United States v. Tilghman, Warren P.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 5, 1997 Decided February 3, 1998

No. 96-3114

United States of America,

Appellee

v.

Warren P. Tilghman,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 96cr00013-01)

Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A.J.
Kramer, Federal Public Defender.

Barbara J. Valliere, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Mary Lou
Leary, U.S. Attorney, John R. Fisher, and Elizabeth Tros-
man, Assistant U.S. Attorneys.

Before: Ginsburg, Henderson and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Tatel.

Tatel, Circuit Judge: Convicted of lying in order to obtain
disability benefits, appellant argues that the trial judge's
repeated questioning of him prejudiced the jury and denied
him a fair trial. Because the judge's questions could have
telegraphed to the jury that he disbelieved appellant, and
because appellant's defense in this case rested so heavily on
his own personal credibility, we cannot find that the judge's
questions were harmless. We therefore reverse and remand
for a new trial.

I

After working for the U.S. Department of Agriculture for
several years, appellant Warren P. Tilghman went on disabili-
ty leave due to back injuries. For thirteen years he received
disability benefits of approximately $32,000 per year. In
1984, one year after going on disability, he incorporated
Tilghman Enterprises Ltd. ("TEL"), through which he bid on
federal agency contracts to investigate employment discrimi-
nation complaints. TEL's sole employee, Tilghman ran the
company out of his home.

To receive disability benefits, Tilghman had to submit
Department of Labor Form 1032 each year. That form
required him to report salary or payments obtained from self-
employment, "employment other than self-employment," the
theoretical market "rate of pay" associated with any uncom-
pensated work, and "any [ ] enterprise in which [he] worked,
and from which [he] received revenue, even if [the enterprise]
operated at a loss." Except for 1991 when he reported $1500
in self-employment earnings, Tilghman always answered "no"
to questions asking whether he was employed or self-
employed and wrote "n/a" in response to questions asking
how much he earned.

Learning of Tilghman's EEO work, the government con-
ducted an investigation, then indicting him for mail fraud
under 18 U.S.C. s 1341; for making false statements to

obtain federal employee compensation under 18 U.S.C.
s 1920; and for making false statements to a federal agency
under 18 U.S.C. s 1001. He was tried on one count of mail
fraud and four misdemeanor counts (one each for the years
1991 through 1994) of making false statements on Form 1032.

For his central defense, Tilghman testified that he had no
intention of defrauding the government. He told the jury
that he honestly believed that he had no obligation to report
his EEO investigative work on Form 1032 because TEL
operated at a loss, because he never received any salary from
his EEO work, and because a DOL employee told him over
the telephone that he could earn up to $300 a month without
reporting it.

During the first of Tilghman's two days on the stand, the
district judge questioned him extensively in the presence of
the jury. Defense counsel offered no objection. On the
morning of the second day and before trial began, defense
counsel moved for a mistrial, arguing that the judge's ques-
tioning influenced the jury and deprived Tilghman of a fair
trial. The district judge denied the motion and continued to
question Tilghman. Defense counsel objected to four ques-
tions and renewed his motion for mistrial at the close of the
case.

The jury acquitted Tilghman on the mail fraud count and
on the two counts charging him with lying on DOL Form
1032 for 1991 and 1992. He was convicted of lying on the
forms he submitted for 1993 and 1994. The court sentenced
him to fifteen months incarceration and one year of super-
vised release, ordering him to pay $84,000 in restitution. On
appeal, Tilghman argues both that the judge's questioning
deprived him of a fair trial and that the amount of loss
underlying the sentence and restitution were incorrectly cal-
culated.

II

Rule 614(b) of the Federal Rules of Evidence expressly
permits judges to question witnesses. Judges may do so
repeatedly and aggressively to clear up confusion and manage

trials or where "testimony is inarticulately or reluctantly
given." United States v. Norris, 873 F.2d 1519, 1525-26
(D.C. Cir. 1989) (upholding judge's participation in question-
ing defendant, although perhaps more extensive than it
should have been, because it aimed at clarifying evidence)
(quoting United States v. Barbour, 420 F.2d 1319, 1321 (D.C.
Cir. 1969)).

District court authority to question witnesses and manage
trials, however, has limits. Because juries, not judges, decide
whether witnesses are telling the truth, and because judges
wield enormous influence over juries, judges may not ask
questions that signal their belief or disbelief of witnesses.
United States v. Wyatt, 442 F.2d 858, 859-61 (D.C. Cir. 1971)
(court's questioning of defendant and his alibi witnesses dam-
aged defendant's credibility and therefore was reversible
error). Because such questions can usurp the jury's fact-
finding function, cast the judge in the role of advocate, and
"breach [ ] the atmosphere of judicial evenhandedness that
should pervade the courtroom," they can deprive defendants
of fair trials. Barbour, 420 F.2d at 1321. Judges must
therefore strive to preserve an appearance of impartiality and
" 'err on the side of [a]bstention from intervention.' " Norris,
873 F.2d at 1526 (alteration in original) (quoting United
States v. Green, 429 F.2d 754, 760 (D.C. Cir. 1970)).

Drawing the line between appropriate and inappropriate
judicial questioning of witnesses presents circuit courts with a
challenging task. Appellate records often fail to convey
nuance and tone. Unlike many federal circuit court judges,
moreover, district judges are experts at supervising trials and
managing witnesses. We thus scrutinize trial judge exercise
of discretion with both deference and "respect appropriately
reflective of the inescapable remoteness of appellate review."
Paylor v. United States, 404 F.2d 1263, 1265 (D.C. Cir. 1968).
At the same time, because we must ensure that defendants
receive fair trials, we will set aside a conviction if witness
management decisions by district judges "affect substantial
rights," Fed. R. Crim. P. 52.

In reviewing allegations of improper judicial questioning,
we examine each case on its own facts. We have reversed

when judicial interrogation "may have damaged the appel-
lant's credibility in the eyes of the jury" or "may have given
the jury the impression that the judge doubted the defen-
dant's credibility." Wyatt, 442 F.2d at 860, 861. We have
sustained judicial questioning where the case was not "close"
and the issues addressed by the judge were "peripheral to the
main issues in the case." United States v. Mangum, 100 F.3d
164, 174 (D.C. Cir. 1996).

The parties disagree about the applicable standard of re-
view. The government argues that at least with respect to
Tilghman's first day of testimony, we should review the
district judge's questions only for plain error because counsel
made no objection until the second day. United States v.
Winstead, 74 F.3d 1313, 1319 (D.C. Cir. 1996). Relying on
Fed. R. Evid. 614(c)--objections to witness interrogation by
the court "may be made at the time or at the next available
opportunity when the jury is not present"--Tilghman argues
that his mistrial motion made first thing on the morning of
Day Two constituted a timely objection to Day One's ques-
tions. He urges us to review the judge's actions for abuse of
discretion and harmless error. United States v. Lin, 101
F.3d 760, 769 & n.2 (D.C. Cir. 1996).

Under the circumstances of this case, we need not decide
whether the Day Two mistrial motion was sufficiently timely
under Rule 614(c) to permit harmless error review of Day
One questions. Counsel's objections were timely with respect
to all Day Two questions; as the government concedes,
moreover, when reviewing Day Two questions we must re-
view the record as a whole, including Day One questions. See
United States v. Williams, 113 F.3d 243, 248 (D.C. Cir. 1997)
(troublesome question reviewed in "context" not reversible
error); United States v. Patterson, 652 F.2d 1046, 1048-49
(D.C. Cir. 1981) (judge's "inquisitorial" questions analyzed
"prospectively" and "in context of [ ] trial transcript" were
proper).

The question before us, then, is whether the judge's Day
Two questions, read in the context of the entire trial, amount-
ed to an abuse of discretion and, if so, whether they were

harmless. To sustain defendant's conviction, we must "be
able to declare [our] belief that [any error] was harmless
beyond a reasonable doubt." Chapman v. California, 386
U.S. 18, 24 (1967). We will reverse if there is "a reasonable
possibility that the [error] complained of might have contrib-
uted to the conviction." Id. (quoting Fahy v. Connecticut,
375 U.S. 85, 86-87 (1963)); see United States v. Saro, 24 F.3d
283, 287 (D.C. Cir. 1994) (reversal required if court "enter-
tains a 'reasonable doubt' about whether error affected the
outcome" (quoting Chapman, 386 U.S. at 24)). The burden of
demonstrating harmless error rests with the government.
Chapman, 386 U.S. at 24.

III

With these standards in mind, we examine the district
judge's questioning, beginning with the most troublesome
questions on Day Two. Central to his defense, Tilghman
asserted that DOL employee Julio Mendez told him in a 1984
telephone call that he had no obligation to report earnings of
up to $300 per month. While the prosecution questioned
Tilghman about this claim, the following colloquy occurred:

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

DEFENDANT:Did I put it on a form? No sir; this
was a telephone conversation.

THE COURT:Did this Julio Mendez put it on a
form?

DEFENDANT:I don't know, sir.

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

DEF. COUNSEL:Objection, Your Honor.

THE COURT:Over-ruled. Is that right?

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

THE COURT:I know, but we have to take your word
for it; is that right?

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

5/22 a.m. Tr. at 46. Focusing on the absence of any evidence
of this phone call, the prosecutor then questioned Tilghman
for several transcript pages.

Earlier that same day, while Tilghman described for the
jury his understanding of DOL Form 1032, the judge ques-
tioned him as follows:

THE COURT:You were an employee of Tilghman
Enterprises?

DEFENDANT:That is correct, sir.

THE COURT:Doesn't that fit in the paragraph Em-
ployment other than Self-
Employment? Under this heading,
you must report all employment.

DEFENDANT:For which you receive wages.

DEF. COUNSEL:Objection, Your Honor.

THE COURT:It goes on to say if you perform work
for which you were not paid, you
must show a rate of pay of what it
would have cost. You didn't put that
in any of them?

DEFENDANT:I felt that was not applicable, sir, be-
cause there was no way to compute
those figures.

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

THE COURT:The objection is over-ruled.

PROSECUTOR:In other words, Mr. Tilghman, it is
your belief that the Department of
Labor had to specifically ask you,
Okay, Mr. Tilghman, asterisks, we
want to know about your corpora-
tion?

DEFENDANT:No. It was my belief that I had to
answer carefully, accurately, and
honestly; and I did so.

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

As in United States v. Wyatt, we think these questions
"may have given the jury the impression that the judge
doubted the defendant's credibility." Wyatt, 442 F.2d at 861.
The judge's questions could have been particularly damaging
because the indictment charged Tilghman with lying, making
his credibility unusually critical to his defense. The jury
could have interpreted the Mendez question--"[W]e have to
take your word for it; is that right?"--as signaling that the
judge considered Tilghman's oath irrelevant and his word
suspect. Even the government conceded at oral argument
that the judge should not have asked this question, calling it
"unfortunate." From the second set of questions, the jury
could have inferred that the judge accepted the government's
theory of the case that Tilghman should have checked off the
"self-employment" box on Form 1032.

Turning to Day One, the judge's questions reinforce our
perception that the Day Two questions may have colored the
jury's assessment of Tilghman's veracity. For example, as
Tilghman explained to the jury how a bank officer had
instructed him to fill out a loan application, the following
exchange took place:

THE COURT:You're an educated man, aren't you?
You have a master's degree, and you
did work for a doctorate. Is that
right?

DEFENDANT:That's correct, sir.

THE COURT:Now, this is supposed to get a loan
from the bank, and you put down as
annual income $45,000 and expendi-
tures $14,000. On the basis of that,
they were going to give you a loan,
right?

DEFENDANT:I would assume so, yes.

THE COURT:And those figures aren't accurate be-
cause the chairman of the board told
you to put them in.

DEFENDANT:You say they are or are not?

THE COURT:They're not accurate. You say they
aren't accurate because he just told
you what to put in.

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

THE COURT:Do you think that any sane bank
would give somebody a loan on fig-
ures that are totally made up? I
mean, as an educated man who's
been in business off and on, and
government business, private busi-
ness. Do you think [a] bank would
give a loan to somebody on the basis

of figures that are just made up by
the chairman of the board?

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

Later on Day One, Tilghman described the bidding process
for EEO investigative contracts, stating that he and other
investigators routinely lost money or broke even:

THE COURT:Other people who [bid] in the same
ball park with you, and they all must
have lost money, too, is that right?

DEFENDANT:I'm assuming so, sir, yes, sir, because
[a] lot of them went out of business.

THE COURT:I see. It's a peculiar business where
everybody stays in for years and los-
es money all the time.

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

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

DEFENDANT:Sir?

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

DEFENDANT:Not necessarily. I taught for years,
and I could have made much more
money doing something else.

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

THE COURT:Just a minute. Something occurred to
me. You were not in the business of
making money out of these con-

tracts. You were perfectly content
to lose money on these contracts.

DEFENDANT:I was--

THE COURT:You were a philanthropist; you wanted
to help these people.

DEFENDANT:No, I was hoping I could at least
break even.

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

Like the questions on Day Two, these inquiries could have
suggested to the jury that the judge disbelieved Tilghman.
From the first set of questions, particularly the judge's
reference to "any sane bank," the jury could have inferred
that the judge thought Tilghman was lying about the basis of
the loan. The judge's reference to philanthropy likewise
could have suggested to the jury that he did not believe that
Tilghman was losing money, as he testified. Having heard
these Day One questions and the judge's Day Two challenge
to Tilghman's honesty under oath, the jury could well have
concluded that the judge considered Tilghman an untruthful
witness.

As the government argues, it is possible that the judge's
comments actually "helped appellant bring out his defense."
It is also possible that the judge's questioning generated jury
sympathy for Tilghman. But under the harmless error stan-
dard, we cannot speculate about what transpired behind the
jury room door. We ask only whether the judge's questions
"may have" damaged Tilghman's credibility. Wyatt, 442 F.2d
at 860. Because the jury could reasonably have interpreted
the judge's pointed comments as reflecting his personal disbe-
lief of Tilghman, we cannot find that the government has
"prove[n] beyond a reasonable doubt that [the judge's com-
mentary] did not contribute to the verdict obtained." Chap-
man, 386 U.S. at 24.

We think the questions asked in this case were even more
inappropriate than the "quite troublesome" query the same
district judge posed in United States v. Williams, 113 F.3d at
248. There, he asked the defendant why if he was not a drug

dealer he used "code" words for drugs in conversations with
potential buyers. Although we worried about the "increasing
number of cases in which our trial judges have been overly
pointed in questioning witnesses, particularly defendants," id.,
observing that "this case borders on that category," id., we
upheld that conviction because "there was not an objection,
and we do not think any error could be characterized as
plain," id. Here, not only did counsel object, but the judge
asked several "overly pointed" questions.

This case also differs from United States v. Mangum,
where "any impact the [judge's] questions might have had on
the jury was insignificant in relation to the overwhelming
evidence against [the defendant]." 100 F.3d at 174. This
jury acquitted Tilghman of two counts and the government
concedes in a post-argument submission that it has no eviden-
tiary basis for distinguishing those two counts from the two
on which Tilghman was convicted. To us, the split verdict
suggests both jury uncertainty and susceptibility to judicial
influence.

The government argues that because the judge also asked
intrusive questions of government witnesses and badgered
the prosecutor about her handling of exhibits, the jury could
have perceived him as evenhanded. The record shows that
the district judge did criticize the prosecution's case, imply-
ing, for example, that some government witnesses were un-
clear, confused, or inept. After questioning one government
witness, the judge said to the prosecutor, "You better ask the
questions. I don't know what she's talking about." 5/13 p.m.
Tr. at 70. To other witnesses he made such comments as:
"You have never said just 'no' or 'yes.' You always go on and
on and make a whole speech," 5/15 Tr. at 41, "Nevermind,
nevermind. You are not helping me," 5/15 Tr. at 45, and
"Just answer the question.... We don't need an encyclope-
dia in response to every question." 5/16 p.m. Tr. at 71. He
also commented on the prosecution's evidence. When grant-
ing a defense objection, for example, he said: "I don't see any
relevance whatever. I am surprised nobody has objected
before," 5/16 a.m. Tr. at 27, and during the prosecution's
examination of a character witness he asked, "Are you fin-

ished with this line of questioning?.... Or are you dredging
up some more?" 5/20 Tr. at 149-50. In addition, the judge
criticized the prosecution's inefficient handling of exhibits. "I
want to congratulate you," he said at one point, "[t]his is
actually marked with a sticker." 5/15 a.m. Tr. at 52.

Contrary to the government's argument, we think the
nature of the judge's treatment of the prosecution differed
fundamentally from his questioning of Tilghman. Indeed,
comparing the two illustrates the difference between appro-
priate, active, even aggressive judicial management and prej-
udicial judicial questioning. As the manager of the proceed-
ings, the district judge had ample authority to discipline
government counsel for disorganization or inefficiency. It is
one thing to criticize counsel about exhibits; it is quite
another to question the defendant's credibility on the stand
when the central issue is whether he is telling the truth. The
judge's comments on the confusing quality of government
testimony could not possibly undermine the prosecution's case
in the same way that his questioning of Tilghman could have
punctured the heart of the defense.

The government argues finally that the judge's instructions
to the jury cured any improprieties. Having explained that
the jury bears sole responsibility for determining the facts,
the district judge instructed the jury as follows:

And if I say anything about the facts, which normally I
don't, you just disregard it because I don't have any
responsibility, any obligation on the facts. It's entirely
up to you. And if I say something, if I said something in
the trial or say something in this closing charge about
the facts, you just disregard it because you are [as] much
judges on the facts as I am judge on the law. I hope you
understand that. And that applies to anything I said in
the course of the trial, the questions I may have asked or
rulings I may have made, they're all not designed, and
you should not take them as being my opinion on the
facts because it's your opinion on the facts that counts.

5/22 p.m. Tr. at 74-75. This instruction was too little too late.
Although jury instructions can cure certain irregularities, at

least under the plain error standard, Winstead, 74 F.3d at
1319, we agree with the Second Circuit that where, as here,
the trial judge asked questions, objected to by counsel, that
could have influenced the jury's assessment of the defendant's
veracity, such interference with jury fact-finding cannot be
cured by standard jury instructions. United States v. Filani,
74 F.3d 378, 386 (2d Cir. 1996). We need not consider
whether special instructions or other measures might cure
such errors, for none were employed here.

Because we reverse defendant's conviction and remand for
a new trial, we have no need to reach the sentencing and
restitution issues.

So ordered.