United States v. Tilghman, Warren P.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 5, 1997 Decided February 3, 1998

No. 96-3114

United States of America,

Appellee

v.

Warren P. Tilghman,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 96cr00013-01)

Lisa B. Wright, Assistant Federal Public Defender, argued

the cause for appellant. With her on the briefs was A.J.

Kramer, Federal Public Defender.

Barbara J. Valliere, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Mary Lou

Leary, U.S. Attorney, John R. Fisher, and Elizabeth Tros-

man, Assistant U.S. Attorneys.

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 disabili-

ty 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 discrimi-

nation 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 uncom-

pensated 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 con-

ducted an investigation, then indicting him for mail fraud

under 18 U.S.C. s 1341; for making false statements to

obtain federal employee compensation under 18 U.S.C.

s 1920; and for making false statements to a federal agency

under 18 U.S.C. s 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 ques-

tioning 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 ques-

tions 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 super-

vised 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 cal-

culated.

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 question-

ing 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 dam-

aged defendant's credibility and therefore was reversible

error). Because such questions can usurp the jury's fact-

finding 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 appel-

lant's credibility in the eyes of the jury" or "may have given

the jury the impression that the judge doubted the defen-

dant'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 re-

view. 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 ques-

tions. 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 re-

view 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, amount-

ed 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 (1967). We will reverse if there is "a reasonable

possibility that the [error] complained of might have contrib-

uted to the conviction." Id. (quoting Fahy v. Connecticut,

375 U.S. 85, 86-87 (1963)); see United States v. Saro, 24 F.3d

283, 287 (D.C. Cir. 1994) (reversal required if court "enter-

tains a 'reasonable doubt' about whether error affected the

outcome" (quoting Chapman, 386 U.S. at 24)). The burden of

demonstrating harmless error rests with the government.

Chapman, 386 U.S. at 24.

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 that DOL employee Julio Mendez told him in a 1984

telephone call that he had no obligation to report earnings of

up to $300 per month. While the prosecution questioned

Tilghman about this claim, the following colloquy occurred:

THE COURT:You didn't put this on any form, did

you?

DEFENDANT:Did I put it on a form? No sir; this

was a telephone conversation.

THE COURT:Did this Julio Mendez put it on a

form?

DEFENDANT:I don't know, sir.

THE COURT:We just have to take your word for it?

DEF. COUNSEL:Objection, Your Honor.

THE COURT:Over-ruled. Is that right?

DEFENDANT:I'm sworn to tell the truth, sir.

THE COURT:I know, but we have to take your word

for it; is that right?

DEFENDANT:I don't know if he has any record of it

or not.

5/22 a.m. Tr. at 46. Focusing on the absence of any evidence

of this phone call, the prosecutor then questioned Tilghman

for several transcript pages.

Earlier that same day, while Tilghman described for the

jury his understanding of DOL Form 1032, the judge ques-

tioned him as follows:

THE COURT:You were an employee of Tilghman

Enterprises?

DEFENDANT:That is correct, sir.

THE COURT:Doesn't that fit in the paragraph Em-

ployment other than Self-

Employment? Under this heading,

you must report all employment.

DEFENDANT:For which you receive wages.

DEF. COUNSEL:Objection, Your Honor.

THE COURT:It goes on to say if you perform work

for which you were not paid, you

must show a rate of pay of what it

would have cost. You didn't put that

in any of them?

DEFENDANT:I felt that was not applicable, sir, be-

cause there was no way to compute

those figures.

DEF. COUNSEL:Your Honor, if I may just renew my

objection.

THE COURT:The objection is over-ruled.

PROSECUTOR:In other words, Mr. Tilghman, it is

your belief that the Department of

Labor had to specifically ask you,

Okay, Mr. Tilghman, asterisks, we

want to know about your corpora-

tion?

DEFENDANT:No. It was my belief that I had to

answer carefully, accurately, and

honestly; and I did so.

5/22 a.m. Tr. at 40-41.

As in United States v. Wyatt, we think these questions

"may have given the jury the impression that the judge

doubted the defendant's credibility." Wyatt, 442 F.2d at 861.

The judge's questions could have been particularly damaging

because the indictment charged Tilghman with lying, making

his credibility unusually critical to his defense. The jury

could have interpreted the Mendez question--"[W]e have to

take your word for it; is that right?"--as signaling that the

judge considered Tilghman's oath irrelevant and his word

suspect. Even the government conceded at oral argument

that the judge should not have asked this question, calling it

"unfortunate." From the second set of questions, the jury

could have inferred that the judge accepted the government's

theory of the case that Tilghman should have checked off the

"self-employment" box on Form 1032.

Turning to Day One, the judge's questions reinforce our

perception that the Day Two questions may have colored the

jury's assessment of Tilghman's veracity. For example, as

Tilghman explained to the jury how a bank officer had

instructed him to fill out a loan application, the following

exchange took place:

THE COURT:You're an educated man, aren't you?

You have a master's degree, and you

did work for a doctorate. Is that

right?

DEFENDANT:That's correct, sir.

THE COURT:Now, this is supposed to get a loan

from the bank, and you put down as

annual income $45,000 and expendi-

tures $14,000. On the basis of that,

they were going to give you a loan,

right?

DEFENDANT:I would assume so, yes.

THE COURT:And those figures aren't accurate be-

cause the chairman of the board told

you to put them in.

DEFENDANT:You say they are or are not?

THE COURT:They're not accurate. You say they

aren't accurate because he just told

you what to put in.

DEFENDANT:In essence, he did tell me what to put

in.

THE COURT:Do you think that any sane bank

would give somebody a loan on fig-

ures that are totally made up? I

mean, as an educated man who's

been in business off and on, and

government business, private busi-

ness. Do you think [a] bank would

give a loan to somebody on the basis

of figures that are just made up by

the chairman of the board?

5/21 p.m. Tr. 84-85.

Later on Day One, Tilghman described the bidding process

for EEO investigative contracts, stating that he and other

investigators routinely lost money or broke even:

THE COURT:Other people who [bid] in the same

ball park with you, and they all must

have lost money, too, is that right?

DEFENDANT:I'm assuming so, sir, yes, sir, because

[a] lot of them went out of business.

THE COURT:I see. It's a peculiar business where

everybody stays in for years and los-

es money all the time.

DEFENDANT:All I can--the only thing I know to

relate it to--

THE COURT:Wouldn't you agree it's a peculiar

business?

DEFENDANT:Sir?

THE COURT:Wouldn't you agree it's a peculiar

business?

DEFENDANT:Not necessarily. I taught for years,

and I could have made much more

money doing something else.

5/21 p.m. Tr. at 107. A moment later, the judge interjected:

THE COURT:Just a minute. Something occurred to

me. You were not in the business of

making money out of these con-

tracts. You were perfectly content

to lose money on these contracts.

DEFENDANT:I was--

THE COURT:You were a philanthropist; you wanted

to help these people.

DEFENDANT:No, I was hoping I could at least

break even.

5/21 p.m. Tr. at 109.

Like the questions on Day Two, these inquiries could have

suggested to the jury that the judge disbelieved Tilghman.

From the first set of questions, particularly the judge's

reference to "any sane bank," the jury could have inferred

that the judge thought Tilghman was lying about the basis of

the loan. The judge's reference to philanthropy likewise

could have suggested to the jury that he did not believe that

Tilghman was losing money, as he testified. Having heard

these Day One questions and the judge's Day Two challenge

to Tilghman's honesty under oath, the jury could well have

concluded that the judge considered Tilghman an untruthful

witness.

As the government argues, it is possible that the judge's

comments actually "helped appellant bring out his defense."

It is also possible that the judge's questioning generated jury

sympathy for Tilghman. But under the harmless error stan-

dard, we cannot speculate about what transpired behind the

jury room door. We ask only whether the judge's questions

"may have" damaged Tilghman's credibility. Wyatt, 442 F.2d

at 860. Because the jury could reasonably have interpreted

the judge's pointed comments as reflecting his personal disbe-

lief of Tilghman, we cannot find that the government has

"prove[n] beyond a reasonable doubt that [the judge's com-

mentary] did not contribute to the verdict obtained." Chap-

man, 386 U.S. at 24.

We think the questions asked in this case were even more

inappropriate than the "quite troublesome" query the same

district judge posed in United States v. Williams, 113 F.3d at

248. There, he asked the defendant why if he was not a drug

dealer he used "code" words for drugs in conversations with

potential buyers. Although we worried about the "increasing

number of cases in which our trial judges have been overly

pointed in questioning witnesses, particularly defendants," id.,

observing that "this case borders on that category," id., we

upheld that conviction because "there was not an objection,

and we do not think any error could be characterized as

plain," id. Here, not only did counsel object, but the judge

asked several "overly pointed" questions.

This case also differs from United States v. Mangum,

where "any impact the [judge's] questions might have had on

the jury was insignificant in relation to the overwhelming

evidence against [the defendant]." 100 F.3d at 174. This

jury acquitted Tilghman of two counts and the government

concedes in a post-argument submission that it has no eviden-

tiary basis for distinguishing those two counts from the two

on which Tilghman was convicted. To us, the split verdict

suggests both jury uncertainty and susceptibility to judicial

influence.

The government argues that because the judge also asked

intrusive questions of government witnesses and badgered

the prosecutor about her handling of exhibits, the jury could

have perceived him as evenhanded. The record shows that

the district judge did criticize the prosecution's case, imply-

ing, for example, that some government witnesses were un-

clear, confused, or inept. After questioning one government

witness, the judge said to the prosecutor, "You better ask the

questions. I don't know what she's talking about." 5/13 p.m.

Tr. at 70. To other witnesses he made such comments as:

"You have never said just 'no' or 'yes.' You always go on and

on and make a whole speech," 5/15 Tr. at 41, "Nevermind,

nevermind. You are not helping me," 5/15 Tr. at 45, and

"Just answer the question.... We don't need an encyclope-

dia in response to every question." 5/16 p.m. Tr. at 71. He

also commented on the prosecution's evidence. When grant-

ing a defense objection, for example, he said: "I don't see any

relevance whatever. I am surprised nobody has objected

before," 5/16 a.m. Tr. at 27, and during the prosecution's

examination of a character witness he asked, "Are you fin-

ished with this line of questioning?.... Or are you dredging

up some more?" 5/20 Tr. at 149-50. In addition, the judge

criticized the prosecution's inefficient handling of exhibits. "I

want to congratulate you," he said at one point, "[t]his is

actually marked with a sticker." 5/15 a.m. Tr. at 52.

Contrary to the government's argument, we think the

nature of the judge's treatment of the prosecution differed

fundamentally from his questioning of Tilghman. Indeed,

comparing the two illustrates the difference between appro-

priate, active, even aggressive judicial management and prej-

udicial judicial questioning. As the manager of the proceed-

ings, the district judge had ample authority to discipline

government counsel for disorganization or inefficiency. It is

one thing to criticize counsel about exhibits; it is quite

another to question the defendant's credibility on the stand

when the central issue is whether he is telling the truth. The

judge's comments on the confusing quality of government

testimony could not possibly undermine the prosecution's case

in the same way that his questioning of Tilghman could have

punctured the heart of the defense.

The government argues finally that the judge's instructions

to the jury cured any improprieties. Having explained that

the jury bears sole responsibility for determining the facts,

the district judge instructed the jury as follows:

And if I say anything about the facts, which normally I

don't, you just disregard it because I don't have any

responsibility, any obligation on the facts. It's entirely

up to you. And if I say something, if I said something in

the trial or say something in this closing charge about

the facts, you just disregard it because you are [as] much

judges on the facts as I am judge on the law. I hope you

understand that. And that applies to anything I said in

the course of the trial, the questions I may have asked or

rulings I may have made, they're all not designed, and

you should not take them as being my opinion on the

facts because it's your opinion on the facts that counts.

5/22 p.m. Tr. at 74-75. This instruction was too little too late.

Although jury instructions can cure certain irregularities, at

least under the plain error standard, Winstead, 74 F.3d at

1319, we agree with the Second Circuit that where, as here,

the trial judge asked questions, objected to by counsel, that

could have influenced the jury's assessment of the defendant's

veracity, such interference with jury fact-finding cannot be

cured by standard jury instructions. United States v. Filani,

74 F.3d 378, 386 (2d Cir. 1996). We need not consider

whether special instructions or other measures might cure

such errors, for none were employed here.

Because we reverse defendant's conviction and remand for

a new trial, we have no need to reach the sentencing and

restitution issues.

So ordered.