F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
November 1, 2005
UNITED STATES COURT OF APPEALS
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 04-3499
v.
MARC NICKL,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 04-CR-10003-MLB)
David H. Moses, Case, Moses, Zimmerman & Wilson, Wichita, Kansas (David K.
Link, Gragert, Hiebert, Gray & Link, Wichita, Kansas, on the briefs), for
Defendant-Appellant.
Debra L. Barnett, Assistant United States Attorney (Eric F. Melgren, United
States Attorney, with her on the brief), Wichita, Kansas, for Plaintiff-Appellee.
Before LUCERO, ANDERSON, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
A five-count superceding indictment charged Marc Nickl with various
violations of Title 18 of the United States Code, including one count of
conspiracy, two counts of bank fraud, one count of aiding and abetting a bank
employee in the misapplication of bank funds, and one count of criminal
forfeiture. A jury acquitted Nickl of the conspiracy charge, but found him guilty
on charges of bank fraud and aiding and abetting. The district court sentenced
Nickl to thirty-three months’ imprisonment, required him to pay restitution in the
amount of $896,978.97, and ordered him to forfeit and pay to the United States
$543,000.
Nickl appeals his convictions on numerous grounds. First, Nickl alleges
the district court testified as a witness in violation of Federal Rule of Evidence
605. Second, Nickl argues the court violated his right to due process by sua
sponte modifying trial procedures and creating the appearance of bias by its
remarks and failing to give a curative instruction. Third, Nickl contends the court
erred when it excluded relevant and exculpatory evidence. Fourth, Nickl argues
the evidence was insufficient to convict him. Fifth, Nickl claims he was forced to
defend against multiplicitous charges. Finally, Nickl contends the superceding
indictment failed to state a charge and deprived the district court of jurisdiction.
In addition, Nickl claims he is entitled to resentencing under United States v.
Booker, 125 S. Ct. 738 (2005).
-2-
This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a). We hold the district court committed prejudicial error in
violation of Rule 605 and reverse and remand Nickl’s aiding and abetting
conviction. We further remand for resentencing in light of non-constitutional
Booker error. The district court’s other rulings are affirmed.
I. BACKGROUND
In the spring of 2002, an employee of the National Bank of Andover
(“NBA”) found a large number of processed customer checks and electronic
return items in the desk of the bank’s head bookkeeper, Paula Steward. An
investigation by NBA officials, auditors, and the Federal Bureau of Investigation
revealed that Steward appeared to be involved in a fraud scheme.
Steward paid customer checks with funds from NBA’s accounts, then used
the bank’s return item and check clearing procedures to conceal the loss.
Steward’s fraudulent activities involved customer accounts belonging to James R.
Spillman; Jesse R. Tate; Dr. John A. Brooks; and Meadowbrook Farm, Inc.
Fraudulent check payments associated with the Brooks and Meadowbrook Farm
accounts comprised the bulk of NBA’s losses.
Meadowbrook Farms was Dr. Brooks’ business. Appellant Marc Nickl
worked as business manager for Meadowbrook Farms. Nickl also had a long-
term, domestic relationship with Dr. Brooks. Nickl was an authorized signer on
-3-
both the Brooks and Meadowbrook Farm accounts (hereinafter the “Brooks
Accounts”), and was responsible for interacting with NBA regarding the accounts.
Nickl called Paula Steward on a daily basis to check account balances and
to inquire as to the status of individual checks. In the fall of 1999, Nickl began to
ask Steward to hold certain checks for him until he could make a deposit to cover
them. Steward complied with Nickl’s requests. When Nickl’s deposits were
insufficient to pay for the checks and electronic transfers drawn on the Brooks
Accounts, Steward used NBA funds to pay for certain of these items. Nickl and
Steward discussed which checks to pay with deposited funds and which checks to
hold. When Steward held checks, she marked them to be returned to the bank,
then used the bank’s funds to pay the returned checks. Steward placed these
checks in her desk drawer.
Nickl and Steward continued this activity through the end of March 2002,
when the bank discovered the checks and closed the Brooks Accounts.
Subsequent investigation revealed Steward’s and Nickl’s actions in relation to the
Brooks Accounts involved approximately 899 transactions and resulted in a loss
to NBA of $896,978.97.
Nickl was indicted on one count of conspiracy in violation of 18 U.S.C. §
371, two counts of bank fraud in violation of 18 U.S.C. § 1344, one count of
aiding and abetting a bank employee in the misapplication of bank funds in
-4-
violation of 18 U.S.C. §§ 656 and 2, and one count of criminal forfeiture pursuant
to 18 U.S.C. § 982. After a jury trial, Nickl was acquitted of the conspiracy
charge, but convicted on charges of bank fraud and aiding and abetting. The
court sentenced Nickl to thirty-three months’ imprisonment, the low end of the
range indicated by the sentencing guidelines. Nickl was also ordered to pay
restitution and forfeiture.
II. ANALYSIS
A. Nickl’s Claims for Reversal of Convictions
1. Rule 605 Claim
Nickl argues the presiding judge violated Rule 605 and committed
prejudicial error when, during defense counsel’s re-cross examination, the judge
answered a question posed to a witness and voiced his opinion as to an ultimate
factual issue. To find Nickl guilty of aiding and abetting, the prosecution was
required to prove beyond a reasonable doubt that Steward acted with intent to
injure or defraud NBA. 1 Accordingly, Steward’s intent was an element of Nickl’s
1
Jury instructions required the government to prove beyond a reasonable
doubt that “Paula Steward acted with intent to injure or defraud the bank.” See
Jury Instruction No. 14, Appellant’s App. at 137. The government did not object
to the jury instruction. The government must prove “each element of a crime as
set out in a jury instruction to which it failed to object, even if the unchallenged
jury instruction goes beyond the criminal statute’s requirements.” United States
v. Williams, 376 F.3d 1048, 1051 (10th Cir. 2004). Thus, Steward’s intent was an
element of the crime of aiding and abetting.
-5-
crime. At trial, Steward gave conflicting testimony as to her intent to defraud
NBA, first claiming she did not intend to injure the bank, then admitting she had
pleaded guilty to having an intent to defraud and admitting she deceived NBA.
On re-cross, defense counsel asked Steward if she pleaded guilty to having an
intent to defraud just to “get it over with.” Before Steward answered, the
presiding judge interrupted and responded:
Well, I’ll answer that question because I took her plea. We go
through a very specific lengthy inquiry, I go through it, and one of the
elements for a [18 U.S.C. §] 656 charge is that the defendant acted
with the intent to injure or defraud the bank. I would never have
accepted her guilty plea unless she would have convinced me that’s
what she intended, and she did. And that’s why I accepted her plea.
And that’s why she’s in prison. Now, let’s go on.
Defense counsel asked no more questions of Steward. Nickl contends the judge’s
remarks violated Rule 605 because they crossed the line from permissible
commentary on the evidence to impermissible testimony by a presiding judge.
This court reviews de novo alleged violations of the Rules of Evidence.
United States v. Price, 265 F.3d 1097, 1102-03 (10th Cir. 2001); see also United
States v. Paiva, 892 F.2d 148, 158 n.8 (1st Cir. 1989) (noting court’s review of
violation of Rule 605 is not limited to plain error even when an appellant raises
the issue for the first time on appeal). If a violation of Rule 605 has occurred, it
is then necessary to consider whether the violation was prejudicial or harmless.
See Paiva, 892 F.2d at 159 (first determining judge exceeded limitations on power
-6-
to comment, then holding error was harmless). “Under a harmless error analysis,
the government bears the burden of demonstrating that the error was harmless
beyond a reasonable doubt.” United States v. Summers, 414 F.3d 1287, 1303
(10th Cir. 2005).
“The judge presiding at the trial may not testify in that trial as a witness.
No objection need be made in order to preserve the point.” Fed. R. Evid. 605.
While a judge may comment on proceedings, he may not assume the role of a
witness. Quercia v. United States, 289 U.S. 466, 470 (1933). A judge “may
analyze and dissect the evidence, but he may not either distort it or add to it.” Id.
Further, it is improper for a judge to comment directly on the ultimate factual
issue to be decided by the jury. Sloan v. State Farm Mut. Auto. Ins. Co., 360 F.3d
1220, 1226 (10th Cir. 2004). “If a judge exceeds the limitations on his power to
comment and to question, such action may constitute prejudicial error and require
reversal.” Paiva, 892 F.2d at 159.
Rule 605’s prohibition on judicial testimony eliminates difficult questions
“which arise when the judge abandons the bench for the witness stand. Who rules
on objections? Who compels him to answer? Can he rule impartially on the
weight and admissibility of his own testimony? Can he be impeached or cross-
examined effectively?” Fed. R. Evid. 605 advisory committee’s note. Adherence
to Rule 605 also prevents prejudice which may arise from a judge’s testimony
-7-
because of the judge’s influential position with the jury. United States v.
Pritchett, 699 F.2d 317, 320 (6th Cir. 1983); see also Fed. R. Evid. 605 advisory
committee’s note.
In Paiva, a judge’s explanation of drug field testing introduced facts which
no witness had established. 892 F.2d at 159. The appellate court observed these
remarks were “not merely summarization or comment on testimony.” Id. Instead,
they constituted additional testimony which “impermissibly exceeded the
limitations on [the judge’s] power to comment.” Id.; see also Quercia, 289 U.S.
at 471-72 (finding error when judge’s comments were additions, not analysis);
Lillie v. United States, 953 F.2d 1188, 1191 (10th Cir. 1992) (concluding judge’s
off-the-record view of accident scene introduced additional evidence such that
judge became a witness in violation of Rule 605). Similarly, in Pritchett, when a
prosecutor was unable to establish an individual was a convicted cocaine dealer,
the presiding judge remarked that he had sentenced the individual. 699 F.2d at
318-19. The reviewing court characterized the judge’s remark as “improper
testimony” because it “confirmed what the prosecutor had unsuccessfully
attempted to solicit” from the defendant himself. Id. at 320.
Here, as in Pritchett and Paiva, the presiding judge’s commentary about
Steward’s intent to defraud the bank added new evidence which the prosecution
-8-
was otherwise unable to establish. 2 Steward had given conflicting testimony as to
her intent, and the judge added evidence when he told the jury he was convinced
Steward intended to defraud the bank. The judge’s comment did not summarize
Steward’s testimony, it reshaped it. It converted Steward’s equivocations into a
definitive answer on the question of intent and improperly addressed an ultimate
factual issue to be decided by the jury. See Sloan, 360 F.3d at 1226.
Accordingly, the comment constituted impermissible testimony in violation of
Rule 605.
Because the remarks constituted witness testimony in violation of Rule 605,
it is necessary to decide whether the testimony was prejudicial. “Erroneous
admission of evidence is harmless only if other competent evidence is
‘sufficiently strong’ to permit the conclusion that the improper evidence had no
effect on the decision.” Lillie, 953 F.2d at 1192. Error may also be harmless if,
2
A prosecutor may properly use a codefendant or coconspirator’s guilty plea
to aid the jury in its assessment of the codefendant or coconspirator’s credibility,
but may not use the guilty plea as substantive evidence of a defendant’s guilt.
United States v. Whitney, 229 F.3d 1296, 1304 (10th Cir. 2000); United States v.
Baez, 703 F.2d 453, 455 (10th Cir. 1983). Here, Steward’s intent to defraud was
an indispensable element of Nickl’s crime. The prosecution was free to use
Steward’s guilty plea to bolster Steward’s credibility. It was not, however, free to
use the plea for the purpose of establishing intent to defraud; such a purpose
would have been impermissible use of a plea to establish substantive evidence of
a defendant’s guilt. Thus, when the presiding judge remarked that Steward’s
guilty plea established she had the intent to defraud the bank, he introduced new
evidence which the government was otherwise unable to establish.
-9-
despite the judge’s comments, jurors would still feel free to draw their own
conclusions about the factual issue to be decided. United States v. Masters, 450
F.2d 866, 868 (9th Cir. 1971). In some cases, a judge may be able to correct an
improper statement with an appropriate curative instruction. United States v.
Munz, 542 F.2d 1382, 1387-88 (10th Cir. 1976).
Here, the remarks on the issue of Steward’s intent were not harmless. First,
the evidence Steward intended to commit bank fraud was not “sufficiently strong
to permit the conclusion” that the judge’s remarks had no effect upon the jury’s
decision. Lillie, 953 F.3d at 1192 (quotation omitted). The Paiva court held the
presiding judge’s additional testimony was harmless error when it was of minor
importance to the prosecution’s case and constituted only a fraction of the
evidence introduced at trial. 892 F.2d at 159. In the instant case, however, there
was not an abundance of evidence on Steward’s intent to defraud the bank.
Steward gave conflicting testimony on the issue, once admitting she pleaded
guilty to having an intent to defraud, but twice informing the jury she did not
intend to defraud the bank. Other than Steward’s conflicting testimony, the
government’s limited harmlessness analysis does not reference any evidence of
Steward’s intent to defraud, the very element it had to prove to establish Nickl’s
guilt. The prosecution was not permitted to use Steward’s guilty plea for the
purpose of establishing she had the intent to defraud NBA, because Steward’s
-10-
intent to defraud was an element of Nickl’s crime. See United States v. Whitney,
229 F.3d 1296, 1304 (10th Cir. 2000) (holding coconspirator’s guilty plea is
admissible as an aid to the jury’s assessment of witness credibility, but not as
substantive evidence of a defendant’s guilt). Thus, when the presiding judge
remarked that Steward’s guilty plea convinced him Steward had the intent to
defraud, he introduced evidence the government was not able to otherwise
establish. In contrast to Paiva, jurors did not have an abundance of other
evidence on the issue of Steward’s intent, and the presiding judge’s remarks
almost certainly affected the jury’s conclusions.
Second, the remarks left little room for jurors to draw their own
conclusions as to Steward’s intent. In Masters, a judge responded to a perceived
attack on his court’s integrity with testimony favorable to a prosecution witness.
450 F.2d at 868. Viewing the comments in context, the appellate court found no
error. Id. Although the testimony carried some risk of unfairly enhancing a
witness’ credibility, a “jury could still have distrusted the witness had it been so
inclined, despite the judge’s comments.” Id. In the instant case, given the
context of the remarks, the opposite conclusion is compelled. Unlike the jurors in
Masters, jurors in this case would have felt obliged to accept the judge’s
testimony on Steward’s intent when he answered in place of Steward and
emphatically stated he was convinced Steward intended to defraud the bank.
-11-
“The influence of the trial judge on the jury is necessarily and properly of great
weight and his lightest word or intimation is received with deference, and may
prove controlling.” United States v. Sowards, 339 F.2d 401, 403 (10th Cir. 1964)
(quotation omitted); see Quercia, 289 U.S. at 470. “[A] trial judge’s position
before a jury is overpowering. His position makes his slightest action of great
weight with the jury.” United States v. Hickman, 592 F.2d 931, 933 (6th Cir.
1979) (quotations omitted). Here, the district court’s remarks were more blunt
instructions than light words or intimations. Moreover, the court did not allow
Steward to answer the question posed to her, nor did it allow her to react to the
court’s remarks. The judge’s forceful comments were the last word heard by the
jury regarding Steward’s intent, and jurors would have felt compelled to agree
with the judge’s conclusion on the issue.
Finally, the judge offered no specific curative instruction which could have
overcome his error. In Munz, a trial judge posited a lengthy hypothetical about a
man who was in a situation similar to that of the defendant, but who had
committed additional crimes. 542 F.2d at 1386. The judge recognized the added
offenses in the hypothetical may have prejudiced jurors against the defendant, and
gave a “specific, emphatic, and prompt” curative instruction. Id. at 1387. The
Munz court concluded this curative instruction was sufficient to overcome the
errors introduced by the trial judge’s hypothetical. Id. at 1388. Here, the
-12-
presiding judge offered no specific curative instruction, although he did include
among his general instructions to the jury a caution that jurors should disregard
any remark suggesting how he would have decided any issue in the case. This
general instruction was neither prompt, specific, nor emphatic. It reached the jury
only at the end of the trial and did not refer with specificity to the judge’s pointed
remarks that he was convinced Steward intended to defraud the bank. As such, it
did not overcome the prejudice caused by the court’s improper testimony.
The government has failed to meet its burden to establish the presiding
judge’s remarks concerning Steward’s intent to defraud the bank constitute
harmless error. Accordingly, Nickl’s aiding and abetting conviction is reversed
and remanded.
2. Due Process Claims
(a) Modification of Trial Procedure
Nickl claims the court violated his right to due process when, on the first
day of trial, it announced it would modify trial procedures by bifurcating the trial
into distinct guilt and sentencing phases. Nickl further claims the court violated
his due process rights when it amended the superceding indictment by removing
certain language relevant to a sentencing enhancement.
-13-
After the Supreme Court foreshadowed changes in the application of
federal sentencing guidelines in Blakely v. Washington, 124 S. Ct. 2531 (2004), 3
the government in Nickl’s case filed a superseding indictment which alleged new
facts in an effort to support sentencing enhancements. The new indictment
charged Nickl with the same offenses as before, but also alleged Nickl’s crimes
(1) “involved more than minimal planning,” and (2) “jeopardized the safety and
soundness of NBA.”
Nickl requested a status conference and a continuance to frame and brief
the issues raised by the new indictment. The court denied the continuance. On
the first day of trial, the district court announced it would address sentencing
issues by bifurcating the trial into distinct guilt and penalty phases. If Nickl was
found guilty, the trial would move on to a sentencing phase and the jury would
determine issues relating to the forfeiture charge and sentencing, including the
allegation that Nickl jeopardized the safety and soundness of NBA. At the same
time, the court declared it would excise from the superceding indictment the
allegation that the fraud scheme involved “more than minimal planning,” because
3
After Nickl was indicted, but before his trial started, the Supreme Court
decided Blakely v. Washington. 124 S. Ct. 2531 (2004). Blakely held the Sixth
Amendment prohibited a judge from imposing an enhanced sentence under
Washington state’s Sentencing Reform Act unless the facts used to support the
sentence enhancement were charged in an indictment and either admitted by the
defendant or submitted to a jury and proved beyond a reasonable doubt. Id. at
2536-37.
-14-
it was no longer grounds for a sentence enhancement under the sentencing
guidelines. After hearing the evidence, the jury found Nickl did not substantially
jeopardize the safety and soundness of NBA.
Nickl argues the court’s modification of trial procedures and amendment of
the superceding indictment violated his right to due process because the court’s
actions were “without notice to the parties or legal authority.” This court reviews
de novo whether a defendant’s due process rights have been violated. United
States v. Walters, 269 F.3d 1207, 1215 (10th Cir. 2001). “To establish a due
process violation, an individual must show he or she has sustained prejudice as a
result of the allegedly insufficient notice.” Long v. Bd. of Governors of the Fed.
Reserve Sys., 117 F.3d 1145, 1158 (10th Cir. 1997).
Nickl has not suggested or demonstrated he was in any way prejudiced by
the court’s decision to bifurcate the trial. Nickl notes bifurcation delayed mention
of the “safety and soundness” sentencing factor until the penalty phase of the
trial, but does not indicate how such delay harmed him. Indeed, Nickl cannot
identify harm because the jury specifically acquitted Nickl of jeopardizing NBA’s
“safety and soundness.” Finally, Nickl cannot show he was harmed by the court’s
decision to excise the “more than minimal planning” sentencing factor from the
indictment. The court’s decision eliminated one of the grounds for sentence
enhancement, and Nickl could have only benefitted from the decision. Because
-15-
Nickl cannot demonstrate he was prejudiced by the district court’s modifications
to the trial procedures, his due process claim fails.
(b) Appearance of Bias
Nickl contends the district court’s decisions and actions during trial created
an appearance of bias which violated Nickl’s right to due process. More
specifically, Nickl alleges the presiding judge was obliged to recuse himself under
28 U.S.C § 455, and the judge’s failure to do so warrants reversal or a new trial.
First, Nickl alleges the court analogized homosexuality to illegal drug use
during voir dire, thereby creating an appearance of bias. When a juror alerted the
court that same sex relationships had caused his family to experience problems,
the court noted the juror’s situation was “no different in many respects than jurors
in drug cases who . . . if they’ve used drugs, if their family members use illegal
drugs, if that’s caused a problem.” When another juror expressed a similar
concern, the court responded by saying, “I don’t see anything different in your
[opposition to homosexuality] . . . than people who are opposed to illegal drugs
but who serve on juries all the time.”
Second, Nickl alleges an appearance of bias when the judge interrupted the
prosecution’s closing argument to rebuke Dr. Brooks and eject him from the
-16-
courtroom. 4 Nickl argues jurors and spectators associated Dr. Brooks with Nickl
because Dr. Brooks was Nickl’s domestic partner, employer, and witness.
Accordingly, Nickl concludes the court’s harsh treatment of Dr. Brooks created an
appearance of bias against Nickl himself.
Third, Nickl argues the court’s refusal to give an additional jury
instruction, and the manner in which it did so, created an appearance of bias. At
the sidebar, Nickl asked the judge to instruct the jury that neither Dr. Brooks’
behavior, nor the court’s reprimand and ejection of him, should cause jurors to
draw any negative inferences against Nickl. The court refused to give the
instruction, commenting that Dr. Brooks “is in effect [Nickl’s] wife.”
Fourth, Nickl alleges the judge created an appearance of bias when, as
described in Part II.A.1 above, he interrupted the defense’s re-cross of Steward to
answer a question for the witness. Similarly, Nickl claims the court created an
appearance of bias when it repeatedly questioned another witness, Emery Goad, in
much the same way Goad had been questioned by the government. Such active
participation in the questioning of witnesses, argues Nickl, creates the risk the
jury will perceive the judge as an advocate and permits an inference of bias.
4
During the government’s rebuttal closing, the court interrupted and stated:
“Just a minute. Dr. Brooks, you leave the courtroom. You’ve been sitting back
there shaking your head and making faces and I haven’t said anything about it.
But, by golly, you have–my patience with you is over. Don’t you ever come back
here.”
-17-
Finally, Nickl alleges the court’s denial of the defense motions to continue the
trial and brief Blakely issues created an appearance of bias.
A federal judge must recuse himself from “any proceeding in which his
impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). Normally, a
party alleging judicial bias should move for recusal, and “must do so in a timely
fashion.” United States. v. Kimball, 73 F.3d 269, 273 (10th Cir. 1995). Although
Nickl included a bias argument in his motion for a new trial, he failed to file a
pleading, object, or move for recusal during trial. Accordingly, this court
employs a plain error standard 5 to decide whether the impartiality of the district
court was so suspect as to require a new trial. Id. “Plain error occurs when there
is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4)
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.
2005) (en banc) (quotation omitted).
5
In United States v. Pearson, grounds for a defendant’s bias claim arose in
part from the district court’s remarks at sentencing in denying the defendant’s
motion for a new trial. 203 F.3d 1243, 1276 (10th Cir. 2000). Under those
narrow circumstances, we considered the defendant’s request for recusal in the
first instance, even when no motion for recusal was filed with the district court.
Id. Here, Nickl’s bias claim is unaccompanied by circumstances which would
warrant a Pearson-type exception. Accordingly, we examine the question of bias
using a plain error standard. United States v. Kimball, 73 F.3d 269, 273 (10th
Cir. 1995).
-18-
“The Due Process Clause entitles a person to an impartial and disinterested
tribunal in both civil and criminal cases.” Marshall v. Jerrico, Inc., 446 U.S. 238,
242 (1980). To demonstrate a violation of due process because of judicial bias, a
claimant must show either actual bias or an appearance of bias. Phelps v.
Hamilton, 122 F.3d 1309, 1323 (10th Cir. 1997). A judge must recuse himself “if
sufficient factual grounds exist to cause a reasonable, objective person, knowing
all the relevant facts, to question the judge’s impartiality.” United States v.
Pearson, 203 F.3d 1243, 1277 (10th Cir. 2000). A judge’s actual state of mind or
prejudice is not at issue. United States v. Cooley, 1 F.3d 985, 993 (10th Cir.
1993). “The standard is purely objective,” and “[t]he inquiry is limited to
outward manifestations and reasonable inferences drawn therefrom.” Id.
Ordinarily, when a judge’s words or actions are motivated by events
originating within the context of judicial proceedings, they are insulated from
charges of bias. Liteky v. United States, 510 U.S. 540, 554-56 (1994). Thus,
“adverse rulings cannot in themselves form the appropriate grounds for
disqualification.” Green v. Branson, 108 F.3d 1296, 1305 (10th Cir. 1997)
(quotation omitted). Likewise, “[a] judge’s ordinary efforts at courtroom
administration,” even if “stern and short-tempered,” are “immune” from charges
of bias and partiality. Liteky, 510 U.S. at 556. Although a judge’s remarks
-19-
during the course of a trial may be “critical,” “disapproving,” or “hostile” to a
party, usually they will not support a partiality charge. Id. at 555.
Recusal may be appropriate, however, when a judge’s decisions, opinions,
or remarks stem from an extrajudicial source–a source outside judicial
proceedings. Id. at 554-55. Recusal is necessary when a judge’s actions or
comments “reveal such a high degree of favoritism or antagonism as to make fair
judgment impossible.” Id. at 555. Courts have found an impermissible level of
bias when a judge’s remarks or actions reveal he has prejudged the guilt of a
defendant. For example, the Court of Appeals for the Third Circuit concluded a
judge should have recused himself when his stated object in a case was “to get
back to the public that which was taken from it as a result of the fraudulent
activities of this defendant and others.” In re Antar, 71 F.3d 97, 100, 102 (3d Cir.
1995).
Here, Nickl bases his bias claim in part on the court’s refusal to grant
defense counsel’s requests for a continuance to brief Blakely issues and for an
additional jury instruction regarding its reprimand and ejection of Dr. Brooks.
These are merely adverse rulings, and do not in themselves support a bias charge.
Green, 108 F.3d at 1305. They are grounds for appeal, not recusal. Liteky, 510
U.S. at 555. Likewise, the court’s reprimand and ejection of Dr. Brooks from the
courtroom, its interruption of witness testimony, and its questioning of witnesses
-20-
from the bench all qualify as attempts at courtroom administration. None of these
events evidences “such a high degree of favoritism or antagonism as to make fair
judgment impossible.” Id. Accordingly, they are “immune” from charges of bias
or prejudice. Id. at 556. These actions do not constitute error.
Nickl’s allegations that the judge’s statements during voir dire analogized
homosexuality to illegal drug use and the judge’s characterization of Dr. Brooks
as the defendant’s “wife” are also insufficient to warrant recusal. The comments,
while arguably insensitive or inappropriate, do not suggest “such a high degree of
favoritism or antagonism as to make fair judgment impossible.” Id. at 555. This
is particularly true when the statements are placed in context. For example, when
the court compared homosexuality to illegal drug use, it also informed potential
jurors that “no case, particularly a criminal case, is ever a place where jurors are
called upon to make moral judgments about people.” When the court referred to
Dr. Brooks as Nickl’s “wife,” it did so at sidebar, after it had ejected Dr. Brooks
from the courtroom. Again, the district court’s comments do not constitute error.
The court’s rulings, statements, and actions during trial neither prejudged
Nickl, nor constituted “injudicious damnation” of him. Pearson, 203 F.3d at
1278. The court was at times critical or disapproving, but it did not display a
deep-seated antagonism which would make fair judgment impossible. Viewing
the challenged comments and actions within the context of the entire proceeding,
-21-
recusal was not warranted and Nickl’s right to due process was not violated.
Because the district court committed no error, Nickl’s claim fails under the first
prong of the plain error test.
3. Exclusion of Evidence Claims
(a) Exclusion of testimony on the Spillman and Tate accounts
Nickl argues the district court abused its discretion when it did not allow
evidence that Steward’s fraudulent activities involved accounts other than the
Brooks Accounts. Nickl argues Steward’s conduct in relation to the Spillman and
Tate accounts is relevant to the issue of Steward’s intent to defraud the bank.
Steward’s intent, however, is only germane to Nickl’s conspiracy and aiding and
abetting charges. Because the jury acquitted Nickl of the conspiracy charge, and
because we reverse Nickl’s aiding and abetting charge on other grounds, it is
unnecessary to address whether the district court erred in excluding evidence of
the Spillman and Tate accounts.
(b) Exclusion of Evidence from Bank Investigation
Nickl alleges the court erred when it concluded, under Federal Rule of
Evidence 403 (“Rule 403”), that allegedly exculpatory evidence from an
independent bank investigation was more likely to confuse than enlighten the
jury. On cross-examination, defense counsel asked Sharon Smith, a C.P.A. who
worked for an independent firm which investigated Steward’s activities at NBA,
-22-
whether her firm’s investigation had revealed any evidence of fraud on the part of
bank customers. The prosecution objected. Outside the presence of the jury,
Smith stated her firm uncovered no evidence of customer fraud, but noted the
investigation was not directed at uncovering customer fraud. The court excluded
this portion of Smith’s testimony under Rule 403, finding it was more likely to
confuse than edify the jury. Nickl contests the district court’s exclusion of
evidence.
“A district court has broad discretion in balancing the probative value of
evidence against its potential prejudicial effect, and will be reversed only on a
showing of abuse of that discretion.” United States v. Scarborough, 128 F.3d
1373, 1378 (10th Cir. 1997). A trial court abuses its discretion when it makes a
“clear error of judgment,” “exceed[s] the bounds of permissible choice,” or when
its decision is “arbitrary, capricious or whimsical, or results in a manifestly
unreasonable judgment.” Moothart v. Bell, 21 F.3d 1499, 1504-05 (10th Cir.
1999) (quotations omitted).
Rule 403 allows a trial judge to exclude relevant evidence whose probative
value is substantially outweighed by its potential to, inter alia, mislead the jury or
confuse the issues. Fed. R. Evid. 403. A court properly excludes evidence under
Rule 403 if, after balancing its probative value against the “competing
considerations set forth in the rule,” the court determines the “costs of the
-23-
evidence outweigh its benefits.” S.E.C. v. Peters, 978 F.2d 1162, 1171 (10th Cir.
1992) (quotations omitted).
In making its Rule 403 determination, the district court correctly observed
uncovering customer fraud was not the objective of Smith’s investigation. It
reasonably concluded there would be little probative value in the proffered
testimony: a jury would gain little understanding from testimony that an
investigation not aimed at uncovering customer fraud did not, in fact, uncover any
customer fraud. The court further determined allowing such testimony could
confuse or mislead the jury on the issue of Nickl’s intent to defraud the bank.
Given this rationale, we are unable to conclude the decision to exclude this
portion of Smith’s testimony was arbitrary, capricious, or manifestly
unreasonable.
4. Other Arguments for Overturning Conviction or Granting New Trial
(a) Insufficient Evidence
Nickl argues there was insufficient evidence to convince a reasonable juror
that Nickl possessed criminal intent. After the prosecution’s case, and again after
the trial, Nickl moved for a judgment of acquittal. The court denied both
motions. Nickl contends the court erred in denying these motions, and that his
convictions should be reversed.
-24-
To convict Nickl of bank fraud, the jury had to be convinced beyond a
reasonable doubt Nickl possessed the intent to defraud or injure the bank. Nickl
claims evidence of his intent was limited to Steward’s testimony. Steward told
the jury Nickl never asked her to use bank funds to pay checks drawn on the
Brooks Accounts and Nickl was not aware of the process by which Steward paid
the checks. This limited evidence, Nickl argues, is insufficient to establish
beyond a reasonable doubt that Nickl intended to defraud or injure NBA.
This court reviews de novo the sufficiency of the evidence to support a
criminal conviction. United States v. Higgins, 282 F.3d 1261, 1274 (10th Cir.
2002). “Evidence is sufficient to support a conviction if a reasonable jury could
find the defendant guilty beyond a reasonable doubt, given the direct and
circumstantial evidence, along with reasonable inferences therefrom, taken in a
light most favorable to the government.” United States v. Nelson, 383 F.3d 1227,
1229 (10th Cir. 2004). More often than not, intent is proved by circumstantial
evidence. United States v. Nguyen, 413 F.3d 1170, 1175 (10th Cir. 2005).
Here, Nickl is incorrect in asserting Steward’s testimony is the only
evidence relevant to Nickl’s intent to defraud. A jury may–and often
must–consider circumstantial evidence when determining whether a defendant had
the requisite intent. Id. In this case, evidence showed Nickl’s actions included
nearly 900 transactions totaling nearly $900,000 over a period of thirty months.
-25-
Further, Nickl discussed with Steward which checks to pay and which checks to
“hold.” He also knew Steward was engaging in improper activity contrary to
NBA policy. Given this circumstantial evidence, there is no doubt a reasonable
juror could have concluded Nickl intended to defraud or injure NBA.
(b) Multiplicitous Charges
Nickl asserts he was forced to defend against multiplicitous charges
because, under the circumstances, the government’s charges of conspiracy and
aiding and abetting were indistinguishable. This court reviews de novo claims of
multiplicity. United States v. McIntosh, 124 F.3d 1330, 1336 (10th Cir. 1997).
The government may submit multiplicitous charges to the jury, but if a defendant
is convicted of both charges, the district court must vacate one of the convictions.
See Ball v. United States, 470 U.S. 856, 864-65 (1985). Here, a jury acquitted
Nickl of the conspiracy count, and we reverse Nickl’s aiding and abetting
conviction on other grounds. Therefore, the conspiracy and aiding and abetting
charges did not result in multiplicitous convictions, and Nickl’s claim fails.
(c) Failure to State a Charge
Nickl contends the government’s superceding indictment failed to state a
charge and therefore deprived the district court of jurisdiction. As noted above,
after the Supreme Court decided Blakely, the government obtained a superceding
indictment which added language relevant to sentence enhancements under the
-26-
United States Sentencing Guidelines. Nickl argues the sentencing language did
not address criminal conduct as defined by Congress and thus had no place in an
indictment. He not only contends the district court has no jurisdiction over
matters asserted in the sentencing language, he claims the addition of the
language to the indictment deprived the district court of jurisdiction over the
indictment in general.
Nickl’s claim has no merit. “A part of the indictment unnecessary to and
independent of the allegations of the offense proved may normally be treated as a
useless averment that may be ignored.” United States v. Miller, 471 U.S. 130,
136 (1985) (quotations omitted); see also United States v. Harper, 579 F.2d 1235,
1239-40 (10th Cir. 1978) (“When the language of the indictment goes beyond
alleging the elements of the offense, it is mere surplusage and such surplusage
need not be proved.”). Moreover, a defective indictment does not deprive a court
of jurisdiction. United States v. Cotton, 535 U.S. 625, 631 (2002).
B. Nickl’s Resentencing Claim
Nickl argues his case must be remanded for resentencing due to prejudicial,
non-constitutional Booker error. He contends this court must presume prejudice
because the district court sentenced at the bottom end of the guidelines range and
might have imposed a lower sentence had it not considered the sentencing
guidelines to be mandatory. From the record in this case, it is uncertain whether
-27-
the district court would impose the same sentence under a discretionary guidelines
scheme as it did under a mandatory guidelines scheme. Accordingly, we cannot
say the district court’s error was harmless, and we remand for resentencing.
After Nickl was convicted, a presentence investigation report concluded
Nickl’s offenses warranted a range of imprisonment of thirty-three to forty-one
months under the sentencing guidelines. Nickl moved for a downward departure,
arguing, inter alia, that incarceration would diminish his ability to pay restitution.
The district court denied Nickl’s motion for downward departure. When it
evaluated Nickl’s restitution argument, the district court concluded it lacked the
discretion to grant a downward departure. The court applied the sentencing
guidelines and sentenced Nickl to thirty-three months, the bottom end of the
guidelines range. The district court characterized the sentence as “just” and
“fair,” but did not announce explicitly it would impose the same sentence if the
guidelines were not mandatory.
After the district court sentenced Nickl, the Supreme Court in Booker
invalidated the mandatory application of the sentencing guidelines and instructed
district courts to consult the guidelines in an advisory fashion. 125 S. Ct. at 756.
Accordingly, a sentence imposed through mandatory application of the guidelines
is non-constitutional Booker error. Gonzalez-Huerta, 403 F.3d at 731-32. Here,
-28-
the district court committed non-constitutional Booker error because it viewed the
sentencing guidelines as mandatory when it sentenced Nickl.
This court reviews for harmless error when, as here, a defendant has
properly raised a non-constitutional Booker claim below. United States v. Ollson,
413 F.3d 1119, 1120 (10th Cir. 2005). Applying harmless error analysis to a
preserved non-constitutional Booker error, this court reviews the record as a
whole and asks whether the error affected the district court’s selection of the
sentence imposed. United States v. Labastida-Segura, 396 F.3d 1140, 1143 (10th
Cir. 2005). “In non-constitutional harmless error cases, the government bears the
burden of demonstrating, by a preponderance of the evidence, that the substantial
rights of the defendant were not affected.” United States v. Glover, 413 F.3d
1206, 1210 (10th Cir. 2005).
Faced with non-constitutional Booker error in Labastida-Segura, this court
remanded for resentencing when the trial court sentenced the defendant to the
bottom end of the guidelines range. 396 F.3d at 1142-43. There was no concrete
indication the district court would impose the same sentence on remand, viewing
the guidelines as advisory instead of mandatory. Cf. United States v. Serrano-
Dominguez, 406 F.3d 1221, 1223-24 (10th Cir. 2005) (concluding non-
constitutional Booker error was harmless when the district court’s announcement
of an alternative sentence not based on sentencing guidelines made clear it would
-29-
have imposed same sentence on remand). Because this court found itself “in the
zone of speculation and conjecture,” it concluded the non-constitutional Booker
error was not harmless. Labastida-Segura, 396 F.3d at 1143.
In contrast, non-constitutional Booker error was harmless in Ollson. 413
F.3d at 1121. There, the district court exercised its discretion when it granted a
motion for downward departure and determined what degree of departure was
appropriate. Id. at 1120. “[T]he district court had undoubted discretion to reduce
the sentence below what it imposed,” but chose not to do so. Id. at 1121.
Accordingly, this court was confident the defendant’s sentence would have
remained the same if the district court had viewed the guidelines as advisory, and
thus concluded the district court’s error was harmless. Id.
Unlike the situation in Ollson, the district court here did not have unlimited
discretion to grant Nickl’s motion for downward departure. Although the court
had discretion to grant Nickl’s motion for downward departure on other grounds,
it specifically concluded mandatory application of the sentencing guidelines
prohibited it from granting a downward departure based on Nickl’s restitution
argument. Because the district court concluded mandatory application of the
sentencing guidelines prohibited it from accepting Nickl’s restitution argument, it
is impossible to know whether the court would impose the same sentence if it
viewed the guidelines as merely advisory. While the district court characterized
-30-
Nickl’s sentence as “just” and “fair,” it did not announce explicitly it would
impose the same sentence if the guidelines were not mandatory. See Serrano-
Dominguez, 406 F.3d at 1223-24. Because the district court concluded it was not
free to exercise its unlimited discretion when it imposed Nickl’s sentence, and
because the court did not indicate an alternative sentence, we are “in the zone of
speculation and conjecture.” Labastida-Segura, 396 F.3d at 1143. Accordingly,
we cannot conclude the district court’s error was harmless, and we remand for
resentencing.
III. CONCLUSION
Because the district court committed prejudicial error when it interjected
during Seward’s testimony, we reverse and remand Nickl’s aiding and abetting
conviction. We further remand for resentencing in light of non-constitutional
Booker error. The district court’s other rulings are affirmed.
-31-
United States v. Nickl
Court: Court of Appeals for the Tenth Circuit
Date filed: 2005-11-01
Citations: 427 F.3d 1286
Copy Citations