United States v. Cole, 73-1509

• Decision Date: 21 February 1974
• Docket Number: No. 73-1509,73-1510.,73-1509
• Citation: 491 F.2d 1276
• Parties: UNITED STATES of America, Appellee, v. Earl Franklin COLE, Appellant. UNITED STATES of America, Appellee, v. Catherine Jean BAKER, a/k/a Catherine Jean Gault, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

491 F.2d 1276 (1974)

UNITED STATES of America, Appellee, v. Earl Franklin COLE, Appellant.

UNITED STATES of America, Appellee, v. Catherine Jean BAKER, a/k/a Catherine Jean Gault, Appellant.

Nos. 73-1509, 73-1510.

United States Court of Appeals, Fourth Circuit.

Argued October 4, 1973.

Decided February 21, 1974.

Warren E. Magee, Washington, D. C., for appellant Earl Franklin Cole.

Albert J. Ahern, Jr., Baileys Crossroads, Va., for appellant Catherine Jean Baker.

Thomas K. Moore and Joseph A. Fisher, Asst. U. S. Attys. (Brian P. Gettings, U. S. Atty., and David H. Hopkins, Asst. U. S. Atty., on brief) for appellee United States.

Before BOREMAN, Senior Circuit Judge, and CRAVEN and FIELD, Circuit Judges.

PER CURIAM:

Tried by a jury, Earl Franklin Cole, a former General of the United States Army, and Catherine Jean Gault, a former civilian employee of the Army, were convicted on eight counts of a fourteen count indictment which had been returned against them. After a careful examination of the record we are convinced that the General and Gault did not receive a fair trial and, accordingly, that their convictions must be set aside. We further conclude that there was a lack of evidentiary support for the convictions on three of the counts and that the district court erred in denying motions for judgment of acquittal on those counts.

The charges stemmed from the service of the defendants in Vietnam during the period when Cole was Deputy Assistant Chief of Staff for CORDS (Civil Operations and Revolutionary Development Support) and Mrs. Gault was employed as his secretary. They involved to a large degree three trips made by Gault to places outside Vietnam in the years 1967 and 1968 pursuant to orders authorized by Cole, and Cole's certification of Gault's claim for overtime pay during periods coincident with these trips. Seven of the counts upon which the defendants were convicted charged them with violations of 18 U.S.C. § 1001 in making false statements relative to the travel vouchers or authorization for these trips by Gault, or for overtime claimed by her on Time and Attendance Reports filed during the periods when she was on such trips. The remaining substantive count upon which Gault alone was convicted charged the defendants with a violation of 18 U.S.C. § 287 in making a fraudulent claim incident to Gault's request for civilian living quarters allowances at a time when she allegedly lived in Government accommodations. In addition to the foregoing, the first count of the indictment charged that Cole and Gault had conspired during the period from June 1966 through October 1972 to commit the substantive offenses. The conspiracy count was dismissed by the court at the end of the Government's case for lack of evidence.

Primarily, we base our decision upon the conclusion that the trial judge overstepped the bounds of judicial propriety by repeatedly injecting himself into the trial and unduly restricting counsel for the defendants in their efforts to defend their clients.

It is, of course, settled beyond doubt that in a federal court the judge has the right, and often an obligation, to interrupt the presentations of counsel in order to clarify misunderstandings or otherwise insure that the trial proceeds efficiently and fairly. United States v. Cassiagnol, 420 F.2d 868, 879 (4 Cir. 1970), cert. denied 397 U.S. 1044, 90 S. Ct. 1364, 25 L.Ed.2d 654 (1970); Davis v. United States, 279 F.2d 127 (4 Cir. 1960), cert. denied 364 U.S. 822, 81 S.Ct. 60, 5 L.Ed.2d 53 (1960); Simon v. United States, 123 F.2d 80 (4 Cir. 1941), cert. denied, 314 U.S. 694, 62 S.Ct. 412, 86 L.Ed. 555 (1941). In the language of Judge Dobie,

It cannot be too often repeated, or too strongly emphasized, that the function of a federal trial judge is not that of an umpire or of a moderator at a town meeting. He sits to see that justice is done in the cases heard before him; and it is his duty to see that a case on trial is presented in such way as to be understood by the jury, as well as by himself. Simon v. United States, supra, at 83.

However, we have previously stated, "this privilege or duty is subject to reasonable limitations," United States v. Cassiagnol, supra, and we have endorsed the observation in Groce v. Seder, 267 F.2d 352, 355 (3 Cir. 1959), that

Where both sides are represented by eminently competent counsel we think it important that the court minimize its own questioning of witnesses, to the end that any such judicial departure from the normal course of trial be merely helpful in clarifying the testimony rather than prejudicial in tending to impose upon the jury what the judge seems to think about the evidence.

In the present case both the issues of falsity and materiality depended in a substantial degree upon the interpretation and application of a labyrinth of Army regulations and procedures incident to the Time and Attendance Report forms. The unenviable task of counsel for the defendants to demonstrate to the jury the manner in which these regulations and procedures bore on the issue of guilt or innocence was compounded by the intrusions of the district judge which tended to portray the defense attorneys as evasive and hyper-technical when, in fact, a detailed inquiry into the actual operation of the various regulations was plainly necessary and appropriate. It would serve no useful purpose to detail all of the instances of undue interruption nor to point out which, if any, of the incidents alone would require reversal. Suffice it to say, however, that in our opinion the cumulative effect was so pervasive and prejudicial that the verdicts cannot stand.

We also think the court erred in admitting evidence of an alleged prior similar offense by Gault. To bolster its case on the four counts involving the Time and Attendance Reports, the Government called as a witness a Colonel Bailey who testified to an incident which had occurred at West Point in the year 1963. At that time the witness was assistant to Cole who was Adjutant General of the United States...