U.S. v. Tilghman

• Decision Date: 03 February 1998
• Docket Number: No. 96-3114,96-3114
• Citation: 134 F.3d 414
• Parties: , 48 Fed. R. Evid. Serv. 1216 UNITED STATES of America, Appellee, v. Warren P. TILGHMAN, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 414

134 F.3d 414

328 U.S.App.D.C. 258, 48 Fed. R. Evid. Serv. 1216

UNITED STATES of America, Appellee, v. Warren P. TILGHMAN, Appellant.

No. 96-3114.

United States Court of Appeals District of Columbia Circuit.

Argued Dec. 5, 1997.

Decided Feb. 3, 1998.

Appeal from the United States District Court for the District of Columbia (No. 96cr00013-01).

Lisa B. Wright, Assistant Federal Public Defender, Washington, DC, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender, Washington, DC.

Barbara J. Valliere, Assistant U.S. Attorney, Washington, DC, argued the cause for appellee. With her on the brief were Mary Lou Leary, U.S. Attorney, John R. Fisher, and Elizabeth Trosman, Assistant U.S. Attorneys, Washington, DC.

Before: GINSBURG, HENDERSON and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

Convicted of lying in order to obtain disability benefits, appellant argues that the trial judge's repeated questioning of him prejudiced the jury and denied him a fair trial. Because the judge's questions could have telegraphed to the jury that he disbelieved appellant, and because appellant's defense in this case rested so heavily on his own personal credibility, we cannot find that the judge's questions were harmless. We therefore reverse and remand for a new trial.

I

After working for the U.S. Department of Agriculture for several years, appellant Warren P. Tilghman went on disability leave due to back injuries. For thirteen years he received disability benefits of approximately $32,000 per year. In 1984, one year after going on disability, he incorporated Tilghman Enterprises Ltd. ("TEL"), through which he bid on federal agency contracts to investigate employment discrimination complaints. TEL's sole employee, Tilghman ran the company out of his home.

To receive disability benefits, Tilghman had to submit Department of Labor Form 1032 each year. That form required him to report salary or payments obtained from self-employment, "employment other than self-employment," the theoretical market "rate of pay" associated with any uncompensated work, and "any [ ] enterprise in which [he] worked, and from which [he] received revenue, even if [the enterprise] operated at a loss." Except for 1991 when he reported $1500 in self-employment earnings, Tilghman always answered "no" to questions asking whether he was employed or self-employed and wrote "n/a" in response to questions asking how much he earned.

Learning of Tilghman's EEO work, the government conducted an investigation, then indicting him for mail fraud under 18 U.S.C. § 1341; for making false statements to obtain federal employee compensation under 18 U.S.C. § 1920; and for making false statements to a federal agency under 18 U.S.C. § 1001. He was tried on one count of mail fraud and four misdemeanor counts (one each for the years 1991 through 1994) of making false statements on Form 1032.

For his central defense, Tilghman testified that he had no intention of defrauding the government. He told the jury that he honestly believed that he had no obligation to report his EEO investigative work on Form 1032 because TEL operated at a loss, because he never received any salary from his EEO work, and because a DOL employee told him over the telephone that he could earn up to $300 a month without reporting it.

During the first of Tilghman's two days on the stand, the district judge questioned him extensively in the presence of the jury. Defense counsel offered no objection. On the morning of the second day and before trial began, defense counsel moved for a mistrial, arguing that the judge's questioning influenced the jury and deprived Tilghman of a fair trial. The district judge denied the motion and continued to question Tilghman. Defense counsel objected to four questions and renewed his motion for mistrial at the close of the case.

The jury acquitted Tilghman on the mail fraud count and on the two counts charging him with lying on DOL Form 1032 for 1991 and 1992. He was convicted of lying on the forms he submitted for 1993 and 1994. The court sentenced him to fifteen months incarceration and one year of supervised release, ordering him to pay $84,000 in restitution. On appeal, Tilghman argues both that the judge's questioning deprived him of a fair trial and that the amount of loss underlying the sentence and restitution were incorrectly calculated.

II

Rule 614(b) of the Federal Rules of Evidence expressly permits judges to question witnesses. Judges may do so repeatedly and aggressively to clear up confusion and manage trials or where " 'testimony is inarticulately or reluctantly given.' " United States v. Norris, 873 F.2d 1519, 1525-26 (D.C.Cir.1989) (upholding judge's participation in questioning defendant, although perhaps more extensive than it should have been, because it aimed at clarifying evidence) (quoting United States v. Barbour, 420 F.2d 1319, 1321 (D.C.Cir.1969)).

District court authority to question witnesses and manage trials, however, has limits. Because juries, not judges, decide whether witnesses are telling the truth, and because judges wield enormous influence over juries, judges may not ask questions that signal their belief or disbelief of witnesses. United States v. Wyatt, 442 F.2d 858, 859-61 (D.C.Cir.1971) (court's questioning of defendant and his alibi witnesses damaged defendant's credibility and therefore was reversible error). Because such questions can usurp the jury's factfinding function, cast the judge in the role of advocate, and "breach [ ] the atmosphere of judicial evenhandedness that should pervade the courtroom," they can deprive defendants of fair trials. Barbour, 420 F.2d at 1321. Judges must therefore strive to preserve an appearance of impartiality and " 'err on the side of [a]bstention from intervention.' " Norris, 873 F.2d at 1526 (alteration in original) (quoting United States v. Green, 429 F.2d 754, 760 (D.C.Cir.1970)).

Drawing the line between appropriate and inappropriate judicial questioning of witnesses presents circuit courts with a challenging task. Appellate records often fail to convey nuance and tone. Unlike many federal circuit court judges, moreover, district judges are experts at supervising trials and managing witnesses. We thus scrutinize trial judge exercise of discretion with both deference and "respect appropriately reflective of the inescapable remoteness of appellate review." Paylor v. United States, 404 F.2d 1263, 1265 (D.C.Cir.1968). At the same time, because we must ensure that defendants receive fair trials, we will set aside a conviction if witness management decisions by district judges "affect substantial rights," FED.R.CRIM.P. 52.

In reviewing allegations of improper judicial questioning, we examine each case on its own facts. We have reversed when judicial interrogation "may have damaged the appellant's credibility in the eyes of the jury" or "may have given the jury the impression that the judge doubted the defendant's credibility." Wyatt, 442 F.2d at 860, 861. We have sustained judicial questioning where the case was not "close" and the issues addressed by the judge were "peripheral to the main issues in the case." United States v. Mangum, 100 F.3d 164, 174 (D.C.Cir.1996).

The parties disagree about the applicable standard of review. The government argues that at least with respect to Tilghman's first day of testimony, we should review the district judge's questions only for plain error because counsel made no objection until the second day. United States v. Winstead, 74 F.3d 1313, 1319 (D.C.Cir.1996). Relying on FED.R.EVID. 614(c)--objections to witness interrogation by the court "may be made at the time or at the next available opportunity when the jury is not present"--Tilghman argues that his mistrial motion made first thing on the morning of Day Two constituted a timely objection to Day One's questions. He urges us to review the judge's actions for abuse of discretion and harmless error. United States v. Lin, 101 F.3d 760, 769 & n. 2 (D.C.Cir.1996).

Under the circumstances of this case, we need not decide whether the Day Two mistrial motion was sufficiently timely under Rule 614(c) to permit harmless error review of Day One questions. Counsel's objections were timely with respect to all Day Two questions; as the government concedes, moreover, when reviewing Day Two questions we must review the record as a whole, including Day One questions. See United States v. Williams, 113 F.3d 243, 248 (D.C.Cir.1997) (troublesome question reviewed in "context" not reversible error); United States v. Patterson, 652 F.2d 1046, 1048-49 (D.C.Cir.1981) (judge's "inquisitorial" questions analyzed "prospectively" and "in context of [ ] trial transcript" were proper).

The question before us, then, is whether the judge's Day Two questions, read in the context of the entire trial, amounted to an abuse of discretion and, if so, whether they were harmless. To sustain defendant's conviction, we must "be able to declare [our] belief that [any error] was harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). We will reverse if there is " 'a reasonable possibility that the [error] complained of might have contributed to the conviction.' " Id. (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230-31, 11 L.Ed.2d 171 (1963)); see United States v. Saro, 24 F.3d 283, 287 (D.C.Cir.1994) (reversal required if court "entertains a 'reasonable doubt' about whether error affected the outcome" (quoting Chapman, 386 U.S. at 24, 87 S.Ct. at 828)). The burden of demonstrating harmless error rests with the government. Chapman, 386 U.S. at 24, 87 S.Ct. at 828.

pregu

III

With these standards in mind, we examine the district judge's questioning, beginning with the most troublesome questions on Day Two. Central to his defense, Tilghman asserted...