U.S. v. Nickl

• Decision Date: 01 November 2005
• Docket Number: No. 04-3499.,04-3499.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marc NICKL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

427 F.3d 1286

UNITED STATES of America, Plaintiff-Appellee, v. Marc NICKL, Defendant-Appellant.

No. 04-3499.

United States Court of Appeals, Tenth Circuit.

November 1, 2005.

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David H. Moses, Case, Moses, Zimmerman & Wilson, Wichita, KS (David K Link, Gragert, Hiebert, Gray & Link, Wichita, KS, on the briefs), for Defendant-Appellant.

Debra L. Barnett, Assistant United States Attorney (Eric F. Melgren, United States Attorney, with her on the brief), Wichita, KS, for Plaintiff-Appellee.

Before LUCERO, ANDERSON, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

A five-count superceding indictment charged Marc Nickl with various violations of Title 18 of the United States Code, including one count of conspiracy, two counts of bank fraud, one count of aiding and abetting a bank employee in the misapplication of bank funds, and one count of criminal forfeiture. A jury acquitted Nickl of the conspiracy charge, but found him guilty on charges of bank fraud and aiding and abetting. The district court sentenced Nickl to thirty-three months' imprisonment, required him to pay restitution in the amount of $896,978.97, and ordered him to forfeit and pay to the United States $543,000.

Nickl appeals his convictions on numerous grounds. First, Nickl alleges the district court testified as a witness in violation of Federal Rule of Evidence 605. Second, Nickl argues the court violated his right to due process by sua sponte modifying trial procedures and creating the appearance of bias by its remarks and failing to give a curative instruction. Third, Nickl contends the court erred when it excluded relevant and exculpatory evidence. Fourth, Nickl argues the evidence was insufficient to convict him. Fifth, Nickl claims he was forced to defend against multiplicitous charges. Finally, Nickl contends the superceding indictment failed to state a charge and deprived the district court of jurisdiction. In addition, Nickl claims he is entitled to resentencing under United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We hold the district court committed prejudicial error in violation of Rule 605 and reverse and remand Nickl's aiding and abetting conviction. We further remand for resentencing in light of non-constitutional Booker error. The district court's other rulings are affirmed.

I. BACKGROUND

In the spring of 2002, an employee of the National Bank of Andover ("NBA") found a large number of processed customer checks and electronic return items in the desk of the bank's head bookkeeper, Paula Steward. An investigation by NBA officials, auditors, and the Federal Bureau of Investigation revealed that Steward appeared to be involved in a fraud scheme.

Steward paid customer checks with funds from NBA's accounts, then used the bank's return item and check clearing procedures to conceal the loss. Steward's fraudulent activities involved customer accounts belonging to James R. Spillman; Jesse R. Tate; Dr. John A. Brooks; and Meadowbrook Farm, Inc. Fraudulent check payments associated with the Brooks and Meadowbrook Farm accounts comprised the bulk of NBA's losses.

Meadowbrook Farms was Dr. Brooks' business. Appellant Marc Nickl worked as business manager for Meadowbrook Farms. Nickl also had a long-term, domestic relationship with Dr. Brooks. Nickl was an authorized signer on both the Brooks and Meadowbrook Farm accounts (hereinafter the "Brooks Accounts"), and was responsible for interacting with NBA regarding the accounts.

Nickl called Paula Steward on a daily basis to check account balances and to inquire as to the status of individual checks. In the fall of 1999, Nickl began to ask Steward to hold certain checks for him until he could make a deposit to cover them. Steward complied with Nickl's requests. When Nickl's deposits were insufficient to pay for the checks and electronic transfers drawn on the Brooks Accounts, Steward used NBA funds to pay for certain of these items. Nickl and Steward discussed which checks to pay with deposited funds and which checks to hold. When Steward held checks, she marked them to be returned to the bank, then used the bank's funds to pay the returned checks. Steward placed these checks in her desk drawer.

Nickl and Steward continued this activity through the end of March 2002, when the bank discovered the checks and closed the Brooks Accounts. Subsequent investigation revealed Steward's and Nickl's actions in relation to the Brooks Accounts involved approximately 899 transactions and resulted in a loss to NBA of $896,978.97.

Nickl was indicted on one count of conspiracy in violation of 18 U.S.C. § 371, two counts of bank fraud in violation of 18 U.S.C. § 1344, one count of aiding and abetting a bank employee in the misapplication of bank funds in violation of 18 U.S.C. §§ 656 and 2, and one count of criminal forfeiture pursuant to 18 U.S.C. § 982. After a jury trial, Nickl was acquitted of the conspiracy charge, but convicted on charges of bank fraud and aiding and abetting. The court sentenced Nickl to thirty-three months' imprisonment, the low end of the range indicated by the sentencing guidelines. Nickl was also ordered to pay restitution and forfeiture.

II. ANALYSIS

A. Nickl's Claims for Reversal of Convictions

1. Rule 605 Claim

Nickl argues the presiding judge violated Rule 605 and committed prejudicial error when, during defense counsel's re-cross examination, the judge answered a question posed to a witness and voiced his opinion as to an ultimate factual issue. To find Nickl guilty of aiding and abetting, the prosecution was required to prove beyond a reasonable doubt that Steward acted with intent to injure or defraud NBA.¹ Accordingly, Steward's intent was an element of Nickl's crime. At trial, Steward gave conflicting testimony as to her intent to defraud NBA, first claiming she did not intend to injure the bank, then admitting she had pleaded guilty to having an intent to defraud and admitting she deceived NBA. On re-cross, defense counsel asked Steward if she pleaded guilty to having an intent to defraud just to "get it over with." Before Steward answered, the presiding judge interrupted and responded:

Well, I'll answer that question because I took her plea. We go through a very specific lengthy inquiry, I go through it, and one of the elements for a [18 U.S.C. §]656 charge is that the defendant acted with the intent to injure or defraud the bank. I would never have accepted her guilty plea unless she would have convinced me that's what she intended, and she did. And that's why I accepted her plea. And that's why she's in prison. Now, let's go on.

Defense counsel asked no more questions of Steward. Nickl contends the judge's remarks violated Rule 605 because they crossed the line from permissible commentary on the evidence to impermissible testimony by a presiding judge.

This court reviews de novo alleged violations of the Rules of Evidence. United States v. Price, 265 F.3d 1097, 1102-03 (10th Cir.2001); see also United States v. Paiva, 892 F.2d 148, 158 n. 8 (1st Cir.1989) (noting court's review of violation of Rule 605 is not limited to plain error even when an appellant raises the issue for the first time on appeal). If a violation of Rule 605 has occurred, it is then necessary to consider whether the violation was prejudicial or harmless. See Paiva, 892 F.2d at 159 (first determining judge exceeded limitations on power to comment, then holding error was harmless). "Under a harmless error analysis, the government bears the burden of demonstrating that the error was harmless beyond a reasonable doubt." United States v. Summers, 414 F.3d 1287, 1303 (10th Cir.2005).

"The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point." Fed.R.Evid. 605. While a judge may comment on proceedings, he may not assume the role of a witness. Quercia v. United States, 289 U.S. 466, 470, 53 S.Ct. 698, 77 L.Ed. 1321 (1933). A judge "may analyze and dissect the evidence, but he may not either distort it or add to it." Id. Further, it is improper for a judge to comment directly on the ultimate factual issue to be decided by the jury. Sloan v. State Farm Mut. Auto. Ins. Co., 360 F.3d 1220, 1226 (10th Cir.2004). "If a judge exceeds the limitations on his power to comment and to question, such action may constitute prejudicial error and require reversal." Paiva, 892 F.2d at 159.

Rule 605's prohibition on judicial testimony eliminates difficult questions "which arise when the judge abandons the bench for the witness stand. Who rules on objections? Who compels him to answer? Can he rule impartially on the weight and admissibility of his own testimony? Can he be impeached or cross-examined effectively?" Fed.R.Evid. 605 advisory committee's note. Adherence to Rule 605 also prevents prejudice which may arise from a judge's testimony because of the judge's influential position with the jury. United States v. Pritchett, 699 F.2d 317, 320 (6th Cir.1983); see also Fed.R.Evid. 605 advisory committee's note.

In Paiva, a judge's explanation of drug field testing introduced facts which no witness had established. 892 F.2d at 159. The appellate court observed these remarks were "not merely summarization or comment on testimony." Id. Instead, they constituted additional testimony which "impermissibly exceeded the limitations on [the judge's] power to comment." Id.; see also Quercia, 289 U.S. at 471-72 (finding error when judge's comments were additions, not analysis); Lillie v. United States, 953 F.2d 1188, 1191 (10th Cir.1992) (concluding judge's off-the-record view of accident scene introduced additional evidence such that judge became a witness in violation of Rule 605). Similarly, in Pritchett, when a prosecutor was unable to...