United States v. Tannehill

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

_____________________

No. 93-1709
_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PAUL DOUGLAS TANNEHILL,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________

(March 29, 1995)

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

As the last of seven defendants in the early 1980s savings and

loan "I-30 scandal" in Texas, Paul Douglas Tannehill appeals his

convictions for conspiracy and overvaluation of land, with the

critical issue being whether his statutory or constitutional rights

to a speedy trial were violated; especially, whether, if only

argument, and not testimony or other evidence, is presented on a

pretrial motion not heard until after trial begins, the period

between filing and argument is excludable under § 3161(h)(1)(F) of

the Speedy Trial Act (excludes "[a]ny period of delay resulting

from ... any pretrial motion, from ... filing ... through ...

hearing"). (Emphasis added.) Tannehill contends also that the

evidence is insufficient, and that the district court erred in
several evidentiary rulings and in refusing a jury instruction. We

AFFIRM.

I.

In October 1987, Tannehill, a real estate appraiser, was

indicted with David Lamar Faulkner, Spencer H. Blain, Jr., James L.

Toler, Arthur Formann, Kenneth Earl Cansler, and Paul Arlin Jensen,

as a result of their involvement in a scheme in which fraudulent

real estate loans were obtained for the purchase of land and the

construction of condominiums along Interstate 30 between Dallas and

Fort Worth. See United States v. Faulkner, 17 F.3d 745, 756 n.9

(5th Cir.), cert. denied, ___ U.S. ___, 115 S. Ct. 193, 663 (1994).

The 88-count indictment charged that Faulkner and Toler, real

estate developers, and their employee, Cansler, arranged for Blain

and Jensen, who controlled federally-insured savings and loan

associations, to make loans for the purchase of building sites and

completed condominium developments at inflated prices, and charged

that Tannehill and Formann, a real estate appraiser employed by

Tannehill, furthered the scheme by supplying intentionally inflated

appraisals.1 Tannehill was charged in 13 counts with conspiracy,

overvaluation of land, wire fraud, and aiding and abetting the

misapplication of funds.

All seven defendants were tried in Lubbock beginning in early

1989, but a mistrial was declared that September, after the jury

1
Further details about the scheme are provided in our court's
two published opinions affirming the convictions resulting from the
two trials in addition to Tannehill's. See United States v.
Faulkner, 17 F.3d 745 (5th Cir. 1994); United States v. Jensen, 41
F.3d 946 (5th Cir. 1994).

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was unable to reach a verdict. A second trial began in Dallas in

June 1991, but pretrial publicity made it impossible to select a

jury in Dallas. The district court severed Faulkner, Toler, Blain,

and Formann from Tannehill and the other two defendants, and

transferred their four cases to the Western District of Texas

(Midland). Their trial began in September 1991, and all were

convicted that November. See Faulkner, 17 F.3d at 754-55.

After the Midland trial, Cansler pleaded guilty, and Jensen

and Tannehill were severed, at their requests. Jensen was tried

and convicted in October 1992. See United States v. Jensen, 41

F.3d 946 (5th Cir. 1994). Tried in April 1993, Tannehill was

acquitted on the wire fraud and misapplication counts and one

overvaluation count, but was convicted for conspiracy and the other

eight overvaluation counts.2 He was sentenced, inter alia, to six

2
Tannehill was convicted on the following counts: count 1
charged that, between January 1, 1982, and January 9, 1984,
Tannehill and six others conspired to misapply funds of federally-
insured institutions, to unlawfully participate in transactions and
loans of federally-insured institutions, to commit wire fraud, to
overvalue land for the purpose of influencing federally-insured
institutions, to transport in interstate commerce money taken by
fraud, and to defraud the United States, in violation of 18 U.S.C.
§ 371; counts 2-4 charged that the seven defendants aided and
abetted each other in knowingly and willfully overvaluing land to
influence the actions of a federally-insured financial institution
by fabricating, executing and submitting spurious appraisals on
three tracts of land, in violation of 18 U.S.C. §§ 1014 and 2; and
counts 5, 6, 11, 19, and 20 charged Tannehill and Formann with
violations of 18 U.S.C. §§ 1014 and 2, for submitting false
appraisals for five tracts of land.

Tannehill was acquitted on counts 9 and 10, which charged all
seven defendants with wire fraud in connection with the transfer of
funds in connection with a development; count 12, which charged
that he and Formann aided and abetted Blain in the misapplication
of funds in connection with a development; and count 13, which
charged that he and Formann aided and abetted each other in the

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years imprisonment and fined $30,000.

II.

Tannehill contends that the indictment should have been

dismissed for violations of his speedy trial rights; that the

evidence is insufficient to sustain his convictions; and that the

district court erred by permitting the Government to base its case

on summary evidence, by admitting prior trial testimony of a

deceased Government witness, and by refusing his requested

instruction on reliance on the advice of counsel.

A.

The district court denied Tannehill's motion to dismiss the

indictment for violations of his rights to a speedy trial under

both the Speedy Trial Act and the Constitution. We turn first to

the statutory claim.

1.

"We review the facts supporting a Speedy Trial Act ruling

using the clearly erroneous standard and the legal conclusions de

novo." United States v. Bermea, 30 F.3d 1539, 1566 (5th Cir.

1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1113 (1995).

Although more than five and one-half years elapsed between

indictment in October 1987 and trial in April 1993, Tannehill's

statutory claim focuses only on the period between September 4,

submission of a false appraisal for that same development.

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1992 (filing of several pretrial motions by Tannehill), and the

April 1993 trial.3 Accordingly, in reviewing his statutory claim,

we do not consider any delays prior to then.

"The Speedy Trial Act[, 18 U.S.C. § 3161-3174,] requires that

a federal criminal defendant be tried within seventy days of his

indictment or appearance in front of a judicial officer, whichever

comes later. If the defendant is not brought to trial within this

statutory period, the indictment must be dismissed." United States

v. Williams, 12 F.3d 452, 459 (5th Cir. 1994).

However, "[t]he Act provides for a number of `exclusions' in

which time that passes is not charged against the 70-day clock."

Id. One of those provisions, § 3161(h)(1)(F), excludes "[a]ny

period of delay resulting from other proceedings concerning the

defendant, including but not limited to ... delay resulting from

any pretrial motion, from the filing of the motion through the

conclusion of the hearing on, or other prompt disposition of, such

motion". 18 U.S.C. § 3161(h)(1)(F) (emphasis added).

3
At oral argument, Tannehill's counsel stated that the focus of
his Speedy Trial Act claim was on the period after June 1991. But,
his briefs and arguments focus only on post-September 4, 1992. The
district court found that the period between the June 1991 mistrial
and the receipt in September 1992 of the transcript of the severed
co-defendants' trial was excludable under 18 U.S.C. § 3161(h)(8).
See note 5, infra.

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 For motions that "require" a hearing,4 subsection (F)

"excludes the time between the filing of the motion and the hearing

on that motion, even if a delay between the motion and the hearing

is unreasonable". United States v. Johnson, 29 F.3d 940, 942-43

(5th Cir. 1994). Also excluded is the "time after a hearing needed

to allow the trial court to assemble all papers reasonably

necessary to dispose of the motion, e.g., the submission of post-

hearing briefs". Id. And, after the court has received all of the

submissions, the motion is considered to have been taken "under

advisement", and the speedy trial clock is tolled for 30 days,

pursuant to subsection (J), which provides for the exclusion of

"delay reasonably attributable to any period, not to exceed thirty

days, during which any proceeding concerning the defendant is

actually under advisement by the court". 18 U.S.C. §

3161(h)(1)(J).

If a motion does not require a hearing, subsection (J)

provides for the exclusion of 30 days after the court receives all

submissions from counsel regarding the motion. Johnson, 29 F.3d at

943. "If the court has several motions on which it must rule,

however, this time period can be reasonably extended." Williams,

12 F.3d at 460.

4
See Henderson v. United States, 476 U.S. 321, 329 (1986);
United States v. Johnson, 29 F.3d 940, 942-43 (5th Cir. 1994); and
Bermea, 30 F.3d at 1567, for use of the word "required". Because
Tannehill requested a hearing, as discussed infra, and because, in
any event, it is undisputed that at least one or more of the
motions at issue "required" a hearing, we need not address what
causes a hearing to be "required".

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 In May 1992, the district court set Tannehill's trial on its

October 1992 docket. On September 4, however, Tannehill filed

numerous pretrial motions, including a motion to dismiss for

violations of the Speedy Trial Act, as well as a motion for a

hearing on all pretrial motions. The Government's response, and

Tannehill's reply, were submitted by the end of September. On

November 20, the district court, sua sponte, reset the trial for

its February 1993 docket. Tannehill filed additional motions on

January 19 and 22, 1993, including a motion in limine. On January

29, the district court reset trial for April 5, 1993.

No hearing was conducted on Tannehill's motions prior to

trial. After the jury was sworn, the court heard arguments on some

of Tannehill's motions, including the motion to dismiss for

violation of the Speedy Trial Act, filed in September 1992, and the

motion in limine, filed in January 1993.

One basis for disposing of Tannehill's Speedy Trial Act claim

turns on whether the arguments on his pretrial motions, heard after

the jury was sworn, constitute a "hearing" within the meaning of §

3161(h)(1)(F).5 Although our court has held that the speedy trial

5
The district court ruled that the delay was excludable under
§ 3161(h)(8), which provides for the exclusion of "[a]ny period of
delay resulting from a continuance granted by any judge on his own
motion or at the request of the defendant or his counsel or at the
request of the attorney for the Government, if the judge granted
such continuance on the basis of his findings that the ends of
justice served by taking such action outweigh the best interest of
the public and the defendant in a speedy trial". 18 U.S.C. §
3161(h)(8)(A). Subsection (B) of § 3161(h)(8) sets forth several
factors for the district court to consider in determining whether
to grant an "ends of justice" continuance pursuant to subsection
(A). Among those factors is "[w]hether the case is so unusual or
so complex, due to the number of defendants, the nature of the

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clock is tolled for the period between the filing of a motion and

a hearing on that motion, even if the hearing is not conducted

until trial, those cases do not address the meaning of "hearing"

under § 3161(h)(1)(F). See, e.g., Bermea, 30 F.3d at 1568

("pending motions carried for hearing just before or during trial

will toll the speedy trial clock indefinitely"); United States v.

Santoyo, 890 F.2d 726, 728 (5th Cir. 1989) (time between filing of

pretrial motion in limine and hearing on motion at trial

excludable), cert. denied, 495 U.S. 959 (1990).

The Act does not define what constitutes a "hearing", and the

parties have not cited, nor have we found, any authorities

addressing the issue.6 In other contexts, "hearing" has been

defined in various ways. See, e.g., Buxton v. Lynaugh, 879 F.2d

140, 144-45 (5th Cir. 1989) ("hearing", as used in habeas corpus

statute, 28 U.S.C. § 2254(d), "does not necessarily require an

evidentiary hearing and ... factfinding based on a record can in

some circumstances be adequate"), cert. denied, 497 U.S. 1031

(1990); State v. Orris, 26 Ohio App. 2d 87, 269 N.E.2d 623, 624

(1971) (the term "hearing" suggests "to `give audience to'");

prosecution, or the existence of novel questions of fact or law,
that it is unreasonable to expect adequate preparation for pretrial
proceedings or for the trial itself within the time limits
established by this section". 18 U.S.C. § 3161(h)(8)(B)(ii).
Because we conclude that the delay was excludable under §
3161(h)(1)(F), we need not address whether the delay was excludable
also under § 3161(h)(8).
6
United States v. Gonzales, 897 F.2d 1312, 1315 (5th Cir.
1990), cert. denied, 498 U.S. 1029 (1991), seems to imply that
"oral arguments" on the defendant's motion to dismiss for lack of
a speedy trial, conducted on the day trial began, constitute a
"hearing" within the meaning of subsection (F).

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Black's Law Dictionary 721 (6th ed. 1990) (defining "hearing" as

"[a] proceeding of relative formality (though generally less formal

than a trial), generally public, with definite issues of fact or

law to be tried, in which witnesses are heard and evidence

presented").

In determining what Congress meant by its use of the word

"hearing" in subsection (F), we must consider the context in which

the word is used and give to the term its ordinary meaning within

that context. See, e.g., Ardestani v. I.N.S., ___ U.S. ___, 112 S.

Ct. 515, 519 (1991) (when word used in statute has many dictionary

definitions, it "must draw its meaning from its context"); John Doe

Agency v. John Doe Corp., 493 U.S. 146, 153-56 (1989) (looking to

"ordinary meaning" and purpose of statute in interpreting statutory

term). Subsection (F) deals with the exclusion of "any" delays,

caused by the pendency of pretrial motions, from the time

limitations imposed by the Act; applies to "any pretrial motion";

and excludes, inter alia, the period between filing and hearing.

(Emphasis added.) Some motions require the presentation of

testimony or other evidence (for example, a motion to suppress);

others do not (for example, Tannehill's motion in limine). In

light of Congress' intent that subsection (F) apply to any pretrial

motion, it would be unreasonable to conclude that the presentation

of testimony or other evidence is an essential prerequisite for a

"hearing" on a motion within the meaning of that subsection.

We need not determine the precise parameters for a "hearing"

under subsection (F), because it is clear that the term includes a

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situation in which the district court hears argument of counsel and

considers it prior to making its ruling, as was done in this case.

Therefore, the entire period between September 4, 1992 (the date on

which Tannehill filed his pretrial motions) and the hearing

conducted at trial is excludable under subsection (F).7 See

Bermea, 30 F.3d at 1568 (speedy trial clock tolled by motions which

were ultimately heard and ruled upon during trial); United States

v. Gonzales, 897 F.2d 1312, 1314-16 (5th Cir. 1990) (period

following filing of motion to dismiss for speedy trial violation,

decided after oral argument on the first day of trial, excludable

under § 3161(h)(1)(F)), cert. denied, 498 U.S. 1029 (1991);

Santoyo, 890 F.2d at 728 (period following filing of pretrial

motion in limine excludable under § 3161(h)(1)(F) even though

motion was carried for hearing during trial); United States v.

Riley, 991 F.2d 120, 123-24 (4th Cir.) (although resolution of

pretrial motion to suppress was not concluded until trial, entire

period between its filing and its resolution was excludable under

§ 3161(h)(1)(F)), cert. denied, ___ U.S. ___, 114 S. Ct. 392

(1993).

7
The Supreme Court has stated that Congress intended to exclude
all time between the filing of a motion and the conclusion of the
hearing on that motion, regardless of whether a delay in holding
that hearing is "reasonably necessary". Henderson v. United
States, 476 U.S. at 330. Our court has noted that "[a]n exception
might be justified in a particularly egregious case, for example,
when defendants have presented repeated unsuccessful requests for
hearings or ... other credible indication that a hearing had been
deliberately refused with intent to evade the sanctions of the
Act". United States v. Walker, 960 F.2d 409, 413 (5th Cir.)
(internal quotation marks and citation omitted), cert. denied, ___
U.S. ___, 113 S. Ct. 443 (1992). Tannehill does not claim such an
exception.

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 2.

Alternatively, Tannehill claims violation of the Sixth

Amendment's guarantee that "[i]n all criminal prosecutions, the

accused shall enjoy the right to a speedy ... trial". U.S. Const.

amend. VI. "In resolving a constitutional speedy-trial claim, we

must examine: (1) the length of the delay, (2) the reason for the

delay, (3) when the defendant asserted his speedy trial rights, and

(4) any prejudice to the defendant resulting from the delay."

United States v. Neal, 27 F.3d 1035, 1042 (5th Cir.) (citing Barker

v. Wingo, 407 U.S. 514 (1972)), cert. denied, ___ U.S. ___, 115 S.

Ct. 530 (1994), and cert. denied, ___ U.S. ___, 115 S. Ct. 1165

(1995).

The Government concedes, as it must, that the delay was

"extraordinarily long", but maintains that it was reasonable under

the Sixth Amendment for the same reasons that it was permissible

under the Speedy Trial Act. In response to Tannehill's

constitutional claim, the district court ruled, in part, that the

delay was necessitated by the complexity of the case, combined with

the need for the lengthy trial records that were essential to

Tannehill's defense.8

Tannehill asserts that he was prejudiced by the delay because

(1) he became insolvent due to the cost of defending the case, has

been unable to obtain any significant work as an appraiser due to

8
The Lubbock trial transcript was not completed until June
1991; and the Midland trial transcript did not become available
until September 1992, after Tannehill had filed his pretrial
motions on September 4.

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adverse publicity, and thus had to rely on appointed counsel; and

(2) three material witnesses died following the mistrial. On the

other hand, the district court ruled that Tannehill was not

prejudiced but, instead, benefited from his counsel's opportunity

to review and use transcripts from the other trials.

We agree; the trial transcript reflects several occasions on

which Tannehill's counsel used the transcripts for impeachment or

in an attempt to secure favorable evidentiary rulings. And,

Tannehill, who was represented at trial by appointed counsel, has

not shown prejudice to his defense as the result of his insolvency.

Finally, as the district court also ruled, Tannehill has shown no

prejudice from the deaths of the three witnesses, because he has

not related the substance of their testimony, or shown how it would

have affected his defense.

B.

Tannehill contends that the evidence is insufficient to

support his convictions for conspiracy and overvaluation. Our

narrow standard of review for challenges to the sufficiency of the

evidence after conviction by a jury is well-established:

We must affirm if a reasonable trier of fact could
have found that the evidence established guilt
beyond a reasonable doubt. We must consider the
evidence in the light most favorable to the
government, including all reasonable inferences
that can be drawn from the evidence. The evidence
need not exclude every reasonable hypothesis of
innocence or be wholly inconsistent with every
conclusion except that of guilt, and the jury is
free to choose among reasonable constructions of
the evidence.

Bermea, 30 F.3d at 1551.

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 1.

For the conspiracy conviction, Tannehill maintains that there

was no evidence that any alleged co-conspirator asked him to

fabricate or arbitrarily inflate appraisals; or that he was present

or overheard discussions about the conspiracy; or that he made

statements indicating knowledge or awareness of it; or that he

agreed to join it. But, there was ample circumstantial evidence to

support the jury's finding that Tannehill knowingly participated in

the conspiracy.

A lengthy recitation of the evidence is unnecessary. Our

review of the trial transcript reveals numerous examples of

circumstantial evidence of guilt, including Tannehill's secretary's

testimony that, when she asked him why he did not terminate his

relationship with the I-30 clients, he responded that he was "in

too deep and I can't get out. I have to unload my condos first".

Although Tannehill asserts that the secretary admitted, on cross-

examination, that he could have been referring to the large

accounts receivable balance owed his firm by the savings and loan

association, this is precisely the type of alternative hypothesis

of innocence that the evidence need not exclude. The jury was free

to reject this explanation.

Other circumstantial evidence of Tannehill's participation in

the conspiracy includes, for example, testimony about conversations

in which he participated, reflecting his knowledge that sales of

completed condominiums in the I-30 area were poor and, thus, that

high appraisals were unwarranted; and his admission to another I-30

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condominium developer that he had been "forced" by Faulkner to

include Formann as a partner in the condominium development in

which he had invested. It goes without saying that, although

Tannehill presented conflicting evidence, "the jury is the final

arbiter of the credibility of witnesses". Bermea, 30 F.3d at 1552.

There is no basis upon which to overturn its conspiracy verdict.

2.

For his convictions on eight overvaluation counts, Tannehill

contends that the evidence was insufficient because there was no

evidence that he knew, or should have known, that the appraisals

were false. He asserts that the evidence showed that his staff

appraiser and co-defendant, Formann, gathered the data and prepared

the appraisals; that there was no evidence that he conspired with

Formann, or was aware that Formann was preparing false appraisals;

and that he performed responsibly as a review appraiser in

accordance with then prevailing standards.

To establish a violation of 18 U.S.C. § 1014, the Government

was required to prove that Tannehill knowingly made a false

statement as to a material fact to a financial institution, for the

purpose of influencing the institution's actions. United States v.

Thompson, 811 F.2d 841, 844 (5th Cir. 1987). There was ample

evidence from which a rational juror could have found that

Tannehill knew that the appraisals overvalued the property. The

appraisals valued the property at 20-30% more than the amount for

which it was being sold. There was testimony that the appraised

values had to be higher than the sales prices so that the lending

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institutions, which loaned only 70-80% of the appraised value of

the property, could fund 100% of the costs, thus allowing the

investor/developer to pay no money down and often receive "up-

front" money at the closings.

Moreover, sales of Tannehill's own condominium units in the

area were poor, supporting an inference that he could not have

assigned such high appraised values to other property in the area

in good faith. Tannehill's assertion that his units were not

available for sale until October 1982, and that the appraisals at

issue were made either before or shortly thereafter, is unavailing

in light of evidence that efforts to pre-sell the units prior to

their completion were unsuccessful and evidence that, prior to the

dates of the appraisals at issue, Tannehill participated in

conversations with other I-30 developers in which they discussed

poor sales of completed units.

Although Tannehill asserts that there was no evidence that he

was aware of Formann's illegal activities until he fired Formann in

February 1983, after he learned that Formann was responsible for

forging his signature on an appraisal, which occurred after the

appraisals at issue were submitted, the Government introduced

expert testimony that the inconsistencies and unexplained

adjustments in the appraisals could not be attributed to

incompetence or negligence, and that an experienced appraiser

should have detected them. In short, the jury chose to reject

Tannehill's attempt to place all of the blame on Formann, and its

decision to do so is supported by the evidence. Accordingly, we

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conclude that there was sufficient evidence for the jury to find

that Tannehill knew that the appraisal reports he signed reflected

overinflated values.

C.

Tannehill presents two evidentiary issues: use of summary

evidence; and use of prior testimony of a deceased witness.

1.

Tannehill contends that the district court erred by permitting

the Government to base its case on summary evidence. First, he

claims that charts summarizing the transactions at issue were

misleading and inaccurate, and contained information that the

Government's expert, on cross-examination, admitted an appraiser

should not be expected to know or consider in making an appraisal.

Of course, "[t]he contents of voluminous writings, recordings,

or photographs which cannot conveniently be examined in court may

be presented in the form of chart, summary, or calculation". Fed.

R. Evid. 1006. We review the admission of evidence pursuant to

Rule 1006 only for abuse of discretion. See United States v. Winn,

948 F.2d 145, 157 (5th Cir. 1991), cert. denied, ___ U.S. ___, 112

S. Ct. 1599 (1992). The district court did not abuse its

discretion in admitting the summary charts, because the

requirements of Rule 1006 were satisfied. The documents summarized

in the charts were voluminous, and in-court examination would have

been more than inconvenient.9 Furthermore, the charts had

9
The case agent testified that 28,000 documents (55 lateral
five-shelf file cabinets), which would fill about two-thirds of the
courtroom, were obtained through grand jury subpoenas.

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annotations referencing the documents used to prepare them, and the

underlying documents were available to the jury. And, the district

court instructed the jury on the proper use of the summary

evidence:

Charts or summaries, and the witness's explanation
of them, are not in and of themselves evidence or
proof of any facts. If these charts or summaries
or the witness's explanation of them do not
correctly reflect facts or figures shown by the
evidence in the case, you should disregard them.

Our court has held that similar instructions were adequate to

neutralize any potential for prejudice arising from the use of such

evidence. See Winn, 948 F.2d at 157-59 & n.30.

Next, Tannehill asserts that the district court erred by

admitting the case agent's summary testimony, based on the charts,

contending that it was improper and highly prejudicial because,

given the relative brevity of the Government's case, there was no

need for summarizing, interpreting, or simplifying the evidence.

There was no abuse of discretion. The agent's testimony was

helpful to the jury in explaining the charts and the documents he

relied upon in preparing them, and Tannehill's counsel engaged in

thorough cross-examination regarding the assumptions used in

preparing the charts.

In addition, Tannehill maintains that these claimed errors

were compounded when the district court allowed the charts in the

jury room. But, as stated, there were no errors to compound. In

any event, although the charts were not admitted in evidence, a

notebook, containing copies of them, was admitted. Accordingly,

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the district court did not abuse its discretion in allowing the

jury to have access to the charts during its deliberations.

Tannehill contends also that the district court erred by

permitting numerous witnesses to read from, and interpret,

documents of which they had no personal knowledge, including lay

analysis of comparable sales and other information in the

appraisals prepared by Formann. He asserts that such evidence was

prohibited by Fed. R. Evid. 602, which provides, in pertinent part,

that "[a] witness may not testify to a matter unless evidence is

introduced sufficient to support a finding that the witness has

personal knowledge of the matter". Even assuming that the

admission of such testimony was error, Tannehill has not shown that

it affected his substantial rights. See Fed. R. Evid. 103(a).

2.

Rule 804(b)(1) of the Federal Rules of Evidence allows

admission of the prior testimony of a deceased witness if the

defendant "had an opportunity and similar motive to develop the

testimony by ... cross ... examination". Tannehill contends that

the district court erred by admitting the 1989 Lubbock trial

testimony of a deceased Government witness, asserting that the

testimony does not fall under Rule 804(b)(1), because Tannehill did

not have the same motive in his prior cross-examination.

Tannehill maintains that his motive for cross-examining the

witness at the Lubbock trial was sufficiently different to preclude

admission of the testimony, because he was one of seven defendants

at that trial, almost all of the cross-examination of the witness

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was conducted by counsel for his co-defendants, and his Lubbock

trial strategy was to "disappear into the woodwork and hope for the

best".

Needless to say, we review the district court's decision to

admit the testimony only for abuse of discretion. See United

States v. Amaya, 533 F.2d 188, 191 (5th Cir. 1976), cert. denied,

429 U.S. 1101 (1977). Tannehill's motive for cross-examination was

not sufficiently different to preclude admission of the testimony

under Rule 804(b)(1) merely because different counsel with

different defense theories conducted the cross-examination at the

Lubbock trial. See id. at 191-92 (Rule 804(b)(1) does not

"condition the use of prior testimony on representation by the same

counsel at both trials. Adequate opportunity for cross-examination

by competent counsel is sufficient."); Fed. R. Evid. 804(b)(1),

advisory committee's note ("If the party against whom [the

testimony is] now offered is the one against whom the testimony was

offered previously, no unfairness is apparent in requiring him to

accept his own prior conduct of cross-examination or decision not

to cross-examine."). Although Tannehill's 1993 trial strategy may

have changed because he was being tried alone, his motive for

cross-examination was the same as in the Lubbock trial: to

discredit the witness and separate himself from the other members

of the conspiracy. Accordingly, the district court did not abuse

its discretion by admitting the testimony.10

10
Prior to trial, the Government moved for admission of the
deceased witness' Lubbock testimony; Tannehill opposed the motion,
on the same grounds he urges on appeal. After the jury was

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 D.

Finally, Tannehill bases error on the district court's refusal

to give his requested reliance on the advice of counsel jury

instruction. Such refusal is reviewed only for abuse of

discretion. E.g., United States v. Sellers, 926 F.2d 410, 414 (5th

Cir. 1991). A district court may refuse "to give a requested

instruction which incorrectly states the law, is without foundation

in the evidence, or is stated elsewhere in the instructions."

United States v. Neal, 951 F.2d 630, 633 (5th Cir. 1992). "The

refusal to give a requested jury charge is reversible error only if

the instruction was substantially correct, was not substantially

covered in the charge delivered to the jury, and it concerned an

important issue so that failure to give it seriously impaired

defendant's ability to present a given defense." Id.

Tannehill introduced evidence that one of his attorneys

attended a meeting in 1983 regarding the sale of Tannehill's

completed condominiums. He asserts that his attorneys reviewed the

documents for that transaction, concluded that full disclosure had

selected, the district court heard argument on the motion, and
granted it the next day. When the testimony was introduced, there
was a bench conference; however, it was not transcribed, so the
record does not reflect that Tannehill made a contemporaneous
objection to the admission of the testimony. Accordingly, pursuant
to United States v. Graves, 5 F.3d 1546, 1551-53 (5th Cir. 1993)
(applying plain error review where defendant did not make
contemporaneous objection to admission of evidence that was subject
of pretrial ruling on motion in limine), cert. denied, ___ U.S.
___, 114 S. Ct. 1829 (1994), it is arguable that this issue should
be reviewed only for plain error. The Government does not raise
this point; and, because we find no error under our normal abuse of
discretion standard of review, we need not address it. Counsel are
cautioned, however, of the requirement for contemporaneous
objections even when admissibility has been decided previously.

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been made to the lender, and instructed him to proceed. Although

Tannehill was acquitted on the substantive counts relating to that

transaction, he points out that it was the subject of two overt

acts alleged in the conspiracy count.

The district court did not abuse its discretion. The evidence

showed that Tannehill sought the advice of counsel only with

respect to the sale of his condominiums, and not with respect to

his appraisal activities. Tannehill's assertion that testimony

regarding the meeting at which the transaction was structured was

the only testimony which even tended to link him to the conspiracy

is erroneous; as discussed, there was other evidence of his

participation.

In any event, Tannehill's reliance on counsel was adequately

covered by the court's instruction that, if the jury found that

Tannehill acted with an honest, good faith belief that his

statements and actions were legitimate business transactions, that

would negate the specific intent required for conviction.

Tannehill's acquittal on the substantive counts relating to the

only transaction about which he consulted his lawyers tends to show

that the refusal of the instruction did not impair seriously his

ability to communicate his defense to the jury.

III.

For the foregoing reasons, the judgment is

AFFIRMED.

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