United States District Court, E.D. Washington
ORDER GRANTING DEFENDANT'S MOTION FOR JUDGMENT OF
ACQUITTAL OR ALTERNATIVELY A NEW TRIAL
ROSANNA MALOUF PETERSON UNITED STATES DISTRICT JUDGE.
case is about Donald Henderson, a former serviceman who was
injured in an accident while in the military. The Government
does not contest that Mr. Henderson qualified for ongoing
benefits from the Department of Veterans Affairs as a result
of the permanent injuries that he suffered in the accident.
However, the Government challenges the amount of the benefits
that Mr. Henderson has received over the years and contends
that Mr. Henderson was deceptive to Veterans Affairs and to
the Social Security Administration to obtain more benefits
than those to which he otherwise would have been entitled.
Specifically, the Government alleges that Mr. Henderson's
false statement to Veterans Affairs was his submission of the
written diagnosis by Dr. Harshman, a Veterans Affairs eye
doctor, stating that Mr. Henderson was legally blind due to a
support the Government's case regarding Mr.
Henderson's alleged false statement, the Government
called numerous witnesses over seven and a half days of trial
to testify about what they observed Mr. Henderson doing, or
heard him saying, during eye exams, in casual interactions,
and while observing him surreptitiously. The Government's
case hinged on comparing what its witnesses observed with
those witnesses' conclusions about what a person can or
cannot do who is legally blind due to keratoconus, one of Mr.
Henderson's diagnosed conditions.
Henderson argues that the Government failed to provide
sufficient evidence to prove that he intentionally made a
false statement about being legally blind due to a permanent
condition. The Court agrees.
the Court finds that the Government failed to meet its burden
to prove by sufficient evidence that Mr. Henderson knowingly
and willfully, with knowledge that his conduct was unlawful,
made a false statement regarding either the permanence or the
extent of his visual impairment. Therefore, the Court grants
Mr. Henderson's motion for acquittal pursuant to Fed. R.
Crim. P. Rule 29.
district court must, on a defendant's motion,
“enter a judgment of acquittal of any offense for which
the evidence is insufficient to sustain a conviction.”
Fed. R. Crim. P. 29(a). The relevant inquiry “is
whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319 (1979) (emphasis in original); see also
United States v. Laney, 881 F.3d 1100, 1108-09 (9th
Cir. 2018). The jury's verdict is entitled to great
deference. United States v. Dearing, 504 F.3d 897,
900 (9th Cir. 2007). “Sufficiency-of-the evidence
review . . . should be independent of the jury's
determination that evidence on another count was
insufficient.” United States v. Powell, 469
U.S. 57, 67 (1984). In other words, a jury acquittal on
another count does not affect a court's consideration of
the evidence supporting a defendant's counts of
conviction. United States v. Hart, 963 F.2d 1278,
1282 (9th Cir. 1992).
event that a Court “enters a judgment of acquittal
after a guilty verdict, the court must also conditionally
determine whether any motion for a new trial should be
granted if the judgment of acquittal is later vacated or
reversed.” Fed. R. Crim. P. 29(d)(1).
Henderson made a motion for judgment of acquittal at the end
of the Government's case-in-chief, and the Court reserved
ruling on that motion. Following the jury verdict, Mr.
Henderson again moved for acquittal on the three counts of
conviction. Where a court reserves decision on a motion for
acquittal made at the close of the Government's
case-in-chief, and returns to decide the motion after a
guilty verdict, the Court must decide the mid-trial motion on
the basis of the evidence at the time the ruling was
reserved. Fed. R. Crim. P. 29(b).
Government charged Defendant in Count 3 of the superseding
indictment with concealing a material fact from the United
States Department of Veterans Affairs (the “VA”),
in violation of 18 U.S.C. § 1001(a)(1) from “on or
about August 6, 2002 and continuing through on or about
February 8, 2016” “by representing that his eye
condition, keratoconus, caused him to be permanently blind
with a best corrected visual acuity worse than 20/200.”
ECF No. 165 at 2. The superseding indictment labels Count 3
“False Statement to Veterans Affairs.”
Count 2, the Government charged Defendant with knowingly and
willfully stealing and purloining more than $1000 of money
and property from the Social Security Administration (the
“SSA”), in violation of 18 U.S.C. § 641,
“on or about August 16, 2011, and continuing through on
or about June of 2016[.]” ECF No. 165 at 2. In Count 4,
the Government charged Defendant with committing the same
offense with respect to the VA from “on or about August
16, 2011, and continuing through on or about February 8,
September 22, 2017, at the conclusion of a trial that
included seven and a half days of evidence and one and a half
days of deliberations, a jury of twelve acquitted Defendant
Donald Henderson of Social Security fraud (Count 1),
convicted him of making a false statement to the VA (Count
and theft of money from the SSA (Count 2) and the VA (Count
4). Defendant timely moved for a judgment of acquittal, or,
in the alternative, a new trial, on the latter three counts.
ECF Nos. 241, 257, and 258.
from the Government's case-in-chief
Applications and Determinations during the Pre-Indictment
Government does not contest that Mr. Henderson was injured in
a motorcycle accident in 1984 while serving in the Army.
Gov't Ex. 20 at 1. He was unconscious for approximately
ten to fifteen minutes following the accident, was
immediately hospitalized in intensive care, and received
surgery for an injury to his right hand. Id.
to the Government's exhibits, Mr. Henderson began
experiencing debilitating headaches while in the hospital
recovering from the accident. Id. His hospital
records indicate that he suffered a head injury. Gov't
Ex. 17 at 10. In 1986, Mr. Henderson was honorably discharged
from the military. Gov't Ex. 16; ECF No. 224 at 57. At
the time that he was released from military service, the VA
granted Mr. Henderson a ten percent disability rating on the
basis of his finger injuries. Gov't Ex. 17.
Government's witness, VA Rating Specialist Clinton David,
testified about the VA disability rating system and the
disability benefits that the VA awarded Mr. Henderson over
the years. Mr. David testified that in 1988, Mr. Henderson
requested an increased disability rating for his finger
injuries in combination with a disability determination for
migraine headaches. Gov't Ex. 18; ECF No. 226 at 213-14.
The VA denied the request because Mr. Henderson had not
reported a head injury (traumatic brain injury or
“TBI”) at the time that he separated from the
military. ECF No. 226 at 216. Mr. David testified that in
1991, Mr. Henderson sought reconsideration of his claim of
disability for migraine headaches, submitting additional
evidence. ECF No. 226 at 218. The VA again “denied
service-connection” for the migraine headaches. ECF No.
226 at 219.
1992, Mr. Henderson had moved to Spokane. Gov't Ex. 20 at
1-2. Mr. Henderson saw a VA doctor to complete a neurological
disorder exam as part of his appeal of denial of benefits for
migraine headaches. ECF No. 226 at 220. Defendant reported
during that exam that he was missing ten to fifteen days of
work yearly due to headaches and was experiencing severe
headaches approximately two or three times each month.
Gov't Ex. 20 at 2. He also reported that his headaches
involved light sensitivity and nausea and that the headaches
began shortly after his in-service motorcycle accident,
during which he lost consciousness. ECF No. 226 at 222-23. In
1993, the VA reversed its previous decision and determined
that Mr. Henderson was fifty percent disabled on the basis of
his debilitating migraine headaches. ECF No. 226 at 225.
1995, Mr. Henderson sought an increased disability rating for
his migraine headaches. ECF No. 226 at 228. The VA denied the
request and maintained a sixty percent total disability
rating. Gov't Ex. 21; ECF No. 226 at 228-30.
Mr. David testified that fifty percent disability was the
maximum that a veteran could receive on the basis of migraine
headaches under the ratings schedules. ECF No. 226 at 232;
Gov't Ex. 23 at 1.
1996, Mr. Henderson's wife, Tamara Henderson, provided a
statement in support of a new claim for disability for Mr.
Henderson on the basis of symptoms of anxiety, depression,
and opioid dependence related to medications that Mr.
Henderson was prescribed for the migraine headaches. ECF No.
226 at 233; Gov't Ex. 22. Mr. David testified that the VA
granted thirty percent disability for the secondary mental
health symptoms that the Hendersons reported. Mr. David
further explained that because of the way that the VA
combines multiple partial disabilities, Mr. Henderson's
total disability rating was raised to seventy percent. ECF
No. 226 at 234.
approximately April 1998, Spokane optometrist Brett Hagen,
OD, diagnosed Mr. Henderson with the eye disorder keratoconus
after reviewing corneal topography results depicting the
shape of the front surface of Mr. Henderson's eyes.
Gov't Ex. 27 at 12; ECF No. 229 at 190-91. In February
2000, Mr. Henderson sought service-connection and disability
compensation for keratoconus. ECF No. 226 at 238. The VA
denied service-connection for the keratoconus on March 30,
2000, but gave Mr. Henderson an opportunity to provide more
medical evidence of a service-connection. ECF No. 226 at 240;
Gov't Ex. 24 at 7.
2001, the VA recalculated Mr. Henderson's disabilities
and determined that going back to November 1, 2000, Mr.
Henderson's “[a]nxiety neurosis with posttraumatic
stress disorder and major depressive disorder” was
fifty percent disabling, rather than thirty percent, and Mr.
Henderson's finger injuries were twenty percent
disabling, rather than ten percent. Gov't Ex. 25 at 1.
18, 2001, Mr. Henderson was examined at the Spokane Eye
Clinic by Alan Johnson, OD, who described himself as an
optometric physician. ECF Nos. 223 at 103; 226 at 247. Using
a standard Snellen eye chart for the examination, Dr. Johnson
determined Mr. Henderson's best-corrected visual acuity
on that day was 20/80 in his right eye and 20/100 in his left
eye. Gov't Ex. 26 at 11-12. Dr. Johnson also determined,
based on corneal topographies, that Mr. Henderson's left
eye was “moderately” affected by keratoconus
while the keratoconus in Mr. Henderson's right eye was
“severe.” ECF No. 223 at 220. By December 2001,
Dr. Hagen determined that Mr. Henderson's best attainable
visual acuity was 20/60 in both eyes and submitted that
determination to the Washington State Department of Licensing
for purposes of vision ability for a driver's license.
Gov't Ex. 1 at 8. As a result, Mr. Henderson's
driver's license was revoked due to his visual
impairment. Gov't Ex. 9 at 14.
December 2001, Dr. Hagen referred Mr. Henderson to a local
ophthalmologist, Christopher Sturbaum, MD, to be evaluated
for the suitability of contact lenses to address Mr.
Henderson's keratoconus and to explore the option of
corneal transplant surgery. ECF No. 224 at 124. Contradicting
Dr. Johnson's testimony, Dr. Sturbaum testified that
based on Mr. Henderson's corneal topographies from spring
2001, Mr. Henderson's keratoconus was “mild.”
ECF No. 224 at 127.
Sturbaum further testified that a physician cannot
“predict somebody's vision based on just a
topography . . . . There's more factors involved.”
ECF No. 224 at 130-31. Despite that disclaimer, Dr. Sturbaum
postulated that Mr. Henderson's corneal topographies
could be expected to result in a visual acuity as poor as
20/80. ECF No. 224 at 131. Dr. Sturbaum also testified that
the medications that Mr. Henderson was prescribed and was
taking at the time that Dr. Sturbaum examined Mr. Henderson
in December 2001 can affect vision. ECF No. 224 at 169-70.
With respect to the potential effects of TBI on Mr.
Henderson's vision, Dr. Sturbaum testified that
optometrists and ophthalmologists would not generally be
treating TBI patients because TBI injuries are “not
their area of expertise.” ECF No. 224 at 156.
January 8, 2002, the VA determined that the keratoconus was a
service-connected condition and was thirty percent disabling
beginning on October 25, 2000. ECF No. 226 at 243. Therefore,
according to the VA's formula of starting at 100 percent
and accounting for each of a veteran's disabling
percentages, by January 8, 2002, the VA calculated Mr.
Henderson as ninety percent disabled beginning on October 25,
2000, and compensated him accordingly. Gov't Ex. 26 at 4;
ECF No. 226 at 243-44.
February 11, 2002, VA optometrist Thomas Riley, OD, examined
Mr. Henderson for the first time and measured his visual
acuities as 20/100 in both eyes. ECF No. 225 at 235. Mr.
Henderson reported during his appointment that his vision
“fluctuates on a regular basis.” Gov't Ex. 27
at 16. Dr. Riley saw Mr. Henderson approximately on an annual
basis from 2002 until 2013. Dr. Riley determined Mr.
Henderson's visual acuity to be 20/100 on February 11,
2002, and 20/400 the next year. ECF No. 225 at 236. Dr. Riley
testified that, “Based on the appearance of [Mr.
Henderson's] eyes, the keratoconus had not progressed
[between February 11, 2002, and January 13, 2003], and so the
change in the visual acuity is not
explained-explainable.” ECF No. 225 at 236. Mr.
Henderson again reported to Dr. Riley in 2004 that his vision
“wildly” fluctuated. ECF No. 225 at 232. Dr.
Riley further testified that he observed Mr. Henderson
bumping into the wall as he arrived for an optometric exam,
which is not characteristic of someone with
keratoconus. ECF No. 225 at 256-57.
March 27, 2002, the VA granted a request from Mr. Henderson
for “individual unemployability” benefits from
March 11, 2002, meaning that although Mr. Henderson's
disabilities did not total 100 percent under the VA ratings
system, the VA recognized Mr. Henderson as having a
combination of impairments severe enough to prevent him from
working, thereby justifying disability compensation as though
he were 100 percent disabled. ECF No. 226 at 245; Gov't
Ex. 27. Mr. David also testified that the VA “made [Mr.
Henderson] permanent” at the time of granting
individual unemployability benefits. ECF No. 226 at 251.
5, 2002, more than three months after already being granted
“individual unemployability” status, Mr.
Henderson was assessed by the VA Visual Impairment Services
Team “VIST” Coordinator Cheryl Sjoberg, MSW, who
recorded in her notes that Mr. Henderson was “most
likely legally blind” but needed a “definitive
diagnosis.” Gov't Ex. 41 at 20-22. VIST
Coordinators are social workers who guide veterans with
vision disabilities through the disability application
process and identify appropriate services for which the
veterans should apply. ECF No. 225 at 54-55. Ms.
Sjoberg's records indicate that Mr. Henderson reported to
her on July 5, 2002, that despite his impairment he was
independent in his activities of daily living, including
housework, laundry, cooking, yardwork, and child care.
Gov't Ex. 41 at 21.
Applications and Determinations during the Indictment Period,
August 6, 2002, until February 8, 2016
approximately August 27, 2002, Mr. Henderson again applied
for an increase of his service-connected VA
benefits. On a “Statement in Support of a
Claim” form, signed and dated August 6, 2002, Mr.
I am requesting an increase of my service connected
disability due to my keratoconus eye disease. My latest eye
appointment is attached and is highlighted with my current
vision which is 20/400. I cannot tolerate contact lenses and
the VIST coordinator at the Spokane VA Hospital told me that
my vision is bad enough to be rated at 90% all by itself. I
just had an eye exam at the VA hospital here in Spokane on
7/16/02 by Dr. Harshman. I included the notes from the exam
to show my 20/400 vision and fact [sic] that I cannot
tolerate any kind of contact lens. I also suffer from severe
double vision and no vision at night. Because of this service
connected disability eye disease I lost my driver's
license and am classified as legally blind according to the
VIST coordinator Cheryl C. Sjoberg. . . . Could you please
increase my service connected disability for my keratoconus
eye disease.[sic] Thank you.
Gov't Ex. 28 at 5-6.
Henderson appended a cover letter to his VA benefits
I am writing to update my request for an increase is [sic]
service connected disability due to my eye condition called
Keratoconus. I am requesting that this service connected
disability be classified as a total and permanent disability.
My eye condition continues to regress.
I have already sent in my last eye examination results that
was conducted at the Veteran's Administration hospital
here in Spokane.
Gov't Ex. 28 at 8.
examination results consisted of a statement signed by
Douglas Harshman, OD, and dated July 16, 2002:
Mr. Donald B. Henderson is legally blind due to Keratoconus,
both eyes with best-corrected visual acuity of 20/400 both
eyes. This is a permanent condition and not expected to
Gov't Ex. 28 at 7. A copy of Government's Exhibit 28,
at 7, is included here:
Government did not call Dr. Harshman or Ms. Sjoberg at trial,
although Defendant called Ms. Sjoberg during his case.
November 25, 2002, Mr. Henderson also applied for Social
Security benefits, alleging that he had become unable to work
on December 5, 2001. Gov't Ex. 41 at 1. Mr. Henderson
stated in his application:
I have an eye condition/disease called keratoconus which is
progressive and I am now legally blind and does not get
better, but has gotten worse over the last year. I have
enclosed one form from Dr. Harshman which states this fact.
Ex. 41 at 63. Mr. Henderson submitted Dr. Harshman's July
16, 2002 diagnosis in support of his Social Security
application. Gov't Ex. 28 at 7.
Henderson's applications for disability benefits on the
basis of keratoconus and his permanent condition of legal
blindness were granted by the VA on September 26, 2002, and
by the SSA on February 19, 2003. Gov't Exs. 28 at 1-4; 41
at 67-68; ECF No. 228 at 30-32. Mr. David testified that the
VA based its determination on Mr. Henderson's
representation that his condition had worsened and on Dr.
Harshman's July 16, 2002 VA diagnosis that said,
according to Mr. David, that “based on whatever testing
that they completed, he's at 20/400.” ECF No. 228
Special Agent Marcus Munn testified that in 2012 he first
focused his attention on Mr. Henderson in the course of
conferring with Dr. Riley on a different case. ECF No. 224 at
49. After advising Dr. Riley of the “obligation to
report to the inspector general information about fraud,
waste, and abuse, ” Agent Munn received a lead from Dr.
Riley, the content of which was unspecified at trial, that
precipitated Agent Munn's investigation of Mr. Henderson.
Id. Agent Munn confirmed that the VA had rated Mr.
Henderson as 100 percent disabled for both eyes, and
subsequently drove to Mr. Henderson's house in June 2012,
where he observed Mr. Henderson working in his garden,
walking along a low retaining wall, and picking things out of
a raised bed. ECF No. 224 at 52. Agent Munn also
surreptitiously observed Mr. Henderson waiting at a VA bus
stop on the day of a dental appointment. ECF No. 224 at 88.
addition, Agent Munn contacted the VA dentist who treated Mr.
Henderson and learned that Mr. Henderson had sent the dentist
a gift card and thank you card, which thanked the dentist for
“giving [Mr. Henderson his] smile back” and
stating that “if you ever want to go out and shoot,
just give me a call.” ECF No. 224 at 91. A second VA
Special Agent, Jason Farrell, accepted Mr. Henderson's
invitation under the guise of being the nephew of Mr.
Henderson's dentist and went to a shooting range with Mr.
Henderson on November 27, 2012. ECF No. 224 at 95.
Farrell testified that he saw Mr. Henderson quickly locate
ammunition in containers in Defendant's garage; that Mr.
Henderson gave him directions as Agent Farrell drove to the
gun club; that he received detailed feedback from Mr.
Henderson about what targets Agent Farrell was hitting at the
shooting range; and that he saw Mr. Henderson accurately
shoot targets at a range of 21 feet. ECF No. 226 at 906-09.
nearly three-month period from March 22, 2013, until June 11,
2013, Agent Munn recorded video from a covert surveillance
camera placed across the street from Mr. Henderson's
house, which activated when motion was detected in front of
the residence. ECF No. 224 at 106-07. The Government offered
videos recorded from March 24, 2013, until April 17, 2013,
showing Mr. Henderson exiting a vehicle from the passenger
side, backing a vehicle out of the garage, operating a keypad
to open his garage, walking across the street, mowing the
lawn with both a push and ride-on lawnmower, trimming the
edges of the lawn, adjusting the sprinkler system, receiving
a pizza delivery, and avoiding a hanging branch, all while
not falling or bumping into things. ECF No. 224 at 108-12,
194- 210; Gov't Exs. 74-95. In response to the
Government's question, Agent Munn denied that he
“ever [saw Mr. Henderson] using a white stick or a
cane.” ECF No. 224 at 217.
Agent Munn advised VA authorities about his investigation,
the VA scheduled a “compensation and pension
exam” for Mr. Henderson with Dr. Johnson to evaluate
the severity of Mr. Henderson's claimed disability. ECF
No. 224 at 210. With the consent of Dr. Johnson and his
staff, Agent Munn covertly recorded the exam on May 30, 2013;
watched Mr. Henderson leave the exam room; and arranged for
an undercover agent to record Mr. Henderson leaving the
clinic building. ECF No. 224 at 211-13.
Johnson testified that during the exam Mr. Henderson reported
double vision as a symptom that he had been experiencing. Dr.
Johnson confirmed corneal irregularity in Mr. Henderson's
eyes through “objective testing, ” which
“would be consistent with the double vision
difficulties.” ECF No. 223 at 162-63. Dr. Johnson
testified that the double vision likely would occur
“occasional[ly], daily depending upon task and
lighting.” ECF No. 223 at 166. Dr. Johnson also
confirmed that the 2013 corneal topographies of Mr.
Henderson's eyes were not significantly different from
the 2001 corneal topographies. ECF No. 223 at 170. Based on
the lack of change in the topographies, Dr. Johnson concluded
that Mr. Henderson's keratoconus was moderate in one eye
and severe in the other. ECF No. 223 at 158, 169-70, 220.
Johnson also testified that many of the symptoms that are
characteristic of TBI overlap with the symptoms of
keratoconus, but “the challenge with TBI is it's
sometimes that you don't see physical findings.”
ECF No. 223 at 187. Dr. Johnson testified that he had not
reviewed Mr. Henderson's medical records other than his
Spokane Eye Clinic file and had not considered whether Mr.
Henderson's vision was impacted by TBI or the medications
that Mr. Henderson had taken within a day of the exam. ECF
No. 223 at 173, 188-89, 196-97.
Government also presented lay witnesses who testified about
what they had observed or been told that Mr. Henderson could
and could not do. In addition, the Government presented
testimony from SSA Program Expert Christine Vu that to
qualify for Social Security disability benefits, an
individual needs to have an impairment that lasts for a
“continuous period of 12 months.” ECF No. 226 at
112. Ms. Vu continued, “And so even though the listing
fluctuates, it didn't last 12 months.” Id.
Ms. Vu further generated a list of “functions [that Mr.
Henderson could carry out] that are not consistent with an