United States v. Godwin ( 2001 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4094
GEORGE B. GODWIN, JR.,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4520
WILLA L. CURRY-ROBINSON,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Newport News.
Rebecca B. Smith, District Judge.
(CR-99-32)
Argued: March 2, 2001
Decided: November 27, 2001
Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
Affirmed by published opinion. Judge King wrote the majority opin-
ion, in which Judge Niemeyer joined. Judge Michael wrote a dissent-
ing opinion.
2 UNITED STATES v. GODWIN
COUNSEL
ARGUED: Stanley E. Sacks, SACKS & SACKS, Norfolk, Virginia;
Terry Noland Grinnalds, Hampton, Virginia, for Appellants. Alan
Mark Salsbury, Assistant United States Attorney, Norfolk, Virginia,
for Appellee. ON BRIEF: Helen F. Fahey, United States Attorney,
Norfolk, Virginia, for Appellee.
OPINION
KING, Circuit Judge:
Defendants George B. Godwin, Jr. and Willa L. Curry-Robinson
appeal their convictions and sentences on multiple charges relating to
a pyramid scheme that defrauded investors in a purported oil-trading
venture. Godwin and Curry-Robinson contend, inter alia, that there
was insufficient evidence to support their convictions, that certain evi-
dence was improperly admitted against them, and that their sentences
contravene the Sentencing Guidelines. Moreover, they assert that the
district court assumed an improper prosecutorial role, denying them
a fair trial. For the reasons that follow, we affirm the convictions and
sentences.
I.
A.
In April 1999, a grand jury in the Eastern District of Virginia
returned a thirteen-count indictment against Godwin and Curry-
Robinson. They each were charged with three counts of mail fraud,
in violation of 18 U.S.C. § 1341, and one count of conspiracy to com-
mit money laundering under 18 U.S.C. § 1956(h). Additionally,
Curry-Robinson was charged with six counts of money laundering, in
violation of § 1956(a)(1)(A)(i), and three counts of making false dec-
larations in a bankruptcy case under 18 U.S.C. § 152(3).
In September 1999, after a six-day trial, a jury convicted Godwin
and Curry-Robinson on all charges. Curry-Robinson subsequently
UNITED STATES v. GODWIN 3
moved for a new trial, contending that the judge’s questioning of wit-
nesses, particularly during Curry-Robinson’s testimony, denied her a
fair trial. The district court rejected these allegations, and in March
2000 it denied the motion. On July 6, 2000, the court imposed sen-
tences of sixty months’ imprisonment on Godwin and ninety-seven
months’ imprisonment on Curry-Robinson. The defendants filed
timely notices of appeal, and we possess jurisdiction pursuant to 28
U.S.C. § 1291.
B.
Between 1990 and 1998, Godwin and Curry-Robinson sought
investors in Case Oil Corporation, a Virginia entity founded by Godwin.1
Godwin acted as Case Oil’s president, while Curry-Robinson served
as its agent. They advised prospective investors that money invested
in Case Oil would be used to fund its business operations, including
the construction of oil pipelines and the development of oil refineries.
The defendants stated in letters to investors that Case Oil was an
international business that had liquid assets of more than $40 million
and contracts in excess of $250 million.2 They also claimed that Case
Oil had contracts with several countries to construct chemical plants.
1
Pursuant to Glasser v. United States, 315 U.S. 60, 80 (1942), and its
progeny, the facts are presented in the light most favorable to the Gov-
ernment.
2
The letters written to prospective investors were signed on different
occasions in each defendant’s name, and included various representa-
tions such as the following:
Case Oil Corporation is a Corporation in good standing with the
State of Virginia and is licensed to do business both, nationally
and internationally. Case is currently under contract by several
countries to construct Urea and petro chemical plants. We are
also suppliers of jet fuel oil to several major air lines. Case boast
[sic] confirmed contracts in excess of a quarter billion dollars
and liquid assets in excess of forty million.
You are guaranteed a minimum return rate of three to one on any
investment held by case [sic] for a period of one year, and a
guarentee [sic] of a minimum return of ten times your investment
if held through June 1995.
J.A. 945 (letter dated May 15, 1992 to Ronald Nelson).
4 UNITED STATES v. GODWIN
Godwin and Curry-Robinson asserted, in written and oral communi-
cations with investors, that Case Oil supplied jet fuel oil to several
major airlines, that investors would receive an ownership interest in
Case Oil, and that the defendants, their family members, and their
acquaintances had already made large sums of money from investing
in Case Oil.
For example, Curry-Robinson falsely advised prospective investor
Artistine Lethcoe-Reid that Curry-Robinson’s aunt had made $90,000
from a $2,500 Case Oil investment in a short period of time. Lethcoe-
Reid did invest in Case Oil, but when she attempted to retrieve her
money, Curry-Robinson offered excuse after excuse. After Lethcoe-
Reid indicated that she was desperate for funds for her daughter’s
wedding, Curry-Robinson promised to meet her and give her money,
but failed to appear for the rendezvous. Other investors describe being
similarly put off by a multitude of excuses: Curry-Robinson’s sister
was ill; she had been out of town; she needed permission to cut the
check; the check was being processed; the check had not been divided
for enough parties; the money had to be transferred in increments for
tax reasons; the bank was having trouble handling such a large
amount of money; or the money was in, but they were busy distribut-
ing it. When investors demanded funds, Curry-Robinson would main-
tain that the check would be ready "next Wednesday," or "next
month," or "in a few days." E.g., J.A. 62, 82, 170, 201, 255, 265, 280,
309, 359, 381, 406. Moreover, the evidence established that Case Oil
investors generally had trouble contacting Curry-Robinson, while she
promptly returned calls from prospective investors.
Curry-Robinson personally guaranteed the investments in Case Oil,
and both defendants represented that such investments would earn
interest at high rates of return, typically between 50% and 300%
within thirty days to two years from the time of investment. As part
of the "guaranteed" investments, Curry-Robinson wrote post-dated
checks for investors to hold as security. When an investor attempted
to negotiate such a check, however, he would find that it was written
on a closed or insufficient funds account. Some investors liquidated
legitimate investment holdings in order to generate money to give to
Curry-Robinson and Godwin. One investor drew on her grandchil-
dren’s savings account, while another lost money intended for her
niece. A third investor turned over funds meant to pay off his house,
UNITED STATES v. GODWIN 5
and yet another, Geoffrey Lawrence, gave Godwin and Curry-
Robinson an inheritance from his mother. When Lawrence died, God-
win and Curry-Robinson attended the funeral and both advised his
widow, Areather Lawrence, not to worry because she and her daugh-
ter would be taken care of. Ms. Lawrence had always been suspicious
of her husband’s investment in Case Oil, and Curry-Robinson repeat-
edly assured her that it was "not a scam." When the widow had trou-
ble paying her rent, Godwin wrote letters to her landlord and her
prospective housing lender, confirming that Ms. Lawrence was enti-
tled to funds due her husband and promising that money would be
forthcoming in thirty days. In reality, Ms. Lawrence received "not one
dime" from the defendants after her husband’s death. J.A. 139. Curry-
Robinson solicited her friends, co-workers, even her ailing hair-
dresser, to contribute to the fraud scheme. When Curry-Robinson
appealed to the hairdresser, Brenda Outlaw, for a second investment,
claiming desperate need, Outlaw turned over another $4,000, despite
Curry-Robinson’s failure to render the promised profit — or even to
return the face amount — on the first sum of money invested.
Significantly, the defendants conceded in separate statements to the
FBI, which were introduced against them at trial, that (1) Case Oil
had no income and essentially no assets, (2) it maintained no books
or records, and (3) it had never successfully consummated a business
deal. Case Oil’s legal address had no facsimile machine, and its sole
assets consisted of some documents at Curry-Robinson’s residence.
Case Oil had never filed an income tax return, and the defendants
rationalized this illegal act to the FBI as being due to its failure to
make a profit.
An investigating FBI Agent, having reviewed the defendants’ bank
records, testified at trial that Godwin and Curry-Robinson had not
invested any of the money that they had solicited for the benefit of
Case Oil, but instead had diverted the funds for their personal use.
Case Oil never successfully entered into or brokered a contract for an
oil refinery, pipeline, or any other venture. The evidence also demon-
strated that funds received from new investors were occasionally used
to make "interest" (or, more accurately, "lulling") payments to earlier
investors, in order to dispel complaints and to maintain the scheme.
On at least three occasions, these lulling payments were made when
the investor threatened legal action. Godwin and Curry-Robinson’s
6 UNITED STATES v. GODWIN
conduct in the Case Oil scam, as alleged and as proven to the jury,
constituted what is commonly referred to as an illegal pyramid (or
Ponzi) scheme.3 Additionally, Curry-Robinson filed two voluntary
personal bankruptcy petitions in which she signed a declaration under
penalty of perjury that her answers were accurate. In neither of these
petitions did she include the monies she received from investors and
kept for herself, nor, in the second petition, did she list her personal
financial accounts into which she had deposited those funds. In total,
twenty-nine of the thirty-two investors testified as Government wit-
nesses at trial. These investors delivered over $400,000 to Godwin
and Curry-Robinson for investments in Case Oil, of which approxi-
mately $350,000 was never returned. The defendants obtained invest-
ments in part by falsely claiming that contracts and assets belonging
to unrelated entities — Case Energy and Case Laboratories — were
those of Case Oil Corporation. Rabi Satyal, a purported partner in
Case Oil, had prepared documents for an unrelated entity, Case
Energy, that were altered to appear to be records of Case Oil. Satyal
had not known Godwin and Curry-Robinson were soliciting investors
for Case Oil, and he testified that they failed to follow through on the
one possible business deal of Case Oil that progressed to the stage of
a memorandum of understanding.
The Government presented a total of thirty-two witnesses to prove
that Godwin and Curry-Robinson established and carried out the
fraud scheme. The essentials of that scheme, however, were not
directly challenged by the defense; rather, the defendants claimed
they harbored no fraudulent intent, and they focused their defense
efforts on an attempt to prove good faith. Both Godwin and Curry-
Robinson testified as part of the defense presentation, acknowledging
the primary allegations of the Government’s case, but denying that
they possessed any intention to defraud the Case Oil investors.
3
The term "Ponzi scheme" is the namesake of Charles Ponzi, a
renowned Boston swindler, and refers to "a phony investment plan in
which monies paid by later investors are used to pay artificially high
returns to the initial investors, with the goal of attracting more investors."
Alexander v. Compton, 229 F.3d 750, 759 n.1 (9th Cir. 2000) (internal
citation and quotation omitted).
UNITED STATES v. GODWIN 7
II.
We first address the defendants’ assertion that the evidence was
insufficient to support their convictions. In reviewing such conten-
tions, it is well established that "[t]he verdict of a jury must be sus-
tained if there is substantial evidence, taking the view most favorable
to the government, to support it." Glasser v. United States, 315 U.S.
60, 80 (1942). Thus, if the record reflects that the Government
presented substantial evidence from which a reasonable jury could
convict, we must uphold the verdict.
A.
Godwin and Curry-Robinson maintain that the evidence was insuf-
ficient to sustain their convictions for mail fraud.4 The two elements
of mail fraud are: (1) the existence of a scheme to defraud, and (2)
the use of the mails for the purpose of executing the scheme. See
United States v. Loayza, 107 F.3d 257, 260 (4th Cir. 1997). For the
reasons set forth below, we see the evidence as sufficient to support
the jury’s verdict, and we therefore affirm the mail fraud convictions.
1.
In order to establish the first element, i.e., the scheme to defraud,
the Government must prove that the defendants acted with the spe-
cific intent to defraud, which "may be inferred from the totality of the
circumstances and need not be proven by direct evidence." United
States v. Ham, 998 F.2d 1247, 1254 (4th Cir. 1993). The evidence
demonstrated that for a period of eight years the defendants made a
4
The mail fraud statute, 18 U.S.C. § 1341, provides in pertinent part
that:
Whoever, having devised or intending to devise any scheme
or artifice to defraud, or for obtaining money or property by
means of false or fraudulent pretenses, representations, or prom-
ises, . . . for the purpose of executing such scheme or artifice or
attempting so to do, places in any post office or authorized
depository for mail matter, any matter or thing whatever to be
sent or delivered by the Postal Service, . . . shall be fined . . . or
imprisoned . . ., or both.
8 UNITED STATES v. GODWIN
series of promises to investors that their investments would be risk-
free, guaranteed, and would earn interest at rates of return up to
300%. These terms of investment, which appeared on many written
certifications presented in evidence by the Government, were deliv-
ered to several of the investors by mail.5 Significantly, none of these
promises were ever fulfilled. Godwin and Curry-Robinson were well
aware that they had not honored their prior representations, yet to
induce new investments the defendants nevertheless continued to
make identical promises in later years. Clearly, there was substantial
evidence demonstrating that Godwin and Curry-Robinson solicited
and accepted money from others for investment purposes, that in fact
no investments occurred, and that the defendants appropriated the
investors’ money for their personal use and benefit. Furthermore,
when Case Oil investors complained, Godwin and Curry-Robinson
made partial refund payments, using money from subsequent inves-
tors to quiet the protests and to continue the fraud scheme.
Both Godwin and Curry-Robinson maintain that they did not
engage in a scheme to defraud because they always acted with the
good-faith belief that Case Oil would be successful and that they
would, in turn, be able to provide their investors with substantial
financial returns. Curry-Robinson asserted that she invested her own
assets in Case Oil, and that this activity indicates she had no intent
to defraud. Regardless of whether Curry-Robinson invested her own
money, however, she represented to investors that their money was
for investment in Case Oil, while using it to "reimburse" herself or
others who had invested previously.
Viewing this evidence in the light most favorable to the Govern-
ment, a reasonable jury could conclude that the defendants engaged
in a scheme to defraud, and that they carried it out by use of the mails.
Furthermore, a reasonable jury could conclude that even if Godwin
5
For example, the certificate of one of the testifying investors, Rita
Jackson, dated July 13, 1996, listed a return date of December 30, 1996,
followed by: "I, Willa L. Curry-Robinson do hereby certify that I
received on this day, the sum of $2,500 from Rita Jackson for an invest-
ment in a certain oil refinery with a return of $5,000." J.A. 932. The
return amount appears twice in Ms. Jackson’s certification, followed by
Curry-Robinson’s signature.
UNITED STATES v. GODWIN 9
and Curry-Robinson had originally harbored good intentions, when
their financial expectations soured they engaged in fraudulent activity
to placate unhappy investors and prolong their scheme to defraud.
Thus, we will not disturb the mail fraud aspects of the jury’s verdict
on this basis.
2.
Next, Godwin asserts that there was insufficient evidence to sustain
his convictions for mail fraud because the evidence did not demon-
strate that he caused the mailings charged in Counts One and Two,
and because the mailing in Count Three did not further the fraudulent
investment scheme. Godwin asserts that, even if the defendants
engaged in a scheme to defraud, the evidence indicates that he did not
personally "place" or "cause to be placed" any "matter or thing what-
ever" in the mail. Godwin’s reasoning is unpersuasive, however,
given the broad meaning we must accord to the term "cause" in a mail
fraud prosecution. The Supreme Court has held that "where one does
an act with knowledge that the use of the mails will follow in the ordi-
nary course of business, or where such use can reasonably be fore-
seen, even though not actually intended, then he ‘causes’ the mails to
be used." United States v. Pereira, 347 U.S. 1, 8-9 (1954); see also
United States v. Snowden, 770 F.2d 393, 397 (4th Cir. 1985).
The specific mailings in Counts One and Two were certifications
signed by Curry-Robinson on behalf of Case Oil and sent, respec-
tively, to investors Virginia Patterson and Rita Jackson. These certifi-
cations acknowledged the receipt by Case Oil of monies from
Patterson and Jackson for investments in an oil refinery, and set forth
the terms of the investment, including the sums of money to be
returned and the specified return dates. See supra note 5. Patterson
and Jackson each testified at trial that they received these certifica-
tions by mail.
Godwin indisputably knew that Curry-Robinson was soliciting and
receiving monies from investors, and a reasonable jury could find that
he knew, or reasonably should have foreseen, that use of the mails
would follow.6 We view the evidence as entirely sufficient to support
Godwin’s conviction on Counts One and Two.
6
Moreover, Godwin is liable under an agency theory for mailings in
furtherance of the fraud scheme initiated by his agent, Curry-Robinson.
10 UNITED STATES v. GODWIN
The mailing charged in Count Three is a letter, signed by Godwin,
to the landlord of investor Areather Lawrence, advising the landlord
that Lawrence was entitled to funds due her deceased husband.7 After
Lawrence complained to Godwin about his failure to make the prom-
ised return on her husband’s $40,000 investment, Godwin mailed the
letter to Lawrence so she could present it to her landlord as proof that
she would be able to pay her overdue rent. Godwin acknowledged in
his trial testimony that he wrote and mailed the letter to Lawrence.
Godwin claims that because the letter simply stated that Lawrence
was a beneficiary of her deceased husband, who would be "entitled
to all funds due him," it was not mailed in furtherance of any scheme,
and its mailing was therefore insufficient proof of mail fraud. This
argument, however, is unavailing. As we held in Snowden, "lulling
letters sent to innocent victims for the purpose of advancing a fraudu-
lent and criminal scheme are sufficient to charge mail fraud." 770
F.2d at 398.
A reasonable jury could well find that Godwin wrote the lulling let-
ter to Ms. Lawrence, an irate investor in Case Oil, in an effort to pla-
cate her and to keep the fraud scheme active and ongoing. The
evidence was accordingly sufficient to support Godwin’s conviction
on Count Three.
See United States v. Kenofskey, 243 U.S. 440, 443 (1917) (stating that
principal is criminally liable for mailing by his agent which was reason-
ably foreseen by principal); United States v. United Med. & Surgical
Supply Corp., 989 F.2d 1390, 1402 (4th Cir. 1993) (noting that principal
is criminally responsible when he "anticipated and expected" that agents
would sell and mail bonds).
7
The letter to Lawrence’s landlord, dated October 25, 1996, reads:
"This letter will confirm that Aretha Lawrence is the beneficiary of Geof-
frey Lawrence, her husband who recently died. She is entitled to all
funds due him from this company when the transaction is completed. We
anticipate being able to repay the funds due Ms. Lawrence within the
next thirty days." J.A. 939. A letter to her prospective housing lender,
dated April 21, 1997, states: "This letter is to advise that Mrs. Lawrence
is due certain funds from this company for monies due Geoffrey Law-
rence her late husband. We expect the transaction to be complete within
the next thirty (30) days." J.A. 941.
UNITED STATES v. GODWIN 11
B.
The defendants also contest the sufficiency of the evidence used to
convict them of conspiracy to launder money, in violation of 18
U.S.C. § 1956(h), as charged in Count Four of the indictment. Their
claim of error in this regard must also fail.
The evidence reflected that Godwin was aware that Curry-
Robinson paid original Case Oil investors with monies obtained from
subsequent investors. It is elementary that a criminal conspiracy, as
an inchoate offense, may be proven inferentially and by circumstan-
tial evidence. See United States v. Burgos, 94 F.3d 849, 858 (4th Cir.
1996) (noting that conspiracy, being clandestine, results in "little
direct evidence," thus it "may be proved wholly by circumstantial evi-
dence"); United States v. Anderson, 611 F.2d 504, 510 (4th Cir. 1979)
("Circumstantial evidence of criminal acts may be used inferentially
to prove the existence of a conspiracy to commit those acts."). In light
of the jury’s finding that a scheme to defraud had been proven by the
Government, the jury was also entitled to find that this scheme
included the "lulling" or "interest" payments described above.
Godwin further protests his money laundering conspiracy convic-
tion on the ground that the record does not show that he committed
an "overt act" in furtherance of the conspiracy.8 This contention is
also meritless, however, because only one member of a conspiracy
must commit an overt act.9 See Anderson, 611 F.2d at 510. The evi-
dence indicated that Curry-Robinson committed multiple overt acts in
furtherance of the conspiracy alleged in Count Four in making the
payments charged in the money laundering counts. It is to those
charges, Counts Five through Ten, that we next turn.
8
The money laundering conspiracy statute, codified at 18 U.S.C.
§ 1956(h), provides: "Any person who conspires to commit [money laun-
dering] shall be subject to the same penalties as those prescribed for the
offense the commission of which was the object of the conspiracy."
9
It is also true, as the Government notes, that a conspiracy under 18
U.S.C. § 1956(h), as opposed to a conspiracy under 18 U.S.C. § 371,
does not explicitly require proof of an overt act. See United States v.
Tam, 240 F.3d 797, 802 (9th Cir. 2001). In any event, overt acts were
alleged and proven in this case.
12 UNITED STATES v. GODWIN
C.
Curry-Robinson asserts that there was insufficient evidence to con-
vict her of money laundering. She maintains that these counts must
fail because the checks she wrote to Case Oil investors did not affect
interstate commerce, they did not represent illegal proceeds, and they
were not part of the "carrying on of an unlawful activity" as required
by 18 U.S.C. § 1956(a)(1)(A)(i).10 The money laundering charges
here relate to "interest" payments made by Curry-Robinson to dissat-
isfied investors using checks drawn on financial institutions engaged
in interstate commerce, e.g., Signet Bank. Because a "financial trans-
action," pursuant to 18 U.S.C. § 1956(c)(4)(B), needs only to "in-
volv[e] the use of a financial institution which is engaged in . . .
interstate . . . commerce," the involvement of Signet Bank satisfies the
interstate commerce prong of § 1956(a)(1)(A)(i).
In order to convict Curry-Robinson on these charges, the Govern-
ment was also required to prove that she knew the transactions
involved the proceeds of an unlawful activity (in this case the fraud
scheme), and that she intended the transactions to promote the carry-
ing on of that unlawful activity. United States v. Wilkinson, 137 F.3d
214, 220 (4th Cir. 1998). Viewing the evidence in the light most
favorable to the Government, the jury reasonably could have con-
cluded that Curry-Robinson was intimately involved in the scheme to
defraud, and that she knew that the money she accepted from subse-
quent Case Oil investors (and then disbursed portions of to earlier
investors) was the proceeds of the fraud scheme. "[W]hen proceeds
are used in a transaction to commit the next step in a scheme to
10
The offense of money laundering is governed by § 1956(a)(1)(A)(i)
of Title 18, which provides that whoever:
[K]nowing that the property involved in a financial transaction
represents the proceeds of some form of unlawful activity, con-
ducts or attempts to conduct such a financial transaction which
in fact involves the proceeds of specified unlawful activity —
(A)(i) with the intent to promote the carrying on of specified
unlawful activity
...
shall be sentenced to a fine . . . or imprisonment . . . or both.
UNITED STATES v. GODWIN 13
defraud, it is clear that the financial transaction advances and furthers
the progress of the next step." Id. at 221. The jury was also entitled
to conclude that the partial reimbursements to the initial investors
were meant to dispel investor concerns, to quiet what are commonly
referred to as "squeaky wheels," to keep investigators away from the
scheme, and, in sum, to permit the fraud scheme to be perpetrated.
We must sustain Curry-Robinson’s convictions on the money laun-
dering charges in Counts Five through Ten.
D.
Curry-Robinson also maintains that the trial evidence was insuffi-
cient to support her convictions on Counts Eleven through Thirteen
for making false declarations in a bankruptcy case, in violation of 18
U.S.C. § 152(3).11 Significantly, Curry-Robinson was a real estate
broker, an accountant, and a tax preparer. The evidence demonstrated
that she omitted three important facts from two personal bankruptcy
petitions she filed in the bankruptcy court for the Eastern District of
Virginia: (1) her employment with Case Oil; (2) the monies she had
received from Case Oil; and (3) in the second petition, the existence
of five financial accounts through which Case Oil investments
flowed. We have carefully reviewed the evidence, and we see it as
sufficient to support the jury’s finding that the false declarations
charged in Counts Eleven through Thirteen were knowingly and
fraudulently made.
E.
Godwin and Curry-Robinson also raise several challenges to
adverse evidentiary rulings at trial. Such rulings of a trial judge are
not to be overturned by us absent an abuse of discretion. See United
States v. Russell, 971 F.2d 1098, 1104 (4th Cir. 1992). In this
instance, the defendants assert that the court improperly sustained
several of the prosecutor’s objections during defense cross-
11
This bankruptcy statute provides that "A person who . . . knowingly
and fraudulently makes a false declaration, certificate, verification, or
statement under penalty of perjury . . ., in or in relation to any case under
title 11 . . . shall be fined . . ., imprisoned . . ., or both." 18 U.S.C.
§ 152(3).
14 UNITED STATES v. GODWIN
examination of an FBI Agent. They also complain that the court
refused to permit their proffered expert testimony on the rate of suc-
cess of international oil refinery ventures. We have carefully reviewed
these evidentiary rulings, and we conclude that they were well within
the court’s discretion.
F.
We also address three challenged rulings on the district court’s
application of the Sentencing Guidelines. These three contentions
relate to (1) the calculation of loss attributable to a fraud scheme,
USSG § 2S1.1; (2) the district court’s enhancement of two levels for
obstruction of justice, id. § 3C1.1; and (3) the enhancement of two
levels for abuse of a position of trust. Id. § 3B1.3.
1.
Defendants contest the district court’s criteria in quantifying the
loss attributable to the fraud scheme under USSG § 2S1.1.12 They
contend that certain amounts of money paid by three non-testifying
investors should not have been included in the calculation of loss
attributable to the Case Oil fraud scheme. Further, they maintain that
funds obtained in good faith should not have been included, and
defendants also assert that money they had paid back to Case Oil
investors should have been deducted from the calculation. We have
held that "defendants [are] responsible for the value of all property
taken, even though all or a part is returned." Loayza, 107 F.3d at 266.
In this connection, the determination of loss attributable to a fraud
scheme is a factual issue for resolution by the district court, and we
review such a finding of fact only for clear error. Id. at 265. We have
examined this contention carefully, and see no error, clear or other-
wise, in the district court’s application of § 2S1.1 and its determina-
12
USSG § 2S1.1 provides for increases in offense level based on the
amount of funds involved in a money laundering conviction under
§ 1956(a)(1)(A). "The amount of money involved is included as a factor
because it is an indicator of the magnitude of the criminal enterprise, and
the extent to which the defendant aided the enterprise." U.S. Sentencing
Guidelines Manual § 2S1.1, comment (2000).
UNITED STATES v. GODWIN 15
tion of the loss attributable to the Case Oil fraud scheme. This
challenge to the sentencing proceedings is accordingly without merit.
2.
Defendants also maintain that the sentencing enhancement for
obstruction of justice, USSG §3C1.1,13 does not apply to them, and
that the district court erred in this regard. Although Godwin and
Curry-Robinson both testified at trial to lack of fraudulent intent, the
jury rejected their testimony in each instance, necessarily finding it
false in order to convict. The district court’s application of a sentenc-
ing enhancement for obstruction of justice against each defendant
based on perjury was therefore appropriate. See United States v.
Dunnigan, 507 U.S. 87, 96 (1993); United States v. Keith, 42 F.3d
234, 240-41 (4th Cir. 1994) (approving enhancement where defendant
gave "false testimony concerning a material matter with the willful
intent to provide false testimony, rather than as a result of confusion,
mistake or faulty memory"). This challenge to the sentencing of the
defendants is also without merit.
3.
Curry-Robinson contends that the district court erroneously
enhanced her sentence by two levels for abuse of a position of trust,
USSG § 3B1.3.14 As with the calculation issue, we may overturn the
district court’s finding that the sentencing enhancement applies to
Curry-Robinson only if it is clearly erroneous. See United States v.
Mackey, 114 F.3d 470, 475 (4th Cir. 1997). It is well settled that
13
USSG § 3C1.1 increases defendant’s placement by two levels if "the
defendant willfully obstructed or impeded . . . the administration of jus-
tice during the course of the investigation, prosecution, or sentencing of
the instant offense of conviction." USSG § 3C1.1 (2000).
14
"If the defendant abused a position of public or private trust, or used
a special skill, in a manner that significantly facilitated the commission
or concealment of the offense," USSG § 3B1.3 allows a two-level
increase. The adjustment applies, inter alia, where the defendant "perpe-
trates a financial fraud by leading an investor to believe the defendant is
a legitimate investment broker." U.S. Sentencing Guidelines Manual
§ 3B1.3, comment (2000).
16 UNITED STATES v. GODWIN
whether a defendant held a position of trust must be examined from
the perspective of the victim. The sentencing court found ample evi-
dence to support the sentencing enhancement for abuse of a position
of trust, including that Curry-Robinson solicited investors through her
work as an accountant and as a tax preparer, and through her social
club. Morever, various witnesses testified that they gave money to
Curry-Robinson for investment in Case Oil because they trusted her.
We therefore conclude that Curry-Robinson’s assertion of sentencing
error on this point also lacks merit.
III.
Finally, we turn to the contention of Godwin and Curry-Robinson
that they were each deprived of a fair trial by judicial interference,
i.e., by the judge’s extensive involvement in the questioning of wit-
nesses and by the prosecutorial role they claim the trial judge
assumed. In this regard, it is settled that a trial judge possesses broad
authority to interrogate witnesses. See Fed. R. Evid. 614(b) (providing
that "[t]he court may interrogate witnesses, whether called by itself or
by a party"). If a party perceives such questioning to be improper, an
objection "may be made at the time or at the next available opportu-
nity when the jury is not present." Fed. R. Evid. 614(c).
In this situation, both Curry-Robinson and Godwin’s positions are
seriously flawed by their failure to raise an objection to the judge’s
participation at trial. Curry-Robinson did not object until her post-trial
motion for a new trial and, even more problematic, Godwin did not
raise the claim until this appeal. Because both Godwin and Curry-
Robinson failed to timely object, we may review their judicial inter-
ference contention only for plain error. To thoroughly address this
issue, however, we must first evaluate and consider the applicable
legal principles.
A.
The rule that an objection must be timely raised with the trial court
to preserve the right of appellate review is elementary, and it is of
long standing. See, e.g., United States v. Socony-Vacuum Oil Co., 310
U.S. 150, 238-39 (1940); Fed. R. Crim. P. 52(b).15 The defense law-
15
In direct appeals, the provisions of Rule 52(b) govern all allegations
of constitutional error in convictions in the federal court system, and the
UNITED STATES v. GODWIN 17
yers for Godwin and Curry-Robinson dropped the ball on this issue
— which is a serious one — by failing to address it at trial,16 and so
we must address this contention as forfeited error.
B.
It was not until 1993, in United States v. Olano, 507 U.S. 725
(1993), that the Supreme Court clarified the limitations on appellate
authority to correct forfeited error. Under Olano, we may not address
a defendant’s forfeited claim unless three requirements are met: (1)
there is error, i.e., deviation from a legal rule, (2) the error is plain,
meaning clear or obvious; and (3) the error affects substantial rights,
actually changing the outcome of the trial proceedings.17 Id. at 732-
34. Even when these three prongs of Olano are satisfied, a court of
appeals should not intervene unless "the error seriously affect[s] the
plain error standard enunciated in Olano v. United States, 507 U.S. 725
(1993), applies. Johnson v. United States, 520 U.S. 461, 466 (1997). Our
sister circuits have reviewed judicial questioning issues, which we refer
to as judicial interference claims, under the Olano standard. See, e.g.,
United States v. Salameh, 152 F.3d 88, 128 (2d Cir. 1998); United States
v. Fernandez, 145 F.3d 59, 65-66 (1st Cir. 1998); United States v. Wins-
tead, 74 F.3d 1313, 1319 (D.C. Cir. 1996).
16
The prosecution of this case, however, does not escape with clean
hands. While it goes without saying that the defense lawyer has a man-
date to protect the rights of his client, the prosecutor is also obligated to
seek to prevent the appearance and reality of unfairness. The United
States Attorney is "in a peculiar and very definite sense the servant of the
law, the twofold aim of which is that guilt shall not escape nor innocence
suffer." Berger v. United States, 295 U.S. 78, 87 (1935). It is the duty of
the prosecutor "to use every legitimate means to bring about a just [con-
viction]," id., as well as to protect the constitutional rights of the defen-
dant. United States v. Harrison, 716 F.2d 1050, 1051 (4th Cir. 1983)
("The prosecutor, as much as any other officer in the judicial process, has
an obligation to safeguard the right to trial by an impartial jury.").
17
The phrase "affecting substantial rights" is not necessarily synony-
mous with "prejudicial," but in the ordinary case the terms will have the
same meaning. Olano, 507 U.S. at 735; see also United States v.
Floresca, 38 F.3d 706, 714 (4th Cir. 1994) (finding that structural error
in constructive amendment of indictment is never harmless).
18 UNITED STATES v. GODWIN
fairness, integrity or public reputation of judicial proceedings." Id. at
732. The Supreme Court has provided us guidelines in this regard by
summarizing the differing analyses for preserved and forfeited error:
When the defendant has made a timely objection to an error
and Rule 52(a) applies, a court of appeals normally engages
in specific analysis of the district court record — a so-called
"harmless error" inquiry — to determine whether the error
was prejudicial. Rule 52(b) normally requires the same kind
of inquiry, with one important difference: It is the defendant
rather than the Government who bears the burden of persua-
sion with respect to prejudice. In most cases, a court of
appeals cannot correct the forfeited error unless the defen-
dant shows that the error was prejudicial.
Id. at 734. Therefore, where the claimed error is one of trial interfer-
ence by the judge, we may not intervene unless the "judge’s com-
ments were so prejudicial as to deny [the defendants] an opportunity
for a fair and impartial trial." United States v. Gastiaburo, 16 F.3d
582, 589-90 (4th Cir. 1994) (citing Stillman v. Norfolk & W. Ry. Co.,
811 F.2d 834, 839 (4th Cir. 1987)).
Although we have usually reviewed judicial interference claims
only for a "fair and impartial trial," we have indicated that we should
review a defendant’s contentions of judicial interference, where he
failed to properly object, for plain error. United States v. Castner, 50
F.3d 1267, 1272 (4th Cir. 1995) (noting examination for "plain error,"
but not applying Olano). In such circumstances, however, we see no
meaningful distinction between the "fair and impartial trial" standard
recognized in our Stillman decision in 1987 and the Olano analysis
established by the Court in 1993. A criminal trial that is unfair, in our
view, contravenes both the Stillman and Olano standards.
The Supreme Court has observed that a fair trial, in the constitu-
tional context, is one "whose result is reliable." Strickland v. Wash-
ington, 466 U.S. 668, 687 (1984). In a similar vein, our good Chief
Judge recently observed that "substantial rights are not affected when
a picture-perfect proceeding would yield exactly the same result as
that which actually transpired." United States v. Promise, 255 F.3d
150, 166 (4th Cir. 2001) (Wilkinson, C.J., concurring in part and con-
UNITED STATES v. GODWIN 19
curring in the judgment); see also Neder v. United States, 527 U.S.
1, 15 (1999) (noting that constitutional error is harmless if "it appears
beyond a reasonable doubt that the error complained of did not con-
tribute to the verdict obtained"); United States v. Villarini, 238 F.3d
530, 536 (4th Cir. 2001) ("A new trial is required only if the resulting
prejudice was so great ‘that it denied any or all the appellants a fair,
as distinguished from a perfect, trial.’") (quoting United States v.
Parodi, 703 F.2d 768, 776 (4th Cir. 1983)).
Our utilization of the Olano framework to analyze a judicial inter-
ference claim has the added benefit of clarifying the burden of proof.
If a defendant has timely objected at trial, we may correct an error if
the Government fails to prove that the error was harmless. When the
defendant did not timely object, however, (and these defendants did
not) the burden lies with the defendant to convince us that the error
affected his substantial rights. See Olano, 507 U.S. at 734-35; United
States v. Hastings, 134 F.3d 235, 240 (4th Cir. 1998). We will there-
fore consider the judicial interference claims of Godwin and Curry-
Robinson under the Olano analysis.
C.
Godwin and Curry-Robinson maintain that they were denied a fair
trial when the judge inappropriately took an "increasingly activist role
in questioning witnesses." Appellants’ Brief at 42. In support of their
allegation, the defendants point to several interchanges between the
judge and certain witnesses. They contend, inter alia, that the judge
cross-examined Curry-Robinson at length, that the judge interrupted
cross-examination of prosecution witnesses and rehabilitated them,
and that the court asked leading questions that suggested answers
favorable to the prosecution. In sum, they contend that the trial judge
undertook a role in favor of their prosecution, unfairly lending the
court’s credibility — in plain view of the jury — to the interests of
the Government and against the defendants. A few of the specific
points on which Godwin and Curry-Robinson rely are summarized
below:
• After Curry-Robinson testified that there were poten-
tially profitable Case Oil projects other than failed cur-
rency, power plant, sugar, and vodka deals, the judge
20 UNITED STATES v. GODWIN
challenged her: "[N]ame them. What are they? What are
these projects you were working on for ten years waiting
to come through?" Id. at 44-45.
• During direct examination of Curry-Robinson, the judge
repeatedly intervened (her attorney points to six occur-
rences) to emphasize that Case Oil never earned any
money, despite a stipulation by counsel, made in front of
the jury, to that effect. Id. Defendants assert that "[t]he
only reason for these continued questions . . . was to
improperly emphasize to the jury that this was the issue."
Id. at 45.
• When Curry-Robinson testified about procuring invest-
ments from her friends, the judge interrupted with ques-
tions on how she could "justify in [her] mind"
guaranteeing returns within six months "when back in
1990 William Wishmeyer gave you his money, and still
so many years later you still owed Mr. Wishmeyer? How
could you put ‘guaranteed in six months’ when nothing
was coming through?" Id. at 45-46.
• The judge promptly followed up with the query, "And
you did that in 1990, and nothing has come through for
six, seven years. How could you still be doing that six,
seven years later?" Id. at 46.
• After Curry-Robinson testified that she had given the
"security" checks openly and was not hiding anything,
the court interceded to ask why she did not leave the
money in the bank account that the security check was
written on. There was then an extended colloquy in
which the judge specifically examined the witness with
respect to a government exhibit and individual investors,
and the judge interjected the damaging point that some
of the money appeared to have been spent on a cruise.
J.A. 804-06.
• During cross-examination, the prosecution asked Curry-
Robinson about a kidnapping allegedly used as an excuse
UNITED STATES v. GODWIN 21
for nonpayment. The judge then changed the subject to
ask several questions about what Case Oil had invested
in and where the money was deposited, including "Well,
why didn’t you tell the, quote, investors, like Mr. Good-
rich, that I’m not going to be putting this into a specific
investment, I’m covering expenses so that the invest-
ments can ultimately come through?" Id. at 829-30.
• During cross-examination of Curry-Robinson about
whether later investors would approve the use of their
funds to pay earlier investors, the judge "just opened the
exhibit book" to a particular receipt and began to ques-
tion about the meaning of the notation and return date on
the receipt: "But you’ve got a return date of March 15
and amount of return $10,000. Now, what in the world
did you intend by that if you didn’t intend for somebody
to get $10,000 back on March 15?" Id. at 835.
• The judge interrupted cross-examination of the Govern-
ment’s bankruptcy expert, allegedly to ensure the jury
was not persuaded by the questioning. The judge posed
a hypothetical question to the expert to show that monies
Curry-Robinson received should be reflected elsewhere
on the bankruptcy petition even if it were not "income,"
undercutting the point the lawyer had made. Appellants’
Brief at 42.
• When Mr. Grinnalds18 asked a prosecution witness
whether Curry-Robinson had instructed removal of a cer-
tain account from the bankruptcy petition (to show that
the witness had information not reflected on the petition)
the judge interrupted and asked: "Did she review it —
you gave her this filing to review and sign before it was
submitted?" J.A. 481. Defendants contend that the ques-
tion indicated that any omission was Curry-Robinson’s
responsibility, undermining the defense. Appellant’s
Brief at 43.
18
Mr. Grinnalds served as Curry-Robinson’s court-appointed lawyer at
trial, and he also serves in that capacity on appeal.
22 UNITED STATES v. GODWIN
• During examination of that same witness, defense coun-
sel established that it was not unusual to make mistakes
in preparing bankruptcy petitions. The judge then asked
the witness whether he had filed any amendments to the
petitions, detracting from the impact of counsel’s ques-
tion. Id.
We have carefully reviewed the trial record and make the following
observations. Early in the trial, the judge sometimes interrupted the
examining attorneys, though usually for no more than a single ques-
tion, to clarify testimony or to ensure the proper foundation for an
exhibit. Some of these inquiries elicited additional evidence, such as
why investors continued to give checks to Curry-Robinson, or
whether the testifying investor had ever received money from the
Case Oil investment. During the defense presentation, however, the
court became much more actively involved, repeatedly questioning
Curry-Robinson in a forceful manner. Time and again, the court
engaged in active questioning unfavorable to the defense, particularly
to Curry-Robinson.
As the trial progressed, the judge revealed skepticism of the defen-
dants’ evidence, referring cynically to the "quote, investors." J.A. 830.
During Curry-Robinson’s direct examination, the judge interjected
such inquiries as:
• "Well, you are an accountant and a businesswoman.
How in the world were you going to enforce this kind of
deal?" Id. at 725.
• "You can’t wander in and out of the country with over
$10,000, can you?" Id. at 731.
These questions may be construed to reflect the court’s disbelief of
Curry-Robinson, and, as Mr. Grinnalds claims, they may have
impaired his presentation of his client’s testimony. In one exchange,
Mr. Grinnalds asked Curry-Robinson whether she had carefully re-
read bankruptcy petitions (prepared by Mr. Smith) that omitted cer-
tain bank accounts:
UNITED STATES v. GODWIN 23
A. No, he just — he went through them very quickly,
and I said yes. It was not anything intentional on my part,
no reason to withhold those bank accounts. No reason to say
that I had income or didn’t have income when I did.
I did those schedules to the best of my knowledge
but Mr. Smith — in retrospect, of course, I should have read
them more closely perhaps, but it was certainly nothing
criminal. I had no criminal intent when I did that. I was act-
ing in good faith.
MR. GRINNALDS: If I may, Your Honor?
THE COURT: When you prepare somebody’s tax
return and they sign it, who is ultimately responsible for it,
you as the preparer, or the person signing that return?
THE WITNESS: The person that signs the return . . . .
Id. at 813. Viewed in context, the court interrupted the defense attor-
ney, and very effectively cross-examined the defendant. And when
the prosecutor cross-examined Curry-Robinson, the judge interjected
additional questions, such as "Was hundreds of thousands, nickels and
dimes to you?" Id. at 839.
In October 1999, following her convictions, Curry-Robinson
sought a new trial claiming her trial was tainted by judicial interfer-
ence. Five months later, in its opinion of March 2000, the court over-
ruled the motion and expressed strong dissatisfaction with her
lawyer’s trial performance.19 The judge wrote that "the court had tre-
19
If the judge believed the defendants were receiving ineffective assis-
tance, she failed to apply a proper remedy. If a defendant is being inade-
quately represented, several options are available. For example, the judge
may admonish defendant’s counsel, take steps to ensure that facts favor-
able to the defense are presented, or it may be justified in declaring a
mistrial. In its post-trial order of March 2000, the court relied extensively
on United States v. Williams, 411 F. Supp. 854 (S.D.N.Y. 1976). The
judge in Williams, however, declared a mistrial, sua sponte, to protect the
defendant’s right to a fair trial when he perceived the defendant was
being inadequately represented.
24 UNITED STATES v. GODWIN
mendous concern over [Mr. Grinnalds’] ability to properly question
his client so as to present her case effectively and so as to avoid her
perjuring herself." Id. at 1190. The judge also observed:
[T]he court was compelled to interject questions during the
testimony of Ms. Curry-Robinson in order to clarify and
focus confused factual issues, establish the relevance, if any,
of proffered documents, and generally compensate for the
deficiencies in the presentation of the evidence by court-
appointed counsel. The court’s questions were not in any
way suggestive of any answer or indicative of any animosity
toward Ms. Curry-Robinson.
Id. at 1191.20
D.
Notwithstanding the broad discretion accorded trial judges, we
have repeatedly observed that a judge has no "impregnable cloak of
immunity," and he must maintain such a demeanor that "every one
shall recognize that what is said from the bench is the cool and well-
balanced utterance of an impartial judge, and has in it naught of the
heat and partisanship of the advocate." Wallace v. United States, 281
F.2d 656, 665 (4th Cir. 1960) (quoting Quercia v. United States, 289
U.S. 466, 470 (1933)). Judge Boreman observed in Wallace that while
a judge may examine and cross-examine,
20
We are unable to agree with the condemnation of defense counsel.
Although the lawyers failed to timely preserve the judicial interference
claim, the record reflects that they worked diligently (including on this
appeal) on behalf of their clients in this complex mail fraud and money
laundering prosecution. In this case, one of the two trial lawyers and both
of the lawyers on appeal were appointed. We note that many able mem-
bers of the bar are unwilling to accept such assignments, and other law-
yers see themselves as unqualified or financially unable to represent
indigents in criminal cases. We also recognize that defending economic
crime charges — such as these — requires substantial investments of
time for which the compensation structure of our criminal justice system
fails to sufficiently account. From our vantage point, these defendants
received able representation, and these lawyers seem to have performed
both aggressively and professionally on behalf of their clients.
UNITED STATES v. GODWIN 25
when a judge cross-examines a defendant and his witnesses
extensively and vigorously, he may present to others an
appearance of partisanship and, in the minds of jurors, so
identify his high office with the prosecution so as to impair
the impartiality with which the jury should approach its
deliberations.
Id. at 666. (internal quotation omitted) (emphasis added) (reversing
for prejudicial error where judge "highlighted what appeared to be
inconsistent and conflicting statements" by defendant, "generally cast-
ing the dark shadow of evasiveness around his testimony on this point
and creating the impression that the [c]ourt may have adroitly and
skillfully forced the truth from a fumbling and dodging defendant");
see also Castner, 50 F.3d at 1272 ("[T]he court must not create an
appearance of partiality by continued intervention on the side of one
of the parties or undermine the effective functioning of counsel
through repeated interruption of the examination of witnesses."). A
court’s "participation during trial . . . [should] never reach[] the point
at which it appears clear to the jury that the court believes the accused
is guilty, . . . or becomes so pervasive in his interruptions and interro-
gations that he may appear to usurp the role of either the prosecutor
or the defendant’s counsel." Parodi, 703 F.2d at 775 (internal cita-
tions and quotations omitted). In fact,
[i]t is far better for the trial judge to err on the side of
[a]bstention from intervention in the case rather than on the
side of active participation in it, especially when the major
part, if not all of his interruptions and interventions, though
by chance rather than by design, are, or seem to be on, or
tending to be on, the side of the government.
United States v. Cassiagnol, 420 F.2d 868, 878 (4th Cir. 1970) (quot-
ing Blumberg v. United States, 222 F.2d 496, 501 (5th Cir. 1955)).
In United States v. Head, 697 F.2d 1200 (4th Cir. 1982), the defen-
dant asserted judicial interference when the court interjected itself
over 2,400 times in a four-day trial. Head maintained that the judge’s
questions, combined with adverse evidentiary rulings (some based on
judicial misconstructions of both facts and law), put the judge in part-
26 UNITED STATES v. GODWIN
nership with the prosecution.21 Judge Phillips — who might well have
been discussing this case — observed that "there was in this trial a
distressingly frequent exercise of the trial court’s undoubted discre-
tionary prerogative — and duty on appropriate occasions — to inter-
vene sua sponte in the proceedings." Id. at 1210. There was no
prejudice, however, because the judge’s "patent overinvolvement"
and criticisms were directed at both sides, not affecting one more than
the other. Id.; cf. Anderson v. Warden, Md. Penitentiary, 696 F.2d
296, 299 (4th Cir. 1982) (finding prejudice, in harmless error analysis,
where "[t]he judge openly and successfully pressed defendant’s two
key witnesses to change their testimony"); Cassiagnol, 420 F.2d at
878 (finding prejudicial error where court interrupted both defen-
dant’s direct examination and defense counsel’s summation with
comments characterized as "sharp," "critical," and "chiding"). As we
explained in the Head decision, "we review for prejudicial trial court
error in the specific case and not, except in the most occasional exer-
cise of our supervisory powers, generally to police the conduct of tri-
als against some general model of judiciousness." Head, 697 F.2d at
1210.
In our view, cross-examination of a witness by the trial judge is
potentially more impeaching than such an examination conducted by
an adversary attorney. The judge, by his office, carries an imprimatur
of impartiality and credibility in the eyes of the jury.22 In fact, a
21
It is not clear in Head whether an objection was timely made. The
issue there was reviewed as a fundamental fairness claim similar to that
which we address here. See Virgin Islands v. Smith, 949 F.2d 677, 684
n.7 (3d Cir. 1991) (noting the "striking" similarity between due process
standard of fundamental unfairness and plain error "requirement that the
error must undermine the fundamental fairness of the trial and contribute
to a miscarriage of justice"); United States v. McGuire, 608 F.2d 1028,
1034 (5th Cir. 1979) (analyzing allegation under plain error doctrine for
denial of due process or fair trial, where reversal is only for obvious
errors affecting fairness, integrity, or public reputation of judicial pro-
cess).
22
Although the trial judge, in charging the jury, may comment upon the
evidence, so long as it is also clear that the jury determines all matters
of fact, that comment must be to "analyze and dissect" the evidence
rather than to add to it. Quercia, 289 U.S. at 470. The Supreme Court has
UNITED STATES v. GODWIN 27
judge’s apparent disbelief of a witness is potentially fatal to the wit-
ness’s credibility. And the credibility of a testifying defendant is often
of crucial importance in a criminal trial. In a close case, the judge’s
intervention may more readily impact the defendant’s right to a fair
trial. Therefore, "[t]he trial judge must always remember that he occu-
pies a position of preeminence and special persuasiveness in the eyes
of the jury, and, because of this, he should take particular care that
his participation during trial — whether it takes the form of interro-
gating witnesses, addressing counsel, or some other conduct — never
reach[es] the point at which it appears clear to the jury that the court
believes the accused is guilty." Parodi, 703 F.2d at 775 (internal cita-
tions and quotations omitted).23
Even when the evidence provides the court with a negative impres-
sion of the defendant, the judge must refrain from interjecting that
perception into the trial. He is always obliged to retain the "general
atmosphere of impartiality" required of a fair tribunal, and must not
— under any circumstance — become an advocate for the prosecu-
tion. In sum, ours is an adversary system, and "[t]he trial of a case [is]
a three-legged stool — a judge and two advocates." Warren E. Bur-
"emphasized the duty of the trial judge to use great care that an expres-
sion of opinion upon the evidence should be so given as not to mislead,
and especially that it should not be one-sided." Id. (internal quotation
omitted). It is a time-honored concept, "of fundamental importance" to
our system, "that justice should not only be done, but should manifestly
and undoubtedly be seen to be done." Rex v. Sussex Justices, 1 K.B. 256,
259 (1924).
23
Our sister circuits subscribe to similar positions. See, e.g., United
States v. Victoria, 837 F.2d 50 (2d Cir. 1988); United States v. Bland,
697 F.2d 262, 265-66 (8th Cir. 1983) ("A judge’s slightest indication that
he favors the government’s case can have an immeasurable effect upon
a jury."); United States v. Hoker, 483 F.2d 359, 368 (5th Cir. 1973) ("The
position of a trial judge carries such overpowering weight before a jury
that we can not be certain that the verdict was that of the jury uninflu-
enced by a desire to bring in a verdict calculated to please the judge.");
United States v. Hill, 332 F.2d 105, 106 (7th Cir. 1964) ("The Govern-
ment was represented by able trial counsel and there was no apparent
reason why that counsel needed any help on the cross-examination of the
defendant or defendant’s witnesses.").
28 UNITED STATES v. GODWIN
ger, in Simpson’s Contemporary Quotations 63 (James B. Simpson
ed., Houghton Mifflin 1988). The obligation of the prosecutor is to
prosecute, while that of the defense lawyer is to defend, each in an
aggressive and professional manner. And the judge must judge —
fairly and impartially.
Our ultimate concern, of course, must be whether "the trial judge’s
comments were so prejudicial as to deny a party an opportunity for
a fair and impartial trial." Stillman, 811 F.2d at 839 (quoting Miley
v. Delta Marine Drilling Co., 473 F.2d 856, 857-58 (5th Cir. 1973)).
On the other hand, while a criminal defendant "is entitled to a fair
trial" he is not entitled to "a perfect one." Lutwak v. United States, 344
U.S. 604, 619 (1953). Nevertheless, we are mindful of the fact that
"[a] fair trial in a fair tribunal is a basic requirement of due process."
In re Murchison, 349 U.S. 133, 136 (1955). The proper role of a trial
judge, most simply, is "to see that justice is done in the cases heard
before him." Simon v. United States, 123 F.2d 80, 83 (4th Cir. 1941).
Given this setting, we turn to the application of these legal principles
to the facts of this case.
E.
As we have said, the lack of a timely objection to the judge’s inter-
action with witnesses limits our consideration of this issue to the
Olano plain error analysis. Although Rule 614(c) expands the mean-
ing of "contemporaneous" objection to allow counsel to refrain from
challenging the judge in front of the jury, no reasonable application
of this Rule allows a defendant to first raise the issue in a post-trial
motion for a new trial. It is apparent, however, that the court became
overly involved in the questioning of witnesses in this case. Indeed,
it would not be difficult to conclude that the court’s interruptions and
interventions abused its discretion and, in the words of Judge
Murnaghan, seemed "to be on, or tending to be on, the side of the
Government." Cassiagnol, 420 F.2d at 878. Without belaboring the
point, we simply assume trial error and proceed with the Olano analy-
sis. We will therefore consider whether, in light of the evidence, the
judge’s involvement constitutes plain error depriving either Godwin
or Curry-Robinson of a fair trial.
UNITED STATES v. GODWIN 29
1.
As noted earlier, supra Part III.B, when we review an issue only
for plain error, we examine for (1) error; (2) that is plain; and (3) that
affects substantial rights. See United States v. Olano, 507 U.S. 725,
732-34 (1993). Even if all three prongs are met, it is within our dis-
cretion whether to remedy the error, and we should refrain from inter-
vening unless the error "seriously affects the fairness, integrity or
public reputation of judicial proceedings." Id. at 736.
2.
As to prong one of Olano, we will assume, as we have said, that
trial error was committed. Regarding Olano’s second prong, an error
is plain when the law at the time is settled. See Hastings, 134 F.3d
at 239. As we recognize, the legal principles governing judicial inter-
ference claims have been long settled. See supra Part III.D.
3.
With the first two elements of the Olano inquiry satisfied, we turn
to the third step in that analysis. In order to establish an effect on their
substantial rights, the defendants must demonstrate to us "that the
error actually affected the outcome of the proceedings." Hastings, 134
F.3d at 240. As such, Godwin and Curry-Robinson must establish
"that the jury actually convicted" them based upon the trial error. Id.
The defendants fail on this third prong of Olano. Because of the com-
pelling and overwhelming evidence presented against them, we are
unable to conclude that the jury convicted either Godwin or Curry-
Robinson because of the judge’s actions during their trial.
It is clear from the record that Curry-Robinson bore the brunt of
the judge’s interrogation. As a result, the issue of prejudicial error is
closer with respect to her than it is with respect to defendant Godwin.
Nonetheless, neither Curry-Robinson nor Godwin contested the
essential facts of the case: (1) they solicited money for oil invest-
ments, (2) no investments occurred, and (3) they used the invested
funds (a) for their personal benefit and (b) to make payments to com-
plaining earlier investors. Additionally, they made repeated false rep-
30 UNITED STATES v. GODWIN
resentations that covered up and furthered the scheme, such as
concealing income on bankruptcy petitions. While Curry-Robinson
and Godwin asserted a belief that the "investments" would pay off,
the facts are entirely inconsistent with this assertion. They made bla-
tantly false claims in solicitation letters, for example, that Case Oil
had confirmed contracts that it did not possess. They also systemati-
cally advised investors that Case Oil investments would have phe-
nomenally high rates of return in a guaranteed time frame. Not only
did Godwin and Curry-Robinson make promises they did not keep,
they continued to make similar promises after having reneged on their
initial representations. In fact, Case Oil never completed a single busi-
ness deal; had no books, records, or income; and had essentially no
assets.
The defenses of Godwin and Curry-Robinson, as they presented
them to the jury, centered almost entirely on the issue of intent, i.e.,
good faith. Importantly, however, the defendants failed to produce
any corroborating evidence of good faith. See supra Part II. In the
face of the overwhelming evidence presented against them by the
Government, there was no reasonable probability that the good faith
defense would succeed. United States v. White, 238 F.3d 537, 540
(4th Cir. 2001) (upholding conviction where evidence was over-
whelming and there was no reasonable probability that defense based
on excluded evidence would have succeeded). Where the evidence is
overwhelming and a perfect trial would reach the same result, a sub-
stantial right is not affected. See, e.g., United States v. Moore, 11 F.3d
475, 482 (4th Cir. 1993) (finding no effect on substantial right from
prosecutor’s improperly calling defendant a liar where, due to over-
whelming evidence, "the remark added little to the government’s
case").24 In the final analysis, the Government needed no assistance
24
In this situation, any possible prejudice to Goodwin and Curry-
Robinson was also mitigated by the jury instruction that the jury was to
find the facts. See United States v. Billups, 692 F.2d 320, 327 (4th Cir.
1982). The court specifically directed the jury to "neither infer anything
from the questions of the court nor consider whether the court had an
opinion about the case." Villarini, 238 F.3d at 537 (holding that any prej-
udice from three questions over course of a four-day trial was cured by
this instruction); see also United States v. Pratt, 239 F.3d 640, 645 (4th
Cir. 2001); United States v. Wilson, 135 F.3d 291, 307 (4th Cir. 1998).
UNITED STATES v. GODWIN 31
from the court. The well-prepared and able Government prosecutors
would have cross-examined Curry-Robinson in much the same man-
ner as did the judge.
Notwithstanding the actions of the judge, the good faith defenses
of Godwin and Curry-Robinson were predestined to failure. On this
record, the defense faced a daunting task — indeed an impossible one
— which can be appropriately likened to an effort to "make a silk
purse from a sow’s ear." While the participation of the judge is trou-
blesome, we must examine this proceeding in its overall context. Hav-
ing done so, we conclude that any trial error of judicial interference
did not affect the substantial rights of either Godwin or Curry-
Robinson.
IV.
Pursuant to the foregoing, the convictions and sentences of defen-
dants Godwin and Curry-Robinson are affirmed.
AFFIRMED
MICHAEL, Circuit Judge, dissenting:
The majority makes a convincing case that the trial judge’s hostile
and extensive questioning of defense witnesses made it appear that
she was on the side of the government. See ante at 16-28. The only
problem is that the majority stops short of vacating the defendants’
convictions. Because the judge’s many questions and comments
revealed — in front of the jury — a deep skepticism or disbelief of
the defense case, the defendants did not receive a fair trial. I would
therefore vacate their convictions and grant them a new trial.
I.
This case must be analyzed, as the majority says, under the for-
feited error framework established in United States v. Olano, 507 U.S.
725 (1993). I agree with the majority that the trial judge "became
overly involved in the questioning of witnesses in this case." Ante at
28. Indeed, the judge was "so pervasive in [her] interruptions and
32 UNITED STATES v. GODWIN
interrogations that [she] . . . appear[ed] to usurp the role of . . . the
prosecutor." United States v. Parodi, 703 F.2d 768, 776 (4th Cir.
1983). Accordingly, the judge’s approach was plain error, a point the
majority does not challenge. Moreover, as I will explain, the error
affected the substantial rights of the defendants.
As a general rule, an error affects substantial rights only when the
defendant establishes that the error was prejudicial, that is, it "affected
the outcome of the district court proceedings." Olano, 507 U.S. at
734. But a showing of actual prejudice is not required in every
instance: "[t]here may be a special category of forfeited errors that
can be corrected regardless of their effect on the outcome." Id. at 735.
As we have said, "[e]rrors that are not susceptible to harmless error
review fall within this special category and therefore ‘necessarily’
affect substantial rights." United States v. Neal, 101 F.3d 993, 999
(4th Cir. 1996). When the trial judge unmistakably adopts the role of
prosecutor, there is a "special category" error that affects substantial
rights regardless of whether the defendant can show actual prejudice.
See Neal, 101 F.3d at 999 (finding a "special category" error, not
requiring a showing of actual prejudice, when the trial judge fully
assumed the role of prosecutor in a criminal contempt proceeding);
United States v. Van Dyke, 14 F.3d 415, 423 n.1 (8th Cir. 1994)
("[W]e consider the court’s excessive intervention and lack of neutral-
ity as plain error which deprived the defendant of a fair trial."); Ari-
zona v. Fulminante, 499 U.S. 279, 309-10 (1991) (citing Tumey v.
Ohio, 273 U.S. 510 (1927), for the proposition that a showing of
actual prejudice is not required when the trial judge lacks impartial-
ity). A defendant, in sum, has a right to an impartial judge — one who
takes care not to signal to the jury that she believes the defendant is
guilty. This right to an impartial judge cannot be trampled, not even
by overwhelming evidence of guilt. See Tumey, 273 U.S. at 535 ("No
matter what the evidence was against [the defendant], he had the right
to have an impartial judge.").
II.
The majority lays out ample proof that the judge’s repeated inter-
jections made it appear that she was biased against the defendants.
The majority provides examples of how the judge "[t]ime and again
. . . engaged in active questioning unfavorable to the defense," ante
UNITED STATES v. GODWIN 33
at 22; repeatedly and forcefully questioned defendant Curry-
Robinson, both on direct and cross, leaving the impression that she
(the judge) did not believe her, ante at 19-22; rehabilitated prosecu-
tion witnesses who had been impeached under defense questioning,
ante at 19; and repeatedly reinforced damaging points that the defen-
dants had already conceded, ante at 20. A few numbers illustrate how
pervasively the judge conveyed her skepticism of the defendants’
case:
• When defendant Curry-Robinson took the stand for
direct testimony, her lawyer asked opening questions that
take up about four pages of transcript. The judge then
weighed in and asked questions that cover the next eight
pages of transcript. J.A. 719-731. This pattern continued
throughout the rest of Curry-Robinson’s testimony.
• Over the course of Curry-Robinson’s direct testimony,
which fills almost 100 pages of transcript, the judge
asked roughly one-third (over 100) of the questions,
compared to just over 200 asked by Curry-Robinson’s
lawyer. J.A. 719-813. Of the questions asked by the
judge during Curry-Robinson’s direct testimony, at least
36 were cross-examination. The judge’s cross-
examination covered virtually every significant issue
about which Curry-Robinson attempted to testify, includ-
ing her defense of good faith.
• During Curry-Robinson’s cross-examination by the pros-
ecution, the judge again asked roughly one-third of the
questions, about 25, compared to about 55 questions
asked by the prosecutor. J.A. 825-843.
• Again, as the majority has indicated, many of the judge’s
questions and comments during the direct and cross-
examination of Curry-Robinson showed disdain toward
Curry-Robinson and disbelief of her testimony.
The extent, tone, and severity of the judge’s questioning make it
clear that she in effect assumed the role of prosecutor. This does not
matter, the majority argues, because the "prosecutors would have
34 UNITED STATES v. GODWIN
cross-examined Curry-Robinson in much the same manner as did the
judge," if that had been necessary. Ante at 31. The majority’s argu-
ment misses the point, I respectfully suggest. The judge’s cross-
examination was more effective than the prosecutor’s for several rea-
sons. The judge was not constrained by normal trial procedures. The
judge interrupted defense counsel throughout his direct examination
of Curry-Robinson, effectively undertaking a point-by-point impeach-
ment of her story. The judge repeated questions that had been asked
and answered, driving home damaging points. What is most critical,
the judge’s questions and comments had the imposing weight of the
judge’s office behind them. Because the judge occupies a position of
"special persuasiveness in the eyes of the jury," Parodi, 703 F.2d at
775 (internal quotation omitted), the jury could well have concluded
that the judge believed that the defendants were guilty. This, I believe,
deprived the defendants of a fair and impartial trial. I do not suggest
that the able and dedicated judge in this case intentionally set out to
take on a prosecutorial role or to deprive the defendants of a fair trial.
In light of the government’s evidence, her frustration with the defense
case is understandable. Still, it would have been far better if she had
erred on the side of non-intervention.
Because the judge adopted the role of the prosecutor for extended
stretches during the trial, there is a "special category" error that neces-
sarily affected the substantial rights of the defendants. See Olano, 507
U.S. at 735; Neal, 101 F.3d at 999. Even when a forfeited error is
plain and affects substantial rights, we should reverse only if the error
also "seriously affect[s] the fairness, integrity, or public reputation of
[the] judicial proceedings." Olano, 507 U.S. at 736 (quoting United
States v. Atkinson, 297 U.S. 157, 160 (1936) (first alteration in origi-
nal)). For the reasons I have already mentioned, this last requirement
is present in this case. As a result, I respectfully dissent from the
majority’s ultimate decision to affirm the convictions. I would grant
Curry-Robinson and Godwin a new trial.