U.S. v. Henry, 97-8116

• Decision Date: 11 January 1999
• Docket Number: No. 97-8116,97-8116
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Gary HENRY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1304

164 F.3d 1304

UNITED STATES of America, Plaintiff-Appellee, v. Charles Gary HENRY, Defendant-Appellant.

No. 97-8116.

United States Court of Appeals, Tenth Circuit.

Jan. 11, 1999.

Drew A. Perkins, Blood & Perkins, P.C., Casper, WY, for Defendant-Appellant.

James C. Anderson, Assistant United States Attorney (David D. Freudenthal, United States Attorney, with him on the brief), Cheyenne, WY, for Plaintiff-Appellee.

Before PORFILIO, McWILLIAMS and HENRY, Circuit Judges.

JOHN C. PORFILIO, Circuit Judge.

A jury convicted Charles Gary Henry of four counts of filing false statements to obtain federal workers compensation benefits in violation of 18 U.S.C. § 1920, and acquitted him of one count of making a false statement in violation of 18 U.S.C. § 1001. The district court sentenced him to serve 12 months in prison, followed by three years' supervised release; make restitution to the Department of Labor in the amount of $35,442.29; and pay a special $300 assessment. Mr. Henry appeals on several grounds: (1) the government failed to prove a statutory element by

not showing what effect the unreported income would have had on his benefits if reported; (2) the district court improperly admitted evidence; and (3) the district court erred in sentencing. Finding no error, we AFFIRM the conviction and sentence.

I.

Mr. Henry was employed as a construction maintenance foreman for the Department of Justice, Bureau of Prisons, when he fell from scaffolding and injured his back in February 1980. He filed a report with the Department of Labor, Office of Workers Compensation Programs (OWCP), and was awarded disability benefits until he became employed again in August 1980. Between 1980 and 1992, he had several different jobs and was on and off disability. From April 1992 until his benefits were terminated upon his conviction, Mr. Henry received temporary total disability from OWCP. The charges against him pertain to the years 1994-1997. ¹

Any individual who receives OWCP benefits must self-report his work-related activities, including volunteer work. The OWCP periodically sends benefit recipients a Form 1032 which requires the recipient to indicate any work or earnings of the previous 15 months. It states, in relevant part:

Report ALL employment for which you received a salary, wages, income, sales, commissions, piecework, or payment of any kind ALL self-employment or involvement in business enterprises The kinds of services which you must report include such activities [as] carpentry, mechanical work, painting, contracting, child care, odd jobs . Even if your activities were part-time or intermittent, you must report them . Report as your "rate of pay" what you were paid. Include the value of such things as housing, meals, and reimbursed expenses, if they were part of your employment . Report ANY work or ownership interest in any business enterprise, even if the business lost money or if profits or income were reinvested or paid to others. If you performed any duties in any business enterprise for which your [sic] not paid, you must show as rate of pay what it would have cost the employer or organization to hire someone to perform the work or duties you did, even if your work was for yourself or a family member or relative.

The Form 1032 cover sheet provides the following:

WARNING

A FALSE OR EVASIVE ANSWER TO ANY QUESTION, OR THE OMISSION OF AN ANSWER, MAY BE GROUNDS FOR FORFEITING YOUR COMPENSATION BENEFITS AND SUBJECT YOU TO CIVIL LIABILITY. A FRAUDULENT ANSWER MAY RESULT IN CRIMINAL PROSECUTION. ALL STATEMENTS ARE SUBJECT TO INVESTIGATION FOR VERIFICATION.

Mr. Henry received and returned by mail numerous Forms 1032. The last four forms became the basis for Counts 2-5 of the superseding indictment. On each of the four documents, in the space requesting whether he had been self-employed or involved in any business enterprise during the preceding 15 months, Mr. Henry wrote "No" or "None." On all four forms, Mr. Henry left blank the space requesting information about the amount of compensation he received from self-employment or involvement in a business enterprise.

Ted Riegel, an auto body shop manager in Laramie, Wyoming, testified he employed Mr. Henry to reroute and install a new water heater and gas lines in his basement. On May 16, 1994, Mr. Henry completed the plumbing work and presented Ted Riegel with a "Job Work Order." The work order indicated his labor costs were $270 minus $70 for the length of time he took completing the job, and showed invoices for supplies purchased by "Gary Henry Construction." Ted Riegel testified he paid Mr. Henry by check. Mr. Henry's Form 1032, dated April 24, 1995, reflected neither the work nor compensation. Ted Riegel also testified he employed Mr. Henry to remodel an old farmhouse in 1994 and 1995.

During the winter of 1995, Mr. Henry remodeled a bathroom in Ted Riegel's home by installing new plumbing, fixtures, and flooring. Upon completion, Mr. Henry presented Ted Riegel with an itemized bill setting forth the materials used in the job. Ted Riegel paid Mr. Henry in full for the materials and paid his labor charges by making two installments, documented by canceled checks dated April 27, 1995, and May 24, 1995, each in the amount of $150. Mr. Henry's Form 1032, dated February 23, 1996, showed neither the work nor compensation.

Mr. Henry also worked for his long time friend, Gary Riegel, who was Ted's father and the owner of the auto body shop. In 1994, Mr. Henry helped construct a 3000-square foot expansion to the body shop. Mr. Henry then assisted Gary Riegel in erecting a 50' X 125' Quonset hut. Mr. Henry received no cash for this work. Gary Riegel testified, "he was under disability that he couldn't, you know, receive cash for work, but I--I assumed that if what we're doing, I guess I would say in broad terms say trading."

On February 27, 1995, Gary Riegel gave Mr. Henry a 1993 Dodge Dynasty. The bill of sale reflected a $7000 sale price. On March 22, 1996, Gary Riegel gave Mr. Henry a 1988 Toyota pickup; the bill of sale reflected a price of $500. Gary Riegel testified he transferred the cars to Mr. Henry as payment for the body shop and Quonset hut work. Gary's wife, Grace Riegel, bookkeeper for the body shop testified both vehicle transfers were treated as construction expenses by the business for tax purposes. Gary Riegel also testified to giving Mr. Henry the pickup out of moral obligation. Mr. Henry's Forms 1032, dated April 24, 1995, February 23, 1996, and August 24, 1996, did not reflect the work or compensation.

Cecyle Perry testified she and her boyfriend hired Mr. Henry to remodel their bathroom in 1996. Two teenagers who had previously assisted Mr. Henry helped him with the bathroom renovations. Mr. Henry himself worked sporadically on the remodeling job and paid the teenagers in cash. Perry testified Mr. Henry's final bill included $20 per hour for his labor. Perry and her boyfriend each paid Mr. Henry $175 with checks dated July 8, 1995. Mr. Henry's Forms 1032, dated August 24, 1996, and March 14, 1997, did not indicate the work or compensation.

II.

An individual commits the crime of filing false statements to obtain federal workers compensation benefits if he or she:

[K]nowingly and willfully falsifies, conceals, or covers up a material fact, or makes a false, fictitious, or fraudulent statement or representation, or makes or uses a false statement or entry in connection with the application for or receipt of compensation or other benefit or payment under subchapter I or III of chapter 81 of Title 5 [Federal Workers Compensation Programs] .

18 U.S.C. § 1920 (Supp.1996). If the government proves these elements, the statute provides:

[The defendant] shall be guilty of perjury, and on conviction thereof shall be punished by a fine under this title, or by imprisonment for not more than 5 years, or both; but if the amount of the benefits obtained does not exceed $1,000, such person shall be punished by a fine under this title, or by imprisonment for not more than 1 year, or both.

Id.

We must first clarify the parties' confused reading of the statute. In an attempt to persuade us to reverse or affirm the conviction, the parties engage in mathematical calculations and present various theories of loss to show the benefits falsely obtained were under or over $1000. These arguments conflate the prohibitive and punitive portions of the statute. As the Second Circuit recently explained, "the quantity of the benefits falsely obtained is not a substantive element of a violation of § 1920." United States v. Grillo, 160 F.3d 149, 150 (2d Cir.1998) (holding "Congress' use of the term 'benefits obtained' in § 1920 must be read only as part of the punishment portion of the statute and not to modify or define the conduct that § 1920 prohibits."). To affirm Mr. Henry's conviction, therefore, we need only consider whether the evidence established the substantive elements of the crime. At this stage, it is irrelevant whether the benefits falsely obtained were more or less than $1000.

We review sufficiency of the evidence de novo, United States v. Wilson, 107 F.3d 774, 778 (10th Cir.1997), examining the evidence in the light most favorable to the prevailing party and drawing all inferences in that party's favor. United States v. Davis, 965 F.2d 804, 811 (10th Cir.1992). We do not weigh conflicting evidence or consider witness credibility. United States v. Trammell, 133 F.3d 1343, 1351-52 (10th Cir.1998).

Mr. Henry argues the government failed to prove he made false statements to fraudulently obtain benefits. Mr. Henry's support for this point is that he followed OWCP instructions by disclosing his volunteer activities on several Forms 1032. But listing 20 hours of volunteer work does not relieve Mr. Henry of the requirement he list "ALL" work and income, nor does splitting hairs on whether he just supervised construction or actually hammered the nails...