Tuesday, April 12, 2016

United States v. Lemons

Opinion handed down June 16, 2015
Brandy Lemons was convicted of theft of government funds and making a false statement to the government in connection with the receipt of social security disability benefits for several years.[1]  Lemons was initially denied benefits but then eventually was granted social security disability benefits.[2]  After a few years of receiving these benefits, someone sent evidence to the Social Security Administration (“Administration”) that Lemons was capable of engaging, and in fact did engage, in activities that were inconsistent with the disability permitting Lemons to receive social security disability benefits.[3]  After an investigation by the Administration, Lemons was charged with two counts of making a false statement in violation of 18 U.S.C. § 1001 and three counts of theft of government funds in violation of 18 U.S.C. § 641.[4]  Lemons was convicted of all three counts of theft of government funds and one count of making a false statement.[5]  The U.S. Court of Appeals for the Eighth Circuit affirmed the conviction.[6]

I.  Facts and Holding
In June 2009, Lemons applied for social security disability benefits after being diagnosed with arachnoiditis, a pain disorder caused by inflammation of a membrane that surrounds the nerves of the spinal cord.[7]  In that application, Lemons claimed “that pain and fatigue required her to limit her activities, and that all physical activity caused her additional pain in her neck, back, and legs.”[8]  The agency that processes these claims denied her application, but Lemons successfully appealed to an administrative law judge (“ALJ”).[9]  Effective from March 2008, the ALJ awarded disability benefits to Lemons.[10]  Lemons began to receive $802 per month in May 2010.[11]  The ALJ, even though he was advised that her condition should improve with time, failed to follow-up with Lemons regarding her condition.[12]
The “Administration received an anonymous letter disclosing that Lemons was capable of engaging in physical activities that were inconsistent with her claim of a back injury” in June 2011.[13]  The evidence included photographs of Lemons using a chainsaw, cutting limbs into smaller pieces once on the ground, and pulling her son up a hill whilst in a wagon.[14]  Sufficiently perturbed, the Administration commenced an investigation upon Lemons.[15]
The Administration’s investigators quickly realized that Lemons was not so disabled after all.[16]  They saw Lemons “take out the trash, pick up her young son, and push her son in a shopping cart for extended periods of time.”[17]  They “followed Lemons to a concert venue and saw her standing and walking for over an hour without assistance or appearance of pain.”[18]  Lemons also not-so-subtly posted on Facebook, revealing that she hunted game using a bow, attended hunter safety courses, and even rode on all terrain vehicles for extended periods of time.[19]
After realizing that no follow-up had been had by the Administration, in October 2011, the Administration initiated a review that “covered May 28, 2010, through October 11, 2011.”[20]  Lemons, assumedly not realizing she was under investigation, responded “that she had no hobbies or interests, could not pick up anything over 20 pounds without causing increased pain, and could not sit more than thirty minutes without experiencing additional pain.”[21]  She also wrote, “that any physical activity caused increased pain, and that her condition affected her ability to lift, bend, stand, walk, and concentrate. She said that her condition took away her ability to enjoy life.”[22]
The “Administration discontinued benefits due to medical improvement” in January 2012.[23]  Lemons again appealed and chose to continue receiving the benefits pending the outcome, with the knowledge that she would have to pay the government back the amount of benefits received if she did not prevail.[24]  During the appeal, the investigators “met with Lemons's treating physician . . . and showed her surveillance video of Lemons engaging in physical activities.”[25]  After seeing the video, the doctor “revised her previous assessment that Lemons was disabled and concluded that Lemons could perform some type of work.”[26]  The cessation of benefits was upheld.[27]  The “decision also recorded a finding of ‘Fraud or Similar Fault’ in the case.  The decision found that Lemons' allegations about her physical limitations were not substantiated.”[28]
Lemons appealed again to an ALJ.[29]  The ALJ “determined in January 2013 that Lemons' disability ended as of January 1, 2012, and he upheld [the] hearing officer[’s]” decision.[30]  The ALJ then lambasted Lemons, finding Lemons’s allegations “about the severity of her symptoms and limitations” were “wholly incredible.”[31]  The ALJ also found that “Lemons was ‘obviously very active’ and explained that she ‘engages in enjoyable activities such as attending a concert, bow hunting, and riding a four wheeler,’ as well as ‘shopping, lifting shopping bags, and lifting her son.’”[32]
Following the myriad of appeals, a grand jury “eventually charged Lemons with two counts of making a false statement, in violation of 18 U.S.C. § 1001, and three counts of theft of government funds, in violation of18 U.S.C. § 641.”[33]  The case then proceeded to trial and a jury found “Lemons guilty on the three counts of theft and one count of making a false statement.”[34]
The false statement count of the conviction alleged that “Lemons represented to the Administration that she had no hobbies or interests, could not pick up anything over 20 pounds without causing increased pain, and that sitting more than 30 minutes caused additional pain” when in reality “Lemons attended hunter safety classes, bent and lifted objects and people, hunted deer during bow season, regularly practiced bow hunting with a 30–pound compound bow, attended a concert, and rode an all-terrain vehicle for two hours.”[35]  Lemons, yet again, appealed.[36]  The Eighth Circuit affirmed the ruling of the district court.
II.  Legal Background
18 U.S.C. § 1001 punishes making knowingly false statements to administrative bodies.[37]  18 U.S.C. § 641 punishes stealing government funds.[38] 
“Where a defendant's admissions are part of a conversation with a third party who is not a witness, the court has discretion to admit the non-witness's statements when they make the defendant's responses ‘intelligible to the jury and recognizable as admissions.’”[39]  The Facebook posts made by Lemon were admissions by her, but the comments and replies to her Facebook posts were at issue in this case.[40]
At sentencing, the district court used USSG § 2B1.1(b)(1)(G) to calculate “an advisory guideline range of 27–33 months' imprisonment, based on an amount of intended loss totaling $284,018.64.”[41]  “The court then varied downward in light of 18 U.S.C. § 3553(a) and sentenced Lemons to 12 months and one day in prison.”[42]  The court reached this number by finding, “that the amount of loss to the government was the amount that Lemons intended to collect through the age limit of 62—the age at which Lemons would qualify for retirement—if her fraud was not discovered. The court found that this amount was $284,018.64.”[43]  Lemons argued that “the court should have used the actual loss incurred—a considerably lesser amount of $18,111.90.”[44]
III.  Instant Decision
“Some of the Facebook posts at issue here are in the nature of a conversation between Lemons and third parties, and the district court reasonably could have believed that review of the complete exhibit would enlighten the jury about the meaning of admissions by Lemons.”[45]  The court found the “comments were relevant for that limited purpose, and if considered only for that limited purpose, the probative value was not substantially outweighed by a danger of unfair prejudice.”[46]  The court found Lemons’s substantial rights were not affected by allowing the jury to see the Facebook evidence.[47]
After concluding that the judgment would be affirmed, the court looked to Lemons’ sentencing.[48]  The court found the district court’s analysis to not be clearly erroneous.[49]  The “‘intended loss’ under the guidelines is ‘the pecuniary harm that was intended to result from the offense.’ USSG § 2B1.1(b), comment. (n.3(A)). ‘When calculating intended loss, the appropriate inquiry is what the loss would have been if the defendant had not been caught.’ Frisch, 704 F.3d at 544. The district court found that Lemons intended to collect disability benefits through age 62 and calculated the loss on that basis.”[50]
IV.  Comment
This was an interesting case regarding social media and evidence.  The court rightfully upheld Lemons’ conviction.  The court also reached the right judgment in terms of sentencing.  If you are going to fraudulently leach off the government, perhaps you should not post incriminating evidence.
– Ross Freeman

[1] United States v. Lemons, 792 F.3d 941, 944 (8th Cir. 2015).
[2] Id.
[3] Id.
[4] Id. at 941.
[5] Id.
[6] Id. at 951.
[7] Id. at 944.  This is compared to arachnophobia, which is the extreme fear of spiders. See Arachnophobia,Disctionary.com, http://dictionary.reference.com/browse/arachnophobia (last visited Apr. 6, 2016).  See also Arachnophobia, a 1990 film detailing a small town overrun with a host of South American poisonous spiders.  Arachnophobia, IMDb, http://www.imdb.com/title/tt0099052/ (last visited Apr. 6, 2016).
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id. at 944-45.
[15] Id. at 945.
[16] Id.
[17] Id.
[18] Id. The author wonders if the investigators had to purchase their own tickets or not. If not, were the tickets deductible for federal tax reasons?
[19] Id.
[20] Id.
[21] Id.
[22] Id.  Note a popular American phrase relevant to Ms. Lemons’s statements during the review, see Liar! Liar! Pants on Fire!, VOA News (Dec. 5, 2015),http://learningenglish.voanews.com/content/liars-liars-pants-on-fire/3084832.html.
[23] Lemons, 792 F.3d at 944.
[24] Id.
[25] Id.
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30] Id.
[31] Id.
[32] Id. 
[33] Id.
[34] Id.
[35] Id. at 945-46.
[36] Id.
[37] See 18 U.S.C. § 1001 (2015).
[38] See 18 U.S.C. § 641 (2015).
[39] Lemons792 F.3d at 947.
[40] Id.
[41] Id. at 946.
[42] Id.
[43] Id. at 950.
[44] Id.
[45] Id. at 947.
[46] Id. at 947-48.
[47] Id. at 948.
[48] Id. at 950.
[49] Id.
[50] Id.