U.S. v. Frokjer

Decision Date20 July 2005
Docket NumberNo. 04-2028.,04-2028.
PartiesUNITED STATES of America, Appellee, v. Arlene Marie FROKJER, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Steven J. Meshbesher, argued, Minneapolis, MN, for appellant.

William H. Koch, Asst. U.S. Attorney, argued, Minneapolis, MN, for appellee.

Before WOLLMAN, LAY, and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

Following a jury trial, Arlene Marie Frokjer was found guilty of twelve counts of making false statements to obtain federal employees' compensation, in violation of 18 U.S.C. § 1920, and two counts of wire fraud, in violation of 18 U.S.C. § 1343. The district court1 sentenced Frokjer to fifteen months' imprisonment and ordered her to pay $97,791.38 in restitution. We affirm.

I.

Frokjer began working as a clerk in the United States Post Office Bulk Mail Center ("BMC") in Eagan, Minnesota in April 1991. Her duties included sorting mail and entering data, first during the night shift and later during the day. From January 2001 to April 2001, the BMC replaced the "towline," a moving track embedded in the floor that assisted postal workers in moving containers. During this period, postal workers moved the mail manually on carts, and this required greater physical effort.

On June 28, 2001, Frokjer visited Dr. Naheed Ali and complained of work-related bilateral arm pain. On July 11, 2001 she filed a "Notice of Occupational Disease and Claim for Compensation" with the Postal Service Injury Compensation Office, claiming myalgia of her left and right arms. The Injury Compensation Office forwarded Frokjer's claim to the Department of Labor's Office of Workers' Compensation Programs in Chicago for adjudication. That office accepted her claim and began paying benefits.

Following consultation with several medical specialists, Frokjer was referred to the Medical Advanced Pain Specialists clinic in late 2001. She continued her treatment there until approximately October 2002. During the course of her treatment, Frokjer underwent a functional capacity examination to determine her physical capabilities.

Frokjer accepted a limited duty assignment at the Post Office beginning on July 12, 2001. The government introduced attendance records indicating that Frokjer stopped working on July 14, 2001, and did not return to work until February 2002. The government's evidence indicated that Frokjer worked intermittently upon her return. Sherry Constans, the manager of the Injury Compensation Office in St. Paul, testified that the Post Office offered Frokjer a series of job positions with increasingly fewer physical demands, including ultimately an assignment limited entirely to sitting at a desk answering a telephone. Constans testified that the Post Office also purchased a special ergonomic chair to help alleviate Frokjer's pain.

The government introduced evidence that fraud analysts from the United States Postal Service conducted surveillance of Frokjer from October 2001 through August 20, 2002. They observed Frokjer covertly and videotaped her activity. Postal inspectors also recorded telephone conversations between Frokjer and the Injury Compensation Office during this period.

A grand jury eventually charged Frokjer with thirteen counts of providing a false statement to obtain federal employees' compensation. The indictment alleged that she falsely made claims of work-related injuries to the Postal Service in July 2001, from July 13 to August 9, 2002, and in November 2002. The indictment further charged that she made false statements concerning her physical limitations and medical condition to health care providers on various dates between November 2001 and August 2002. The grand jury also charged two counts of wire fraud for direct compensation and medical benefits, respectively, based on schemes to defraud continuing from July 11, 2001 through June 6, 2003. Following a six-day trial in November 2004, the jury convicted Frokjer on both counts of wire fraud and all but one of the false statement charges. The district court denied Frokjer's motion for a downward departure from the otherwise applicable (and then-mandatory) sentencing guideline range, and sentenced Frokjer to fifteen months' imprisonment. In addition, Frokjer was ordered to pay $97,791.38 in restitution and a $1400 special assessment.

II.

Each count of conviction was premised on a finding that Frokjer knowingly made a false statement to obtain compensation for purported work injuries that prevented her from working. Frokjer contends that the evidence was insufficient to prove that her statements were false and that she knew of their falsity. She asserts that the government's primary evidence—surveillance videos of Frokjer engaging in everyday activities such as lifting grocery bags, opening car doors, and moving bulky objects into the back of a truck—does not demonstrate the falsity of her statements that she was unable to work.

Frokjer contends that because a functional capacity examination conducted in January 2002 indicated that Frokjer, on rare occasions, could exert herself so as to push, pull, or lift heavier weights, the instances in which she was observed in physical activity do not necessarily contradict her statements that she was unable to work full-time. She argues that because the videos do not show her engaging in the strenuous tasks repetitively, and because there was no direct testimony that she did so, no reasonable jury could find false her assertions of inability to perform repetitive job duties. She also argues that she believed in the truth of her statements that she was unable to work, because she had been told many times by various doctors that she was injured.

When reviewing the sufficiency of the evidence in support of a jury verdict, we view the evidence in the light most favorable to the verdict, accepting all reasonable inferences drawn from the evidence that support the verdict. Circumstantial evidence by itself can be sufficient to support a verdict of guilty, and we will not reverse a conviction unless no reasonable jury could find the defendant guilty beyond a reasonable doubt. United States v. Simon, 376 F.3d 806, 808 (8th Cir.2004).

The government argues that ample circumstantial evidence supported the jury's conclusion that Frokjer knowingly made false statements, and we agree. Dr. David Nelson testified that, based on his viewing of surveillance videotape, he believed that Frokjer made misrepresentations about her physical capacities to him and his colleagues while they were treating her. Ronda Marie Thompson, a nurse practitioner at the clinic, offered a similar assessment. Fraud analyst Gary Barth testified that over the course of his surveillance of Frokjer, he observed that she was "a healthy, active woman doing normal functions without any sign of any kind of pain or discomfort."

Frokjer admitted that on March 14, 2002, she went to Sam's Club and purchased a 50-pound container of laundry detergent and a bag of ice melt salt that a fraud inspector testified weighed 40 pounds. Surveillance video indicated that she loaded them into her car herself. Frokjer called the Post Office on July 11, 2002, claiming she was unable to work, but surveillance video showed that during a trip to Cub Foods on that same date, she purchased two two-gallon milk jugs and several bags of groceries, which she loaded into her car herself. The jury heard recordings of phone calls Frokjer made to the Injury Compensation Office during August 2002 in which she claimed various physical ailments, but also viewed surveillance video, from other dates in July and August 2002, which showed Frokjer engaged in everyday activities such as opening and closing car doors and trunks, loading groceries into her car, and moving objects from her sister's garage to the back of a truck.

The manager of the USPS Injury Compensation Office, Sherry Lee Constans, testified that Frokjer was uncooperative in providing the office with information and in working to find an appropriate limited-duty job. Frokjer's daughter testified that Frokjer found her job answering telephones boring, and her husband conceded that it was not pain that kept Frojker from working at her job answering the phone, but rather her boredom with that job.

This evidence was sufficient to support Frokjer's conviction. The jury could reasonably have inferred from this evidence, particularly from Frokjer's physical activity, her lack of cooperation with the Injury Compensation Office, and her doctor's testimony about the dissonance between her reported symptoms and the activities in which she was engaged while under surveillance, that Frokjer knew that the statements she made to the Post Office and her medical providers regarding her physical limitations and medical condition were false. The jurors also heard Frokjer testify, so they were able to make their own determination of her credibility. We conclude that a reasonable jury could return the verdicts of guilty.

III.

Frokjer argues that even if the evidence was sufficient, the district court abused its discretion in admitting a videotape that depicted events occurring between July 11 and August 19, 2002. The disputed videotape was a composite of surveillance video footage and excerpts of audiotaped phone calls that Frokjer made to the Postal Service Injury Compensation Office. Frokjer argues that because the audio and video portions of the tape were recorded at different times, but then presented simultaneously through an audio overlay on the videotaped segments, the juxtaposition of the audio and video portions likely misled and confused the jury. She contends that the probative value of the evidence was substantially outweighed by danger of unfair prejudice, such that the videotape should have been excluded under Federal Rule of Evidence 403.

Frokjer raised an objection to the composite...

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