UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 94-10028
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALLEN LANDERMAN,
DAVID DEWAYNE HANKS,
a/k/a Ed Banks and
RANDALL BOYD ZEIGLER,
a/k/a/ Bo Zeigler,
Defendants-Appellants.
* * * * * * * * * * * * *
__________________
No. 94-10403
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODNEY LEE HOLLOMAN,
a/k/a/ Rod Weatherly and
WALTER HUMBERT CUSHMAN,
Defendants-Appellants.
______________________________________________
Appeals from the United States District Court for the
Northern District of Texas
______________________________________________
March 31, 1997
Before BENAVIDES, STEWART, and DENNIS, Circuit Judges.
BENAVIDES, Circuit Judge:
This direct criminal appeal involves, among other things, a
challenge to the district court's refusal to allow a prosecution
witness to be cross examined regarding his alleged bias. Finding
that the limitation of cross examination resulted in a violation of
the Confrontation Clause and that such error was not harmless, we
vacate and remand.
I. BACKGROUND
The evidence at trial demonstrated that from 1989 to 1992
several companies were established to market oil and gas drilling
projects. The projects were marketed through the use of written
prospectuses sent by mail to potential investors and through the
companies' sales brokers telephoning potential investors. The
prospectuses contained inflated cost estimates for drilling the
wells; misrepresentations regarding the qualifications of various
persons involved in the projects; and false representations that
certain individuals performed work for the companies. During the
telephone solicitations, the brokers would make false
representations and promises about the investment. Additionally,
names of employees and affiliated companies were given as
references to potential investors. These references are known as
"in-house" references.
There are five appellants on this consolidated appeal: Walter
Humbert Cushman III (Cushman), who essentially owned and operated
the companies, but represented that he was only a consultant;
Rodney Lee Holloman (Holloman), who initially was involved in
establishing the companies but thereafter worked primarily at the
drill sites; Allen Landerman (Landerman), who was an attorney
2
representing the companies; David Dewayne Hanks (Hanks), who
appraised a drilling rig and for a brief time was a sales manager;
and Randall Boyd Zeigler (Zeigler), the personnel manager who
interviewed and hired sales brokers for the companies.
A. GREAT SOUTHWEST ENERGY
In the latter part of 1989, Sam Hooper, who had been involved
in the oil and gas business, met with Cushman, Holloman, and Rob
Overstreet (Overstreet),1 to discuss the development of two oil and
gas wells, the Strickland and Parkman wells. Thereafter, Great
Southwest Energy was incorporated, and the articles of
incorporation listed Hooper as the initial director and
incorporator. Neither Cushman's nor Holloman's name was listed in
the articles of incorporation or in the company's mailings to
potential investors. Cushman and Holloman represented that they
were outside consultants for Great Southwest Energy.
Great Southwest Energy marketed the Parkman and Strickland
wells. This project, known as the Twin Elephant, was offered to
investors in a prospectus. Cushman, Holloman, and Hooper agreed to
divide the profits among themselves. Richard Hewitt, an attorney,
prepared the Twin Elephant prospectus, which disclosed the
participation of Cushman and Holloman and their criminal records.
Pursuant to Cushman's instructions, Daphne Bostick, a secretary,
removed pages from the prospectus indicating that the company was
the subject of an investigation by the State Securities Board.
Hooper resigned on December 31, 1989, because the investors'
1
Overstreet was tried with the instant appellants and
acquitted by the jury.
3
money was not being spent as represented in the prospectus.
Despite his resignation, Great Southwest Energy continued to list
Hooper as president on company mailings until April of 1990. After
Hooper's name was removed, Overstreet was listed as president of
Great Southwest Energy.
Meanwhile, Grant Ottesen (Ottesen) owned and operated Oil
Consortium of Texas, Inc.2 Because Ottesen's business was
experiencing financial difficulties, he merged it with Great
Southwest Energy in late 1989. Names of prospective investors were
obtained primarily from "lead" lists. Using these lists, the
brokers for Great Southwest Energy made telephone contact with
prospective investors. For a short period of time, Ottesen
recruited sales brokers for Cushman. Ottesen left the newly merged
company in April of 1990 but returned in September of 1990.
Ottesen testified that the following misrepresentations were
made to investors: Hooper was president of the company during the
Twin Elephant program; projects were already producing oil; almost
all units had been sold; and the return on the investment was
nearly immediate. Ottesen heard Cushman admit that he knew the
Twin Elephant would not have any production and that he did not
intend to spend any more money than had already been spent.
Ottesen also testified that in-house references were given to
investors, false drilling reports were given to salesmen, drilling
2
Ottesen was indicted along with the appellants. Ottesen
pleaded guilty to two counts of fraud and testified against the
appellants.
4
costs were inflated,3 investor funds were used to pay salaries and
expenses of the office, and that completion funds4 were called
early and used for purposes other than drilling. Ottesen also
testified that Zeigler, Hanks, Holloman, Cushman, and Don Cronn
(also known as Tom Green) were all part of conversations in which
this conduct was discussed.
Tom Grace began working as a sales broker for Great Southwest
Energy in December 1989. Grace advised the investors that the
wells were going to be horizontally drilled. In fact, the wells
were never horizontally drilled. According to Holloman, they
attempted to horizontally drill the Strickland well but could not
reach the bottom of the hole because the well had been sitting
dormant for seven or eight years. Grace testified that he resigned
in May 1990 because the company did not procure a management
license for the oil and gas brokerage and also because he learned
"about the backgrounds of Mr. Cushman and Holloman."
Jo Beth Smith (Smith) performed accounting work for Great
Southwest Energy in the early part of 1990. Holloman had Smith
cash $5,000-$6,000 checks for expenses or "to go on a trip."
Neither Cushman nor Holloman received salaries or paychecks. The
evidence revealed that, instead of receiving salaries or being on
the company payroll, the company paid the expenses of Cushman and
3
Bruce Damron, a petroleum engineer, testified that he had
estimated the cost of drilling the Strickland well at $640,000.
Yet the prospectus provided that the cost would be $1,258,100.
4
Ottesen explained that the brokers should not call for
completion funds until after it has been determined that a well is
commercially viable.
5
Holloman.
Lisa Holdge (Holdge) began working as a receptionist for Great
Southwest Energy in February 1990. Cushman subsequently asked her
to become secretary-treasurer of the company, and she agreed. The
position was in name only. Cushman instructed Holdge to create
false invoices for oil field services. After the Securities Board
investigated the company, Cushman directed Holdge to place
rescission letters in all the investor files. The recision letter
explained to the investors that they could obtain a return of the
money they invested. Cushman, however, told her to send the
recision letter to certain selected investors, and she complied.
Holdge resigned after discovering that her name had been listed as
a reference in one prospectus.
B. HARTFORD OIL AND GAS
In June 1990, Hartford Oil and Gas (Hartford)5 was
incorporated to market the Silver Fox and Slover Beever wells.
After that time, the name Hartford was used in place of Great
Southwest Energy. Glen Chambers was later named president of
Hartford. David Card (Card), a codefendant who pleaded guilty to
wire fraud, worked as a sales broker. Hanks was sales manager at
Hartford for a short time, and Ottesen, after returning to the
company, became sales manager in spring of 1991.
Jeff Everett (Everett), Cushman's son-in-law, bought Foxridge
Securities (Foxridge), a company that was a licensed brokerage, for
5
Subsequently, the company was called Hartford Exploration.
Because it is unclear exactly when Hartford changed names, we will
refer to both companies as "Hartford."
6
Cushman.6 At Cushman's request, Card began working at Foxridge.
Cushman and Card actually operated Foxridge. Cushman made Card
president of Foxridge. Hartford used Foxridge as a reference in
the prospectus for the Slover Beever project. Investors would call
Foxridge to obtain information regarding the project, and Card
"told them that [Foxridge was] doing due diligence on [Hartford.]"
Foxridge closed in November of 1990, and upon Foxridge's closing,
Card returned to Hartford.
In June 1990, Card hired Grace to work for Foxridge
Securities. Grace typed the prospectus for the Silver Fox well,
including the criminal backgrounds of Cushman and Holloman in the
prospectus. He observed Cushman remove that information from a
prospectus. Grace worked for Allen Landerman, an attorney, from
December 1990 until August 1991. It was Landerman's opinion that
the joint ventures were not securities. Grace put together the
prospectus for the Slover Beever well, the Grand Slam No. 1, and
the Grand Slam No.2. Cushman did not want the criminal histories
disclosed in the prospectus because it "made sales very difficult."
Ulrike Bell (Bell) worked for Cushman at Hartford as a
bookkeeper from July 1990 to February 1991. She regularly signed
checks in blank for Cushman, and Cushman asked her to make false
invoices. Several of the representations about Bell's
qualifications listed in the prospectus were false.7
6
Everett previously had opened a bank account in the
fictitious name of East Texas Well Service to allow Cushman to cash
the Great Southwest Energy checks. The bank statements were mailed
to Everett's home address.
7
Also, Raymond Wottrich was never hired by Cushman as a
7
Zeigler was the personnel manager and interviewed and hired
sales brokers. He knew that Foxridge's name was being given as a
reference. According to Kevin Rose, who worked for Hartford, sales
brokers at the companies made whatever representations were
necessary to persuade investors, and the information that the
brokers imparted to the investors over the phone had been supplied
by Donn Cronn, Zeigler, Overstreet, Cushman, and Holloman.
Teresa Stauffacher, a receptionist, was instructed to give
Pearsall Oil Field Supply as a reference to investors. The
telephone number for Pearsall was actually a telephone in Zeigler's
office at Hartford, and when that phone rang, Zeigler had
Stauffacher answer it. Cushman admitted to Stauffacher that his
name was not on any documents because it would be a red flag for
the federal authorities. Zeigler admitted to Stauffacher that his
name was not listed on anything because he had "a wife and kids and
was not going down."
C. HORIZONTAL DRILLTEX
Cushman hired Royce Calk (Calk), a certified public
accountant, to do accounting work for Hartford and later made Calk
president of a company called Horizontal Drilltex. It was falsely
represented to investors that Horizontal Drilltex and Hartford were
separate entities and that Horizontal Drilltex had drilled between
20 and 30 wells. Additionally, completion funds, which were only
to be called from an investor after the well was completed, were
called before drilling began.
petroleum engineer as represented in the Silver Fox prospectus.
8
Hanks, Holloman, Overstreet, and Stanley Crutchfield met with
Jim Meyers (Meyers), who sold Horizontal Drilltex a drilling rig
for $109,000. Holloman signed a promissory note for the rig on
behalf of Horizontal Drilltex. Hanks appraised the drilling rig at
$1,250,000. Meyers thought that, after improvements, the rig would
be worth $350,000 to $400,000 on the market. The drilling rig was
used to raise $1,000,000 in investor funds, which was deposited in
Horizontal Drilltex's account.
D. EXCITING TANS
Terry Donahue,8 Cushman, and Marylin Cook set up a tanning
salon called "Exciting Tans" using money from Cushman and money
that investors had sent to Hartford and Great Southwest Energy for
the drilling of the oil and gas wells. This money was treated as
a loan to Exciting Tans. To repay the loan, Exciting Tans would
send money every week to Matuso Holding Company, which was used as
a holding company to funnel money back to Cushman.9
On one occasion, Donahue heard Cushman and Landerman in a
conversation deciding that $23,000 (a $15,000 check and a $8,000
check) from Cushman would be routed through Landerman's client
trust account and then to Exciting Tans. That money was used to
start a second tanning salon. Cushman's investment was also
returned to him by allowing his employees to charge services at
Exciting Tans against any amounts owed to him.
8
Donahue pleaded guilty to wire fraud and money laundering
prior to testifying.
9
Dana Bien worked for Cushman and regularly cashed $2,000
checks for Cushman that were written to Matuso Holding Company.
9
E. EVIDENCE REGARDING INVESTORS
Various investors testified that they would not have invested
in the oil and gas projects had they known that Cushman and
Holloman were the true owners of the company, that Cushman and
Holloman had criminal records, that the investor funds were not
being used for drilling wells, and that Holloman had never drilled
a well.
An auditor for the Government testified that the total amount
of investor funds received from the marketing of the five oil and
gas drilling projects was $5,283,487, that the total amount of
refunds to investors was $61,206, and that the total amount of
royalties paid was $71,385.
F. PROCEDURAL HISTORY
On February 10, 1993, a 24-count indictment was returned
charging Cushman, Holloman, Hanks, Landerman, and Zeigler, along
with seven other defendants with violations of conspiracy, mail
fraud, wire fraud, money laundering and criminal contempt.
Ultimately, on October 6, 1993, a third superseding 32-count
indictment was returned charging Cushman, Holloman, Hanks,
Landerman, Zeigler, and six other defendants with conspiracy, mail
fraud, wire fraud, and money laundering. Additionally, a separate
superseding indictment was returned charging Cushman and Holloman
with criminal contempt.
On November 15, 1993, trial began on the 32-count indictment.
The next day a mistrial was granted. The retrial began on November
22, 1993. The five defendants that are now party to this appeal
were found guilty on all counts submitted to the jury: Cushman,
10
counts 1-4 and 6-32;10 Holloman, counts 1-4 and counts 6-30; Hanks,
1, 25, 26, and 27; Landerman, 1, 31, 32; and Zeigler, 1, 20, 28,
29, and 30. Cushman and Holloman were later tried on a separate
superseding indictment charging five counts of contempt, and both
were found guilty on all five counts.
The district court imposed the following sentences of
imprisonment and fines: Cushman received 290 months and a $40,000
fine; Holloman received 210 months and a $30,000 fine; Hanks
received 52 months and a $10,000 fine; Zeigler received 60 months
and a $10,000 fine; and Landerman received 135 months and a $10,000
fine.
II. ANALYSIS
A. RESTRICTION OF CROSS EXAMINATION REGARDING WITNESS BIAS
All five appellants, Cushman, Holloman, Landerman, Hanks, and
Zeigler, argue that the district court violated their confrontation
rights under the Sixth Amendment by improperly restricting defense
counsel's cross examination that was intended to demonstrate bias
on the part of Grant Ottesen, a prosecution witness. More
specifically, the district court prohibited the appellants from
questioning Ottesen regarding his pending felony charge in state
court and any effect it might have on his motivation to testify in
the instant federal proceeding.11 The Government counters that the
pending charge was not relevant to Ottesen's motive to testify
against the appellants and that the "appellants were otherwise
10
Count 5 was not submitted to the jury.
11
The defense also wanted to admit this evidence to rebut
Ottesen's testimony that he had never used any drug but marijuana.
11
allowed to fully cross examine him."12
Although the scope of cross examination is within the
discretion of the district court, that discretionary authority
comes about only after sufficient cross examination has been
granted to satisfy the Sixth Amendment. United States v. Restivo,
8 F.3d 274, 278 (5th Cir. 1993), cert. denied, __ U.S. __, 115
S.Ct. 54 (1994). "The Confrontation Clause of the Sixth Amendment
is satisfied where defense counsel has been permitted to expose to
the jury the facts from which jurors, as the sole triers of fact
and credibility, could appropriately draw inferences relating to
the reliability of the witness." Id. (citation and internal
quotation marks omitted). To show an abuse of discretion, the
appellants must show that the limitations imposed on cross
examination were clearly prejudicial. Restivo, 8 F.3d at 278.
Prior to testifying at the appellants' trial, Ottesen,
pursuant to a written plea agreement, pleaded guilty to two counts
of fraud in connection with the offenses that are the subject of
this appeal. Ottesen's plea agreement provided that "[u]pon
12
The Government also asserts that the pending state charge
was not a final conviction that could be used to attack Ottesen's
credibility under Rule 609(a) of the Federal Rules of Evidence.
While this assertion certainly is correct, in the instant case, it
is of no moment. The appellants were not attempting to use the
pending criminal charge as a general attack on Ottesen's
credibility. Instead, they were attempting to effect a more
particular attack on Ottesen's credibility by exposing his possible
bias or ulterior motive for testifying. See Davis v. Alaska, 415
U.S. 308, 316, 94 S.Ct. 1105, 1110 (1974) (explaining the
difference between exposing on cross examination a prior criminal
conviction for the purpose of affording the jury a basis to infer
that the witness would be less likely to be truthful and exposing
on cross examination a bias, prejudice, or ulterior motive of the
witness).
12
request of the defendant, [the] United States agrees to bring to
the attention of any other prosecuting authority the nature and
extent of the defendant's cooperation." The plea agreement was
admitted into evidence. At the time he pleaded guilty to the two
federal offenses, Ottesen had a pending delivery of cocaine charge
in state court. The Government filed a motion in limine seeking to
prohibit the appellants from questioning Ottesen regarding the
pending charge, which the district court granted.
During the instant trial, Ottesen testified that he pleaded
guilty to one count of mail fraud and one count of wire fraud and
that he was awaiting sentencing. The plea agreement provided that,
at sentencing, the Government would move to dismiss Ottesen's 15
remaining counts in the indictment. Additionally, the Government
had agreed that, prior to sentencing, it would make known to the
court the nature and extent of Ottesen's cooperation. The
agreement further provided that the Government may seek a
substantial assistance reduction in Ottesen's sentence under § 5K
"should the Defendant, in addition to full cooperation,
substantially assist the United States and law enforcement agencies
in investigating and prosecuting criminal matters." On cross
examination, when asked whether he considered the Government's
dismissal of the remaining counts a benefit, Ottesen replied that
he was "not putting any weight on that." He did acknowledge that
the possibility of obtaining sentence reduction would be a
"benefit."
Defense counsel tendered cross examination questions regarding
the pending state charge, and the district court allowed Ottesen to
13
answer those questions outside the presence of the jury.13 Ottesen
admitted that the state case, which carried a potential life
sentence, was pending when he entered into the plea bargain with
the Government. When asked whether he expected the Government to
make a favorable recommendation to the state prosecutor regarding
his cooperation, Ottesen answered that he did not know and that it
had not been discussed.14
Defense counsel then offered the testimony, arguing that it
showed Ottesen's motive to testify, his bias, and his prejudice.
The court responded as follows: "Well, I haven't heard him say
anything that would cause you to think that that's so. So if
that's the reason it's being offered, I will exclude the testimony.
Even if it had some slight relevance, its improper or undue
13
The Government asserts that the record does not reflect
that any of the appellants joined in requesting the proffered
questions. The record indicates, however, that the district court
instructed the defense attorneys to designate one "attorney to
conduct examination of various witnesses on the subjects of
cooperation with the Government, plea agreements, and related
matters." Moreover, the district court expressed his displeasure
with an attempt by Landerman's attorney to make a proffer regarding
the termination of his cross examination of Ottesen. The following
colloquy exemplifies the court's position and the futility of an
attempt to independently voice an objection to the district court's
ruling:
[Landerman's attorney]: May I make a proffer on [the]
termination of my cross-examination?
THE COURT: We don't have time to do that. There are
more important things, Mr. Rosenberg. I need for you to
comply with my rulings, and then we wouldn't have these
problems.
14
According to Cushman, "Bill Coos, the State Prosecutor,
states the charges were dismissed against Ottesen upon request of
the Federal Prosecutors as a result of Ottesen's testimony against
Cushman."
14
prejudicial effect would outweigh it."
Contrary to the district court's holding, "[t]he partiality of
a witness is subject to exploration at trial, and is always
relevant as discrediting the witness and affecting the weight of
his testimony." Davis, 415 U.S. at 316, 94 S.Ct. at 1110 (internal
quotation marks and citation omitted). We acknowledge that a
district court is afforded broad discretion in determining the
probative value of evidence to determine its admissibility. United
States v. Abel, 469 U.S. 45, 50, 105 S.Ct. 465, 468 (1984).
Further, it is well established that a district court may impose
reasonable limits on defense counsel's questioning into the
potential bias of a government witness to prevent "harassment,
prejudice, confusion of the issues, the witness' safety, or
interrogation that [would be] repetitive or only marginally
relevant." Olden v. Kentucky, 488 U.S. 227, 232, 109 S.Ct. 480,
483 (1988). Of course, as set forth previously, until we determine
that the cross examination satisfied the Sixth Amendment, the
district court's discretion does not come into play. Restivo,
supra.
In the case at bar, after hearing Ottesen's answers to the
proffered questions, the district court stated that Ottesen
apparently did not interpret the clause in the plea agreement to
include the state prosecuting authorities. That determination,
however, should not have been made by the district court. Instead,
the jury, as the trier of fact, should have been allowed to draw
its own inferences regarding Ottesen's credibility and determine
what effect, if any, the pending criminal charge had on Ottesen's
15
motivation to testify. Cf. Olden v. Kentucky, 488 U.S. at 232, 109
S.Ct. at 483 (stating that speculation regarding prejudice caused
by evidence of bias cannot justify exclusion of cross examination).
The Supreme Court has consistently "recognized that the
exposure of a witness' motivation in testifying is a proper and
important function of the constitutionally protected right of
cross-examination." Davis v. Alaska, 415 U.S. 308, 316-17, 94
S.Ct. 1105, 1110 (1974) (citing Greene v. McElroy, 360 U.S. 474,
496, 79 S.Ct. 1400, 1413 (1959)); accord Olden v. Kentucky, 488
U.S. at 231, 109 S.Ct. at 483. Additionally, this Court has made
clear that the right to cross examination "is particularly
important when the witness is critical to the prosecution's case."
United States v. Mizell, 88 F.3d 288, 293 (5th Cir.), cert. denied,
__ U.S. __, 117 S.Ct. 620 (1996). Counsel should be allowed great
latitude in cross examining a witness regarding his motivation or
incentive to falsify testimony, and this is especially so when
cross examining an accomplice or a person cooperating with the
Government. United States v. Hall, 653 F.2d 1002, 1008 (5th Cir.
1981). Indeed, the right of cross examination:
is so important that the defendant is allowed to "search"
for a deal between the government and the witness, even
if there is no hard evidence that such a deal exists.
What tells, of course, is not the actual existence of a
deal but the witness' belief or disbelief that a deal
exists.
Id. (quoting United States v. Onori, 535 F.2d 938, 945 (5th Cir.
1976)).
Here, the jury was informed that Ottesen had pleaded guilty to
two federal offenses and was awaiting sentencing. The district
16
court's ruling nevertheless precluded the jury from learning of the
pending state charge, which, especially in light of the plea
agreement provision to relate Ottesen's cooperation to any other
prosecuting authority, would allow the jury to conclude that "there
was considerable incentive for him to `slant, unconsciously or
otherwise, his testimony in favor of or against a party.'" United
States v. Cooks, 52 F.3d 101, 104 (5th Cir. 1995).
In Cooks, the district court allowed cross examination of the
prosecution witness regarding his status as a paid criminal
informant and his hopes for leniency on certain charges pending in
Texas in exchange for his assistance in the investigation. Id. at
103-04. However, the court disallowed cross examination regarding
the witness's "subsequent Louisiana arrest for purse-snatching or
. . . the stiff penalties [the witness] faced if convicted on
either the Texas or Louisiana charges." Id. at 103. Noting that
the pending Texas and Louisiana charges carried possible 99-year
and 40-year sentences respectively, we recognized the obvious
temptation to slant his testimony in favor of the prosecution.
Cooks, 52 F.3d at 104 & n.13. We thus held that the district court
erred in keeping from the jury these pertinent facts that related
to the witness's motivation to testify.15
15
Citing United States v. Hamilton, 48 F.3d 149 (5th Cir.
1995), the Government argues that the district court did not abuse
its discretion in prohibiting the requested cross examination.
Hamilton is inapposite. Unlike the case at bar, the pending
charges against Hamilton were misdemeanor. Cf. United States v.
Alexius, 76 F.3d 642, 646 (5th Cir. 1996) (distinguishing Hamilton
on basis that it only involved state misdemeanor charges). More
importantly, Hamilton was permitted to elicit evidence regarding
the pending misdemeanor offenses during the cross examination of
another witness.
17
In light of the fact that Ottesen’s testimony was critical to
the prosecution's case16 and the pending charge carried the
potential of a life sentence, we conclude that the district court
erred in prohibiting the appellants from exploring before the jury
the effect that Ottesen's pending criminal charge might have on his
motivation to testify. Like the jury in Cooks, the jury in the
instant case was unaware of the serious pending charge against
Ottesen. And given the plea agreement provision that the
Government, upon Ottesen's request, would advise any other
prosecuting authority about the extent of Ottesen's cooperation in
this case, the denial of cross examination and the defendant's
right to have the jury properly assess Ottesen's motivation is even
more egregious than in Cooks.
Next, we must determine whether this Confrontation Clause
error was harmless. Delaware v. Van Arsdall, 475 U.S. 673, 106
S.Ct. 1431 (1986). "The correct inquiry is whether, assuming that
the damaging potential of the cross-examination were fully
realized, a reviewing court might nonetheless say that the error
was harmless beyond a reasonable doubt." Id. at 673, 106 S.Ct. at
1438. We consider the following factors to determine whether the
error was harmless: "the importance of the witness' testimony in
the prosecution's case, whether the testimony was cumulative, the
16
The Government does not (nor could it credibly) argue that
Ottesen was not a crucial prosecution witness. During closing
argument, the Government expressly referenced Ottesen's testimony
at least 15 times. During defense counsel's argument, Ottesen was
referred to as "the Government's star witness."
18
presence or absence of evidence corroborating or contradicting the
testimony of the witness on material points, the extent of cross-
examination otherwise permitted, and of course, the overall
strength of the prosecution's case." Id. After having extensively
reviewed the record, we will consider the evidence in regard to
each of the five appellants.
1. ZEIGLER
It is abundantly clear that Ottesen's testimony was the most
important in implicating Zeigler in the conspiracy. Ottesen
testified that Zeigler was one of the five persons who were in
charge of raising money and appeasing angry investors. Ottesen
further testified that these five conspirators met several times a
week and that Zeigler was aware that the companies were using in-
house references. Ottesen described discussions he had with
Zeigler regarding Cushman's falsifying drilling reports. No other
witness's testimony comes close to implicating Zeigler to the
extent that Ottesen's testimony does. Moreover, the prosecution's
case against Zeigler was not strong. The vast majority of the
prosecution witnesses neither spoke of nor implicated Zeigler in
comparison to the few who testified against him.17 We are confident
that the error was not harmless beyond a reasonable doubt in regard
to Zeigler's conviction.
2. HANKS
17
As characterized by Zeigler's counsel during closing
argument, "Mr. Ottesen . . . knows the Government's case against
Mr. Zeigler is weak because if you were to take [the prosecutor's]
references to Mr. Ottesen out of his opening, he wouldn't have had
anything to say. He would not have been able to talk about Randall
Zeigler."
19
Ottesen's testimony also implicated Hanks in the conspiracy.
Ottesen testified that he spoke with Hanks regarding the use of in-
house references for the company. He further testified that "we
had Dave Hanks come in as an independent, [when] he was actually
working for the company to appraise this rig and get the rig value
over a million dollars, because that's what we were planning on
raising." Although other witnesses testified regarding the value
of the rig versus the appraisal amount, the other witnesses'
testimony was not nearly as inculpatory.18 We thus conclude that
the error was not harmless.
3. LANDERMAN
Similarly, Ottesen's testimony against Landerman appears
significant, if not necessary, to the jury's verdict. Ottesen
testified that Landerman "basically told [Cushman] how to set up
the corporations to funnel the money through and things of that
nature, and he tried to get the Hartford set up with a joint
venture where we weren't security." He also testified that when
Landerman first started coming to the Bedford office Landerman
"would be standing up on the sales floor and cringe and tell people
that you can't be saying that [to the potential investors]."
18
In the context of arguing that there is sufficient evidence
to sustain Hanks' conviction, the Government argues that "in
addition to evidence of [his] participation in the drilling rig
promotion,"
the following evidence demonstrates Hanks' involvement in the
conspiracy: (1) Hanks was a sales manager at Hartford; he was
used as an independent reference to investors; he lived in the
apartment rented by Cushman and Holloman; he was paid by checks
from Hartford Exploration or Hartford Energy; and he used the name
of Ed Banks while at Hartford. It is clear that the evidence of
the inflated drilling rig appraisal is the most inculpatory
evidence against Hanks.
20
However, "[a]s time passed, [Landerman] got a little bit more
lenient toward misrepresentations" and would just shake his head
and laugh about any misrepresentations he overheard the sales
brokers make. Landerman admitted to Ottesen that the money used to
start Exciting Tans was funneled out of Hartford. Finally, Ottesen
testified that Landerman was aware that they were using in-house
references.
Other witnesses did testify that Landerman structured the
financial transactions that form the basis of the two money
laundering convictions. Of course, in order to constitute money
laundering, the proceeds involved in the transactions must have
been from the mail and wire fraud offenses, and the most damning
testimony regarding Landerman's knowledge of the fraud came through
Ottesen. We therefore cannot conclude that the error was harmless
beyond a reasonable doubt.
4. HOLLOMAN
In regard to Holloman, Ottesen testified that, in Holloman's
presence, Cushman stated that the Twin Elephant would not have any
production and that he did not intend to spend any more money than
had already been spent. Ottesen also asserted that Holloman was
one of the five people "basically in charge of raising the money"
and that this group of five met several times a week from December
1990 to December 1991.19 Ottesen further testified that Holloman
was involved in conversations regarding in-house references being
19
Ottesen later backtracked somewhat, stating that, at the
beginning, Holloman came to the office every day but later Holloman
spent more time at the drilling site.
21
used in the company.
In contrast to Ottesen's testimony, a fair reading of the
entire transcript leaves one with the impression that after the
company was formed, Holloman spent virtually all his time at the
well site attempting to drill for oil and gas. Indeed, even the
Government witnesses testified that Holloman appeared competent
while performing his duties at the well sites. Additionally,
contrary to Ottesen's testimony, Landerman and Zeigler testified
that they did not consider Holloman to be part of the management.
Ottesen's testimony regarding Holloman's knowledge of the use
of in-house references may be viewed as somewhat cumulative of
other witnesses' testimony. Nevertheless, after comparing
Ottesen's testimony with the rest of the Government's evidence, we
are not prepared to find this error harmless.
5. CUSHMAN
Finally, we consider Ottesen's testimony against Cushman.
Although there was sufficient evidence to convict Cushman without
Ottesen's testimony, that is not the appropriate inquiry. As set
forth above, Ottesen testified that Cushman stated he knew the Twin
Elephant would not have any production and that he did not intend
to spend any more money than had already been spent. Ottesen
further testified that Cushman confessed "that the Twin Elephant
wouldn't [amount to] a popcorn cart." Ottesen's testimony was, by
far, the most damaging testimony against Cushman. This is the only
testimony that we have found that directly shows that Cushman
believed the oil and gas projects were simply a sham.
Further, closing arguments reveal the importance of Ottesen's
22
testimony against Cushman. The prosecutor relied heavily on
Ottesen's testimony to set forth the case against Cushman. In
response, Cushman's attorney argued that "the only witness that
they really base all their case on is --what was that guy's name,
the one that talked so fast and -- Ottesen." Although it is a
close question, after a most careful reading of the record of this
multi-week trial, we are not persuaded that the error was harmless
beyond a reasonable doubt.20 Therefore, the convictions of Zeigler,
Hanks, Landerman, Holloman, and Cushman are vacated.
C. RECUSAL
Cushman, Landerman, and Hanks argue that the district judge
erred in refusing to recuse himself. They argue that the district
court's actions and rulings favored the Government.21 A judge
should disqualify himself if a reasonable person, knowing all the
relevant circumstances, would harbor doubts about the judge's
20
It is worth noting that aside from Ottesen's testimony
directly inculpating Cushman in the charged offenses, Ottesen
provided other testimony that in general placed Cushman in a bad
light before the jury: (1) Ottesen and Cushman used marijuana
together on occasion; (2) Cushman purchased the Silver Fox lease in
an attempt to curry favor with the next Securities and Exchange
Commissioner; and (3) Ottesen observed "about $140,000 worth of
cashier's checks made in $10,000 increments and a title to an
Elante, a clear title to the Jaguar and a title to a Camaro" in a
safe in Cushman's home.
21
Landerman and Cushman both filed motions to recuse the
judge in the district court based on the argument that the judge
should have recused himself because he previously presided over a
civil action filed by the SEC against the various companies that
were the subject of this criminal case. Landerman filed an
application for writ of mandamus with this Court, which was denied.
The Government argues that because Hanks did not file such a
motion, he has not preserved this argument for appeal. Because we
find that this claim does not entitle the appellants to any relief,
we do not reach whether Hanks preserved this issue for appeal.
23
impartiality. Matter of Hipp, Inc., 5 F.3d 109, 116 (5th Cir.
1993). We review the district court's denial of a recusal motion
for abuse of discretion. Id.
The appellants rely on appendices that list the district
court's warnings to counsel and the times the court cut off
questioning. According to Cushman's appendix "C," the charts show,
among other things, that the judge interrupted the defendants'
attorneys 83% of the time and interrupted the Government 17% of the
time. They contend that the charts demonstrate that the court
terminated defense counsel's questioning much more quickly than the
Government's questioning. By these actions, they argue, the judge
conveyed to the jury an impression that he favored the Government's
case.
"Judicial rulings alone almost never constitute valid basis
for a bias or partiality motion." Liteky v. United States, 510
U.S. 540, 114 S.Ct. 1147, 1157 (1994). Instead, the judge's
rulings should constitute grounds for appeal, not for recusal. Id.
Opinions formed by the judge that are based on the evidence in the
case or events occurring during the proceedings do not constitute
a basis for recusal "unless they display a deep-seated favoritism
or antagonism that would make fair judgment impossible. Thus,
judicial remarks during the course of a trial that are critical or
disapproving of, or even hostile to, counsel, the parties, or their
cases, ordinarily do not support a bias or partiality challenge."
Id. If the remarks stem from an extrajudicial source, they may
constitute sufficient grounds for recusal. Further, expressions of
impatience, annoyance, dissatisfaction, and even anger, do not
24
establish bias or partiality.
The parties do not allege that Judge McBryde's alleged bias
stemmed from any extrajudicial source. A careful review of the
record indicates that Judge McBryde did allow the Government more
leeway during its questioning and did interrupt defense counsel's
questioning more often than the Government's questioning.
Nevertheless, we are not convinced that the judge's remarks and
actions were such that a reasonable person would harbor doubts
about the judge's partiality. The district court therefore did not
abuse its discretion in denying the motion to recuse.
D. SUFFICIENCY OF THE EVIDENCE
Zeigler, Hanks and Landerman contend that the evidence is
insufficient to support their convictions. When reviewing the
sufficiency of the evidence, this Court views all evidence, whether
circumstantial or direct, in the light most favorable to the
Government with all reasonable inferences to be made in support of
the jury's verdict. United States v. Salazar, 958 F.2d 1285, 1290-
91 (5th Cir.), cert. denied, 506 U.S. 863, 113 S.Ct. 185 (1992).
The evidence is sufficient to support a conviction if a rational
trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Id. The evidence need not exclude
every reasonable hypothesis of innocence or be completely
inconsistent with every conclusion except guilt, so long as a
reasonable trier of fact could find that the evidence established
guilt beyond a reasonable doubt. United States v. Faulkner, 17
F.3d 745, 768 (5th Cir.), cert. denied, __ U.S. __, 115 S.Ct. 193
(1994).
25
To prove a violation of the mail fraud statute, 18 U.S.C. §
1341, the Government must prove beyond a reasonable doubt that
there was (1) a scheme or artifice to defraud, (2) specific intent
to commit fraud, and (3) use of the mails for the purpose of
executing the scheme to defraud. United States v. Shively, 927
F.2d 804, 813-14 (5th Cir.), cert. denied, 501 U.S. 1209, 111 S.Ct.
2806 (1991). To prove a wire fraud offense under § 1343, there
must be proof of (1) a scheme to defraud and (2) the use of, or
causing the use of, wire communications in furtherance of the
scheme. Id. at 813. After membership in a scheme to defraud is
shown, a knowing participant is liable for any wire communication
that has taken place or subsequently takes place in connection with
the scheme. Id. To prove a money laundering offense under 18
U.S.C. § 1956(a)(1)(A)(i), the Government must demonstrate that the
defendant: (1) conducted or attempted to conduct a financial
transaction; (2) that the defendant knew involved proceeds of
unlawful activity; (3) and did so with the intent to promote
unlawful activity. See United States v. West, 22 F.3d 586, 590-91
(5th Cir.), cert. denied, __ U.S. __, 115 S.Ct. 584 (1994).
Finally, to prove a conspiracy, the Government must show that
two or more persons agreed to commit a crime and that at least one
of them committed an overt act in furtherance of that agreement.
United States v. Tansley, 986 F.2d 880, 885 (5th Cir. 1993).
1. HANKS AND LANDERMAN
Hanks and Landerman contend that the evidence is insufficient
to convict them because the only evidence linking them to any of
the counts of conviction is the funds from the drilling rig deal.
26
They contend that because Horizontal Drilltex, the company involved
in the rig deal, was dismissed from a prior SEC civil action, "res
judicata principles preclude any finding that Horizontal Drilltex,
Inc. funds were the proceeds of specified unlawful activity." We
find no merit in this argument.
The appellants do not dispute that the judgment that dismissed
Horizontal Drilltex from the previous suit provided that no
violations of securities laws were admitted or denied. As such, it
is clear that the issue of whether the proceeds from the rig deal
were from unlawful activity was not litigated. The SEC action did
not terminate with a final judgment on the merits, one of the
requirements necessary for the application of res judicata. See
United States v. Shanbaum, 10 F.3d 305, 310 (5th Cir. 1994).
Hanks and Landerman do not argue that the evidence is
insufficient to sustain their convictions if the evidence regarding
the drilling rig deal is included. In any event, viewing all the
evidence in the light most favorable to the verdict, the evidence
is sufficient to support the convictions of Hanks for conspiracy
and wire fraud and Landerman for conspiracy and money laundering.
2. ZEIGLER
Zeigler contends there was insufficient evidence to support
his convictions for conspiracy, mail fraud, and wire fraud.
Zeigler acknowledges that Ottesen was the principal witness against
him. Zeigler argues that "Ottesen's testimony should not be
considered as support for [his] conviction where it is demonstrably
false and concocted." We understand Zeigler's argument to be that
Ottesen's testimony, if true, would be sufficient to sustain his
27
convictions, but because Ottesen's testimony is false, his
convictions should not be sustained.
As set forth above, we must construe all reasonable inferences
from the evidence in support of the verdict. More to the point,
this Court is precluded from invading the province of the jury by
substituting our credibility determinations for those of the jury
unless the witness's testimony is factually impossible, which would
render it incredible as a matter of law. United States v. Jaras,
86 F.3d 383, 388 (5th Cir. 1996). Zeigler has not shown that
Ottesen's testimony is incredible as a matter of law. Accordingly,
because the jury has the sole responsibility for determining the
weight and credibility of the evidence, it could and apparently did
credit the testimony of Ottesen. United States v. Harrison, 55
F.3d 163, 165 (5th Cir.), cert. denied, __ U.S.__, 116 S.Ct. 324
(1995).
Zeigler also argues that the evidence is insufficient because
no evidence ever directly connected him with the victims of the
four substantive mail and wire fraud counts. Zeigler, who had a
management position in the company, ignores the fact that the
charges levied against him in the indictment alleged that he aided
and abetted the other defendants in regard to the substantive
counts. 18 U.S.C. § 2.22 Reading the record in the light most
22
To uphold a conviction for aiding and abetting under 18
U.S.C. § 2, the Government must prove that the defendant associated
with a criminal venture, purposefully participated in the criminal
activity, and sought by his actions to make the venture successful.
United States v. Polk, 56 F.3d 613, 620 (5th Cir. 1995) (citations
omitted). A defendant associates with the criminal venture if he
shares in the criminal intent of the principal. United States v.
Jaramillo, 42 F.3d 920, 923 (5th Cir.), cert. denied, __ U.S. __,
28
favorable to the verdict, the evidence is sufficient to support
Zeigler's convictions for aiding and abetting his codefendants in
the defrauding of the victims in the substantive mail and wire
fraud convictions.
E. DOUBLE JEOPARDY BASED ON RETRIAL
Cushman, Holloman, Landerman, and Hanks argue that the instant
retrial was barred by the double jeopardy clause. The district
court granted the appellants' motion for a retrial based on an FBI
Agent's conversation with a juror.
The general rule is that when a defendant moves for a mistrial
there is no bar to retrying the defendant. The Supreme Court has
recognized a narrow exception to this rule. In Oregon v. Kennedy,
456 U.S. 667, 102 S.Ct. 2083, 2091 (1982), the Supreme Court held
that only when the governmental conduct was intended to goad the
defendant into moving for a mistrial may the defendant invoke the
bar of double jeopardy after having requested the mistrial. As the
Government argues, the appellants have failed to allege (or point
to anything in the record indicating) that the FBI agents engaged
in the brief conversation with the juror intending to provoke the
appellants into moving for a mistrial. United States v. Botello,
991 F.2d 189, 192-93 (5th Cir. 1993), cert. denied, 510 U.S. 1074,
114 S.Ct. 886 (1994). Therefore, this double jeopardy claim fails.
Id.
F. DOUBLE JEOPARDY BASED ON CRIMINAL CONTEMPT
115 S.Ct. 2014 (1995). A defendant participates in the criminal
activity if he has acted in some affirmative manner designed to aid
the venture. Id.
29
Cushman argues that his double jeopardy rights were violated
when he was tried on the indictment containing the criminal
contempt charges. His argument is without merit.
The elements of the criminal contempt statute, 18 U.S.C. §
401(3) are: (1) a reasonably specific order; (2) violation of the
order; and (3) the willful intent to violate the order. Cooper v.
Texaco, 961 F.2d 71, 72 n.3 (5th Cir. 1992)). As the Government
argues, these elements have no commonality with the elements of the
conspiracy, mail fraud, wire fraud, and money laundering statutes.23
Accordingly, because the same element test set forth in Blockburger
v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306
(1932) is not violated, this claim is without merit.
III. CONCLUSION
In light of our disposition of the Sixth Amendment claim, we
do not address the appellants' remaining claims except for
Zeigler's argument that the district court erred in refusing to
sever his case. We have determined that the district court did not
abuse its discretion in denying Zeigler's motion for severance.
See United States v. Williams, 809 F.2d 1072, 1085 (5th Cir.),
cert. denied, 484 u.S. 896, 108 S.Ct. 228 (1987). Accordingly, we
VACATE the convictions of Cushman, Holloman, Landerman, Hanks, and
Zeigler and remand to the district court for further proceedings.
23
The elements of these offenses previously have been set
forth in this opinion.
30