IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 01-60304
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODALTON HART
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi (Jackson Division)
___________________________________________________
June 12, 2002
Before KING, Chief Judge, and REAVLEY and WIENER Circuit Judges.
WIENER, Circuit Judge:
Defendant-Appellant Rodalton Hart (“Rodalton”) appeals his
conviction by a jury for violations of 18 U.S.C. § 1014 (“§ 1014”)
and 18 U.S.C. § 201(b)(1)(B) (“§ 201(b)(1)(B)”). We conclude that
the United States’s (“the government’s”) “summary” witness did far
more than summarize previously-presented evidence, and that, when
the summary witness’s testimony and accompanying documentary
evidence is redacted, the remaining evidence is insufficient to
prove the government’s case against Rodalton beyond a reasonable
doubt. We therefore reverse Rodalton’s conviction, vacate his
sentence, and remand the case for a new trial.
I. Facts and Proceedings
Rodalton has been a resident and family farmer in Holmes
County, Mississippi for most of his life. After his graduation
from Jacksonville State University in 1972, he returned to Holmes
County to help his father run the family farm. In addition to
helping his father, Rodalton started his own farm, gradually
expanding his operation from thirteen acres —— cultivating row
crops and raising cattle —— to several thousand acres by the mid-
1980s. His success in farming was among the factors that led Mike
Espy, who was Secretary of Agriculture at the time, to appoint
Rodalton as one of Espy’s advisors.
In 1993, Rodalton and his brothers, who were also involved in
farming, formed five separate partnerships, hoping to run their
farming operations more efficiently by sharing labor, land, and
equipment, and thereby maximize their income. Among the
partnerships were R & C Farms (Rodalton and his wife, Carmella),
and C & D Farms (Cleveland Hart and Chester Hart, with Cleveland
and Rodalton serving as the local business contacts for the
partnership). Another Hart brother, Larry, farmed individually,
but he and Rodalton served together as the business contacts for
Larry Hart’s farming operation.
After weather-related problems in 1993 and 1995, Rodalton and
Carmella were declared eligible for federal disaster relief and an
emergency loan. Rodalton applied to the United States Department
of Agriculture, Farm Service Agency (“FSA” or “the Agency”) for
2
such assistance,1 but the application was denied. When he looked
into this matter, Rodalton discovered that his FSA file had been
transferred to the office of the Inspector General of the
Department of Agriculture, in connection with that office’s
investigation of Secretary Espy. Without the file, the FSA could
not process Hart’s application. Rodalton traveled to Washington,
D.C. to meet with federal officials, congressmen, and Senate staff
members in an effort to have his loan processed, but by the time
anything could be done to remedy the situation, the 1996 crop year
had passed.
Without the 1996 loans, the Hart brothers’ partnerships needed
financial assistance in 1997 and 1998. Accordingly, they submitted
applications to the FSA in both years, including disclosure to the
FSA of the partnerships’ debts, liabilities, and projections of
income, operations, and expenses. For the applications in
question, the process of disclosing and assessing the financial
1
The Agency has the responsibility for collecting,
servicing, and liquidating all loans made or insured by the
Agency under the various farm loan programs of the Department of
Agriculture. 7 C.F.R. § 2.42(a)(29). Under the federal farm
loan assistance programs administered by the Agency, a farmer may
apply for various assistance, including operating loans and
emergency loans. “The basic objective of the [operating loans]
program is to provide credit and management assistance to farmers
and ranchers to become operators of family-sized farms or
continue such operations when credit is not available elsewhere.”
7 C.F.R. § 1941.2. This financial assistance “enables family-
farm operators to use their land, labor and other resources and
to improve their living and financial conditions so that they can
obtain credit elsewhere.” Id. Emergency loans, on the other
hand, are designed to provide disaster relief assistance to
farmer. See, e.g., 7 C.F.R. §§ 1945.154, 1945.162.
3
data required several months of work between the Harts and the
local FSA agent who worked closely with them, Orlando Kilcrease.
Rodalton signed the applications on behalf of R & C Farms, C & D
Farms, and Larry Hart, certifying the following:
The above information is furnished for the
sole purpose of securing and maintaining
credits [sic] and is certified to be complete
and correct. The undersigned authorizes the
FmHA to make all inquiries deemed necessary to
verify the accuracy of the information
contained above to determine my
[creditworthiness] and to answer questions
about their credit experience with me. I
agree to notify FmHA promptly to [sic] any
material changes to the above. I recognize
that making any false statement on this Farm
and Home Plan or any other loan document may
constitute a violation of criminal law.
From the information disclosed, Kilcrease finally created a
“Farm and Home Plan” (“FHP”) for each of the various partnerships.
A FHP is a computer generated “projection that accurately reflects
the borrower’s plan of operation for the production or marketing
cycle.”2 Its essential purpose is to demonstrate that the farmer
applying for the loan expects a positive cash flow for the
projected crop year.3 Rodalton and his brothers signed the FHPs
that Kilcrease had created, certifying the following:
I agree to follow this plan and to discuss
with the County Supervisor any important
changes that may become necessary. This is a
prospective plan and does not release the
security interest of the government in any
security referred to in this plan. “I
2
7 C.F.R. § 1924.54.
3
7 C.F.R. § 1924.56.
4
recognize that making any false statement on
this Famr [sic] and Home Plan or any other
loan document may constitute a violation of
federal criminal law[.]”
After the 1997 and 1998 FHPs had been submitted, the
government began to investigate the Hart brothers’ farming
operations. Rodalton contends that the government commenced this
investigation as retaliation for his “failure to provide any useful
information to the government in its investigation of Mike Espy.”
Whatever the government’s incentive might have been, the
investigation into the Hart brothers’ farming operations culminated
in a 1999 grand jury indictment, in which Rodalton and two of his
brothers, Cleveland and Larry, were charged with engaging in a
conspiracy to defraud the government and making false statements to
the government in the 1997 and 1998 FHPs. The indictment also
charged Cleveland Hart with disposing of property that had been
pledged to the FSA, and charged Rodalton with bribing an FSA
official.4
After a two-week trial, a jury found the three brothers not
guilty of the conspiracy charge, and also found Larry and Cleveland
Hart not guilty of all other charges against them. The jury found
Rodalton guilty, however, of knowingly making material false
4
The indictment also charged Harrell Neal, an FSA
agricultural manager specialist, with accepting bribes in return
for being influenced to commit fraud on the United States. Neal
entered into a plea agreement, however, in which he agreed to
plead guilty and testify for the government in its prosecution of
the Hart brothers in exchange for the prosecutor’s recommendation
to the court that Neal receive a reduced sentence.
5
statements to the FSA in 1997 and 1998 for the purpose of
influencing the grant of loans, in violation of § 1014; and of
corruptly giving $1,000 to a public official (Neal) with the intent
to influence the official to commit fraud on the United States ——
in the form of approving operating loans to the Hart brothers’
partnerships —— in violation of § 201(b)(1)(B). Rodalton timely
appealed his conviction and sentence.
II. Analysis
A. Standard of Review
The trial court has discretion to determine
whether illustrative charts may be used
pursuant to Fed.R. Evid. 1006. United States
v. Smyth, 556 F.2d 1179, 1184 (5th Cir. 1977);
Baines v. U.S., 426 F.2d 833, 840 (5th Cir.
1970); Lloyd v. United States, 226 F.2d 9, 16
(5th Cir. 1955). Unless that discretion is
abused, we will not reverse the court’s
decision.5
If the court errs in its evidentiary ruling, the “error can be
excused if it was harmless.”6 In applying this rule, we have
stated:
A nonconstitutional trial error is harmless
unless it “had substantial and injurious
effect or influence in determining the jury’s
verdict.” [Lowery, 135 F.3d at 959] (quoting
Kotteakos v. United States, 328 U.S. 750, 776
(1946)); see United States v. Sanchez-Sotelo,
8 F.3d 202, 210 (5th Cir. 1993) (stating that
in order to reverse a conviction on the basis
of an evidentiary error, the appellate court
5
United States v. Means, 695 F.2d 811, 817 (5th Cir. 1983).
6
United States v. Polasek, 162 F.3d 878, 886 (5th Cir.
1998) (citing United States v. Lowery, 135 F.3d 957, 959 (5th
Cir. 1998)).
6
must find a “significant possibility that the
testimony had a substantial impact on the
jury”) (quoting United States v. Cain, 587
F.2d 678, 682 (5th Cir. 1979)).7
B. Discussion
Rodalton contends that the district court abused its
discretion when it allowed a government witness, Shelly Davis, to
testify as a summary witness pursuant to Federal Rule of Evidence
1006 (“FRE 1006”), and to present, as a “summary,” some FHPs that
she had prepared. We agree with Hart, and therefore reverse the
judgment against him.
FRE 1006 provides:
Rule 1006. Summaries
The contents of voluminous writings,
recordings, or photographs which cannot
conveniently be examined in court may be
presented in the form of a chart, summary, or
calculation. The originals, or duplicates,
shall be made available for examination or
copying, or both, by other parties at
reasonable time and place. The court may
order that they be produced in court.
Recognizing the “powerful impression which charts can make upon a
jury, vesting the charts with ‘an air of credibility’ independent
of the evidence purported to be summarized,”8 we have repeatedly
cautioned that trial judges “must carefully handle their
7
Id. (parallel citations and punctuation parentheticals
omitted).
8
Means, 695 F.2d at 817 (citing Steele v. United States,
222 F.2d 628, 630 (5th Cir. 1955)).
7
preparation and use.”9 Not only must such “writings, recordings,
or photographs” be so “voluminous” that they “cannot [be]
conveniently examined in court,” as the Rule specifies, but there
must be “supporting evidence [that] has been presented previously
to the jury” to establish any assumptions reflected in the
summary.10
In its case against the Harts, the government presented Davis,
an employee of the FSA, to introduce revised FHPs that she had
prepared, and to offer testimony about the revised Plans.
According to the government, Davis’s revised FHPs did nothing more
than illustrate what the result would have been if all of the debts
testified to by the government’s witnesses had been included on the
Harts’ actual FHPs.
Hart objected to the government’s strategy from the outset,
pointing out that the government had failed to designate Davis (or
anyone else) as an expert witness, and that the government was
attempting to prove essential elements of its case against him
through the improper use of FRE 1006. In particular, Hart
complained that the government had only presented evidence through
its previous witnesses to show the Hart brothers’ liability for
9
United States v. Jennings, 724 F.2d 436, 441 (5th Cir.
1984) (citing Myers v. United States, 356 F.2d 469, 470 (5th
Cir.), cert. denied, 384 U.S. 952 (1966)).
10
Jennings, 724 F.2d at 442 (citing United states v. Means,
695 F.2d 811, 817 (5th Cir. 1983) (citing United States v. Diez,
515 F.2d 892, 905 (5th Cir. 1975), cert. denied, 423 U.S. 1052
(1976))).
8
debts that were not included on the original FHPs. As Rodalton
argues in his appellate brief,
Prior to the testimony of Shelly Davis, the
government failed to present any evidence
whatsoever that the debts Ms. Davis included
in her five separate summaries (which were
five Farm and Home Plan forms) should actually
have been reported in the categories she
selected, should even have been reported in
the five Farm and Home Plans at all, or even
the proper amounts of such debts that should
or should not have been reported on the Farm
and Home Plans. [Emphasis added.]
Rodalton advanced this argument prior to Davis’s testimony, in an
in camera conference, as well:
The government has to put proof in. Your Honor, if I may
just go through the trial at this point. They’ve called
witnesses to say, “I did the Farm and Home Plan. This is
the Farm and Home Plan.” One witness says, “I did
something wrong.” Then they’ve called witnesses to put
in debts that they say that they owed.
They have not called any witnesses to
establish that those debts are debts that
should have been put on the Farm and Home
Plan. They have not established the
underlying proof that that is the case.
... They have not established that —— we
can show debts out the kazoo. The issue is
should they be on the Farm and Home Plan.
They have not established that.
If they had established that a debt
should be on a Farm and Home Plan, allowed
that testimony through a witness to which we
could cross-examine [sic], then, your Honor, a
summary witness to put it on a Farm and Home
Plan or to do whatever, I wouldn’t object.
But they have not —— they have not —— if they
want to summarize all the debts they put in on
a chart, that’s fine; but they’re going beyond
that, your Honor.
They have not established that these are
debts that should have been reported on a Farm
and Home Plan through any witness, through the
witnesses who did the Farm and Home Plan,
through the FSA officers who worked there,
9
through expert testimony as in the Tannehill
case.
...
By not requiring them to prove that the
debts themselves are debts that should be
reported, allowing them to simply call a
witness to put them into a category without
knowledge, without —— and not an expert
prejudices us, and it goes beyond a summary
witness, your Honor.
This is —— what they’re trying to prove
through these summary charts is this is where
they belong without offering any proof that
they belong there.
Our meticulous review of the record convinces us that there is
merit to Rodalton’s contentions on the issue of improper use of the
purported summary witness. Reading Davis’s testimony under direct
and cross examination, it becomes abundantly clear that the proper
preparation of a FHP is anything but a simple and straightforward
exercise. Surveying the government’s case as a whole, moreover,
the total absence of any independent testimony to support Davis’s
assumptions in preparing the FHPs becomes palpable. In short, it
is apparent to us that Davis functioned as the government’s sole
expert witness regarding the proper preparation of (1) FHPs
generally, and (2) the Hart brothers’ FHPs in particular, thereby
unquestionably exceeding the scope of FRE 1006.
Davis’s testimony reveals the extreme complexity of the FHP
preparation process. With respect to plan preparation, there were
two separate sources of confusion with which the jury had to
grapple, and for which the jury was forced to rely solely on
Davis’s “summary” presentation to resolve. The first was the
somewhat mechanical issue of determining what debts, and what
10
percentage of those debts, should be included on the FHP according
to the relevant regulations.
The second source of potential jury confusion derived from the
fact that the Harts’ original FHPs were drawn up by local county
FSA agents with the objective of assisting farmers, based not only
on all of the submitted paperwork, but on the particular local
agents’ day-to-day interactions with the Harts and their creditors,
and “real time” judgment calls. In stark contrast, Davis’s
“summary” FHPs were created specifically in preparation for
government’s prosecution of the Harts, relying solely on the
contents of the paper files which she construed in a light most
favorable to the prosecution and thus least favorable to the Harts.
This latter source of confusion would have been acceptable (being
a fact-specific question of bias and credibility, which the jury is
well equipped to address), had the government properly eliminated
the first —— educating the jury about the mechanics of preparing
FHPs under the relevant regulations —— through independent proof
prior to Davis’s testimony, as required by FRE 1006. This the
government failed to do, and therein lies the genesis of reversible
error in this case.
The government insists repeatedly in its appellate brief that
the FSA agent who originally prepared the Hart brothers’ FHPs
testified that “all debts” of an applicant belong on such a plan.
Therefore, argues the government, Davis’s inclusion of all of the
debts testified to by the government’s witnesses was based on an
11
assumption that was proved prior to the presentation of her
“summary.” We disagree. The blanket statement that “all debts”
must be included on the FHP was a woefully inadequate guideline for
answering the particular questions that confronted the jury
concerning the proper preparation of a FHP. Instead, the jurors
were forced to rely solely on Davis’s interpretation of the scope
of “all debts” and on her proffered expertise in drawing up FHPs
when the jury was deliberating about myriad bewildering problems,
including, without limitation: (1) If four brothers in partnership
relation to one another are liable for a debt, the annual debt
service payment on which totals $27,000, must each brother include
the full $27,000 on his FHP in a column headed, “Amount Due This
Year”?; (2) Should current crop year expenses incurred before
signing a FHP into effect in July (i.e., in the middle of the crop
year) be recorded as a projected crop-year expense, a current
operating expense, or a current farm liability?; and (3) If a FHP
lists a credit card bill in the farmer’s wife’s name, and the
farmer’s list of “living expenses” accounts for his expenses and
those of his family, is it proper also to include the non-farm
income of the farmer’s wife? We are constrained to explain that
these few examples scarcely convey the overarching and pervasive
confusion and complexity that emanate from those extensive portions
of the trial transcript touching on questions of proper FHP
preparation.
The point we make is not whether Davis’s interpretation and
12
application of the regulations were correct or whether her
reconstructed FHPs for the Harts were correctly prepared. Rather,
our point is to address the core problem of the government’s
failure to adduce any evidence —— to lay the necessary predicate
prior to Davis’s presentation of the “summary” FHPs —— in support
of the many assumptions and conclusions that Davis drew when
preparing her versions of the “proper” FHPs. Under the guise of a
“summary” presentation, the government introduced its sole witness
who could explain to the jury the proper preparation of FHPs. Even
the district court appears to have developed a reliance on Davis’s
interpretation as the trial wore on. Prior to her testimony, in
the same in camera conference from which Hart’s argument is above
excerpted, the district court correctly observed,
Here I am concerned about the issue that is
raised that, apparently, she would testify
that this is the proper way to prepare this
Farm and Home Plan from these. And I don’t
know that that’s a summary witness. That
sounds more like an expert witness.
...
It does bother me —— and this is related to a
discussion we had earlier in an argument that
Mr. Sweet just made that we don’t know whether
this information is material. We don’t know
what a proper way to put together a Farm and
Home Plan is. We don’t know —— do we?
...
... I know you’ve got a materiality issue that
court [sic] has reached, but it seems to me
that the government has got to prove at least
where these items ought to be put on the form.
Yet, by the time the government conducted its redirect examination
of Davis, even the court exhibited an acceptance and dependence on
her interpretation for its comprehension of the relevant
13
regulations and procedures:
Q. [By government] Which debts —— well, let me ask it
this way: How many debts of a borrower should be listed
on the Farm and Home Plan?
A. [Davis] All of the farm as well as nonfarm debt
should be listed on the Farm and Home Plan.
Q. Let me hand you ——
MR. SWEET [for Rodalton Hart]: To which we
object, your Honor, beyond the —— may we ——
may I approach one moment, your Honor?
THE COURT: Yes, sir.
(BENCH CONFERENCE)
MR. SWEET: Your Honor, that’s a whole new
different regulation, a whole new different
area that all debts go on a Farm and Home
Plan. They don’t. He’s just asking her.
She’s not stating a basis for it, no basis for
it, just is she says it. [sic]
There are specific regulations and that’s
—— this is not correct. And I didn’t go in
and say all debts. We went to the debts she
claimed. Some debts went back. But that is a
whole new area, your Honor, that there’s a ——
as to what debts go on the plan, there’s a
specific regulation.
THE COURT: If all debts go on it according to her,
all debts go on it. Overruled.
(BENCH CONFERENCE CONCLUDED)
If an experienced Chief Judge of a district court comprising vast
rural areas of an agrarian state, fully aware of the potential
dangers of allowing summary evidence to do more than summarize,
could lapse into such reliance on Davis’s interpretation of these
byzantine rules and arcane regulations, can there be any question
that the jury’s reliance on her testimony must have been absolute?
14
We think not.
As noted at the outset, we have made it quite clear that
proper use of FRE 1006 requires that there be “supporting evidence
[that] has been presented previously to the jury” to establish any
assumptions reflected in the summary.11 The government failed
utterly to meet this requirement. Instead, it devoted most of its
energy to showing the existence of debts that it maintains were
undisclosed, without presenting any evidence to support the simple
proposition that the full amount of those debts shown belonged on
a properly prepared FHP. The government easily could have
designated an expert witness for this purpose, but elected not to
do so. In an apparent effort to make up for its omission, the
government attempted to prove this crucial missing element through
the admission of a “summary” chart. But we have stated before, and
emphasize here again: The government cannot use a “summary” chart
under FRE 1006 “to assume that which it was required to prove
beyond a reasonable doubt as operative facts of the alleged
offense.”12 Yet that is precisely what the government tried to do
here, through the documentary introduction of Davis’s revised FHPs
and the presentation of her accompanying explanatory testimony.
11
Jennings, 724 F.2d at 442 (citing United states v. Means,
695 F.2d 811, 817 (5th Cir. 1983) (citing United States v. Diez,
515 F.2d 892, 905 (5th Cir. 1975), cert. denied, 423 U.S. 1052
(1976))) (emphasis added).
12
United States v. Taylor, 210 F.3d 311, 316 (5th Cir.
2000) (citing Baines v. United States, 426 F.2d 833, 840 (5th
Cir. 1070)).
15
Because, over vigorous objection, Davis was allowed to do far more
than summarize previously presented evidence, we are left with no
choice but to conclude that the district court abused its
discretion in allowing her testimony and her reconstructed FHPs
into evidence under FRE 1006.
Furthermore, there can be no question that this abuse of
discretion “had substantial and injurious effect or influence in
determining the jury’s verdict.”13 Mindful as we are of the
complete reliance that the jury must have had on Davis’s “summary”
evidence, there is far more than a “significant possibility that
the testimony had a substantial impact on the jury”.14 We are
convinced, in fact, that, absent Davis’s testimony and accompanying
documents, the government failed to prove a critical element of its
case against Rodalton beyond a reasonable doubt, and that
Rodalton’s substantial rights were affected by the admission of
Davis’s revised FHPs and her explanatory testimony.15 The district
court’s decision to allow Davis’s testimony and “summary” FHP
therefore constitutes reversible error, not merely harmless
nonconstitutional trial error.16
13
United States v. Lowery, 135 F.3d 957, 959 (5th Cir.
1998) (quoting Kotteakos v. United States, 328 U.S. 750, 776
(1946)).
14
United States v. Sanchez-Sotelo, 8 F.3d 202, 210 (5th
Cir. 1993) (quoting United States v. Cain, 587 F.2d 678, 682 (5th
Cir.), cert. denied, 440 U.S. 975 (1979)).
15
See Taylor, 210 F.3d at 316.
16
See United States v. Polasek, 162 F.3d at 886.
16
This is not a case in which the criminal defendant
successfully raised an objection grounded in insufficiency of the
evidence.17 Instead, the gravamen of Rodalton’s appeal is that the
district court erred in allowing the government, through Davis, to
present expert testimony in the guise of summary evidence. This is
reversible trial error, for which the proper remedy is a remand for
a new trial. As the Supreme Court has stated:
[R]eversal for trial error, as distinguished from
evidentiary insufficiency, does not constitute a decision
to the effect that the government has failed to prove its
case. As such, it implies nothing with respect to the
guilt or innocence of the defendant. Rather, it is a
determination that a defendant has been convicted through
a judicial process which is defective in some fundamental
respect, e.g., incorrect receipt or rejection of
evidence.... When this occurs, the accused has a strong
interest in obtaining a fair readjudication of his guilt
free from error, just as society maintains a valid
concern for inuring that the guilty are punished.18
We therefore reverse Rodalton Hart’s conviction, vacate his
17
Our reference to insufficiency of the evidence in the
instant case serves only to show that, absent Davis’s testimony
and chart —— erroneously admitted as summary evidence —— the
government failed to prove its case through independent
evidence.
18
Burks v. United States, 437 U.S. 1, 15 (1978). See also
United States v. Cornett, 195 F.3d 776, 781 n.6 (5th Cir. 1999)
(internal quotation marks omitted) (observing, in the context of
a determination that the district court erroneously admitted an
exhibit under the co-conspirator exception to the hearsay rule,
that, “[s]ince we are reversing for a reason other than
sufficiency of the evidence, remand is proper because the accused
has a strong interest in obtaining a fair readjudication of [her]
guilt free from error, just as society maintains a valid concern
for insuring that the guilty are punished”).
17
sentence, and remand the case for a new trial.19
CONVICTION REVERSED, SENTENCE VACATED, and CASE REMANDED for new
trial.
19
As we reverse on the basis of FRE 1006 and remand for a
new trial, we need not and do not reach Rodalton’s alternate
grounds for appeal: abuse of discretion in removing a juror after
the trial had begun; and error in failing to grant a new trial
for the government’s failure to disclose the true terms of the
plea agreement with Harrell Neal.
In addition, our conclusion that the government failed to
prove beyond a reasonable doubt that the debts belonged on the
FHP obviously bears on the § 1014 conviction directly, but it
bears on the § 201(b)(1)(B) conviction indirectly, as well. As
Rodalton explained in his appellate brief:
The conviction of Mr. Hart on the single count of
bribery is also due to be overturned because, without
evidence that there was anything improper with the five
disputed Farm and Home Plans in this case, it would
have been impossible for the United States to establish
any bribe. Simply put, there would be no evidence that
Mr. Hart ever received anything of value from Harold
[sic] Neal in return for the alleged bribes.
18