U.S. v. Adkins, 83-2608

• Decision Date: 04 September 1984
• Docket Number: No. 83-2608,83-2608
• Parties: 16 Fed. R. Evid. Serv. 385 UNITED STATES of America, Plaintiff-Appellee, v. Glen ADKINS, a/k/a Alan Perlman, Tom Adkins, Walter Cannon, Ron H. Hawkins, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 744

741 F.2d 744

16 Fed. R. Evid. Serv. 385

UNITED STATES of America, Plaintiff-Appellee, v. Glen ADKINS, a/k/a Alan Perlman, Tom Adkins, Walter Cannon Ron H. Hawkins, Defendants-Appellants.

No. 83-2608.

United States Court of Appeals Fifth Circuit.

Sept. 4, 1984.

Stanley G. Schneider, Houston, Tex., for Glen and Tom Adkins.

Dan B. Gerson, Houston, Tex., for Hawkins.

Don Ervin, Houston, Tex., for Cannon.

Daniel K. Hedges, U.S. Atty., James R. Gough, Susan L. Yarbrough, Asst. U.S. Attys., Houston, Tex., Patty Merkamp Stemler, Mervyn Hamburg, Atty., Appellate Section, Crim.Division, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before GEE, POLITZ and RANDALL, Circuit Judges.

GEE, Circuit Judge:

Defendants were found guilty by a jury of several counts of mail fraud in violation of 18 U.S.C. Sec. 1341 (1976). On appeal they claim: (1) the district court erred in admitting a Dun & Bradstreet report and the banking records of Southwestern Manufacturing & Equipment Co.; (2) the conduct of the trial judge denied them a fair trial; (3) the district court erred in failing to give certain requested jury instructions; and (4) the evidence was insufficient to support their convictions. Finding no merit in these contentions, we affirm.

I. Facts

Defendants were engaged in a scheme to defraud companies involved in financing the purchase of heavy machinery. These companies lease heavy machinery to companies that cannot afford to purchase it outright or through bank loans. In a typical transaction, the leasing company, upon determining that a lessee is creditworthy, purchases from a vendor machinery needed by the lessee. The vendor then sends the equipment directly to the lessee, who notifies the leasing company of the machinery's arrival and condition. At that point, the leasing company pays the vendor and begins to receive monthly lease payments from the lessee.

Defendants Glen Adkins, Tom Adkins and Walter Cannon owned vendor companies that never actually had any machinery. Cannon, and later defendant Ron Hawkins, owned Powerguard of Texas, Inc., a lessee company that would falsely certify to victim leasing companies that it had received equipment from the phony vendors. After the victims paid Cannon and the Adkins brothers for the machinery, Powerguard defaulted on the lease payments. When the leasing companies attempted to repossess the equipment, they discovered that it had never existed or was worthless.

II. Admissibility of Dun & Bradstreet Report

Defendants contest the admission of a Dun & Bradstreet report that described the business of Southwestern Manufacturing & Equipment Co., a spurious lessee company owned by Tom and Glen Adkins. The report listed the names of Southwestern's corporate officers, the number of its employees, the amount of office space and the credit history of the company. Through other testimony, the government demonstrated that most of the information was false. Defendants argue that the report was hearsay and should not have been admitted.

Hearsay is a statement offered in evidence to prove the truth of the matter asserted. Fed.R.Evid. 801. The Dun & Bradstreet report was not offered, however, to prove the truth of the matter asserted, that Southwestern's facilities and employees were as reported. Rather, the government offered the report to establish a foundation for later showing, through other admissible evidence, that it was false. United States v. McDonnel, 550 F.2d 1010, 1012 (5th Cir.), cert. denied, 434 U.S. 835, 98 S.Ct. 123, 54 L.Ed.2d 96 (1977). When statements are introduced to prove the falsity of the matter asserted, they are not inadmissible as hearsay. Id. Cf. Anderson v. United States, 417 U.S. 211, 220, 94 S.Ct. 2253, 2260, 41 L.Ed.2d 20 (1974); United States v. Hershenow, 680 F.2d 847, 861 n. 12 (1st Cir.1982); United States v. Weaver, 565 F.2d 129, 136 (8th Cir.1977), cert. denied, 434 U.S. 1074, 98 S.Ct. 1263, 55 L.Ed.2d 780 (1978). Thus, the Dun & Bradstreet report is not hearsay and was properly admitted.

III. Admission of Southwestern's Banking Records

Defendants next assert that the trial court should, as a sanction against the government for violating discovery rules, have refused to admit the banking records of Southwestern. Defendants have not shown, however, that the government violated any discovery rule.

Defendants admit that, prior to trial, the prosecutor informed them that he had the bank records and that they were available for inspection. The prosecutor also told defendants that as of that time he did not intend to offer the records in evidence.

On the third day of trial, the government informed defense counsel that it had reconsidered and would introduce the records. The prosecutor then provided defense counsel with copies of the records. The next day the court admitted the records, but stated that defendants' counsel could defer cross-examining Special Agent Jim Burkett, who was to testify as to the contents of the records, for four days in order to permit them to familiarize themselves with the records' contents.

Defendants argue that they were denied a fair trial because the government lied to them about the records and because the records were incomplete. The government did not lie; the prosecution truthfully told defendants it did not intend to introduce the records at that time. Defendants were given four days to re-examine the records once they were introduced and have not shown that they needed more time. In addition, although the records were incomplete, the discovery rules require the government only to turn over those records actually in its possession, Fed.R.Crim.P. 16(a)(1)(C), and here the government did so.

IV. Intervention of Trial Judge

Defendants contend that the trial judge participated in the trial in a manner favoring the prosecution, thereby denying them a fair trial. They note that, on several occasions, the court asked questions of witnesses and cut off defense counsel's questioning. In addition, defendants point to several comments of the trial judge that they contend displayed to the jury a bias toward the government. For example, the following colloquy occurred during the testimony of Jeri Glynn, an officer of one of the victim leasing companies:

Q. But you would say that verifying the equipment in that fashion would be a good business practice?

A. Definitely.

Q. Okay. And you're sorry you didn't do it this time?

A. Yes.

Q. Okay.

The Court: You don't get bilked because you're smart.

Record XIV at 198-99. In addition, defendants point to statements made by the trial judge during the testimony of Jolana Ward, one of Cannon's ex-girlfriends:

Q. Okay. Did you ever lose custody of the children?

A. No. David--

The Court: Excuse me. What's the relevance of all this?

Mr. Brown (counsel for the government): I'm going to object to the relevancy of this, your honor.

Mr. Ervin: Your honor, there's going to be extensive testimony about her living with Sterling Russell, and so on, taking the children with her. I'd just like to clear all this up now.

Mr. Brown: What relevance does this have?

The Court: Just a minute, counsel. I'll handle this. You'll win if you just be quiet.

Mr. Brown: All right.

The Court: I don't see any relevance on custody of the children in this case. Let's not try a divorce case. Let's try this case.

Record XVI at 710-11.

Federal judges have wide discretion with respect to the tone and tempo of proceedings before them; they are "not mere moderators or hosts at a symposium." United States v. Perez, 651 F.2d 268, 271 (5th Cir.1981). We have fully described this role of the trial judge in Moore v. United States, 598 F.2d 439, 442 (5th Cir.1979) (footnotes omitted):

[t]he trial judge has a duty to conduct the trial carefully, patiently, and impartially. He must be above even the appearance of being partial to the prosecution. On the other hand, a federal judge is not a mere moderator of proceedings. He is a common law judge having that authority historically exercised by judges in the common law process. He may comment on the evidence, may question witnesses and elicit facts not yet adduced or clarify those previously presented, and may maintain the pace of the trial by interrupting or cutting off counsel as a matter of discretion. Only when the judge's conduct strays from neutrality is the defendant thereby denied a constitutionally fair trial.

Moreover, even if the trial judge does commit error in such a respect, the complaining party must prove that the error was substantial and that it prejudiced his case. Ruiz v. Estelle, 679 F.2d 1115, 1129 (5th Cir.1982), cert. denied, 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983).

Our review of the record reveals that the trial judge's questioning of witnesses and interruption of counsel did not demonstrate a bias toward the prosecution. The questions "sought only to clarify a witness's testimony," and the trial judge legitimately interrupted counsel's questioning when necessary to expedite the proceedings. United States v. Borchardt, 698 F.2d 697, 700 (5th Cir.1983). The judge's conduct here did not deny defendants a fair trial.

We are more troubled by the court's "bilked" comment and the statement that counsel for the government would win if he kept quiet. These statements could suggest to the jury that the court believed that the defendants "bilked" the leasing companies. Nevertheless, while the court erred in making these comments, defendants have not demonstrated that the errors were substantial and that they prejudiced their case. These statements were isolated in nature; the remainder of the lengthy trial was conducted in a fair and unbiased manner. Moreover, these two statements alone did not create a risk that the jury would fail to conscientiously "find the facts, apply the law, and reach a fair verdict," nor did it create a risk...