false representations concerning his medical condition

(the “Scheme”).       As part of the Scheme, Tribble allegedly had

committed mail fraud by using the mail to receive blank Forms

EN1032 from the OWCP and send fraudulently completed Forms to the

OWCP; federal workers’ compensation fraud by submitting fraudulent

Forms   EN1032     without    reporting        improvements   in   his   medical

condition;   and    wire     fraud   by    receiving   workers’    compensation

payments via wire transfers to his bank account.

     Beginning on March 28, 2005, the district court conducted a

four-day jury trial on the twenty-six counts in the Indictment.

The Government presented, inter alia, evidence of Tribble’s general

capacity to perform work, evidence directed toward his ability to

drive long distances, and evidence that he had planned to defraud

the workers’ compensation system.




                                          5
                                     1.

       The prosecution’s evidence of Tribble’s capacity to perform

strenuous    physical   activity    included       the   following:       Alfonzo

Painter, a coworker of Tribble’s at the Dulles facility, testified

that   the   week   after   Tribble’s       1996   injury,   he   had   performed

substantial handiwork on Painter’s house with no sign of pain or

physical limitation.         David Leroy, a neighbor of Tribble’s in

Rippon, testified that, in the summer of 2001, he paid Tribble to

install siding, and over the years saw Tribble perform extensive

gardening and yard work. Multiple witnesses testified that Tribble

regularly hunted deer and fished while receiving compensation

benefits.     Special Agent David Stelzer of the USPS’s Inspector

General (the “IG”) testified that, in August of 2003, Tribble went

on an all-day deep-sea fishing expedition, during which he caught

and handled several large fish (including a forty-pound amber jack)

with no sign of pain.       The jury saw video from that expedition, and

heard testimony from another government investigator that Tribble

appeared physically robust while fishing, expressing an interest in

continuing even after other participants had become fatigued and

asked to return to shore.        Stelzer further testified that, on the

long automobile trip from West Virginia to the fishing expedition,

Tribble had stopped at his brother’s residence in Portsmouth,

Virginia, and performed construction work on a nearby home; and

that, on the return leg of that trip, Tribble stopped again to help


                                        6
replace gutters and downspouts at his brother’s Portsmouth home.

Finally,    IG     Analyst      Bruce    Barry,    who   posed    as   a   prospective

employer    and      interviewed        Tribble,    testified    that      Tribble    had

discussed      a    trip   to   his     parents’    home   in    Kitty     Hawk,   North

Carolina, after his deep-sea fishing trip, during which he spent

three   days       clearing     large    trees     and   other   debris     left     by   a

hurricane.

                                            2.

     The prosecution also introduced evidence that Tribble was able

to drive the distance from Rippon to the Dulles facility.                      Special

Agent Stelzer testified that Tribble had, on multiple occasions,

driven approximately two hours and forty minutes to Pendleton

County, West Virginia, to hunt deer. Stelzer also related that, in

late August and early September 2003, Tribble, in the course of his

deep-sea fishing trip, had driven approximately five hours to his

brother’s home in Portsmouth, another hour-and-a-half from there to

his parents’ home in Kitty Hawk, back to Portsmouth, and then back

home to Rippon.            IG Analyst Barry testified that, by Tribble’s

account, he had driven all night (from 12:30 a.m. until 7:30 a.m.,

with a brief break at his brother’s home) to Kitty Hawk to help his

parents clean up hurricane debris; and that he had driven to

Warrenton, Virginia (fifty minutes from Rippon) to hunt. Tribble’s

wife testified that he makes the drive to Kitty Hawk approximately

three times each year; that he can drive from Rippon to Warrenton;


                                            7
and that they had recently taken a driving vacation to Wisconsin.

In   an    October     23,    2003    exchange      with    another     undercover

investigator, Tribble asserted that he could drive about forty-five

minutes — approximating the commute to Dulles that Tribble, in

2001,     had   told   the   USPS    he   could   not   endure.       Importantly,

Tribble’s wife worked at the Dulles facility, and he was able,

during the period after his injury, to regularly drive her to work

and return to pick her up.

                                          3.

      The Government also presented evidence that Tribble planned to

defraud the federal workers’ compensation program.                    In September

1996, shortly after his injury and a month after their divorce,

Tribble told his ex-wife that postal inspectors were likely to

visit her, and that if she said nothing to them, she and Tribble

could receive five million dollars.                 IG Analyst Barry, working

undercover as an outfitter of hunting and fishing expeditions,

pretended to be interested in hiring Tribble.                 Tribble expressed

interest to Barry in working as a hunting guide or a crew member on

a fishing boat, but refused to begin work until after he received

an   expected     disability    retirement        award,   stating    that   to    do

otherwise might jeopardize his benefits.

      Robin Blake of the DOL’s Inspector General posed as a nurse

conducting an OWCP-ordered medical evaluation of Tribble.                         She

examined and interviewed Tribble on October 23, 2003, shortly after


                                          8
his deep-sea fishing expedition and his trip to remove his parents’

hurricane debris.   Tribble advised Blake that he could no longer

hunt or fish, could undertake physical activity for brief periods

of time only, and had “been reduced to a couch potato.”       J.A. 311.

Tribble also informed Blake that he wanted to receive a disability

retirement award, but not until December 5, 2003, when he would

reach twenty years’ employment with the USPS.            Tribble sought

favorable treatment from Blake on his benefits claim, and told her

that, if he did not receive it, he would complain that the claim

had been handled in an inappropriate manner.

                                  4.

     Tribble’s   evidence   consisted   primarily   of   testimony   from

various medical personnel.     Dr. Albert Thomas, a pain management

specialist who examined Tribble in March of 2003, testified that

Tribble suffered pain in his lower back and that he had recommended

Tribble continue to observe light duty restrictions.             Elaina

Putrello, a physical therapist who examined Tribble in February of

2004, testified that he could lift, push, pull, and carry less at

the time she examined him than he could in 1999.            Dr. Belote,

Tribble’s primary care physician, testified that Tribble’s physical

condition had declined from 1999 to 2004, and that even if Tribble

could occasionally drive forty-five minutes or more, he was unable

to do so on a daily basis.




                                  9
                                  5.

     Tribble’s constructive amendment and prejudicial variance

contentions are first raised on appeal, not having been presented

to the district court and preserved at trial.          As a result, two

aspects of the trial proceedings that were peripheral at the time

are now more significant.     First, in his opening statement, the

prosecutor, Assistant United States Attorney (“AUSA”) Camilletti,

discussed the issue of whether Tribble had suffered a work-related

injury, stating as follows:

     Some of you are going to decide [Tribble] received a work
     related injury, and that’s fine. Some of you are going
     to decide he didn’t get any injury, and that’s fine.
     What the Government is saying is that Mr. Tribble can get
     himself to work. And we’re going to put on evidence to
     convince you that he can get himself to work.

J.A. 55. Second, during the presentation of the Government’s case,

another prosecutor, AUSA Morgan, questioned John Peters, Tribble’s

former    supervisor   at   the   Dulles   facility,     regarding   the

circumstances surrounding Tribble’s injury.       Morgan first asked

about a letter Tribble had been presented around the time he was

injured, notifying him that he could be terminated for chronic

absenteeism.   Peters responded that Tribble refused to accept the

letter.   When the letter was admitted into evidence, the following

exchange ensued:

     Q:   The defendant was injured at the [Dulles] center?

     A:   No, he was not.



                                  10
     Q: Do you know when that happened in relation to him
     being provided with a notice of this removal?

     A: A matter of minutes, I think.       Within the hour after
     this letter was issued.

J.A. 100.

     On March 31, 2005, after considering the trial evidence and

the instructions, and deliberating for approximately an hour, the

jury convicted Tribble on all twenty-six counts.

                               C.

     At sentencing, the district court was obliged to calculate the

pecuniary loss Tribble’s offenses had caused (in order to ascertain

his offense level and to decide on restitution).      In this regard,

Tribble suggested that the amount of loss should not include

benefits he received after being indicted on December 4, 2003.      In

support of that view, he advised the court that he had sought

guidance from the Probation Office after the Indictment, concerning

what he should do with the compensation payments he continued to

receive.    Tribble did not advise the court of any guidance he

received, but he continued to accept compensation payments.

     The court found that the amount of loss caused by Tribble’s

offenses included payments received from October 2001, when Tribble

declined the USPS’s limited-duty job offer, through the date of his

convictions, totalling $92,082.        The court sentenced Tribble to




                                  11
restitution of that amount, in addition to twenty-four months of

imprisonment.4

     Tribble has appealed his convictions and sentence, and we

possess jurisdiction under 28 U.S.C. § 1291.


                                  II.

     When an appellant has failed to first present his contentions

of error to the district court, we review them for plain error

only.    See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S.

725, 731-32 (1993). A defendant seeking to overturn a ruling under

the plain-error test bears the burden of showing (1) that an error

occurred, (2) that it was plain, and (3) that it affected his

substantial rights.     Olano, 507 U.S. at 732.   In any event, the

correction of plain error lies within our discretion, which we


     4
      The appellate briefs do not reflect, nor can we accurately
discern from the Joint Appendix, exactly how much of the loss
amount of $92,082 was attributable to benefits Tribble received
after the Indictment. The court, however, calculated the loss as
the sum of all benefits Tribble received from October 2001 through
March 2005, and approximately forty percent of that period was
after Tribble’s December 2003 indictment.       From that, we can
conclude that if Tribble’s post-indictment benefits had been
excluded from the loss amount, his offense level would likely have
fallen from fifteen to thirteen.    See Presentence Investigation
Report 9 (J.A. 970) (adding eight levels to Tribble’s base offense
level of seven, because loss was between $70,000 and $120,000);
U.S.S.G. § 2B1.1(b) (2004) (providing for offense level increase of
eight where loss is between $70,000 and $120,000, but only six
where loss is between $30,000 and $70,000). An offense level of
thirteen, along with Tribble’s criminal history category of I,
would produce an advisory Guidelines range of twelve to eighteen
months, rather than the range of eighteen to twenty-four months
that resulted from the sentencing court’s computation.          See
U.S.S.G. ch. 5, pt. A (2004) (sentencing table).

                                  12
“should not exercise . . . unless the error seriously affects the

fairness, integrity or public reputation of judicial proceedings.”

Id. (internal quotation marks and alteration omitted).

       We review a trial court’s rulings on admissibility of evidence

for abuse of discretion, and find error only if such a ruling was

“arbitrary and irrational.”            United States v. Chin, 83 F.3d 83, 87

(4th   Cir.    1996).      In   reviewing      a   contention      concerning   the

sufficiency of evidence in support of a conviction, we view the

evidence in the light most favorable to the Government, and inquire

whether there is evidence that a reasonable finder of fact could

accept as adequate and sufficient to establish the defendant’s

guilt beyond a reasonable doubt.              See United States v. Burgos, 94

F.3d 849, 862 (4th Cir. 1996) (en banc); see also Glasser v. United

States, 315 U.S. 60, 80 (1942) (“The verdict of a jury must be

sustained if there is substantial evidence, taking the view most

favorable to the Government, to support it.”).                  Finally, we review

de novo a sentencing court’s interpretation of what constitutes a

“loss” under the Guidelines.             United States v. Hughes, 401 F.3d

540, 557 (4th Cir. 2005).             If the Guidelines have been correctly

applied,      we   will,   in   the    absence     of   clear    error,   accept   a

sentencing court’s calculation of loss.                 Id.




                                         13
                                   III.

                                    A.

     In pursuing this appeal, Tribble first contends that his

convictions   should     be     reversed      because   the     Government

constructively amended the Indictment against him.          The Indictment

specified that Tribble had suffered a workplace injury, and Tribble

contends   that   AUSA     Camilletti      constructively     amended   the

allegations by telling the jury, in his opening statement, that it

could convict even though “[s]ome of you are going to decide he

didn’t get any injury.”       J.A. 55.     Tribble’s contention in this

regard is without merit.      In United States v. Floresca, 38 F.3d 706

(4th Cir. 1994), we discussed the applicable standard for whether

an indictment has been constructively amended. We there recognized

that “[a] constructive amendment to an indictment occurs when

either the government (usually during its presentation of evidence

and/or its argument), the court (usually through its instructions

to the jury), or both, broadens the possible bases for conviction

beyond those presented by the grand jury.”        38 F.3d at 710.5

     AUSA Camilletti’s statement to the jury (to which no objection

was made) was not a constructive amendment because it did not

broaden the possible bases on which the jury could have convicted

Tribble. Notably, Camilletti did not advise the jury that it could



     5
      There is no dispute in this proceeding as to the adequacy and
correctness of the jury instructions.

                                    14
convict Tribble based upon a finding that he did not sustain the

initial injury claimed.     What he said was quite different:       that

whether Tribble had suffered an injury in the first place was

immaterial to proving the essential elements of the offenses

charged.    And, in that regard, he was correct.        The Indictment

specified that Tribble “suffered a work-related injury,” but only

as prefatory factual information in its Introduction. J.A. 19. As

such, the jury was not obliged to determine, in order to convict,

that Tribble had actually suffered the workplace injury mentioned

in the Indictment.   See United States v. Sarihifard, 155 F.3d 301,

309-10 (4th Cir. 1998) (noting that conviction requires only that

jury unanimously find elements of offenses charged, not that it

find every aspect of indictment to be true).        Since the jury was

not required to find that Tribble had suffered a work-related

injury,    Camilletti’s   reiteration   of   that   point   was   not   a

constructive amendment.     And, because there was no error in this

regard, Tribble is unable to satisfy the plain error standard of

review.    See United States v. Olano, 507 U.S. 725, 732 (1993)

(establishing that existence of error is first essential element of

plain error).

                                  B.

     In a closely related contention, Tribble maintains that, even

if the Government did not constructively amend the Indictment, it

prejudiced his trial by attempting to prove facts that materially


                                  15
varied from those alleged.       In this regard, he contends that the

prosecution actually sought to prove that he did not suffer the

work-related injury specified.      This contention is also misplaced,

however, and so we reject it as well.

     The Government’s theory of Tribble’s guilt was that, during

the period after he declined the USPS’s limited-duty job offer at

the Dulles facility, he improved enough to be able to commute to

Dulles, and that he failed to report to the USPS that his medical

condition had improved.       Tribble acknowledges on appeal that the

Government’s proof focused on his ability to drive; indeed, he

cites five instances in the Government’s opening statement, and

five in its closing argument, in which the prosecution asserted

that Tribble’s guilt was established because he “could get himself

to work.”    Appellant’s Br. 25-26 (citing J.A. 55, 65, 67, 69, 644,

652, 653, 654, 656, 657).      By contrast, the record is void of any

support for Tribble’s view that the Government sought to prove he

was never injured.        Tribble relies on the prosecution’s opening

statement,   but   AUSA    Camilletti’s   assertions   therein   were   not

inconsistent with the allegations of the Indictment.

     Tribble also points to the testimony of John Peters, one of

his supervisors at the Dulles facility.         When AUSA Morgan asked

Peters, “The defendant was injured at the center?” Peters replied,

“No, he was not.”     But when Morgan asked Peters when Tribble’s

injury had occurred, Peters responded that it occurred “[w]ithin


                                    16
the hour” after Tribble received the letter notifying him that his

attendance    at    work   was    unsatisfactory.         J.A.    100.     Shortly

thereafter, on cross-examination, Peters again acknowledged that

Tribble had been injured.          Id. at 101.      Thus, the Government did

not assert that Tribble had suffered no injury at all, and Peters

did not take that position.            Since Tribble’s contention that the

prosecution tried to show he was never injured is inconsistent with

the record, the proof did not vary from the Indictment.                    And, as

noted above, supra Part III.A, the absence of any error terminates

our plain error analysis in the Government’s favor. See Olano, 507

U.S. at 732.

                                        C.

     Tribble’s third contention of error relates to the trial

court’s decision to admit evidence of Tribble’s conduct that

occurred prior to the beginning of the Scheme.                     The Indictment

charged    that    the   Scheme   began   on     December    2,    2000,   and   the

Government presented evidence of actions Tribble took before that

date, including renovations he performed on his neighbor’s house,

and his statement to his ex-wife that if she said nothing to

inquiring    postal      inspectors,    they     could   receive    five   million

dollars.     Tribble moved to exclude this evidence on the basis of

Federal     Rule   of    Evidence      404(b),    which     makes    inadmissible

“[e]vidence of other crimes, wrongs, or acts . . . to prove the

character of a person in order to show action in conformity


                                        17
therewith.” The court ruled, however, that the pre-Scheme evidence

was not offered to prove character, but to “lay the foundation as

to how [Tribble] got where he was in 2000,” when the Scheme began.

J.A.   46.      Thus,      the   court   concluded     that    such    evidence    was

“admissible     for     other    purposes”      than   proof   of     character,    as

contemplated in Rule 404(b).             In so ruling, the court relied on

United States v. Chin, where we determined that Rule 404(b) does

not bar the admission of evidence of acts that are “inextricably

intertwined”     with      or    “necessary     preliminaries”        to   the   crime

charged.     83 F.3d 83, 88 (4th Cir. 1996).             In this situation, the

court was well within its discretion in ruling that the evidence of

Tribble’s pre-Scheme conduct satisfied that standard.

       Tribble contends that the trial court’s ruling was erroneous,

but the basis for that contention is one we have already rejected.

He maintains that the only purpose for the evidence of his pre-

Scheme conduct was to show that he was never injured in the first

place.       Thus,    in   his   view,    the   pre-Scheme      evidence     was   not

inextricably intertwined with, or a necessary preliminary to, the

Scheme.      As we have already explained, however, the record belies

Tribble’s position that the Government sought to show he was never

injured.      See supra Part III.A-B.            And the trial court’s ruling

that the pre-Scheme evidence would assist the jury in understanding

the offenses charged was neither arbitrary nor irrational.                         The

pre-Scheme evidence was part and parcel of Tribble’s general course


                                          18
of     conduct   during   the   Scheme,    and    was   thus    “inextricably

intertwined” with the Scheme itself.         As a result, such evidence

helped place the Scheme in context, and it shed light on the

motives underlying the offenses charged.           Cf. Old Chief v. United

States, 519 U.S. 172, 186-89 (1997) (explaining importance of

narrative integrity in admissibility determinations).                In these

circumstances, the trial court did not abuse its discretion in

admitting evidence of Tribble’s pre-Scheme conduct.

                                      D.

       Tribble’s   next   appellate    contention       is   that   there   was

insufficient evidence to support the verdict of the jury.                In this

regard, Tribble maintains that the jury was not entitled to find

that he had misrepresented his ability to commute to the Dulles

facility, because even though the Government presented evidence of

his ability to drive long distances, the evidence was insufficient

to show that he could do so on a daily basis.           He also asserts that

the evidence established that his medical condition had worsened

during the time he received compensation benefits, and the jury

thus    could    not   reasonably   find   that    he    failed     to   report

improvements in his medical condition to the OWCP.                As explained

below, we reject both assertions.

       First, there was ample evidence for the jury to conclude that

Tribble misrepresented his ability to commute to Dulles. In making

the contrary assertion, Tribble relies on Dr. Belote, his primary


                                      19
care   physician,   who   testified    that    Tribble     could   drive   long

distances occasionally, but could not do so every day.               The jury,

however, was not obliged to credit that testimony. The prosecution

presented evidence that Tribble could and did drive long distances

with no apparent limitations, and that he intended to defraud the

workers’ compensation program.             The Government’s evidence also

showed that Tribble had misled his medical care providers in order

to obtain diagnoses that would support his receipt of compensation

benefits.    On that basis, the jury was entitled to find that Dr.

Belote, even if testifying in good faith, had been misled by

Tribble and that his evidence was not reliable.

       Second, Tribble maintains that there was insufficient evidence

that he failed to report improvements in his medical condition,

because   his   doctors   had   testified     that   his   overall    physical

condition actually worsened during the time he received benefits,

and the Government did not present contradictory evidence.                  His

contention in this regard misses the point of the prosecution,

however, which focused not on his general physical condition, but

rather on his ability to drive himself to a USPS job at the Dulles

facility.    The evidence showed that, in 2001, Tribble advised the

USPS he could not take a job at Dulles because he could not

tolerate the necessary driving; that at some point thereafter he

was able to tolerate such driving; and that he never told the

Government that his ability to drive was better than he had


                                      20
reported in 2001.     Whatever the trajectory of Tribble’s overall

physical state, the jury was entitled to conclude that he failed to

report an improvement in his ability to drive to work.      There is

accordingly no merit in Tribble’s contention on this point.

                                 E.

     Finally,   Tribble   maintains    that,   in   connection   with

sentencing, the district court erred in computing the amount of

loss his offenses had caused, because its calculation of loss

included benefits he received after he was indicted.      He asserts

that the correct measure of loss is the reasonably foreseeable

pecuniary harm resulting from his offenses, and that it was not

reasonably foreseeable that the Government would continue to pay

benefits to him after he was indicted.   Tribble thus contends that

the court’s loss computation should properly have included only

those benefits paid prior to his indictment.

     Tribble’s contention on this point must also be rejected,

because the sentencing court correctly applied the Guidelines in

its handling of this issue.     Under the Guidelines, the “actual

loss” caused by an offense is “the reasonably foreseeable pecuniary

harm that resulted from the offense.”    U.S.S.G. § 2B1.1, comment.

(n.3(A)(I)) (2004).   In this situation, it was entirely reasonable

for Tribble to foresee that he would continue to receive benefits

until he was actually convicted.      Like any accused, a defendant

charged with workers’ compensation fraud is innocent until proven


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guilty.   Consistent therewith, the pertinent statute requires that

compensation benefits be terminated when a beneficiary is convicted

of a fraud scheme relating thereto.          See 5 U.S.C. § 8148(a).6

Tribble has failed to explain why the OWCP was required to deviate

from that procedure here.      Indeed, he does not contend that the

OWCP (or any other government agency) gave him any basis for such

an expectation. As a result, this final contention is also without

merit.


                                  IV.

     Pursuant   to   the   foregoing,   we   reject   Tribble’s   various

assignments of error and affirm his convictions and sentence.



                                                                  AFFIRMED




     6
      Pursuant to the applicable statute, “[a]ny individual
convicted of a violation of section 1920 of title 18 [workers’
compensation fraud] . . . shall forfeit (as of the date of such
conviction) any entitlement to any benefit such individual would
otherwise be entitled to under this subchapter or subchapter III
[including the federal workers’ compensation benefits Tribble
received] for any injury occurring on or before the date of such
conviction.” 5 U.S.C. § 8148(a).

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