United States v. Brandy Lemons
792 F.3d 941
| 8th Cir. | 2015Background
- Brandy Lemons received Social Security disability benefits after an ALJ awarded benefits effective March 2008; benefits began in May 2010. A recommended follow-up review for May 2011 was not performed until October 2011 after an anonymous tip with photos suggested activity inconsistent with her disability claims.
- Surveillance and Facebook posts showed Lemons engaging in physically demanding activities (chainsaw work in a tree, hauling a child in a wagon, standing/walking at a concert, bow hunting and target shooting). Her treating physician revised her disability opinion after viewing surveillance video.
- Administrative reviewers (a hearing officer and an ALJ) found Lemons’s statements about limitations not credible and discontinued benefits January 2012; Lemons appealed administratively while continuing to accept benefits pending appeal.
- A federal grand jury charged Lemons with two counts under 18 U.S.C. § 1001 (false statement) and three counts under 18 U.S.C. § 641 (theft of government funds); the jury convicted her on three theft counts and one false-statement count.
- At sentencing the district court calculated intended loss of $284,018.64 (benefits through age 62) for Guidelines purposes, producing a 27–33 month range, then varied downward and imposed 12 months + 1 day. Lemons appealed evidentiary rulings and the loss calculation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission/delivery to jury room of Facebook exhibit containing third‑party comments | Third‑party comments were irrelevant/hearsay and unfairly prejudicial; should have been redacted before being sent to the jury | Comments provided context making Lemons’s own admissions intelligible; government willing to redact prejudicial material earlier | Admission for context permissible; lack of limiting instruction was error as to hearsay but harmless given cumulative evidence; conviction affirmed |
| Testimony of ALJ Steitz and Hearing Officer Young about administrative conclusions | Their testimony invaded the jury’s province, confused issues by opining on disability/credibility | Testimony was lay opinion based on perceptions and helpful to materiality of Lemons’s statements | Testimony admissible under Fed. R. Evid. 701 as relevant lay opinion; no prejudice to substantial rights |
| Refusal to judicially notice SSA overpayment regulations | Regulations would show Lemons lacked intent to steal and lacked notice that accepting benefits could be criminal | Overpayment process was not relevant to criminal intent or was unduly confusing/cumulative | Court did not abuse discretion; regulations either irrelevant or minimal probative value outweighed by confusion |
| Sentencing: use of intended loss (benefits through age 62) vs. actual loss | Court should have used actual loss ($18,111.90) for Guidelines calculation | Guidelines require using the greater of actual or intended loss; intended loss properly measured as what would have been lost if not caught (benefits to retirement) | Use of intended loss was proper; district court’s finding that Lemons intended continued benefits until age 62 was not clearly erroneous |
Key Cases Cited
- United States v. Condon, 720 F.3d 748 (8th Cir. 2013) (review of district court evidentiary rulings for abuse of discretion)
- United States v. Stelten, 867 F.2d 453 (8th Cir. 1988) (third‑party statements admissible to make defendant responses intelligible and as non‑hearsay admissions)
- United States v. Gayekpar, 678 F.3d 629 (8th Cir. 2012) (timing and necessity of limiting jury instructions)
- Silber v. United States, 370 U.S. 717 (1962) (plain‑error standard under Rule 52(b))
- United States v. Johnson, 688 F.3d 494 (8th Cir. 2012) (lay opinion testimony under Rule 701)
- United States v. Hale, 978 F.2d 1016 (8th Cir. 1992) (abuse of discretion standard for judicial notice decisions)
- United States v. Killen, 761 F.3d 945 (8th Cir. 2014) (intended loss may be continued receipt until retirement)
- United States v. Frisch, 704 F.3d 541 (8th Cir. 2013) (intended loss is the pecuniary harm intended; measure is what loss would have been if not caught)