                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                      UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT                   August 21, 2003
                            ___________________
                                                               Charles R. Fulbruge III
                                  No. 02-41461                         Clerk
                              ___________________

                         UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                    versus

                           BEATRICE B. MARTINEZ,

                                             Defendant-Appellant.
_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                         (C-02-CR-96-1-S)
_______________________________________________________________

Before KING, Chief Judge, and HIGGINBOTHAM and BARKSDALE, Circuit
Judges.

PER CURIAM:*

       Beatrice Martinez appeals her convictions for failing to

disclose an event affecting her right to Supplemental Security

Income,      in   violation    of   42   U.S.C.   §   1383a(a)(3)(A),      and

embezzlement from a federal agency, in violation of 18 U.S.C. §

641.       At issue is whether the evidence was sufficient for each

conviction.       AFFIRMED IN PART; VACATED IN PART; REMANDED.




       *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                                     I.

     In 1989, 1990, and April 1992, Martinez applied to the Social

Security Administration (SSA) for Supplemental Security Income

(SSI).   On each occasion, her application was rejected because her

husband’s income was too high.

     Martinez     again   applied     in   July    1992   (prior   to   that

application, an Administrative Law Judge had determined Martinez

was disabled).    That application was again denied due to Martinez’

husband’s income.

     On 21 April 1995, when Martinez filed a fifth SSI application,

she stated to the SSA that her husband had moved out of their house

on 1 April.    Although she stated the husband would continue to pay

bills, her resulting loss of income qualified her for SSI.              She

began to receive it on 1 May.       During the earlier 21 April meeting,

Vicent, an SSA representative, had explained to Martinez that she

could not qualify for April benefits because her husband had lived

in the house for one day that month.

     In July 1995, Vicent asked Martinez whether her circumstances

had changed since 1 May.      No record exists of Martinez’ response

(file was lost), but the SSA took no steps then to terminate her

benefits.     Martinez continued to receive SSI.

     In October 2000, Hurd, another SSA representative, spoke with

Martinez to review her SSI eligibility.           Martinez told Hurd:    her

husband had moved back into their house on the weekend following


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her April 1995 application (before 1 May); they had co-habitated

since then; and, during her July 1995 conversation with Vicent,

Martinez had told Vicent about her husband’s return.

     Martinez was indicted for:    (1) failing to disclose an event

affecting her right to SSI; and (2) embezzlement.    The Government

presented, inter alia, Vicent’s testimony that:    although she did

not specifically remember doing so with Martinez, it was Vicent’s

standard practice to tell applicants they must report any change of

circumstance; and she would have terminated Martinez’ eligibility

had Martinez told her in July 1995 about her husband’s return.

Martinez did not testify; nor did she call any witnesses.    A jury

found her guilty on both counts; she was sentenced, inter alia, to

five-years probation and restitution in the amount of the SSI paid

— $21,476.60.

                                  II.

     Martinez maintains the evidence was insufficient to support

either the failure-to-disclose or embezzlement conviction.       In

reviewing sufficiency of the evidence, we determine, after viewing

all the evidence and reasonable inferences drawn therefrom in the

light most favorable to the verdict, whether a reasonable juror

could find the evidence established guilt beyond a reasonable

doubt.   E.g., United States v. Bieganowski, 313 F.3d 264, 275 (5th

Cir. 2002), cert. denied, 123 S. Ct. 1956 (2003).      “[I]n a case

depending on circumstantial evidence[,] if ‘the evidence viewed in


                                   3
the light most favorable to the prosecution gives equal or nearly

equal circumstantial support to a theory of guilt and a theory of

innocence’, a defendant is entitled to a judgment of acquittal”.

Id. (quoting United States v. Brown, 186 F.3d 661, 664 (5th Cir.

1999)).

                                A.

     To convict under § 1383a(a)(3)(A), “the government must show

... the defendant knew [s]he was legally obligated to disclose

certain information”. United States v. Phillips, 600 F.2d 535, 536

(5th Cir. 1979) (construing then 42 U.S.C. § 408(d) which is

similar to § 1383a(a)(3)(A)).   Moreover, the Government obviously

must prove the defendant failed to disclose that information.

Finally, it must prove “the defendant knew that by withholding the

information [s]he would receive greater payments than [s]he was

entitled to”. Id. Martinez contends the Government’s evidence did

not establish any of these elements.

                                1.

     Vicent testified that she customarily advised SSI applicants

of their obligation to report changes of income and whether anyone

moved into, or out of, their house.     Although Vicent could not

specifically remember advising Martinez of that obligation, there

was no testimony indicating Martinez’ application was an exception

to the customary practice.      Based on Vicent’s uncontroverted

testimony, a reasonable juror could find, beyond a reasonable


                                 4
doubt, that Martinez had been told of her obligation to report her

husband’s return.

                                      2.

       Vicent also testified that, had Martinez told her in July 1995

that her husband had returned, Vicent would have taken action to

avoid Martinez’ being overpaid.             Yet, no record was made and

Martinez continued to receive benefits.

       Hurd testified about her 2000 conversation with Martinez,

during which Martinez had told Hurd that she had told Vicent that

her husband returned immediately after the April 1995 application.

Martinez seeks benefit from this testimony.                   However, viewing

credibility choices in the light most favorable to the verdict, see

e.g., United States v. Griffin, 324 F.3d 330, 356 (5th Cir. 2003),

it was not unreasonable for the jury to reject Martinez’ self-

serving statement to Hurd.

       Martinez also points out that:             the lost July 1995 review

asked Martinez whether anyone had moved into her house as of 1 May

1995; and Martinez’ husband had returned prior to that date.             While

this may show Martinez did not affirmatively lie to Vicent in July

1995, it does not bear on Martinez’ failure otherwise to disclose

that information.

       Restated, when viewed in the light most favorable to the

verdict, a reasonable juror could find, beyond a reasonable doubt,

that   Vicent’s   testimony   about       SSA’s    standard    procedures   was


                                      5
sufficient to show that Martinez failed to disclose her husband’s

return.

                                     3.

     Having concluded Martinez was aware of her obligation to

disclose her husband’s return and failed to do so, a reasonable

juror could find, beyond a reasonable doubt, that the failure

resulted from Martinez’ fraudulent intent.           As noted, before her

successful application in April 1995, Martinez had applied for SSI

on four occasions.          Each time, she was denied SSI because her

husband’s income was too high.       Only when her husband was no longer

in the house was her application accepted.           The record is unclear

as to what Martinez was told about the reasons for the previous

denials; however, Assistant District Manager Garcia testified that

SSI applications would be scrutinized to determine if applicants

met the “need” requirement for SSI before they were examined to

determine whether they were disabled.              As noted, Martinez was

denied    SSI   at   this    preliminary   stage    for   her   first   three

applications.        It is reasonable for a jury to conclude that

Martinez understood the change in circumstances to have driven the

April 1995 SSI award.

     Moreover, Martinez stated to Vicent during their April 1995

conversation:    “I understand that I am not eligible for April 1995

[benefits] because of [my husband’s] income”.               Because of the

evidence showing Martinez’ knowledge of the adverse effect her


                                      6
husband’s income had on her SSI applications, a reasonable juror

could find, beyond a reasonable doubt, that Martinez’ failure to

disclose that information to the SSA was based on fraudulent

intent.

     Martinez contends that such intent is undercut by the fact

that she was referred to the SSA Agent in April 1995 and did not

seek SSI.     This is of no moment.             Assuming Martinez had no

fraudulent intent when she applied for SSI in April 1995 (her

husband having left), her fraudulent intent concerns her subsequent

failure to disclose his return.

                                   B.

     Embezzlement is: “the fraudulent appropriation of property by

a person to whom such property has been intrusted, or into whose

hands it has lawfully come”.     Moore v. United States, 160 U.S. 268,

269 (1895).   It is distinguished from larceny by the fact that the

wrongfully    taken   property   was       within   the   defendant’s   lawful

control. See United States v. Sayklay, 542 F.2d 942, 944 (5th Cir.

1976).    As described supra, the Government’s evidence showed that

Martinez’ possession of SSI, from May 1995 forward, was not lawful

by virtue of her failing to disclose her husband’s return in late

April 1995.

     Accordingly, the embezzlement and “failure to disclose” counts

are mutually exclusive because Martinez could not have lawfully

possessed (and therefore embezzled) the very benefits that she had


                                       7
fraudulently obtained.   The Government contends Martinez lawfully

possessed the checks merely because it sent them to her.   Yet, the

Government’s theory of Martinez’ failure to disclose shows that her

receipt was fraudulent, not lawful.     See id. (“Unlike funds in

possession of a bank president or a teller, the funds [defendant]

stole were not entrusted to her in any capacity whatever for the

use and benefit of [her employer].”).

                               III.

     For the foregoing reasons, Martinez’ convictions are AFFIRMED

IN PART and VACATED IN PART.    This case is remanded to district

court for resentencing consistent with this opinion.

                   AFFIRMED IN PART; VACATED IN PART; REMANDED




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