United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-3034

___________ United States of America, *

Appellant, * Appeal from the United States

v. * Northern District of Iowa. Roger D. Workman, *

Appellee. * *

* District Court for the

*

*

*

___________ Submitted: December 9,1997 Filed: March 17, 1998

___________ Before McMILLIAN, MAGILL, and MURPHY, Circuit Judges.

___________ MURPHY, Circuit Judge. Roge r Workman was charged with numerous counts of convertin g gover nment property in violation of 18 U.S.C. § 641, for diverting th e proceeds of railroad retirement benefit checks issued in his father’s name

. The case is now before the court on an interlocu tory appeal brought by the government to challen ge certain evidentiary rulings of the district court in advance of Roger Workman’s second trial on th e charges. We reverse and remand.

## -2- 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 an d provided that it be evenly divided between the t wo children. As a retired railroad employee, Ca rl had received regular retirement payments from the Rai lroad Retirement Board (RRB), and retirement checks continued to b e mailed in hi s name for more than six years after his death. Roge r deposited the checks in a credit union in Ames, Iowa, with the endorsement , “Carl C. Workman, by Roger D. Workman” and the word “executor” writte n above his name. All the checks were deposited t hrough an automated teller machine w hich did not require other documentation or a face to fac e transaction. Roger never contacted the RRB about his father’s death or th e 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 dist rict office of the RRB contacted Roger Workman to inqu ire about a questionnaire that had been sent to Carl Workman but never returned. Roger stated that his father had died “i n August” but that he could not give the exact dat e 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 Mar ch 15, 1995, two agents from the RRB Office of the Inspecto r General visited Roger Workman and asked if they could question him. Roger agreed to talk and answered several of their que stions after being advised of his Miranda rights. He said that he thought his father’s estate wa s entitled to benefits checks for a period of twenty five years and that he had endo rsed the checks as executor of the estate on the advice of hi s attorney, Charles Levad. He also said that Levad had failed to include th e checks in the probate inventory of the estate.

## This evidence was admitted without objection in the first trial. 1 

## -3- Roger Workman was indicted on sixty eight counts of convertin g gov ernment property and went to trial on forty two counts after the others we re dismissed because of the statute of limitations. During his openin g state ment defense counsel asserted that Workman was “the victim of ba d 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 con tent 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 a dvice to Roger on the subject of endorsing the checks. Leva d sub sequently testified that he advised Workman not to negotiate the checks wit hout first contacting the RRB and that he therefore did not contact the RRB hi mself. Workman moved for a mistrial on the grounds that thi s testimonyincluded privileged information, and the district court grante d the motion.
Before the start of Workman’s new trial, the government moved in limin e either to bar Workman from cla iming that he had relied on Levad’s advice to cas hthe checks or to permit Levad to testify about his advice. Th e district court denied the government’s motion and indicat ed in addition that it would not admit evidence that Workman had not shared the check proceeds with his sister or disclosed them on his tax returns. 1 The government appeals from these rulings. I t argues that evidence of Levad’ s advice about negotiating the checks should be admitted becaus e Wor kman waived the attorney client privilege by discussing his advice with RRB investigators and by asserting the privilege in his defense. It als o arg ues that the evidence about Workman not sharing the proceeds o r disclo sing them on his tax returns demonstrates his intent to steal o r convert government property. Workman responds that he did not voluntarily

## -4-

waive the privilege by talking about his attorney’s advice with RR B inv estigators and that his advice of counsel defense did not plac e privileged communications in i ssue. Workman also says that it has not been sho wn that Patricia had any entitlement to the proceeds and that he cashed the check s as executor of his father’s estate so they did not need to b e reported on his personal tax returns.
The exclusion of evidence on the basis of the attorney client privileg e is reviewed for abuse of discretion. Charles Woods Television v. Capita l Ci ties/ABC , 869 F.2d 1155, 1161 (8th Cir. 1989). Voluntary disclosure o f attorney client communications expressly waives the privilege, Luthera n Medical Center v. Contractors Health Plan , 25 F.3d 616, 6 22 (8th Cir. 1994); In re Grand Jury Proceedings S ubpoena to Testify to Wine , 841 F.2d 230, 234 (8th Cir. 1988). The waiver covers any information direc tly related to that which was actually disclosed. 8 C. Wright & A. Miller, F ederal Practice and Procedure § 2016.2.

Wo rkmanargues on appeal that the statements he made to RR B in vestigators were not voluntary because they were made in a coerciv e environment and that he therefore did not waive the privi lege. The district cou rt did not make any explicit finding on whether or not the statement s were voluntary because the argument that the statements w ere involuntary was not raised in the trial court. The district court excluded the testimon y on the grounds that the scope of Levad’s proposed testimony was too broa d and could result in an unfair conviction.

An argum ent not raised in the district court will generally not b e con sidered on appeal, and Workman failed to challenge the voluntariness of his disclosures until the government’s appeal. See Unigroup v. O’Rourk e Storage & Tra nsfer , 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

## W orkmanmade the statements in his own home with his wife present after 2 

## agreeingto talk with the investigators and after being informed of his Miranda rights. The qu estioning was not prolonged, and he was not placed under arrest. Th e po ssibilityof criminal penalties was not mentioned until Workman’s wife said th e investi gators were treating him like a criminal, and the agents responded that improperly cashing government checks could trigger criminal penalties. See Unite d States v. Watson , 423 U.S. 411, 424- 25 (1976); Schneckloth v. Bustamonte , 412 U.S. 218, 222 (1973). -5- officer s testified at the first trial that Workman freely agreed to tal k with them an d informed them that he cashed the checks as executor of hi s father ’s estate based on Levad’s advice, and the record contain s considerable evidence of voluntariness. 2
The attorney client privilege may also be implicitly waived, Hollin s v. Powell , 773 F.2d 191, 196 (8th Cir. 1985), and one way that is done i s by raising attorney advice as a defense. Sedco Internati onal, 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 Leva d’s advice in issue byasserting that Workman had relied on the advice in cashing the checks

. Workma n cannot selectively assert the privilege to block the introductio n of information harmful to his case after introducing other aspects of hi s 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 use d 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 t o explore the substance of that advice.
The government seeks to introduce evidence that Workman failed to shar e the proceeds of the benefits checks with his sister or to report them on his inc ome tax in order to prove intent. It bears the burden of demonstrating that Workman knowingly and intentionally converted government funds b y cas hing 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 no t probative of intent, that he had no duty to share the proceeds

## -6-

with his sister or disclose th em 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 probativ e val ue 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 relevanc e beyond simply showing Workman’s criminal disposition, U.S. v. Street , 6 6 F.3d 969, 976 (8th Cir. 1995), and clarifies the course of conduct involved in the charged crimes, United States v. Williams , 95 F.3d723, 731 (8th Cir. 1996). W orkman’s handling of the funds shows his intent to keep thei r disposition a secret and is relevant to the element of in tent to retain them wrongfully. In reviewing the r ulings 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 t he challenged evidentiary rulings cannot be sustained. Becaus e Workman waived his attorney client privilege and the government seeks t o introduce evidence relevant to the charges in the indictm ent, the challenged pre trial 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.