U.S. v. Bartlett

• Decision Date: 09 January 1981
• Docket Number: No. 79-5523,79-5523
• Citation: 633 F.2d 1184
• Parties: 7 Fed. R. Evid. Serv. 1017 UNITED STATES of America, Plaintiff-Appellee, v. Fred E. BARTLETT, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1184

633 F.2d 1184

7 Fed. R. Evid. Serv. 1017

UNITED STATES of America, Plaintiff-Appellee, v. Fred E. BARTLETT, Jr., Defendant-Appellant.

No. 79-5523.

United States Court of Appeals, Fifth Circuit.

Jan. 9, 1981.

Mark J. Kadish, Atlanta, Ga., for defendant-appellant.

Samuel A. Wilson, Jr., Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before VANCE, FRANK M. JOHNSON, Jr., and THOMAS A. CLARK, Circuit Judges.

FRANK M. JOHNSON, Jr., Circuit Judge:

Fred E. Bartlett, Jr., an attorney, appeals from his conviction in the Middle District of Georgia for violations of 18 U.S.C. §§ 152 and 371 (1976) (amended 1978). Bartlett was initially indicted with four other defendants; one co-defendant's trial was severed while the other co-defendants pleaded guilty and two of them testified against Bartlett. Count One of the indictment charged Bartlett with conspiracy to knowingly and fraudulently conceal property with intent to defeat the bankruptcy law and with making a false oath or account in or in relation to a bankruptcy proceeding in violation of 18 U.S.C. § 371. Count Two charged him with knowingly and fraudulently transferring and concealing property with intent to defeat the bankruptcy law in violation of 18 U.S.C. § 152. Count Four charged Bartlett with making a false oath during a bankruptcy hearing. ¹ The jury found Bartlett guilty on each count as charged and he received a two-year sentence on each count to run concurrently.

In 1974, attorney Bartlett was hired by Robert L. Herring to provide Herring and his brothers with legal services on various corporate matters. Herring revived a dormant closely held family business, Herring Feed & Grain (H.F. & G.), and asked Bartlett to form Herco as a wholly owned subsidiary of H.F. & G. that would purchase and sell heavy earth moving equipment. Apparently Bartlett also helped form three other closely held corporations-Superior Equipment, Herco Transportation & Leasing (Herco T & L) and Southern Ventures, LTD. (SVL)-which existed primarily to receive and dispose of Herco's assets. ²

Although Herco was a subsidiary of H.F. & G., it was clearly doing more business than H.F. & G. and in 1975 Bartlett suggested to Herring that H.F. & G. be dissolved. ³ Eventually Herco experienced financial difficulties and filed a voluntary petition for bankruptcy in April 1978. Herco's difficulties were caused partly by Herring's actions: he used Herco as a bulldozer dealer to procure financing (over $1,200,000 from five financial institutions) for sales of nonexistent bulldozers. Consequently Herring, whose case was severed from the instant case, was convicted of racketeering in United States v. Herring, 602 F.2d 1220 (5th Cir. 1979), cert. denied, 444 U.S. 1046, 100 S.Ct. 734, 62 L.Ed.2d 732. Another source of Herco's problems was that by the time its petition was filed it had no viable assets. ⁴

The issues at trial focused on Bartlett's knowledge of various corporate transactions and his voluntary statements made at Herco's bankruptcy hearing. Bartlett prepared the bankruptcy petition which made no mention of SVL even though Bartlett held a warranty deed from Herco to SVL that purportedly transferred a 273 acre farm to SVL; he also knew about two other land transactions between Herco and SVL. ⁵ Moreover, all of Herco's corporate minutes were signed at one meeting; as secretary to the directors, Bartlett was the one responsible for "updating" those minutes. ⁶ Finally Bartlett was charged with making a false oath when he denied under oath that he knew who the principals of SVL were. ⁷

On appeal, Bartlett's primary contention is that the trial court's actions during trial deprived him of his right to a fair and impartial trial as guaranteed by the Fifth and Sixth Amendments to the United States Constitution. His second major contention is that the trial court made certain errors in its charge to the jury. We have examined each of the points raised on appeal and we find no reversible error. Accordingly, we affirm.

Bartlett asserts that the judge's intervention during the trial prejudiced his right to a fair and impartial trial. After Bartlett had been examined by his own counsel and the prosecutor for a total of 121/2 hours (over a two day period), the court immediately began its own examination that exceeded an hour. Bartlett contends that during this cross-examination the court overstepped the bounds of impartial judicial inquiry and became a "surrogate prosecutor." Moreover he cites various exchanges between the court and counsel as evidence of the court's bias against the defendant.

We have examined the record as a whole and conclude that Bartlett received a fair trial. Moore v. United States, 598 F.2d 439, 443 (5th Cir. 1979). Following our common law heritage, a judge is not a mere moderator, and he has an obligation and duty to question witnesses and comment on the evidence when necessary. Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 77 L.Ed. 1321 (1933); United States v. Jacquillon, 469 F.2d 380, 387 (5th Cir. 1972). In fact a trial judge may elicit facts not yet adduced or clarify those previously presented and he may maintain the pace of the trial by interrupting and curtailing counsel's examinations as a matter of discretion. Moore v. United States, supra, 598 F.2d at 442; United States v. Hill, 496 F.2d 201, 202 (5th Cir. 1974); Kyle v. United States, 402 F.2d 443, 444 (5th Cir. 1968).

Only when the judge's conduct strays from neutrality is a defendant thereby denied a fair trial as required by the Constitution. See United States v. Middlebrooks, 618 F.2d 273, 277 (5th Cir. 1980); United States v. Daniels, 572 F.2d 535, 541 (5th Cir. 1978). That was not the case here as we find the trial judge's cross-examination was a sincere attempt to clarify Bartlett's most equivocal testimony. United States v. Middlebrooks, supra, 618 F.2d at 277. On the whole, the court's questions attempted to illuminate Bartlett's intent, which we view as a material issue in a prosecution for concealing assets. Cf. United States v. Evans, 574 F.2d 1287, 1288 (5th Cir. 1978), cert. denied, 440 U.S. 910, 99 S.Ct. 1220, 59 L.Ed.2d 458; Accord: United States v. Guglielmini, 384 F.2d 602, 606 (2d Cir. 1967), cert. denied, 400 U.S. 820, 91 S.Ct. 38, 27 L.Ed.2d 48 (1970).

Moreover, our review of the record failed to show that the trial judge improperly commented on the credibility of any of the witnesses. ⁸ United States v. Freeman, 619 F.2d 1112, 1122 (5th Cir. 1980). The court acted well within its discretion when it requested Bartlett to refer to the Georgia Code to enable him to provide more informative answers to the court's questions. United States v. Vida, 370 F.2d 759, 768 (6th Cir. 1966), cert. denied, 387 U.S. 910, 87 S.Ct. 1695, 18 L.Ed.2d 630. Finally, we find that the trial judge was aware of the sensitive role he plays in the eyes of the jury and that his cautionary instructions that the jury was not to draw any improper inferences from his interventions were adequate. United States v. Middlebrooks, supra, 618 F.2d at 277. While we agree that the record reflects some tension between the court and defense counsel, we find that the incidents cited fail to disclose any conduct on the part of the trial judge that gives rise to a constitutional violation. United States v. Abrams, 568 F.2d 411 (5th Cir. 1978), cert. denied, 437 U.S. 903, 98 S.Ct. 3089, 57 L.Ed.2d 1133.

Bartlett's next contention on appeal concerns the court's charge to the jury. He argues that the court erred in allowing the false oath count (Count Four) to go to the jury because the questions asked of him were ambiguous and because the evidence was insufficient to support a conviction on this count. Further, he contends that the court improperly converted a question of law regarding the dissolution of H.F. & G. into one of fact for the jury consideration. Finally he alleges several errors in the court's general charge on Count Four and in its specific charge on the definition of the word "principals."

It is axiomatic in this Circuit that the jury charge as a whole must be examined to see if the jury was misled and whether the defendant was thus prejudiced. See, e. g., Mid-Texas Communications Systems, Inc. v. American Tel. and Tel. Co., 615 F.2d 1372, 1390 (5th Cir. 1980); Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1100 (5th Cir. 1973). We have examined the charge as a whole and find no prejudice to the defendant and, therefore, no error. The court properly instructed the jury on the Government's burden of proof on the false oath count and the other counts as well. See, e. g., United States v. Jessee, 605 F.2d 430, 431 (9th Cir. 1979); cf. United States v. Whitaker, 619 F.2d 1142, 1149 (5th Cir. 1980); United States v. Kehoe, 562 F.2d 65, 69 (1st Cir. 1977).

We find that the evidence in toto was more than sufficient to support a conviction on each of the counts charged. United States v. Haymes, 610 F.2d 309, 311-12 (5th Cir. 1980). ⁹ We find that the remainder of Bartlett's claims of error are without merit; consequently we

AFFIRM.

THOMAS A. CLARK, Circuit Judge, dissenting:

I respectfully dissent. The false oath part of the indictment (Count IV) ¹ should have been dismissed as requested by defendant. It does not specify what Bartlett allegedly lied about. His motion for a bill of particulars asking for those specifications was denied. Furthermore, the evidence does not support the conviction. Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973), teaches, in an opinion by Chief Justice Burger, that to sustain a conviction under the federal perjury statute ² the witness must understand the question and knowingly give a false answer. The following excerpts are illuminating:

Petitioner's perjury conviction was founded on the answers given by him as a witness at that...