Petition for Writ of Certiorari — James E. Workman, Petitioner v. United States

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

Appendix A Opinion in the United States Court of

Appeals for the Eighth Circuit

(June 22, 2023) . . . . . . . . . . . . . . . App. 1

Appendix B Judgment in the United States Court

of Appeals for the Eighth Circuit

(June 22, 2023) . . . . . . . . . . . . . . . App. 9

Appendix C Order in the United States District

Court for the Western District of

Missouri, Western Division

(July 23, 2021). . . . . . . . . . . . . . . App. 11

Appendix D Judgment in a Criminal Case in the

United States District Court for the

Western District of Missouri, Kansas

City Division

(November 30, 2021) . . . . . . . . . . App. 30

App. 1

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 21-3839

[Filed June 22, 2023]

_____________________________

United States of America

)

)

Plaintiff - Appellee

)

)

v.

)

)

James E. Workman

)

)

Defendant - Appellant )

_____________________________ )

Appeal from United States District Court

for the Western District of Missouri - Kansas City

Submitted: January 10, 2023

Filed: June 22, 2023

Before SMITH, Chief Judge, WOLLMAN and LOKEN,

Circuit Judges.

WOLLMAN, Circuit Judge.

A jury found James E. Workman guilty of three

counts of wire fraud, violations of 18 U.S.C. § 1343; one

count of theft of government money, a violation of 18

App. 2

U.S.C. § 641; and two counts of Social Security fraud,

one a violation of 42 U.S.C. § 408(a)(4) and one a

violation of 42 U.S.C. § 408(a)(3). Workman appeals the

district court’s denial of his motion for judgment of

acquittal, arguing that the evidence was insufficient to

prove that he had had the requisite criminal intent to

commit the offenses. He also appeals the district court’s

order for restitution in the amount of $168,456. We

affirm the denial of Workman’s motion, vacate the

restitution and forfeiture orders, and remand for

further proceedings.

I. Background

Workman was approved for disability benefits in

September 2007, receiving benefits retroactive to July

2007. He was instructed at that time to inform the

Social Security Administration (SSA) if he began

working or if any of the information in his application

changed. Nevertheless, Workman did not inform SSA

when he and his wife began operating A.V. Heating &

Cooling in 2009. When the SSA reviewed his disability

eligibility in 2010, Workman reported that he was not

working and did not believe that he was able to work.

He reported that his typical daily activities consisted of

household chores and watching television. He told a

psychologist performing a medical review that he hoped

to start a heating and cooling business in the future,

but did not mention the already-existing A.V. Heating

& Cooling.

A.V. Heating & Cooling grew during the following

years. Workman and his wife incorporated the business

as an LLC in 2014. Workman conversed with

customers on the phone and conducted installations

App. 3

and repairs. He nevertheless again responded to a 2014

SSA inquiry by stating that he was not working. He

also applied for benefits on behalf of three of his

children in 2016.

Having received a tip that Workman was

self-employed, the SSA began an investigation in 2016.

Workman confirmed that he owned A.V. Heating &

Cooling and reported that he worked on average 20

hours per week. He maintained that he did not believe

he needed to report this work because he was not

earning more than $1,000 per month. The SSA

determined that Workman was self-employed and had

not been eligible for benefits since February 2010,

resulting in an overpayment to Workman of $168,456

since that time.

II. Judgment of Acquittal

We review de novo the district court’s denial of

Workman’s motion for judgment of acquittal, viewing

the evidence in the light most favorable to the

government. United States v. Lewis, 895 F.3d 1004,

1008 (8th Cir. 2018). We will reverse only if “a

reasonable fact finder could not have found all the

elements of the offense beyond a reasonable doubt.” Id.

at 1008–09 (cleaned up).

Workman contends that the evidence presented at

trial shows that he merely misunderstood his

obligation to report work activity, and not that he had

knowingly defrauded and stolen from the SSA. He

accordingly argues that the government failed to prove

that he had the requisite fraudulent intent to commit

each of the offenses of which he was convicted. See

App. 4

United States v. Garbacz, 33 F.4th 459, 467 (8th Cir.

2022) (government must prove that defendant had

intent to defraud for conviction under 18 U.S.C.

§ 1343); United States v. Rehak, 589 F.3d 965, 973 (8th

Cir. 2009) (government must prove that defendant

voluntarily, intentionally, and knowingly stole

government funds for conviction under 18 U.S.C.

§ 641); United States v. Phythian, 529 F.3d 807, 812

(8th Cir. 2008) (for conviction under 42 U.S.C.

§ 408(a)(4), government must prove that defendant

knowingly concealed event affecting his right to

benefits with intent fraudulently to secure benefits he

was not due); United States v. Henderson, 416 F.3d

686, 692 (8th Cir. 2005) (government must prove that

defendant had fraudulent intent for conviction under

42 U.S.C. § 408(a)(3)).

The government presented evidence that Workman,

together with his wife, had established a heating and

cooling business in 2009, and that he personally took

calls from customers and performed installations and

service. The government also presented evidence that

the SSA repeatedly informed Workman of his

obligation to report work; that Workman did not report

the establishment of his business or any earnings

before 2016; that he denied working in 2010 and 2014;

that he did not report his employment-related activities

when listing his daily activities during his benefits

review in 2010 or report any change to his activities in

2014; and that he told a psychologist during his

benefits review that he planned to start a business in

the future a year after he had already done so. A jury

could reasonably disregard Workman’s asserted reason

for these inconsistencies—that he did not believe that

App. 5

he had to report “work” below a certain income

threshold—and find that he acted with the intent to

defraud the SSA by receiving benefits for which he was

not eligible. See United States v. Morris, 723 F.3d 934,

939 (8th Cir. 2013) (concluding that a reasonable jury

could disregard defendant’s claim of a good-faith

misinterpretation of SSA’s definition of “work” and find

that defendant knowingly or intentionally stole SSA

funds when he reported to SSA that he did not work

but represented to state board and an IRS agent that

he was a practicing accountant); Phythian, 529 F.3d at

812 (concluding that jury could infer that defendant

had intent to fraudulently secure disability benefits

because she failed to report working despite being

repeatedly advised of obligation to report it).

III. Restitution

The district court ordered restitution to the SSA

under the Mandatory Victims Restitution Act, which

requires “defendants convicted of a crime ‘committed by

fraud or deceit’ to make restitution to the victim of the

offense in the full amount of each victims’ loss.” See

United States v. Spencer, 700 F.3d 317, 322 (8th Cir.

2012) (quoting 18 U.S.C. §§ 3663A(c)(1)(A)(ii),

3664(f)(1)(A)). We review for clear error the district

court’s finding on the amount of loss. Id. at 323. The

district court determined that the SSA suffered loss in

the amount of $168,456.

The government must prove by a preponderance of

the evidence the amount of loss. United States v.

Frazier, 651 F.3d 899, 903 (8th Cir. 2011). To meet its

burden here, the government presented the SSA’s

determination that Workman became ineligible for

App. 6

benefits beginning February 2010. The SSA found that

Workman had completed a trial work period between

February and October 2009 and that he had been

engaged in substantial gainful activity (SGA) since

November 2009. Accordingly, the SSA determined that

he became ineligible for benefits in February 2010,

because the regulations allowed Workman to receive

benefits throughout the trial work period and for three

months thereafter. See 20 C.F.R. §§ 404.1592(a),

404.1592a(a)(2)(i).

The government failed, however, to present

evidence to show the date on which Workman became

ineligible for benefits. At trial, the government

presented evidence that Workman reported to SSA that

he began working in February 2009 and worked an

average of 20 hours per week. An SSA agent testified

that those hours met the threshold to qualify as

Workman’s trial work period. See 20 C.F.R.

§ 404.1592(b)(2)(ii) (any month in which self-employed

benefits recipient works eighty hours counts toward

nine-month trial work period). The agent further

testified that the SSA has three tests for evaluating

whether a self-employed benefits recipient engaged in

substantial gainful activity after his trial work period.

However, the government did not elicit testimony from

the agent or otherwise present evidence to show that

the requirements for any of these tests were met as of

November 2009.1 Because eligibility for benefits

1

On appeal, the government asserts that the SSA applied the

comparability test. Although SSA did tell Workman that the

comparability test was the basis for its decision in an interview

prior to issuing its final determination, the testimony at trial was

App. 7

following the trial work period is dependent on whether

the recipient is engaged in SGA, we cannot discern

from this record when Workman transitioned from

benefits-eligible to benefits-ineligible status. See 20

C.F.R. § 404.1592a.

The government argues that the district court was

entitled to rely on the SSA’s determination, claiming

that it constituted credible evidence of the SSA’s loss

and that it was, in effect, a victim impact statement.

See United States v. Brown, 150 F. App’x 575, 576 (8th

Cir. 2005) (per curiam) (district court did not clearly

err by ordering partial restitution based on victim’s

sworn affidavit as to loss). Reliance on the SSA’s

determination alone does not allow the court to

meaningfully review the calculation of amount of loss

when, as here, that amount is challenged by the

defendant. The government was thus required to

present evidence to show that Workman engaged in

substantial gainful activity in November 2009. We hold

that the district court erred in accepting the statement

of loss in the absence of evidence establishing the date

that Workman became ineligible for benefits.

We note that this case does not require us to review

the SSA’s eligibility determination. We express no

views regarding the adequacy of the SSA’s analysis. We

conclude only that the evidence submitted by the

government does not establish the date on which

Workman became ineligible for benefits. The evidence

ambiguous and referenced all three tests. Regardless, the

government did not present evidence that any of the tests had been

met.

App. 8

therefore does not establish the amount of SSA’s loss

and thus does not support the restitution order. The

forfeiture order is likewise based upon a determination

of Workman’s ineligibility date, and so is likewise

unsupported by the evidence. Workman concedes his

conviction-based restitution obligation. Given the lack

of sufficient evidence upon which to base a restitution

order, however, “the district court should have

postponed the restitution proceedings to allow for the

gathering and presentation of additional evidence.”

United States v. Adetiloye, 716 F.3d 1030, 1040 (8th

Cir. 2013) (noting that remand was appropriate to

fulfill purpose of restitution statute).

The denial of Workman’s motion for judgment of

acquittal is affirmed. The restitution and forfeiture

orders are vacated, and the case is remanded for the

presentation of additional evidence regarding the

amount of the SSA’s loss and the amount that

Workman derived from his scheme.

App. 9

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 21-3839

[Filed June 22, 2023]

_____________________________

United States of America

)

)

Plaintiff - Appellee

)

)

v.

)

)

James E. Workman

)

)

Defendant - Appellant

)

_____________________________ )

Appeal from U.S. District Court

for the Western District of Missouri - Kansas City

(4:19-cr-00227-SRB-1)

JUDGMENT

Before SMITH, Chief Judge, WOLLMAN and LOKEN,

Circuit Judges.

This appeal from the United States District Court

was submitted on the record of the district court, briefs

of the parties and was argued by counsel.

App. 10

After consideration, it is hereby ordered and

adjudged that the judgment of the district court in this

cause is vacated and the cause is remanded to the

district court for proceedings consistent with the

opinion of this court.

June 22, 2023

Order Entered in Accordance with Opinion:

Clerk, U.S. Court of Appeals, Eighth Circuit.

____________________________________

/s/ Michael E. Gans

App. 11

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

Case No. 19-cr-00227-SRB-1

[Filed July 23, 2021]

_________________________________

UNITED STATES OF AMERICA, )

)

Plaintiff,

)

)

v.

)

)

JAMES E. WORKMAN,

)

)

Defendant.

)

________________________________ )

ORDER

Before the Court is Defendant James E. Workman’s

(“Defendant” or “Mr. Workman”) Motion for a

Judgment of Acquittal Notwithstanding the Verdict or,

In the Alternative, for New Trial. (Doc. #72.) As set

forth below, the motion is DENIED.

I.

FACTUAL BACKGROUND

This Order assumes familiarity with the relevant

facts and procedural background of this case. The

parties’ briefs contain a lengthy discussion of the

App. 12

evidence presented at trial, and portions of those briefs

are quoted below. (Doc. #72, pp. 6-17; Doc. #73, pp. 25.)1 Only those facts and issues necessary to resolve the

pending motion are discussed below. Additional facts

are discussed in Section III.

On June 26, 2019, an Indictment charged

Defendant with eight separate counts. In general, the

Indictment alleged that Defendant failed to disclose

work activity to the Social Security Administration

(“SSA”) in order to continue receiving disability

benefits for himself and for his children. Counts One

through Five charged Defendant with wire fraud in

violation of 18 U.S.C. § 1343. These five counts alleged

that Defendant—“with the intent to defraud”—caused

the SSA to issue him five separate monthly payments

of $1,526.00 in Title II Disability Insurance Benefits

(“DIB”). (Doc. #1, pp. 6-7.) The five separate wire

payments were made on December 31, 2015 (Count

One), February 3, 2016 (Count Two), March 3, 2016

(Count Three), April 1, 2016 (Count Four), and May 3,

2016 (Count Five).

Count Six alleged theft of government money in

violation of 18 U.S.C. § 641. This count alleged that

Defendant knowingly received “Title II Program

benefits to which he was not entitled totaling

approximately $168,456.00.” (Doc. #1, pp. 7-8.) Count

Seven alleged social security benefit fraud in violation

of 42 U.S.C. § 408(a)(4). This count alleged that

Defendant “concealed work activity and related

1

All page numbers refer to the pagination automatically generated

by CM/ECF.

App. 13

earnings for the purpose of causing SSA to make

Title II Program benefit payments when he was

otherwise ineligible to receive and continue to receive

such payments.” (Doc. #1, p. 8.) Count Eight alleged

false statements in relation to Title II benefits in

violation of 42 U.S.C. § 408(a)(3). This count alleged

that on or about April 10, 2016, Defendant “falsely

represented on an SSA-821 Work Activity Report that

he began working as the owner of A.V. Heating and

Cooling April 20, 2014, when in fact the defendant

knew that he had worked as the owner of A.V. Heating

and Cooling since in or about June 2009.” (Doc. #1,

pp. 8-9.)2

Defendant pled not guilty to all counts. A jury trial

commenced on June 8, 2021, and concluded on June 10,

2021. The jury found Defendant guilty on Counts One

through Three; not guilty on Counts Four and Five;

and guilty on Counts Six through Eight. Following the

verdict, the Court granted Defendant’s oral motion for

a fourteen (14) day extension of time to file a motion for

judgment of acquittal and/or a new trial.

On June 24, 2021, Defendant timely filed the

pending motion for judgment of acquittal on Counts

One through Three and on Counts Six through Eight.

Defendant argues in part that the Government failed

to present sufficient evidence to support each element

of the charged offenses. Defendant alternatively argues

that a new trial should be ordered because of “errors by

the trial court.” (Doc. #72, p. 22.) The Government

2

Defendant previously served in the military and “A.V.” stands for

American Veteran.

App. 14

opposes the pending motion, and the parties’

arguments are addressed below.

II.

LEGAL STANDARD

Federal Rule of Criminal Procedure 29(a) provides

that the Court “must enter a judgment of acquittal of

any offense for which the evidence is insufficient to

sustain a conviction.” Fed. R. Crim. P. 29(a); see also

Fed. R. Crim. P. 29(c)(1). When a jury returns a guilty

verdict, “the district court views the evidence in the

light most favorable to the Government, resolving

evidentiary conflicts in favor of the Government, and

accepting all reasonable inferences drawn from the

evidence that supports the jury’s verdict.” United

States v. Thompson, 285 F.3d 731, 733 (8th Cir. 2002)

(citations and quotation marks omitted). “Even if the

evidence adduced at trial rationally supports

conflicting hypotheses, we will refuse to disturb the

conviction.” United States v. Muhammad, 819 F.3d

1056, 1060 (8th Cir. 2016) (cleaned up). A conviction

may be reversed “only if . . . no reasonable jury could

have found the accused guilty beyond a reasonable

doubt.” Id.

Under Federal Rule of Criminal Procedure 33(a), a

district court has authority to “vacate any judgment

and grant a new trial if the interest of justice so

requires.” Fed. R. Crim. P. 33(a). When considering a

motion for new trial, “the district court is permitted to

weigh the evidence, disbelieve witnesses, and grant a

new trial even where there is substantial evidence to

sustain the verdict.” United States v. Schropp, 829 F.3d

998, 1005 (8th Cir. 2016) (citations and quotation

marks omitted). However, the “authority to grant a

App. 15

new trial should be exercised sparingly and with

caution.” United States v. Sturdivant, 513 F.3d 795,

802 (8th Cir. 2008) (citations, quotation marks, and

alterations omitted).

III.

DISCUSSION

A.

Motion for Judgment of Acquittal.

1. Counts One through Three—Wire

Fraud

Counts One through Three of the Indictment

charged Defendant with wire fraud under 18 U.S.C.

§ 1343. The Court instructed the jury that the

Government was required to prove the following

elements beyond a reasonable doubt:

(1) the defendant voluntarily and intentionally

devised and or participated in a scheme to

obtain money by means of material false

representations or promises, which scheme is

described as follows: the defendant concealed his

self-employment as the owner and operator of

A.V. Heating and Cooling in Independence,

Missouri, thereby causing SSA to remit a wire

transfer of $1,526.00 from the U.S. Treasury to

First Federal Bank account ending in number

7219, on or about December 31, 2015

(Count One), February 3, 2016 (Count Two), and

March 3, 2016 (Count Three);

(2) the defendant did so with the intent to

defraud; and,

App. 16

(3) the defendant used, or caused to be used, an

interstate wire communication, that is, a wire

transfer of funds, in furtherance of, or in an

attempt to carry out, some essential step in the

scheme.

(Doc. #64, p. 29); Eighth Circuit Model Criminal Jury

Instruction (2017) Nos. 3.09, 6.18.1343; see also United

States v. Burns, 990 F.3d 622, 627 (8th Cir. 2021).

Defendant seeks an acquittal on Counts One

through Three, and focuses on the first and second

elements. Defendant argues the Government’s evidence

failed to show that he “intentionally devised a scheme

to defraud SSA.” (Doc. #72, p. 18) (emphasis in

original). Defendant also argues the Government

“failed to produce facts which demonstrate [he] had the

requisite knowledge regarding the falsity of any

statement made by [him].” (Doc. #72, p. 19.) Finally,

Defendant contends that “[w]hile the evidence may

suggest, at best, violations of SSA regulations or

policies, the evidence fails to establish that Mr.

Workman acted with any requisite intent to defraud.”

(Doc. #72, p. 20.)

Upon review of the record, the Court rejects

Defendant’s arguments. The Government identifies

various evidence that shows a reasonable jury could

have found Defendant guilty on Counts One through

Three, including that he had the requisite intent and

knowledge. This evidence includes the following:

Mr. Workman’s 2007 application for DIB,

wherein he told SSA he had a qualifying medical

condition and that he was unable to work

App. 17

because of that condition. The Government also

admitted the correspondence from SSA notifying

Mr. Workman he was awarded benefits and that

the agency’s decision to award benefits was

based on information he provided so he needed

to update the agency if there were any changes

to that information. That same admitted exhibit

(which was mailed to Mr. Workman in 2007)

stated SSA would review Mr. Workman’s DIB

case once every three years, and then based on

that review his DIB payments would either be

continued or terminated.

At trial, the Government admitted both business

records and bank records into evidence and

presented customer testimony to establish Mr.

Workman and his wife started A.V. in

June 2009. The admitted business records

included the fictitious name registration for A.V.

that listed Mr. Workman as 49% owner of the

company and that was filed in June 2009. The

bank records included signature cards, monthly

statements, and supporting documentation for a

Small Business Free Checking Account opened

in June 2009 that was held in A.V.’s name. The

signature cards list Mr. Workman as an

authorized owner and the supporting

documentation showed he began personally

endorsing customer check deposits that were

payments for completed HVAC services in the

early years of the business. Additionally, two

former A.V. customers testified Mr. Workman

personally responded to HVAC service calls at

their homes in the earlier years of the business.

App. 18

The Government’s evidence showed the first

review of Mr. Workman’s DIB eligibility took

place in October 2010, which was over a year

after he and his wife established A.V. As part of

that review Mr. Workman was required to

complete a Continuing Disability Review Report

and attend an appointment with a licensed

psychologist of SSA’s choosing. Mr. Workman

completed the Continuing Disability Review

Report, but he did not note his ownership or

participation in the establishment or running of

A.V. on that paperwork.

To the contrary, Mr. Workman told SSA he was

not working and had not worked since 2003, and

that he did not believe he was able to work. At

his appointment with the licensed psychologist

the two of them discussed Mr. Workman’s ability

to work. The report generated from that

December 9, 2010 appointment contained direct

quotes from Mr. Workman that were read to the

jury at trial. One such quote was, ‘[t]o be honest

with you, I am trying to get a job and get off this

by next spring’ and ‘[w]henever the summer

comes around, hopefully I can step out and make

my own way . . . I would like to start my own

business at home, heating a[nd] cooling and my

brother and wife help me.’ Mr. Workman did not

mention A.V. to the psychologist at any point

during the appointment.

App. 19

The next time SSA asked Mr. Workman to verify

whether there were any changes to information

he provided to SSA concerning his DIB eligibility

was in 2014. Agency records submitted as

evidence at trial showed Mr. Workman was sent

a form called a ‘Disability Update Report’ and

the first question on the form was, ‘within the

last two years have you worked for someone or

been self-employed?’ The agency did not conduct

any further review of his eligibility due to Mr.

Workman’s representations that there were no

changes to his ability to work or to his health

status. That same year Mr. Workman and his

wife registered A.V. as an LLC and Mr.

Workman was listed as the LLC’s registered

agent in Missouri. He was also listed as an

authorized agent on two more bank accounts

held in the name of the company that were

opened in 2013 and 2014.

The SSA employees who testified at trial said

there was no record of Mr. Workman reporting

a change in his ability to work prior to March 31,

2016, through Mr. Workman was

communicating with SSA in both 2010 and 2014

during eligibility reviews and in January 2016

when he applied for auxiliary benefits for [the]

rest of his children. Because Mr. Workman

continued to represent there was no change in

his ability to work prior to March 31, 2016, SSA

remitted monthly DIB payments of $1,526.00 to

his bank account at First Federal Bank on or

about December 31, 2015 (Count One),

February 3, 2016 (Count Two), and March 3,

App. 20

2016 (Count Three). Monthly bank statements

documenting these transactions were admitted

into evidence at trial.

(Doc. #73, pp. 5-8.)

This evidence, along with other evidence admitted

at trial, is adequate to support the jury’s guilty

verdicts. Although Defendant presents evidence that

arguably could have supported not guilty verdicts, this

is not sufficient “to disturb the conviction.”

Muhammad, 819 F.3d at 1060. Therefore, Defendant’s

motion for acquittal on Counts One through Three is

denied.

2. Count Six—Theft of Government

Money

Count Six of the Indictment charged Defendant

with theft of government money under 18 U.S.C. § 641.

The Court instructed the jury that the Government

was required to prove the following elements beyond a

reasonable doubt:

(1) the defendant voluntarily, intentionally and

knowingly converted money to his own use or to

the use of another;

(2) the money belonged to the United States and

had a value in excess of One Thousand Dollars;

and,

(3) the defendant did so with the intent to

deprive the owner of the use or benefit of the

money or property so taken.

App. 21

(Doc. #64, p. 32); Eighth Circuit Model Criminal Jury

Instruction (2017) Nos. 3.09, 6.18.641.

Defendant seeks an acquittal on Count Six.

Defendant argues the Government failed to show that

he voluntarily, intentionally, and knowingly stole

money. Instead, Defendant argues the evidence showed

that he “was under the good faith belief, even if

erroneous, that he was not working unless and until

his net earnings exceeded the SSA Countable Income

guideline limits.” (Doc. #72, p. 20.) Defendant contends

that “[g]ood faith is a complete defense to both the

fraud charges and the theft charges.” (Doc. #72, p. 20.)

Defendant relatedly argues that the Government failed

“to prove [he] acted knowingly and willfully,” and

“acted voluntarily and intentionally with the purpose

of violating a known legal duty.” (Doc. #72, p. 21.)

Upon review of the record, the Court rejects

Defendant’s arguments. The Government identifies

various evidence that shows a reasonable jury could

have found Defendant guilty beyond a reasonable doubt

on Count Six. This evidence, some of which overlaps

with that discussed above, includes the following:

in October 2010, Mr. Workman submitted

documentation to SSA that said he was very

limited in his daily activities, he was not

working, and he did not think he was capable of

working at that time. Additionally, the

Government’s evidence showed he told the

psychologist participating in the DIB review

that he wanted to work in the future–even

though by December 2010 A.V. had been

operational for over a year. The Government’s

App. 22

evidence showed Mr. Workman received a total

of approximately $168,456.00 in DIB benefits

from June 2009 through May 2016 because he

reported his ability to work essentially remained

unchanged since he was approved for benefits in

2007—though A.V.’s bank records, business

records, customer testimony, and even A.V.’s tax

records told a different story.

(Doc. #73, p. 9.)

This evidence, along with other evidence admitted

at trial, is adequate to support the jury’s guilty verdict

on Count Six. Although Defendant presents evidence

that arguably could have supported a not guilty verdict,

this is not sufficient “to disturb the conviction.”

Muhammad, 819 F.3d at 1060. Therefore, Defendant’s

motion for acquittal on Count Six is denied.

3. Count Seven—Social Security Fraud

(42 U.S.C. § 408(a)(4))

Count Seven of the Indictment charged Defendant

with social security fraud in violation of 42 U.S.C.

§ 408(a)(4). The Court instructed the jury that the

Government was required to prove the following

elements beyond a reasonable doubt:

(1) the defendant had knowledge of an event

affecting his right to receive or continue to

receive payment; specifically, he had knowledge

of his work activity and related earnings;

(2) the defendant knowingly failed to disclose

this event to the SSA; and,

App. 23

(3) the defendant failed to disclose this event

with the intent to fraudulently secure payment

of Social Security Disability benefits in an

amount greater than was due him or when no

payment to him was authorized.

(Doc. #64, p. 33); United States v. Baumgardner, 85

F.3d 1305, 1310-11 (8th Cir. 1996).

Defendant argues the evidence did not support the

jury’s verdict on this Count. In support of an acquittal

on Count Seven, Defendant argues the Government:

failed to provide evidence showing that Mr.

Workman knowingly and fraudulently concealed

his work activity and related earnings from the

SSA, or knowingly did so for the purpose of

obtaining or causing SSA to make Title II

Program benefit payments knowing that he was

otherwise ineligible to receive and continue to

receive such payments. Rather, Mr. Workman

acted in good faith based on his understanding

he was not working unless and until his net

earnings exceeded the SSA Countable Income

guideline limits.

(Doc. #72, p. 21.)

Upon review of the record, the Court rejects

Defendant’s arguments. The Government identifies

various evidence that shows a reasonable jury could

have found Defendant guilty beyond a reasonable doubt

on Count Seven. This evidence includes:

written correspondence from SSA notifying Mr.

Workman he needed to report changes to

App. 24

information he originally reported with his

application, including changes to his ability to

work. This written correspondence included his

notice of benefits from 2007; January 19, 2011

correspondence reminding him he needed to tell

SSA right away if he went to work in the future

regardless of earnings; and, July 23, 2014

correspondence reminding him he needed to

report a return to work or an improvement in

health to SSA right away. The Government’s

documentary and testimonial evidence showed

Mr. Workman was an authorized agent on every

bank account A.V. had, he was listed as an

owner on paperwork initially filed with the State

of Missouri, and he was listed as the authorized

agent on the 2014 LLC registration paperwork.

He endorsed customer checks for deposit, he

visited customer homes on HVAC service calls,

and the very name of the company was an

acknowledgement of his military service.

Finally, the Government’s evidence showed Mr.

Workman did not tell the SSA he was working

prior to 2016, and in fact, he affirmatively

denied working in 2010 and 2014 when his

benefit eligibility was up for review. As a result

of his concealment, he continued to collect

monthly DIB.

(Doc. #73, pp. 10-11.)

This evidence, along with other evidence admitted

at trial, is adequate to support the jury’s guilty verdict

on Count Seven. Although Defendant presents evidence

that arguably could have supported a not guilty verdict,

App. 25

this is not sufficient “to disturb the conviction.”

Muhammad, 819 F.3d at 1060. Therefore, the Court

denies Defendant’s motion for acquittal on Count

Seven.

4. Count Eight—Social Security Fraud/

False Statements (42 U.S.C.

§ 408(a)(3))

Count Eight of the Indictment charged Defendant

with Social Security fraud in violation of 42 U.S.C.

§ 408(a)(3). The Court instructed the jury that the

Government was required to prove the following

elements beyond a reasonable doubt:

(1) the defendant knowingly made or caused to

be made a false statement when he stated on

SSA-821 Work Activity Report that he began

working as the owner of A.V. Heating and

Cooling April 20, 2014, when in fact the

defendant knew that he had worked as the

owner of A.V. Heating and Cooling since in or

about June 2009;

(2) that statement concerned a material fact;

and,

(3) the false statement was used in determining

the rights to payment of Social Security

Disability Insurance Payments.

(Doc. #64, p. 34); see also United States v. Phythian,

529 F.3d 807, 812-13 (8th Cir. 2008).

App. 26

Defendant argues he should be acquitted on this

count because his responses on the SSA-821 form are

true. In particular, Defendant argues:

the evidence at trial established that the SSA821 form required Mr. Workman to (1) identify

his ‘Current or Most Recent Employer’s Name;’

(2) provide his current ‘Job Title;’ and (3) state

when ‘Date Work Started’ for the current

position. Mr. Workman truthfully responded on

the Form SSA-821 that his current Job Title was

‘Owner’ and the ‘Date Work Started’ was

4/14/2014, which is the date Mr. Workman

became a member/owner of the newly formed

LLC. The ownership documents and tax returns

show that prior to 2014, the business was a sole

proprietorship in the name of his wife, Amethyst

Workman.

(Doc. #72, p. 22.)

For many of the reasons discussed above, the Court

rejects Defendant’s arguments. As explained by the

Government, the evidence admitted at trial supports a

finding that Defendant:

was an owner and active participant of A.V.

from the day the business was started in 2009

and that, as a DIB recipient, information

concerning his ability to work was critical to any

decision SSA made concerning either his initial

or his continued eligibility for DIB. The

Government admitted business records and

bank records that supported the Government’s

argument Mr. Workman was an owner and

App. 27

operator of A.V. years before the start date he

reported on the SSA-821 Work Activity Report

submitted to SSA in 2016. The SSA employees

also testified Mr. Workman submitted the SSA821 Work Activity Report at the request of SSA

while the agency was attempting to identify the

timeframe Mr. Workman would have been

eligible for DIB.

(Doc. #73, p. 12.)

This evidence, along with other evidence admitted

at trial, is adequate to support the jury’s guilty verdict

on Count Eight. Although Defendant presents evidence

that arguably could have supported a not guilty verdict,

this is not sufficient “to disturb the conviction.”

Muhammad, 819 F.3d at 1060. Therefore, the Court

denies Defendant’s motion for acquittal on Count

Eight.

B. Motion for New Trial.

In the alternative, Defendant moves for a new trial.

Defendant first argues that the Court erred by

overruling his objection at trial and allowing Agent

Bruce McKimens to testify about statements made to

him by an unidentified source. Those statements

related to the nature and reasons for Defendant’s

criminal referral. Defendant argues the testimony “was

hearsay and not relevant.” (Doc. #72, p. 23.)

The Court finds that Agent McKimens’s testimony

does not warrant a new trial. In general, Agent

McKimens testified that he received an allegation that

Defendant was working while collecting disability

benefits. This testimony was relevant to explain the

App. 28

process of McKimens’s investigation; specifically, to

determine whether Defendant was working. The Court

agrees with the Government that the statements at

issue “were relevant in that they were used to further

direct the next steps in the criminal fraud investigation

and they were not offered for the truth of the matter

asserted.” (Doc. #73, p. 13); see also Fed. R.

Evid. 801(c)(2). Consequently, the Court denies

Defendant’s motion for new trial based on Agent

McKimens’s testimony.

Second, Defendant argues a new trial is warranted

because the Court refused some of his proposed jury

instructions/verdict directors. At trial, the Court

considered these proposed instructions and explained

why they were refused. The Court stands on its prior

rulings and declines to grant a new trial based on

Defendant’s refused jury instructions. The Court

further agrees with the Government that the verdict

directors read to the jury correctly stated the applicable

law, “were based on the most recent Eighth Circuit

Model Criminal Jury Instructions; and, when there was

not a model instruction on-point, the verdict director

was modeled in the language of applicable case law.”

(Doc. #73, pp. 13-14.)3

3

Defendant also summarily “incorporates by reference . . . each

and every objection made . . . during the trial” and “renews

Defendant’s Motion to Dismiss Counts One through Five or Count

Seven on Grounds of Multiplicity.” (Doc. #72, p. 27.) Defendant’s

renewal of these arguments is denied for the reasons stated above

and for the reasons previously stated by the Court.

App. 29

Consequently, and upon review of the record and

the parties’ arguments, the Court finds that a new trial

is not warranted.

IV.

CONCLUSION

Accordingly, Defendant James E. Workman’s

Motion for a Judgment of Acquittal Notwithstanding

the Verdict or, In the Alternative, for New Trial

(Doc. #72) is DENIED.

IT IS SO ORDERED.

/s/ Stephen R. Bough

STEPHEN R. BOUGH

UNITED STATES DISTRICT JUDGE

Dated: July 23, 2021

App. 30

APPENDIX D

UNITED STATES DISTRICT COURT

WEESTERN DISTRICT OF MISSOURI

KANSAS CITY DIVISION

Case Number: 4:19-00227-01-CR-W-SRB

[Filed November 30, 2021]

________________________________

UNITED STATES OF AMERICA )

)

v.

)

)

JAMES E WORKMAN

)

________________________________ )

JUDGMENT IN A CRIMINAL CASE

USM Number: 34213-045

James R. Hobbs

Defendant’s Attorney

THE DEFENDANT:

9 pleaded guilty to count(s)

9 pleaded guilty to count(s) before a U.S. Magistrate

Judge, which was accepted by the court.

: was found guilty on Counts 1, 2, 3, 6, 7, and 8

after a plea of not guilty

App. 31

The defendant is adjudicated guilty of these offenses:

Title & Section / Nature of

Offense

Offense

Ended

Count

18 U.S.C. § 1343 - Wire Fraud

12/31/2015

1

18 U.S.C. § 1343 - Wire Fraud

02/03/2016 2

18 U.S.C. § 1343 - Wire Fraud

03/03/2016

18 U.S.C. § 641 - Theft of

Government Money

05/03/2016 6

3

42 U.S.C. § 408(a)(4) - Social 03/31/2016 7

Security Fraud

42 U.S.C. § 408(a)(3) - Social

Security Fraud

04/10/2016 8

The defendant is sentenced as provided in pages 2

through 6 of this judgment. The sentence is imposed

pursuant to the Sentencing Reform Act of 1984.

: The defendant has been found not guilty on Counts

4 and 5.

9 Count(s) 9 is 9 are dismissed on the motion of the

United States

It is ordered that the defendant must notify the

United States attorney for this district within 30 days

of any change of name, residence, or mailing address

until all fines, restitution, costs, and special

assessments imposed by this judgment are fully paid.

If ordered to pay restitution, the defendant must notify

App. 32

the court and United States attorney of material

changes in economic circumstances.

November 30, 2021

Date of Imposition of Judgment

/s/ Stephen R. Bough

Signature of Judge

STEPHEN R. BOUGH

UNITED STATES DISTRICT JUDGE

Name and Title of Judge

November 30, 2021

Date

DEFENDANT:

JAMES E WORKMAN

CASE NUMBER: 4: 19-00227-01-CR-W-SRB

PROBATION

The defendant is hereby sentenced to probation for a

term of:

4 years as to each Counts 1, 2, 3, 6, 7, and 8; terms to

run concurrently for a total of 4 years.

MANDATORY CONDITIONS

1. You must not commit another federal, state or local

crime.

2. You must not unlawfully possess a controlled

substance.

3. You must refrain from any unlawful use of a

controlled substance. You must submit to one drug

test within 15 days of release from imprisonment

App. 33

and at least two periodic drug tests thereafter, as

determined by the court.

9 The above drug testing condition is

suspended, based on the court’s

determination that you pose a low risk of

future substance abuse. (check if applicable)

4. X You must cooperate in the collection of DNA as

directed by the probation officer. (check if

applicable)

5. 9 You must comply with the requirements of the

Sex Offender Registration and Notification Act

(34 U.S.C. § 20901, et seq.) as directed by the

probation officer, the Bureau of Prisons, or any

state sex offender registration agency in which

you reside, work, are a student, or were

convicted of a qualifying offense. (check if

applicable)

6. 9 You must participate in an approved program

for domestic violence. (check if applicable)

7. X You must make restitution in accordance with

18 U.S.C. §§ 2248, 2259, 2264, 2327, 3663,

3663A, and 3664. (check if applicable)

8. X You must pay the assessment imposed in

accordance with 18 U.S.C. § 3013.

9. X If this judgment imposes a fine, you must pay in

accordance with the Schedule of Payments sheet

of this judgment.

10. X You must notify the court of any material

change in your economic circumstances that

App. 34

might affect your ability to pay restitution, fines,

or special assessments.

You must comply with the standard conditions that

have been adopted by this court as well as with any

additional conditions on the attached page.

STANDARD CONDITIONS OF PROBATION

As part of your probation, you must comply with the

following standard conditions of supervision. These

conditions are imposed because they establish the basic

expectations for your behavior while on supervision

and identify the minimum tools needed by probation

officers to keep informed, report to the court about, and

bring about improvements in your conduct and

condition.

1. You must report to the probation office in the federal

judicial district where you are authorized to reside

within 72 hours of your release from imprisonment,

unless the probation officer instructs you to report to a

different probation office or within a different time

frame.

2. After initially reporting to the probation office, you

will receive instructions from the court or the probation

officer about how and when you must report to the

probation officer, and you must report to the probation

officer as instructed.

3. You must not knowingly leave the federal judicial

district where you are authorized to reside without first

getting permission from the court or the probation officer.

App. 35

4. You must answer truthfully the questions asked by

your probation officer.

5. You must live at a place approved by the probation

officer. If you plan to change where you live or anything

about your living arrangements (such as the people you

live with), you must notify the probation officer at least

10 days before the change. If notifying the probation

officer in advance is not possible due to unanticipated

circumstances, you must notify the probation officer

within 72 hours of becoming aware of a change or

expected change.

6. You must allow the probation officer to visit you at

any time at your home or elsewhere, and you must

permit the probation officer to take any items

prohibited by the conditions of your supervision that he

or she observes in plain view.

7. You must work full time (at least 30 hours per week)

at a lawful type of employment, unless the probation

officer excuses you from doing so. If you do not have

full-time employment you must try to find full-time

employment, unless the probation officer excuses you

from doing so. If you plan to change where you work or

anything about your work (such as your position or

your job responsibilities), you must notify the probation

officer at least 10 days before the change. If notifying

the probation officer at least 10 days in advance is not

possible due to unanticipated circumstances, you must

notify the probation officer within 72 hours of becoming

aware of a change or expected change.

8. You must not communicate or interact with someone

you know is engaged in criminal activity. If you know

someone has been convicted of a felony, you must not

knowingly communicate or interact with that person

without first getting the permission of the probation officer.

App. 36

9. If you are arrested or questioned by a law

enforcement officer, you must notify the probation

officer within 72 hours.

10. You must not own, possess, or have access to a

firearm, ammunition, destructive device, or dangerous

weapon (i.e., anything that was designed, or was

modified for, the specific purpose of causing bodily

injury or death to another person such as nunchakus or

tasers).

11. You must not act or make any agreement with a

law enforcement agency to act as a confidential human

source or informant without first getting the

permission of the court.

12. If the probation officer determines that you pose a

risk to another person (including an organization), the

probation officer may require you to notify the person

about the risk and you must comply with that

instruction. The probation officer may contact the

person and confirm that you have notified the person

about the risk.

13. You must follow the instructions of the probation

officer related to the conditions of supervision.

U.S. Probation Office Use Only

A U.S. probation officer has instructed me on the

conditions specified by the court and has provided me

with a written copy of this judgment containing these

conditions. I understand additional information

regarding these conditions is available at

http://www.mow.uscourts.gov/ppts.

.

Defendant’s Signature _____________ Date ________

App. 37

SPECIAL CONDITIONS OF PROBATION

a) Provide the Probation Office with access to any

requested financial information.

b) Not incur new credit charges or open additional

lines of credit without the approval of the Probation

Office.

c) Successfully participate in any substance abuse

testing program, which may include urinalysis,

sweat patch, or Breathalyzer testing, as approved

by the Probation Office, and pay any associated

costs as directed by the Probation Office.

d) The defendant shall not consume or possess

alcoholic beverages or beer, including 3.2 percent

beer, at any time, and shall not be present in any

establishment where alcoholic beverages are the

primary items for sale.

e) Successfully participate in any mental health

counseling program, as approved by the Probation

Office, and pay any associated costs, as directed by

the Probation Office.

f) The defendant shall submit his person and any

property, house, residence, office, vehicle, papers,

computer, other electronic communication or data

storage devices or media and effects to a search,

conducted by a U.S. Probation Officer at a

reasonable time and in a reasonable manner, based

upon reasonable suspicion of contraband or

evidence of a violation of a condition of release;

failure to submit to a search may be grounds for

revocation; the defendant shall warn any other

App. 38

residents that the premises may be subject to

searches pursuant to this condition.

g) Self-employment

Probation Office.

must

be

approved

by the

ACKNOWLEDGMENT OF CONDITIONS

I have read or have read the conditions of supervision

set forth in this judgment and I fully understand them.

I have been provided a copy of them.

I understand that upon finding of a violation of

probation or supervised release, the Court may

(1) revoke supervision, (2) extend the term of

supervision, and/or (3) modify the conditions of

supervision.

______________________________

Defendant

______________________________

United States Probation Officer

____________

Date

____________

Date

App. 39

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary

penalties under the schedule of payments on Sheet 6.

AVAA Assess JVTA Fine Restitution

Assess ment

Assess

ment*

ment*

TOTALS

$600.00

$.00 $168,456.00

! The Preliminary Order of Forfeiture entered on

November 18, 2021, shall be finalized and

imposed.

It is ordered that on Counts 1, 2, 3, 6, 7, and 8,

restitution of $168,456 is imposed. A lump sum

payment of the full amount is ordered due

immediately. If unable to pay the full amount

immediately, while incarcerated, the defendant shall

make quarterly payments of $25 or at least 10 percent

of earnings, whichever is greater, and while on

supervised release, monthly payments of $100 or 10

percent of gross income, whichever is greater, to

commence 30 days after release from incarceration.

Restitution shall be paid to the following persons in the

following amounts:

Social Security Administration

Debt Management Section

Attn: Court Refund

P.O. Box 2861

Philadelphia, PA 19122

App. 40

Since the Court finds that the defendant does not have

the ability to pay interest, any interest is waived.

Notwithstanding any other provision of this order, the

Government may enforce restitution at any time.

Pursuant to 18 U.S.C. 3612(g), the defendant may be

subject to delinquent and default penalties.

The defendant shall notify, within 30 days, the Clerk of

the Court and the United States Attorney’s Office,

Financial Litigation Unit, 400 East 9th Street, Room

5510, Kansas City, MO 64106 of:

1) any change of name, residence, or mailing

address; and

2) any material change in economic circumstances

that affects the ability to pay restitution.

All payments shall be made through the Clerk of the

Court, United States District Court, 400 East 9th

Street, Room 1150, Kansas City, MO 64106.

If the defendant makes a partial payment, each

payee shall receive an approximately proportioned

payment, unless specified otherwise in the priority

order or percentage payment column below.

However, pursuant to 18 U.S.C. § 3664(i), all

nonfederal victims must be paid before the United

States is paid.

* Amy, Vicky, and Andy Child Pornography Victim

Assistance Act of 2018, Pub. L. No. 115-299.

** Justice for Victims of Trafficking Act of 2015, Pub.

L. No. 114-22.

App. 41

*** Findings for the total amount of losses are required

under Chapters 109A, 110, 110A, and 113A of Title 18

for offenses committed on or after September 13, 1994,

but before April 23, 1996.

SCHEDULE OF PAYMENTS

Having assessed the defendant’s ability to pay,

payment of the total criminal monetary penalties is due

as follows:

: Special instructions regarding the payment of

criminal monetary penalties:

It is ordered that the Defendant shall pay

to the United States a special assessment of

$600.00 for Counts 1, 2, 3, 6, 7 and 8, which

shall be due immediately. Said special

assessment shall be paid to the Clerk, U.S.

District Court.

Unless the court has expressly ordered otherwise, if

this judgment imposes imprisonment, payment of

criminal monetary penalties is due during

imprisonment. All criminal monetary penalties, except

those payments made through the Federal Bureau of

Prisons’ Inmate Financial Responsibility Program, are

made to the clerk of the court.

The defendant shall receive credit for all payments

previously made toward any criminal monetary

penalties imposed.

Payments shall be applied in the following order:

(1) assessment, (2) restitution principal, (3) restitution

interest, (4) fine principal, (5) fine interest,

(6) community restitution, (7) JVTA Assessment,

App. 42

(8) penalties, and (9) costs, including cost of prosecution

and court costs.