U.S. v. Workman

• Decision Date: 17 March 1998
• Docket Number: No. 97-3034,97-3034
• Parties: 48 Fed. R. Evid. Serv. 1444 UNITED STATES of America, Appellant, v. Roger D. WORKMAN, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1261

138 F.3d 1261

48 Fed. R. Evid. Serv. 1444

UNITED STATES of America, Appellant, v. Roger D. WORKMAN, Appellee.

No. 97-3034.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 9, 1997.

Decided March 17, 1998.

Charles J. Williams, Asst. U.S. Atty., argued, Cedar Rapids, IA, for Appellant.

Russell Schroeder, Jr., Charles City, IA, argued, for Appellee.

Before McMILLIAN, MAGILL, and MURPHY, Circuit Judges.

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.

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 sister ¹ 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 voluntarilywaive 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...