United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-3034

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United States of America, *

Appellant, * Appeal from the United States

 v. * Northern District of Iowa.

Roger D. Workman, *

Appellee. *

*

* District Court for the

*

*

*

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Submitted: December 9,1997

Filed: March 17, 1998

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Before McMILLIAN, MAGILL, and MURPHY, Circuit Judges.

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

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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 or disclosed them on his tax returns. 1

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 voluntarily
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waive 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 C. Wright & A. Miller, Federal Practice and

Procedure § 2016.2. 

Workman argues on appeal that the statements he made to RRB

investigators were not voluntary because they were made in a coercive

environment and that he therefore did not waive the privilege. The district

court did not make any explicit finding on whether or not the statements

were voluntary because the argument that the statements were involuntary was

not raised in the trial court. The district court excluded the testimony

on the grounds that the scope of Levad’s proposed testimony was too broad

and could result in an unfair conviction. 

An argument not raised in the district court will generally not be

considered on appeal, and Workman failed to challenge the voluntariness of

his disclosures until the government’s appeal. See Unigroup v. O’Rourke

Storage & Transfer, 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
Workman made the statements in his own home with his wife present after

2

agreeing to talk with the investigators and after being informed of his Miranda rights.

The questioning was not prolonged, and he was not placed under arrest. The

possibility of criminal penalties was not mentioned until Workman’s wife said the

investigators were treating him like a criminal, and the agents responded that

improperly cashing government checks could trigger criminal penalties. See United

States v. Watson, 423 U.S. 411, 424-25 (1976); Schneckloth v. Bustamonte, 412 U.S.

218, 222 (1973).

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officers testified at the first trial that Workman freely agreed to talk

with them and informed them that he cashed the checks as executor of his

father’s estate based on Levad’s advice, and the record contains

considerable evidence of voluntariness. 

2

The attorney client privilege may also be implicitly waived, Hollins

v. Powell, 773 F.2d 191, 196 (8th Cir. 1985), and one way that is done is

by raising attorney advice as a defense. Sedco International, 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 Levad’s advice in issue

by asserting that Workman had relied on the advice in cashing the checks.

Workman cannot selectively assert the privilege to block the introduction

of information harmful to his case after introducing other aspects of his

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 used

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 to

explore the substance of that advice. 

The government seeks to introduce evidence that Workman failed to share

the proceeds of the benefits checks with his sister or to report them on his

income tax in order to prove intent. It bears the burden of demonstrating

that Workman knowingly and intentionally converted government funds by

cashing 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 not

probative of intent, that he had no duty to share the proceeds
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with his sister or disclose them 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 probative

value 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 relevance

beyond simply showing Workman’s criminal disposition, U.S. v. Street, 66

F.3d 969, 976 (8th Cir. 1995), and clarifies the course of conduct involved

in the charged crimes, United States v. Williams, 95 F.3d 723, 731 (8th Cir.

1996). Workman’s handling of the funds shows his intent to keep their

disposition a secret and is relevant to the element of intent to retain them

wrongfully. 

In reviewing the rulings 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 the challenged evidentiary rulings cannot be sustained. Because

Workman waived his attorney client privilege and the government seeks to

introduce evidence relevant to the charges in the indictment, the challenged

pretrial 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.