United States v. Womack

• Decision Date: 25 January 1972
• Docket Number: No. 71-1090.,71-1090.
• Citation: 454 F.2d 1337
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marshall WOMACK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

454 F.2d 1337 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Marshall WOMACK, Defendant-Appellant.

No. 71-1090.

United States Court of Appeals, Fifth Circuit.

January 25, 1972.

COPYRIGHT MATERIAL OMITTED

Clifford W. Brown, Brown & Harding, Lubbock, Tex., for defendant-appellant Marshall Womack.

Seagal V. Wheatley, U. S. Atty., San Antonio, Tex., Ralph E. Harris, Asst. U. S. Atty., El Paso, Tex., for plaintiff-appellee.

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

THORNBERRY, Circuit Judge:

Appellant Womack, Kenneth L. Musgrave, Jack Bryant, and Homer E. Koon, Jr. were charged in a seven-count indictment with violations of 18 U.S.C.A. §§ 371, 657 and 1006.¹ These alleged violations arose from two loans made to appellant and Koon by the Home Savings Association of Odessa, Texas. Before the case reached trial, appellant was severed from his codefendants because of ill health. In the first trial Koon was acquitted, and Bryant and Musgrave were found guilty on various counts. Subsequently appellant was tried and found guilty on five counts. After appellant's conviction, this Court decided the appeals of Musgrave and Bryant, United States v. Musgrave, 5th Cir. 1971, 444 F.2d 755. It found no substantial evidence to support the jury's verdict on any of the counts against Bryant and ordered him acquitted. The Court held further that errors by the trial court required that Musgrave's conviction be reversed and remanded for a new trial. Appellant was tried before the same district judge as his codefendants.

The transaction on which this prosecution is based is set out in detail in this Court's opinion in United States v. Musgrave, supra. We shall, therefore, summarize it very briefly. At a meeting with Musgrave, appellant agreed, inter alia, to purchase Musgrave's majority stock ownership in Home Savings Association of Odessa, Texas. Musgrave agreed to have the money for the purchase loaned to appellant and his nominee, Koon, by Home Savings. Appellant provided as collateral for the loans a building and a piece of land. The loans were approved by the board of directors of Home Savings and consummated. The problem with this business deal, the Government argues, is that the $1,460,000 loaned to appellant was secured by property valued at only $377,000, although the terms of the loan agreement called for security in excess of the amount of the loan. Moreover, Bryant, Musgrave's attorney, received a $30,000 legal fee for work on the loans and sale that did not appear particularly extensive. In short, the Government says Musgrave, Bryant, and appellant Womack sought to defraud the savings association by causing the loans to be made when they knew the collateral was grossly inadequate and that Musgrave's appraisals on the building and land were far in excess of their market value.

The indictment may be summarized as follows:

The first count charged Musgrave, Bryant, Womack, and Koon with conspiring to defraud the federally insured Association. The second count charged that Musgrave, aided and abetted by Womack, fraudulently prepared and submitted grossly inflated appraisal reports on real property securing the loans. The fourth count charged that Bryant, aided and abetted by Musgrave and Womack, unlawfully "participated" in the proceeds of the loans. The sixth count charged that Musgrave, as Chairman of the Board of the Association and aided and abetted by Womack and Bryant, fraudulently caused the Association to make the loans, knowing that they were not secured by sufficient collateral. The seventh count charged that Musgrave aided and abetted by Womack and Bryant, unlawfully shared in the loan proceeds. Counts three and five were dismissed.

United States v. Musgrave, 5th Cir. 1971, 444 F.2d 755, 758. Appellant was convicted on all counts not dismissed. The Government now concedes that count seven is fatally defective since it omitted an essential element of the offense charged, "intent to defraud." We agree that it is defective and therefore reverse the conviction under count seven and order that count dismissed. Honea v. United States, 5th Cir. 1965, 344 F.2d 798, 804. In addition to his point on count seven, appellant raises numerous other issues for review.

I.

On June 15, 1970 appellant filed an affidavit in the district court seeking disqualification of the trial judge. A month later he filed a supplemental affidavit. Both documents alleged the trial judge to be biased and prejudiced against appellant. The judge refused to disqualify himself.

28 U.S.C.A. § 144 provides:

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

In Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921), the Court said that the filing of an affidavit of personal bias or prejudice of the judge who is to preside at the trial, conformably to 28 U.S.C.A. § 144, leaves the judge no duty other than to pass upon the legal sufficiency of the affidavit to show his objectionable inclination or disposition, and, if legally sufficient, compels his retirement from the case without passing upon the truth or falsity of the facts affirmed.

Because of the disruption and delay of the judicial processes that can be caused by the disqualification of a trial judge, affidavits of disqualification are strictly scrutinized for form, timeliness, and sufficiency. In the instant case, the form is not challenged, but the timeliness and sufficiency are. The Government urges that the affidavit was untimely because filed more than a year after appellant's plea of not guilty, eleven months after the trial judge first ruled on a series of appellant's pretrial motions, and two months after the transcript of the Musgrave trial, which provided the basis for the first affidavit, became a public record.

We do not agree that the first affidavit was untimely. Appellant had no reason to believe the trial judge would be biased against him until word reached his counsel through the legal grapevine of comments by the judge during the Musgrave trial. Counsel for appellant was under no duty to sit in on the Musgrave trial or read the transcript of that trial the day it became a public record. There is no indication in the record that once appellant learned of the judge's derogatory comments about him and obtained the Musgrave trial transcript he did not file his affidavit promptly.

We now turn to the sufficiency of the affidavits. The law on this question is extensive but we need not belabor its breadth or nuances to decide this case, in which the allegations of the affidavits are clearly sufficient. During the Musgrave trial the judge referred to appellant as a man "who everybody admits was certainly a shady character," and told the jury: "If you find that Musgrave did this there is no question but that Womack was working with him hand in glove . . . he would be as culpable."

The genesis of appellant's supplemental affidavit of disqualification was a June 15, 1970 pretrial conference. When appellant moved for a continuance because of his alleged ill health following a heart attack, the judge replied that appellant should have taken care of his health problems earlier and would go to trial even if he had to have a doctor in court to hold his hand. In response to appellant's motion for a change of venue to Fort Worth to put him closer to his heart specialist, the judge replied that appellant would be tried in Pecos because the judge had heard all the evidence in the Musgrave case, the Pecos jury had convicted Musgrave and Bryant, and the court was convinced appellant was guilty and would be so found by a Pecos jury. The judge said further that appellant could expect favorable treatment at his hands only if appellant saved the Government money in the trial of the cause. The motion for change of venue for convenience was denied.

Appellant's affidavits of disqualification setting forth these remarks of the trial judge were in proper form, timely, and legally sufficient. The judge erred in not withdrawing from the case.

II.

Several of appellant's points on appeal are directed at the court's charge to the jury. Although we have decided this case must be reversed and tried by a different judge, we shall respond to these issues because of their importance and in hope of reducing the chance for error on retrial.

Appellant first contends that the court submitted a charge to the jury which was prejudicial and argumentative and in effect constituted a directed verdict against him. In the opening portion of his charge, the trial judge said:

This is a very serious case. It merits your very careful consideration which I am sure you will give to it just as you have this testimony. It involves the integrity of a savings and loan association, the operation of a savings and loan association and the dealings with a savings and loan association in which there are hundreds of thousands of people deposit their money, . . . The record of the court\'s charge is replete with incomplete passages. We shall therefore dispense with the use of (sic) which would become burden-some.

See United States v. Musgrave, supra, 444 F.2d at 761. Later the court said:

If you accept the testimony of the witnesses here and the inferences that the

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