United States v. Roger Workman ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-3034
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United States of America, *
*
Appellant, * Appeal from the United States
* District Court for the
v. * Northern District of Iowa.
*
Roger D. Workman, *
*
Appellee. *
*
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Submitted: December 9,1997
Filed: March 17, 1998
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Before McMILLIAN, MAGILL, and MURPHY, Circuit Judges.
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MURPHY, Circuit Judge.
Roger Workman was charged with numerous counts of converting
government property in violation of 18 U.S.C. § 641, for diverting the
proceeds of railroad retirement benefit checks issued in his father’s name.
The case is now before the court on an interlocutory appeal brought by the
government to challenge certain evidentiary rulings of the district court
in advance of Roger Workman’s second trial on the charges. We reverse and
remand.
Carl Workman was a retired railroad employee and the father of Roger
and Patricia Workman. Carl lived in Mason City, Iowa at the time of his
death in 1988, and his will named Roger as executor of his estate and
provided that it be evenly divided between the two children. As a retired
railroad employee, Carl had received regular retirement payments from the
Railroad Retirement Board (RRB), and retirement checks continued to be
mailed in his name for more than six years after his death. Roger
deposited the checks in a credit union in Ames, Iowa, with the endorsement,
“Carl C. Workman, by Roger D. Workman” and the word “executor” written
above his name. All the checks were deposited through an automated teller
machine which did not require other documentation or a face to face
transaction. Roger never contacted the RRB about his father’s death or the
continuing receipt of the checks, nor did he give any of the proceeds to
Patricia or disclose them on his own tax returns. It also does not appear
that the funds were ever paid into the estate.
In October, 1994 the Des Moines district office of the RRB contacted
Roger Workman to inquire about a questionnaire that had been sent to Carl
Workman but never returned. Roger stated that his father had died “in
August” but that he could not give the exact date of death. The RRB later
learned that Carl Workman had died in August of 1988. It then immediately
stopped issuing benefits checks and initiated a criminal investigation.
On March 15, 1995, two agents from the RRB Office of the Inspector
General visited Roger Workman and asked if they could question him. Roger
agreed to talk and answered several of their questions after being advised
of his Miranda rights. He said that he thought his father’s estate was
entitled to benefits checks for a period of twenty five years and that he
had endorsed the checks as executor of the estate on the advice of his
attorney, Charles Levad. He also said that Levad had failed to include the
checks in the probate inventory of the estate.
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Roger Workman was indicted on sixty eight counts of converting
government property and went to trial on forty two counts after the others
were dismissed because of the statute of limitations. During his opening
statement defense counsel asserted that Workman was “the victim of bad
lawyering,” and during cross-examination he elicited testimony from an RRB
agent that Workman claimed he cashed the checks on the basis of Levad’s
advice. The government then called Levad to testify, but the district court
ruled that the attorney client privilege barred testimony from him about the
content of his advice to Roger on the legality of negotiating the benefits
checks. The court indicated, however, that Levad could be asked whether he
gave advice to Roger on the subject of endorsing the checks. Levad
subsequently testified that he advised Workman not to negotiate the checks
without first contacting the RRB and that he therefore did not contact the
RRB himself. Workman moved for a mistrial on the grounds that this
testimony included privileged information, and the district court granted
the motion.
Before the start of Workman’s new trial, the government moved in limine
either to bar Workman from claiming that he had relied on Levad’s advice to
cash the checks or to permit Levad to testify about his advice. The
district court denied the government’s motion and indicated in addition that
it would not admit evidence that Workman had not shared the check proceeds
with his sister1 or disclosed them on his tax returns.
The government appeals from these rulings. It argues that evidence of
Levad’s advice about negotiating the checks should be admitted because
Workman waived the attorney client privilege by discussing his advice with
RRB investigators and by asserting the privilege in his defense. It also
argues that the evidence about Workman not sharing the proceeds or
disclosing them on his tax returns demonstrates his intent to steal or
convert government property. Workman responds that he did not voluntarily
1
This evidence was admitted without objection in the first trial.
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waive the privilege by talking about his attorney’s advice with RRB
investigators and that his advice of counsel defense did not place
privileged communications in issue. Workman also says that it has not been
shown that Patricia had any entitlement to the proceeds and that he cashed
the checks as executor of his father’s estate so they did not need to be
reported on his personal tax returns.
The exclusion of evidence on the basis of the attorney client privilege
is reviewed for abuse of discretion. Charles Woods Television v. Capital
Cities/ABC, 869 F.2d 1155, 1161 (8th Cir. 1989). Voluntary disclosure of
attorney client communications expressly waives the privilege, Lutheran
Medical Center v. Contractors Health Plan, 25 F.3d 616, 622 (8th Cir. 1994);
In re Grand Jury Proceedings Subpoena to Testify to Wine, 841 F.2d 230, 234
(8th Cir. 1988). The waiver covers any information directly related to that
which was actually disclosed. 8 C. Wright & A. Miller, Federal Practice and
Procedure § 2016.2.
Workman argues on appeal that the statements he made to RRB
investigators were not voluntary because they were made in a coercive
environment and that he therefore did not waive the privilege. The district
court did not make any explicit finding on whether or not the statements
were voluntary because the argument that the statements were involuntary was
not raised in the trial court. The district court excluded the testimony
on the grounds that the scope of Levad’s proposed testimony was too broad
and could result in an unfair conviction.
An argument not raised in the district court will generally not be
considered on appeal, and Workman failed to challenge the voluntariness of
his disclosures until the government’s appeal. See Unigroup v. O’Rourke
Storage & Transfer, 980 F.2d 1217, 1222 (8th Cir. 1992). Moreover, his failure to
provide any legal support for this argument or to discuss it with specificity is another bar to its consideration. Sweet
v. Delo, 125 F.3d 1144, 1159 (8th Cir. 1997). Even if the argument were to be considered,
however, it does not have much support in the record. The investigating
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officers testified at the first trial that Workman freely agreed to talk
with them and informed them that he cashed the checks as executor of his
father’s estate based on Levad’s advice, and the record contains
considerable evidence of voluntariness.2
The attorney client privilege may also be implicitly waived, Hollins
v. Powell, 773 F.2d 191, 196 (8th Cir. 1985), and one way that is done is
by raising attorney advice as a defense. Sedco International, S.A. v. Cory,
683 F.2d 1201, 1206 (8th Cir. 1982). During his opening statement and his
questioning of Levad, Workman’s trial counsel placed Levad’s advice in issue
by asserting that Workman had relied on the advice in cashing the checks.
Workman cannot selectively assert the privilege to block the introduction
of information harmful to his case after introducing other aspects of his
conversations with Levad for his own benefit. U.S. v. Bilzerian, 926 F.2d
1285, 1292 (8th Cir. 1991). The attorney client privilege cannot be used
as both a shield and a sword, id., and Workman cannot claim in his defense
that he relied on Levad’s advice without permitting the prosecution to
explore the substance of that advice.
The government seeks to introduce evidence that Workman failed to share
the proceeds of the benefits checks with his sister or to report them on his
income tax in order to prove intent. It bears the burden of demonstrating
that Workman knowingly and intentionally converted government funds by
cashing the benefits checks issued in his father’s name. 18 U.S.C. § 641.
Workman argues that the evidence should be excluded because it is not
probative of intent, that he had no duty to share the proceeds
2
Workman made the statements in his own home with his wife present after
agreeing to talk with the investigators and after being informed of his Miranda rights.
The questioning was not prolonged, and he was not placed under arrest. The
possibility of criminal penalties was not mentioned until Workman’s wife said the
investigators were treating him like a criminal, and the agents responded that
improperly cashing government checks could trigger criminal penalties. See United
States v. Watson, 423 U.S. 411, 424-25 (1976); Schneckloth v. Bustamonte, 412 U.S.
218, 222 (1973).
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with his sister or disclose them on his income tax returns, and that it was
inadmissible under Federal Rule of Evidence 404(b).
The evidence the government seeks to introduce has strong probative
value because it could support an inference that Workman intended to apply
the funds to his own use and to hide their receipt because he was aware he
was not entitled to them. The evidence need not be excluded as evidence of
prior bad acts or other crimes under Rule 404(b) because it has relevance
beyond simply showing Workman’s criminal disposition, U.S. v. Street, 66
F.3d 969, 976 (8th Cir. 1995), and clarifies the course of conduct involved
in the charged crimes, United States v. Williams, 95 F.3d 723, 731 (8th Cir.
1996). Workman’s handling of the funds shows his intent to keep their
disposition a secret and is relevant to the element of intent to retain them
wrongfully.
In reviewing the rulings of the district court, we have the advantage
of the record made during the first trial as well as developed arguments on
the evidentiary issues. After our review of the whole record, we conclude
that the challenged evidentiary rulings cannot be sustained. Because
Workman waived his attorney client privilege and the government seeks to
introduce evidence relevant to the charges in the indictment, the challenged
pretrial rulings of the district court are reversed. The case is remanded
for proceedings consistent with this opinion.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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