U.S. v. Hart, 01-60304.

• Citation: 295 F.3d 451
• Decision Date: 12 June 2002
• Docket Number: No. 01-60304.,01-60304.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rodalton HART, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

295 F.3d 451

UNITED STATES of America, Plaintiff-Appellee, v. Rodalton HART, Defendant-Appellant.

No. 01-60304.

United States Court of Appeals, Fifth Circuit.

June 12, 2002.

Order On Petition for Rehearing July 16, 2002.

Richard Terrell Starrett, Asst. U.S. Atty. (argued), Donald Ray Burkhalter, John Morgan Dowdy, Jr., Jackson, MS, for Plaintiff-Appellee.

Dennis Charles Sweet (argued), Langston, Sweet & Freese, Jackson, MS, Brent David Hitson (argued), Langston, Sweet & Freese, Birmingham, AL, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Mississippi.

Before KING, Chief Judge, and REAVLEY and WIENER, Circuit Judges.

WIENER, Circuit Judge:

Defendant-Appellant Rodalton Hart ("Rodalton") appeals his conviction by a jury for violations of 18 U.S.C. § 1014 ("§ 1014") and 18 U.S.C. § 201(b)(1)(B) ("§ 201(b)(1)(B)"). We conclude that the United States's ("the government's") "summary" witness did far more than summarize previously-presented evidence, and that, when the summary witness's testimony and accompanying documentary evidence is redacted, the remaining evidence is insufficient to prove the government's case against Rodalton beyond a reasonable doubt. We therefore reverse Rodalton's conviction, vacate his sentence, and remand the case for a new trial.

I. Facts and Proceedings

Rodalton has been a resident and family farmer in Holmes County, Mississippi for most of his life. After his graduation from Jacksonville State University in 1972, he returned to Holmes County to help his father run the family farm. In addition to helping his father, Rodalton started his own farm, gradually expanding his operation from thirteen acres — cultivating row crops and raising cattle — to several thousand acres by the mid-1980s. His success in farming was among the factors that led Mike Espy, who was Secretary of Agriculture at the time, to appoint Rodalton as one of Espy's advisors.

In 1993, Rodalton and his brothers, who were also involved in farming, formed five separate partnerships, hoping to run their farming operations more efficiently by sharing labor, land, and equipment, and thereby maximize their income. Among the partnerships were R & C Farms (Rodalton and his wife, Carmella), and C & D Farms (Cleveland Hart and Chester Hart, with Cleveland and Rodalton serving as the local business contacts for the partnership). Another Hart brother, Larry, farmed individually, but he and Rodalton served together as the business contacts for Larry Hart's farming operation.

After weather-related problems in 1993 and 1995, Rodalton and Carmella were declared eligible for federal disaster relief and an emergency loan. Rodalton applied to the United States Department of Agriculture, Farm Service Agency ("FSA" or "the Agency") for such assistance,¹ but the application was denied. When he looked into this matter, Rodalton discovered that his FSA file had been transferred to the office of the Inspector General of the Department of Agriculture, in connection with that office's investigation of Secretary Espy. Without the file, the FSA could not process Hart's application. Rodalton traveled to Washington, D.C. to meet with federal officials, congressmen, and Senate staff members in an effort to have his loan processed, but by the time anything could be done to remedy the situation, the 1996 crop year had passed.

Without the 1996 loans, the Hart brothers' partnerships needed financial assistance in 1997 and 1998. Accordingly, they submitted applications to the FSA in both years, including disclosure to the FSA of the partnerships' debts, liabilities, and projections of income, operations, and expenses. For the applications in question, the process of disclosing and assessing the financial data required several months of work between the Harts and the local FSA agent who worked closely with them, Orlando Kilcrease. Rodalton signed the applications on behalf of R & C Farms, C & D Farms, and Larry Hart, certifying the following:

The above information is furnished for the sole purpose of securing and maintaining credits [sic] and is certified to be complete and correct. The undersigned authorizes the FmHA to make all inquiries deemed necessary to verify the accuracy of the information contained above to determine my [creditworthiness] and to answer questions about their credit experience with me. I agree to notify FmHA promptly to [sic] any material changes to the above. I recognize that making any false statement on this Farm and Home Plan or any other loan document may constitute a violation of criminal law.

From the information disclosed, Kilcrease finally created a "Farm and Home Plan" ("FHP") for each of the various partnerships. A FHP is a computer generated "projection that accurately reflects the borrower's plan of operation for the production or marketing cycle."² Its essential purpose is to demonstrate that the farmer applying for the loan expects a positive cash flow for the projected crop year.³ Rodalton and his brothers signed the FHPs that Kilcrease had created, certifying the following:

I agree to follow this plan and to discuss with the County Supervisor any important changes that may become necessary. This is a prospective plan and does not release the security interest of the government in any security referred to in this plan. "I recognize that making any false statement on this Famr [sic] and Home Plan or any other loan document may constitute a violation of federal criminal law[.]"

After the 1997 and 1998 FHPs had been submitted, the government began to investigate the Hart brothers' farming operations. Rodalton contends that the government commenced this investigation as retaliation for his "failure to provide any useful information to the government in its investigation of Mike Espy." Whatever the government's incentive might have been, the investigation into the Hart brothers' farming operations culminated in a 1999 grand jury indictment, in which Rodalton and two of his brothers, Cleveland and Larry, were charged with engaging in a conspiracy to defraud the government and making false statements to the government in the 1997 and 1998 FHPs. The indictment also charged Cleveland Hart with disposing of property that had been pledged to the FSA, and charged Rodalton with bribing an FSA official.⁴

After a two-week trial, a jury found the three brothers not guilty of the conspiracy charge, and also found Larry and Cleveland Hart not guilty of all other charges against them. The jury found Rodalton guilty, however, of knowingly making material false statements to the FSA in 1997 and 1998 for the purpose of influencing the grant of loans, in violation of § 1014; and of corruptly giving $1,000 to a public official (Neal) with the intent to influence the official to commit fraud on the United States — in the form of approving operating loans to the Hart brothers' partnerships — in violation of § 201(b)(1)(B). Rodalton timely appealed his conviction and sentence.

II. Analysis

A. Standard of Review

The trial court has discretion to determine whether illustrative charts may be used pursuant to Fed.R. Evid. 1006. United States v. Smyth, 556 F.2d 1179, 1184 (5th Cir.1977); Baines v. U.S., 426 F.2d 833, 840 (5th Cir.1970); Lloyd v. United States, 226 F.2d 9, 16 (5th Cir.1955). Unless that discretion is abused, we will not reverse the court's decision.⁵

If the court errs in its evidentiary ruling, the "error can be excused if it was harmless."⁶ In applying this rule, we have stated:

A nonconstitutional trial error is harmless unless it "had substantial and injurious effect or influence in determining the jury's verdict." [Lowery, 135 F.3d at 959] (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)); see United States v. Sanchez-Sotelo, 8 F.3d 202, 210 (5th Cir.1993) (stating that in order to reverse a conviction on the basis of an evidentiary error, the appellate court must find a "significant possibility that the testimony had a substantial impact on the jury") (quoting United States v. Cain, 587 F.2d 678, 682 (5th Cir.1979)).⁷

B. Discussion

Rodalton contends that the district court abused its discretion when it allowed a government witness, Shelly Davis, to testify as a summary witness pursuant to Federal Rule of Evidence 1006 ("FRE 1006"), and to present, as a "summary," some FHPs that she had prepared. We agree with Hart, and therefore reverse the judgment against him.

FRE 1006 provides:

Rule 1006. Summaries

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.

Recognizing the "powerful impression which charts can make upon a jury, vesting the charts with `an air of credibility' independent of the evidence purported to be summarized,"⁸ we have repeatedly cautioned that trial judges "must carefully handle their preparation and use."⁹ Not only must such "writings, recordings, or photographs" be so "voluminous" that they "cannot [be] conveniently examined in court," as the Rule specifies, but there must be "supporting evidence [that] has been presented previously to the jury" to establish any assumptions reflected in the summary.¹⁰

In its case against the Harts, the government presented Davis, an employee of the FSA, to introduce revised FHPs that she had prepared, and to offer testimony about the revised Plans. According to the government, Davis's revised FHPs did nothing more than illustrate what the result would have been if all of the debts testified to by the government's witnesses had been included on the Harts' actual FHPs.

Hart objected to the government's strategy from the outset, pointing out...