UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

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No.



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UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.

xxxxxxxxxxxxxx, Defendant-Appellant.



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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



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BRIEF FOR APPELLANT



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JURISDICTION



The district court had jurisdiction over this criminal case under 18 U.S.C. 3231. A timely notice of appeal from the final judgment of the district court having been filed on February 23, 1994, this Court has jurisdiction under 28 U.S.C. 1291.

ISSUES PRESENTED FOR REVIEW

I. Whether, under the recent decision in United States v. Gaudin, 115 S. Ct. 2310 (1995), the trial court violated Mr. xxxxxxxx's Fifth Amendment due process right and Sixth Amendment jury trial right by trying the "materiality" element of the six false statement counts (18 U.S.C. 1001) itself rather than submitting it to the jury.

II. Whether, under the Supreme Court's reasoning in Gaudin, the jurisdictional element of the false statement counts was also a mixed question of law and fact that should have been submitted to the jury.

III. Whether the court crossed the line of permissible intervention in the examination of witnesses by opening a line of inquiry into Mr. xxxxxxxx's physical condition that implied that Mr. xxxxxxxx was faking his disability before the jury.

IV. Whether the unavailability of a transcript for three bench conferences that took place during cross-examination of a key government witness has denied Mr. xxxxxxxx his right to appeal his convictions.

STATUTES AND RULES

Pursuant to Rule 28(f), Federal Rules of Appellate Procedure, and D.C. Circuit Rule 28(a)(5), the pertinent statutes and rules are set forth in the Addendum to this brief.

STATEMENT OF THE CASE

A. Nature of the Case, Course of Proceedings, and Disposition in the Court Below

On September 8, 1993, a federal grand jury sitting in the District of Columbia returned a 16-count indictment charging Mr. James A. xxxxxxxx with mail fraud in violation of 18 U.S.C. 1341 (Counts One through Ten) and making false statements in a matter within the jurisdiction of a federal agency in violation of 18 U.S.C. 1001 (Counts Eleven through Sixteen). A. 1-7. (1)

Mr. xxxxxxxx's jury trial commenced before the Honorable Thomas A. Flannery on November 22, 1993. On November 29, 1993, the jury returned a verdict of guilty on all counts. On February 17, 1994, the court sentenced Mr. xxxxxxxx to 12 months of imprisonment, with a recommendation that it be served at a community correctional center, three years of supervised release, and a $800 special assessment (A. 31-34). Mr. xxxxxxxx filed a timely notice of appeal (A. 35).

B. Statement of Facts

1. The Indictment

The indictment alleged that between September 1987 and September 1992, Mr. xxxxxxxx engaged in a scheme to defraud the United States by falsely representing to the Department of Labor ("DOL") that he was not employed, when in fact he was employed, in order to continue receiving monthly disability benefits totalling $53,407 under the Federal Employees' Compensation Act (FECA). Specifically, the indictment alleged that, in late 1982, Mr. xxxxxxxx was approved to receive FECA benefits based upon his claim of disability due to an injury he received while working as a custodian at Walter Reed Medical Center (A. 1-2). As part of its administration of Mr. xxxxxxxx's disability benefits, DOL's Office of Workers' Compensation Programs ("OWCP") periodically required Mr. xxxxxxxx to complete and submit a Form CA-EN1032. The information provided on that form, which covers the preceding 15-month period, is used to determine a claimant's qualification for continued benefits (A. 2). Form CA-EN1032 contains the following questions under "Part A. Employment History" (A. 2-3):

1.a) Were you employed by an employer during the time period covered by this form? Answer Yes or No: ____

1.b) If yes, provide the following information for each employer: NAME/ADDRESS OF EMPLOYER DATES EMPLOYED RATE OF PAY KIND OF WORK

2.a) Were you self-employed during any time covered by this form? Answer Yes or No: ____

3. Were you unemployed for all periods during the previous fifteen months not covered under 1 or 2 above? Answer Yes or No: ____

On 10/27/88, 10/2/89, 5/23/90, 7/11/91, 10/17/91 and 9/1/92, Mr. xxxxxxxx filed Forms CA-EN1032 in which he answered "No" to Question 1.a) and failed to disclose his employment as a Computer Aide at Ballou High School (which he began in April 1985) and as a member of the District of Columbia National Guard (in which he reenlisted in September 1986) (A. 4-5).

Ten U.S. Treasury checks mailed to Mr. xxxxxxxx between December 17, 1988 and February 5, 1992 formed the basis for the ten mail fraud counts (Counts One through Ten) (A. 5-6). The "No" answers on the six Forms CA-EN1032 formed the basis for the six false statement counts (Counts Eleven through Sixteen) (A. 6-7). 2. The Government's Evidence At Trial

The government presented its case through various employees of the DOL, Department of Treasury ("DOT"), D.C. Public Schools, and D.C. National Guard. Roberta Mosier, special examiner with OWCP, explained how the FECA disability benefits program is administered (11/23 Tr. 12-23) and identified certified copies of the CA-EN1032's signed by Mr. xxxxxxxx on 10/27/88, 10/2/89, 5/23/90, 10/17/91, and 9/1/92 (11/23 Tr. 31-42).

Former DOL Special Agent Kim Arcuri testified about a meeting she had with Mr. xxxxxxxx on July 11, 1991, in which she posed as a DOL summer intern who wanted to interview him about how his disability benefits were working out (11/24 Tr. 46-47, 68). Portions of a secretly recorded videotape of the interview were introduced into evidence and played for the jury. During the interview, when Agent Arcuri asked Mr. xxxxxxxx whether he was employed, he did not disclose any employment with the D.C. Public Schools or the D.C. National Guard (11/24 Tr. 66). Agent Arcuri identified a Form CA-EN1032 completed by Mr. xxxxxxxx in her presence during that July 11, 1991 meeting (11/24 Tr. 53-54).

Sheila Hackett testified as to her contacts with Mr. xxxxxxxx as his DOL rehabilitation counselor between 1988 and 1990, during which time he never told her he was employed (11/23 Tr. 77-79). Duane DeNitto, computer systems manager at DOL, and William Cole, DOL computer analyst, laid the foundation for admission of a computer printout showing all checks DOL requested DOT to send to

Mr. xxxxxxxx between 9/1/87 and 9/30/92, totalling $50,566 (11/23 Tr. 90-94, 157-170).

Lori Makle, DOT program analyst, identified the ten checks at issue in the mail fraud counts (four originals and six certified copies) as having been issued by DOT and laid a foundation for the admission of DOT records indicating the date on which each of those checks was mailed (11/23 Tr. 97-122). Postal Service clerk Thomas Colbert testified as to Mr. xxxxxxxx's rental of the post office box to which the Treasury checks were addressed, to having put government checks in that box, and to have once having seen Mr. xxxxxxxx open that box (11/23 Tr. 122-136).

Patsy Jenkins, staffing specialist for the D.C. Public Schools, testified as to Mr. xxxxxxxx's 1985 appointment as a full-time employee of the school system (11/24 Tr. 14-22). Robert Govan, coordinator of the computer program at Ballou High School, testified that Mr. xxxxxxxx had worked with him as an aide in the computer lab since Mr. Govan started at Ballou in 1986 (11/23 Tr. 137-146). Jeffrey Lowe, D.C. Government payroll clerk, and Robert Dom, computer systems specialist for the D.C. Office of Retirement and Payroll Systems, laid the foundation for admission of Mr. xxxxxxxx's W-2 forms for 1986 through 1992 showing salary received from the District of Columbia of between approximately $17,700 and $21,300 per year (11/23 Tr. 147-157).

Sergeant James Thomas, of the Personnel Department of the D.C. Army National Guard, identified personnel records indicating that Mr. xxxxxxxx had enlisted in the National Guard on September 30, 1986, and had extended the enlistment through September 29, 1997 (11/24 Tr. 22-26). He also identified leave and earnings statements showing that Mr. xxxxxxxx was entitled to receive compensation from fiscal year 1988 through fiscal year 1992 ranging from $1371.04 to $2404.77 per year for attendance at drills one weekend per month and annual training of 15 days per year (11/24 Tr. 26-30). Upon inquiry from defense counsel, Sergeant Thomas testified that Mr. xxxxxxxx missed sixteen drill sessions between 1986 and 1990 (11/24 Tr. 30-37). The court clarified that Mr. xxxxxxxx was not paid for missed sessions (11/24 Tr. 37).

3. The Court's Questioning Regarding Mr. xxxxxxxx's Physical Condition

At the conclusion of the cross-examination of Sergeant Thomas the court asked him the following series of questions (11/24 Tr. 37-38) (emphasis supplied):

THE COURT: Are there certain requirements for the physical condition for a member of the National Guard?



THE WITNESS: Yes, sir.



THE COURT: What are they?



THE WITNESS: They are that the individual be able to -- depending upon age. Depending upon the individual's age. They must be able to do a two-mile run, "X" amount of situps, and pushups, depending upon age.



THE COURT: If a person was walking around with a cane, would he be eligible to be a member of the National Guard?



THE WITNESS: They could be, until such time as they were medically evaluated and found not to be militarily fit.



THE COURT: What's your experience as a --



THE WITNESS: My experience is that we have a thing called profiles. When people injure themselves, then we write it -- write it up, send them to be evaluated. Then we get the evaluation back and make the determination.



THE COURT: If a person is disabled to the extent that he has to walk around with a cane and has great difficulty walking, would he -- could he be a member of the Guard?



THE WITNESS: No, sir. The medical evaluation would stipulate that that individual would have to be medically -- would be medically unfit to remain a member of the National Guard.



On continuation of cross-examination, Sergeant Thomas testified that he did not know whether Mr. xxxxxxxx was scheduled for such a medical evaluation. On redirect, the prosecutor picked up the court's theme, emphasizing that Mr. xxxxxxxx had participated in all drill sessions other than the ones previously discussed for which the leave and earnings statements showed "no drill performance" (11/24 Tr. 39-41).

After the government rested, defense counsel, in an attempt to deal with the physical condition issue raised earlier in the day by the court, called as its only witness Sergeant Nathaniel Queen of the D.C. National Guard. Sergeant Queen testified that he was assigned to the same unit of the National Guard as Mr. xxxxxxxx and that he had seen Mr. xxxxxxxx with a cane and had never seen him run (11/24 Tr. 107-109). He explained that Mr. xxxxxxxx participates in physical drills "as much as he can because of his physical limitations" (11/24 Tr. 108).

On cross-examination, Sergeant Queen explained that Mr. xxxxxxxx "goes with the unit to annual training but . . . does not deploy with us" and that, in recent years, Mr. xxxxxxxx had been given "alternate AT's," in which he is paid for the annual training but does it at his home station (11/24 Tr. 109-110).

In response to further questions by the prosecutor, Queen testified that, generally, individuals must have a physical before they enlist in the National Guard in order to determine whether they are "physically able to actually do the missions or the job required by the MOS, or the military occupational skill" (11/24 Tr. 110-112). (2) Sergeant Queen did not know if Mr. xxxxxxxx had had a physical when he first enlisted (11/24 Tr. 112). Normally, "if a person has a physical impairment, where he can't meet the criteria, as far as being able to deploy with the unit, or to do any of the basic needs for the unit, they're usually discharged, or they are re-evaluated medically by the Surgeon General at the D.C. National Guard" (11/24 Tr. 111). For reasons Sergeant Queen did not know, that had not been done with respect to Mr. xxxxxxxx (11/24 Tr. 111). Upon inquiry by the court, Queen testified that physicals are required every two years (11/24 Tr. 111).

On further cross-examination by the prosecutor, Sergeant Queen testified that Mr. xxxxxxxx used his cane all the time when he came to the drills (11/24 Tr. 112).

4. The Jury Instructions

Before trial, both the government and the defense submitted proposed jury instructions based on the Criminal Jury Instructions for the District of Columbia ("the Red Book") (A. 8-9, 29-30). In addition, the government's submission included proposed instructions on the elements of mail fraud under 18 U.S.C. 1341 and making false statements under 18 U.S.C. 1001 (A. 10-28). The government's proposal as to the essential elements under 1001 was as follows (A. 23-24) (emphasis supplied):

In order to sustain its burden of proof for the crime of knowingly and willfully making a false statement to the United States government or making or using a false writing or document as charged in Counts Eleven through Sixteen of the Indictment, the government must prove the following four (4) essential elements beyond a reasonable doubt:

One: The defendant, James A. xxxxxxxx, knowingly made a false, fictitious, or fraudulent statement or representation to the government or knowingly made or used a false writing or document containing a false, fictitious, or fraudulent statement as detailed in the Indictment.

Two: In so doing, the defendant, James A. xxxxxxxx, acted willfully;

Three: The statements were made in or the document concerned a matter within the jurisdiction of any department or agency of the United States; and

Four: The statement, writing, or document was material.

The Court will decide Element Three, concerning the jurisdiction of the United States, and, Element Four, regarding materiality.

You are to decide Element One, whether the defendant, James A. xxxxxxxx, made a false, fictitious or fraudulent statement or representation or knowingly made or used a false writing or document containing a false, fictitious, or fraudulent statement, and Element Two, whether in so doing the defendant, James A. xxxxxxxx, acted willfully.

During the jury instruction conference, the judge noted that he had compared the government's requested mail fraud and 1001 instructions with the Devitt & Blackmar instructions and that they appeared to be "routine" (11/29 Tr. 24). When defense counsel objected to two sentences the government had added to one of the mail fraud instructions, the prosecutor agreed to strike them (id. at 24-27). Defense counsel then raised one additional objection to the government's proposed instructions (id. at 27-28) (emphasis supplied):

[DEFENSE COUNSEL]: Oh, one more, Your Honor. I forgot. I tried to find out this weekend in this circuit whether or not the materiality element has to be . . . proven to the judge or the jury.

THE COURT: I think it's to the judge.

[DEFENSE COUNSEL]: I mean, I wasn't able to find cases one way or the other. Devitt and Blackmar says to the judge, bu[t] from reading the cases behind it and trying to look for ones in the circuit, there's other circuits that say it's to the judge, but I couldn't find one in this circuit that agrees with that.

THE COURT: Well, in the absence of any authority to the contrary, I suppose even if there isn't any law directly in point in this circuit, I'd have to go along with the majority rule, or the rule that was found in other circuits. I'll make the finding of materiality as the Court, which leaves two elements for the jury as I recall.



[PROSECUTOR]: Yes, Your Honor.



THE COURT: All right.



[DEFENSE COUNSEL]: The Court, in giving that instruction, isn't going to tell them what the judge's finding is during the instruction?



THE COURT: No. I'll just tell them what they have to find.

The court subsequently instructed the jury on the elements under 1001 without any mention of the materiality or jurisdictional elements (11/29 Tr. 70-71):

In order to sustain its burden of proof for the crime of knowingly and willfully making a false statement to the United States Government, or making or using a false writing or document, as charged in Counts 11 through 16 of the indictment, the government must prove the following two essential elements beyond a reasonable doubt to the satisfaction of this jury.

1. That the Defendant, James A. xxxxxxxx, knowingly made a false[,] fictitious or fraudulent statement or representation to the government, or knowingly made or used a false writing or a document containing a false, fictitious or fraudulent statement as set forth in the indictment.

2. In so doing, the Defendant, James A. xxxxxxxx, acted willfully.

The court never made any finding on the record as to the materiality and jurisdictional elements.

5. The Missing Bench Conferences

Due to an apparent mechanical failure in the court reporter's recording equipment (see A. 40-41), eight bench conferences could not be transcribed. See 11/24 Tr. 62, 83, 84, 85, 86, 88, 90, 100. In an attempt to reconstruct the record, each party submitted a "statement of proceedings" for settlement by the district court pursuant to Fed. R. App. P. 10(c) (A. 36-39, 40-43). On June 1, 1995, based upon the parties' statements and the court's own recollection, the district court issued findings as to the contents of the untranscribed bench conferences (A. 44-46). The court was unable to settle the record with respect to the bench conferences noted on pages 85, 88 and 90.

SUMMARY OF ARGUMENT

In the recent decision in United States v. Gaudin, 115 S. Ct. 2310 (1995), the Supreme Court held that the "materiality" element of a false statements charge under 18 U.S.C. 1001 is a mixed question of law and fact that must be found by the jury beyond a reasonable doubt. In Mr. xxxxxxxx's case, the judge, over objection by defense counsel but consistent with the existing rule in this Circuit, determined that the materiality element would be tried to the court. Under Gaudin -- a "supervening decision" that would apply in full to this case even in the absence of an objection -- the failure to submit that element to the jury is reversible error. Under Sullivan v. Louisiana, 113 S. Ct. 2078 (1993), this structural error cannot be harmless.

The reasoning in Gaudin applies equally to 1001's jurisdictional element which, like the materiality element, was not submitted to Mr. xxxxxxxx's jury. Like the materiality element, the jurisdictional element is a mixed question of law and fact that requires the jury to decide subsidiary questions of historical fact. Because Mr. xxxxxxxx was denied a trial by jury on two of the elements of the false statement charges (Counts Eleven through Sixteen), the judgment on those counts must be vacated and remanded for a new trial.

In addition, Mr. xxxxxxxx's convictions on all counts must be reversed because the trial court committed prejudicial error by raising questions about Mr. xxxxxxxx's physical condition that implied that he was malingering. By asking Sergeant Thomas whether "a person [who] is disabled to the extent that he has to walk around with a cane" could be in the National Guard, the court opened up a line of inquiry that was utterly irrelevant to the issues in the case. The court's inquiry served only to imply that Mr. xxxxxxxx was faking his disability before the Department of Labor and the jury, shifting the focus of the trial away from Mr. xxxxxxxx's understanding of the Department of Labor paperwork and forcing Mr. xxxxxxxx to call a defense witness to attempt to rebut a point that should not even have been an issue. As a result of all the testimony about Mr. xxxxxxxx's physical condition, the jury was left with the impression that Mr. xxxxxxxx was either faking his injuries or defrauding the National Guard by taking payments for a job he could not perform. Either way, the prejudice to Mr. xxxxxxxx's contention that he had not intended to defraud DOL was overwhelming.

Finally, this Court must reverse because Mr. xxxxxxxx's right to appeal his conviction has been impaired by the unavailability of a transcript for three bench conferences that took place during Agent Arcuri's testimony. This Court has reversed where it could not say that no substantial right of the appellant was affected without examining the missing proceedings. United States v. Workcuff, 422 F.2d 700, 702 (D.C. Cir. 1970). Where efforts to reconstruct a significant portion of the record have failed and appellate counsel did not represent the appellant at trial, prejudice to the appellant should be presumed.


ARGUMENT

I. THE COURT'S FAILURE TO SUBMIT THE MATERIALITY ELEMENT OF THE FALSE STATEMENT COUNTS TO THE JURY VIOLATED MR. xxxxxxxx'S DUE PROCESS AND JURY TRIAL RIGHTS UNDER UNITED STATES V. GAUDIN. (3)

A. Standard of Review

Whether the district court erred in not submitting the "materiality" element of the false statement counts to the jury is a question of law, which this court reviews de novo. See United States v. Fennell, 53 F.3d 1296, 1301 (D.C. Cir. 1995) (where instructions did not convey element to jury, they were "wrong as a matter of law").

Defense counsel made a timely objection to the government's proposal that the court, rather than the jury, decide the materiality element (11/29 Tr. 27-28). Although there was authority in this Circuit in support of the government's proposed instruction, see United States v. Hansen, 772 F.2d 940, 950 (D.C. Cir. 1985), cert. denied, 475 U.S. 1045 (1986), neither the prosecutor nor defense counsel appears to have been aware of it. The court overruled defense counsel's objection, ruling that "in the absence of any authority to the contrary" it would follow the "majority rule" and try the materiality element itself (11/29 Tr. 28). Because of counsel's timely (albeit, at the time, unsupported) objection, the issue is preserved for full appellate review.

Even if counsel had not brought this issue to the court's attention, however, it would be subject to full review by this Court under the "supervening-decision doctrine." See United States v. Washington, 12 F.3d 1128, 1139 (D.C. Cir.) ("Under the supervening-decision doctrine, we may consider issues not raised at trial where a supervening decision has changed the law in appellant's favor and the law was so well-settled at the time of trial that any attempt to challenge it would have appeared pointless."), cert. denied, 115 S. Ct. 98 (1994). Here, before the Supreme Court's recent decision in United States v. Gaudin, 115 S. Ct. 2310 (1995), the law in this Circuit was well-settled that "materiality under 1001 is a matter of law to be determined by the court." Hansen, 772 F.2d at 950, citing Weinstock v. United States, 231 F.2d 699, 703 (D.C. Cir. 1956). Gaudin brought about a dramatic change in the law so as to bring this case within the "supervening-decision doctrine."

B. Gaudin Controls This Case.

Mr. xxxxxxxx was charged in the alternative under the second and third clauses of 18 U.S.C. 1001:

Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully [1] falsifies, conceals or covers up by any trick, scheme, or device a material fact, or [2] makes any false, fictitious or fraudulent statements or representations, or [3] makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.

While only the first clause of the statute explicitly requires the false fact to be "material," that element has been held to be implicit in the other two clauses. See Hansen, 772 F.2d at 949 (third clause); Freidus v. United States, 223 F.2d 598, 601 (D.C. Cir. 1955) (second clause). See also Gaudin, 115 S. Ct. at 2313 ("It is uncontested that conviction under [ 1001] requires that the statements be 'material' to the Government inquiry, and that 'materiality' is an element of the offense that the Government must prove."). As in Gaudin, the district court here committed reversible error under the Fifth and Sixth Amendments of the United States Constitution when it declined to submit the "materiality" element of these offenses to the jury.

The Fifth Amendment guarantees that no one will be deprived of their liberty without "due process of law." Under the Sixth Amendment, "the accused shall enjoy the right to a speedy and public trial, by an impartial jury." "[T]hese provisions require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." Gaudin, 115 S. Ct. at 2313, citing Sullivan v. Louisiana, 113 S. Ct. 2078, 2080-2081 (1993). From this basic principle, the Supreme Court in Gaudin engaged in the following straightforward reasoning (115 S. Ct. at 2314):

The Constitution gives a criminal defendant the right to demand that a jury find him guilty of all the elements of the crime with which he is charged; one of the elements in the present case is materiality; respondent therefore had a right to have the jury decide materiality.

The Court rejected the government's argument that materiality is a purely "legal" question and that the jury decides only the factual components of the essential elements of a charged offense. Rather, the Court concluded that materiality is a "mixed question of law and fact" (id. at 2314-2315) and that "the jury's constitutional responsibility is not merely to determine the facts, but to apply the law to those facts and draw the ultimate conclusion of guilt or innocence" (id. at 2316).

This case is on all fours with Gaudin. Mr. xxxxxxxx's six convictions under 18 U.S.C. 1001 must be reversed. (4)

II. THE JURISDICTIONAL ELEMENT UNDER 1001, LIKE THE MATERIALITY ELEMENT, IS A MIXED QUESTION OF LAW AND FACT THAT SHOULD HAVE BEEN SUBMITTED TO THE JURY.

A. Standard of Review

As with the materiality element, whether the jurisdictional element of the false statement counts must be decided by the jury is a question of law reviewed de novo. Although defense counsel did not alert the district court to this issue, it is also subject to full review under the supervening decision doctrine. At the time of Mr. xxxxxxxx's trial any objection would have been futile because the law was well-settled that the jurisdictional element under 1001 was for the court to decide. Under Gaudin, it is now clear that, as a mixed question of law and fact, the jurisdictional element must be submitted to the jury. Mr. xxxxxxxx is entitled to the benefit of this supervening change in the law.

B. Gaudin's Reasoning Applies Equally to the Jurisdictional Element of the False Statement Counts.

Like materiality under 1001, the jurisdictional element is also a mixed question of law and fact. As proposed by the government, the jurisdictional element required the government to prove that "[t]he statements were made in or the document concerned a matter within the jurisdiction of any department or agency of the United States" (A. 23) (emphasis supplied).

In Gaudin, the Supreme Court explained that because the materiality element contained factual components, it was not a pure question of law for the court (115 S. Ct. at 2314):

Deciding whether a statement is "material" requires the determination of at least two subsidiary questions of purely historical fact: (a) "what statement was made?"; and (b) "what decision was the agency trying to make?". The ultimate question: (c) "whether the statement was material to the decision," requires applying the legal standard of materiality . . . to these historical facts.

The Supreme Court rejected the government's "concept of the criminal jury as mere factfinder" (id. at 2315) and its contention that only (a) and (b) must be determined by the jury and that (c) may be determined by a judge (id. at 2314). Rather, the task of the jury as trier of fact is to "'determine the existence of an element of the crime -- that is, an "ultimate" or "elemental" fact -- from the existence of one or more "evidentiary" or "basic" facts.'" Id. at 2316, quoting County Court of Ulster County v. Allen, 442 U.S. 140, 156 (1979).

The jurisdictional element likewise is a mixed question of law and fact, with two subsidiary factual questions and an ultimate question:

(a) "what statement was made?" (second clause) or "what document was used?" (third clause);



(b) "what matter was the statement made in?" (second clause) or "what matter did the document concern?" (third clause);



(c) "was that matter within the jurisdiction of any department or agency of the United States?"



While the court could have instructed the jury as a pure matter of law that the Department of Labor is an agency of the United States and that it has jurisdiction over matters arising under FECA, the court erred in taking away from the jury the ultimate jurisdictional question whether Mr. xxxxxxxx had made a false statement in a matter within that jurisdiction or had used a false document concerning a matter within that jurisdiction. Removal of the jurisdictional element of 1001 from the jury's consideration is a structural error providing an independent ground for reversal of Counts Eleven through Sixteen.

III. THE COURT'S QUESTIONS CONCERNING MR. xxxxxxxx'S PHYSICAL CONDITION PREJUDICED HIM BEFORE THE JURY.

A. Standard of Review

Because no objection was raised to the court's questions concerning whether an individual who must use a cane to walk can be in the National Guard, the questioning is reviewed for plain error. See United States v. Olano, 113 S. Ct. 1770 (1993). The impropriety of the court's prejudicial questioning here was plain. The law was well-settled at the time of Mr. xxxxxxxx's trial that when a trial judge intervenes in the conduct of a trial, this Court "must determine whether the intervention is in pursuit of justice and whether that intervention is consistent with the premises of the limits on intervention." United States v. McCord, 509 F.2d 334, 348 (D.C. Cir. 1974), cert. denied, 421 U.S. 930 (1975). That test is not met here.

B. The Court's Inquiries Implied To The Jury That Mr. xxxxxxxx Was Faking His Injury.



The trial judge in this case raised questions, subsequently seized on by the government, suggesting that Mr. xxxxxxxx was not really disabled at all. That suggestion was extremely prejudicial to Mr. xxxxxxxx in that it made it appear to the jury that he was not merely a disabled man who may have misunderstood the questions on the DOL paperwork, but was a malingerer whose entire disability claim was a fraud.

This Court has placed "strict limits on the [trial] judge's power to intervene in the conduct of the trial, particularly in the examination of witnesses," McCord, 509 F.2d at 348, repeatedly emphasizing that "the judge must remain 'a disinterested and objective participant in the proceedings.'" United States v. Barbour, 420 F.2d 1319, 1321 (D.C. Cir. 1969), quoting Billeci v. United States, 184 F.2d 394, 402 (D.C. Cir. 1950).

[P]rinciples both fundamental and indestructible in our criminal law exhort him to hold to a minimum his questioning of witnesses in a jury trial. Interrogation of witnesses tends to assimilate the court's role with the advocate's . . . . There is . . . the danger that the judge may elicit from the witness responses hurtful to the accused -- responses to which the jury may assign peculiar weight because of their ostensible judicial sponsorship.

Id. Here, the court's questioning most certainly did elicit responses hurtful to Mr. xxxxxxxx. "'Particularly when the questioning is designed to elicit answers favorable to the prosecution, "it is far better for the trial judge to err on the side of [a]bstention from intervention in the case."'" United States v. Norris, 873 F.2d 1519, 1526 (D.C. Cir.), cert. denied, 493 U.S. 835 (1989), quoting United States v. Green, 429 F.2d 754, 760 (D.C. Cir. 1970).

The prosecutor stated in her opening statement that the government would demonstrate "that Mr. xxxxxxxx was working in 1982 at Walter Reed Army Medical Center, that he had an accident where he fell down the stairs and hurt his back, and because of that accident, he filed a claim for disability compensation" (11/23 Tr. 7) (emphasis supplied). The government's position on this point was critical to defense counsel's strategy of showing Mr. xxxxxxxx to be a man who had been fully entitled to the disability benefits he had claimed but who had simply misunderstood the paperwork that was required to maintain those benefits. As defense counsel put it in opening (11/23 Tr. 10-11):

Ladies and gentlemen, you will learn that in this case, it is about paperwork. Paperwork that the government will present to you to hang a -- on Mr. xxxxxxxx, guilty of numerous charges.



. . .



Ladies and gentlemen, it will be not disputed in this case that Mr. xxxxxxxx was indeed injured, that Mr. xxxxxxxx fell on some steps, hurt his back, hurt his neck, and had disability payments awarded to him.

Mr. xxxxxxxx's defense was thrown a curve when the court -- out of the blue -- engaged Sergeant Thomas in a discussion about the physical requirements for National Guard membership, culminating in this exchange (11/24 Tr. 38):

THE COURT: If a person is disabled to the extent that he has to walk around with a cane and has great difficulty walking, would he -- could he be a member of the Guard?

THE WITNESS: No, sir. . . .

The obvious implication of the court's inquiry was that Mr. xxxxxxxx must have been faking his injury to DOL -- and to the jury. (5) Coming from the judge, this suggestion was devastating, for "'jurors hold the robed trial judge in great awe and reverence' and 'his lightest word or intimation is received with deference and may prove controlling.'" Barbour, 420 F.2d at 1321-22, quoting Hawkins v. United States, 310 F.2d 849, 852 (D.C. Cir. 1962), and Starr v. United States, 153 U.S. 614, 626 (1894).

In response, defense counsel scrambled to bring in a witness who would confirm that Mr. xxxxxxxx was indeed disabled, locating Sergeant Queen and putting him on the stand later that same day. See 11/24 Tr. 98 ("Your Honor, there was one witness that I was going to call that was just real brief, in terms of something that came up just today, that I was going to ask for a couple of minutes just to speak with him, because I had somebody go find him, and I haven't even had a chance to speak with him"). On direct, defense counsel simply brought out that Sergeant Queen had seen Mr. xxxxxxxx with his cane, had never seen him run, and that Mr. xxxxxxxx participated in the physical drills as much as he could considering his "physical limitations" (11/24 Tr. 108).

Taking the cue from the court, however, the prosecutor proceeded on cross-examination to explore the degree to which Mr. xxxxxxxx was able to physically perform his National Guard duties, apparently attempting to show that Mr. xxxxxxxx was not as disabled as he appeared to be in the courtroom. When Sergeant Queen explained that Mr. xxxxxxxx did not deploy with the unit but was given "alternate annual training" at his home station because of his condition, the prosecutor began asking instead about physical examinations that Mr. xxxxxxxx would have had to have passed to be in the National Guard (11/24 Tr. 109-111). Again, the court showed interest in this line of inquiry, asking how often such physicals are given (11/24 Tr. 111).

All of these questions were totally irrelevant to what was at issue in the trial and what the government had already established without challenge from the defense -- that Mr. xxxxxxxx had been employed by the National Guard during the period he answered "no" to the employment question on the DOL Forms CA-EN1032. It was only because of the court's suggestion that an individual could not be in the National Guard if he were as disabled as Mr. xxxxxxxx appeared to be that the trial turned into a dispute over Mr. xxxxxxxx's physical condition rather than over his intent to mislead DOL with respect to his employment. Thus, this is not a case like Norris, in which the trial court's questioning "concerned lines of inquiry opened by one or the other of trial counsel, which the Judge was further pursuing." 873 F.2d at 1526. Nor is this a case in which the court clarified "fuzz[y]," "inarticulat[e]", or "reluctantly given" testimony. See Barbour, 420 F.2d at 1321. Far from clarifying existing testimony, the court's questions here launched Mr. xxxxxxxx's trial into a whole new -- and highly prejudicial -- area that had never been raised by either party.

For the jury, the upshot of this digression was that, one way or the other, Mr. xxxxxxxx was running a scam entirely different from that alleged in the indictment: Either 1) Mr. xxxxxxxx was faking his injuries altogether or 2) he was also defrauding the National Guard by enlisting for a position he could not perform and accepting compensation for just showing up. (6) Any doubt the jury had as to Mr. xxxxxxxx's intent to mislead and defraud DOL was surely eliminated by the suggestion that he was feigning his physical ailments. By implying that the underlying injury was a fraud, the court put the answers to the DOL forms in an entirely new light -- turning a possible misunderstanding of bureaucratic paperwork into just another part of an elaborate scheme by Mr. xxxxxxxx to get disability benefits to which he was not entitled. IV. THE UNAVAILABILITY OF TRANSCRIPTS FOR SEVERAL BENCH CONFERENCES HAS DENIED MR. xxxxxxxx THE RIGHT TO APPEAL HIS CONVICTIONS. (7)

The Court Reporters Act, 28 U.S.C. 753(b), mandates that court reporters shall "attend at each session of the court . . . and shall record verbatim by shorthand or by mechanical means . . . (1) all proceedings in criminal cases had in open court . . . ." The requirements of the act are mandatory rather than permissive, United States v. Workcuff, 422 F.2d 700, 701 (D.C. Cir. 1970), and are applicable to bench conferences. United States v. Robinson, 459 F.2d 1164, 1170 (D.C. Cir. 1972).

Here, despite the efforts of the parties and the district court pursuant to Rule 10(c), the record as to three of the bench conferences could not be reconstructed (A. 45). As a consequence, Mr. xxxxxxxx's counsel on appeal is precluded from reviewing the entire record for errors which were brought to the attention of the trial judge, and for "plain errors" as defined in Fed. R. Crim. P. 52(b). The importance of such a review was spelled out by this Court in Workcuff, 422 F.2d at 702:

There can be little doubt that the absence of a complete and accurate transcript impairs the ability of appellate counsel to protect his client's basic rights. . . . The problem is greatly exacerbated when, as here, the attorney representing the appellant is different from the counsel who represented him at trial.

The Court in Workcuff relied upon the observation of the Supreme Court in Hardy v. United States, 375 U.S. 277, 280 (1964), that "[t]he right to notice 'plain errors or defects' is illusory if no transcript is available at least to one whose lawyer on appeal enters the case after the trial is ended." 422 F.2d at 702. The conviction in Workcuff was reversed where a jury instruction was not recorded and the defendant had new counsel on appeal. Despite the attempts of the parties to reconstruct the record, including a translation by the prosecutor of personal shorthand notes purporting to reflect the substance of the charge, this Court concluded that it could not say that no substantial right of the

defendant was affected without examining the precise language of the missing instruction. Id. (8)

Relying on Hardy, the Fifth Circuit has developed the rule that when substantial and significant portions of a criminal trial are not recorded or transcribed, those portions cannot be reconstructed, and counsel on appeal did not represent the defendant at trial, there is a presumption of prejudice to the appellant in pursuing his appeal. United States v. Selva, 559 F.2d 1303, 1305 (5th Cir. 1977).

Here, the missing bench conferences are substantial and significant omissions, coming as they do in the middle of the testimony of the undercover DOL agent. Compare United States v. Colmenares-Hernandez, 659 F.2d 39, 43 (5th Cir.) (omission of testimony of two government rebuttal witnesses not substantial and significant), cert. denied, 454 U.S. 1127 (1981). The bench conference on page 85 follows an off-the-record conference between counsel right before defense counsel's recross-examination of Agent Arcuri. The missing bench conferences on pages 88 and 90 come during defense counsel's recross-examination and involve the prosecutor's successful attempts to thwart defense counsel's efforts to challenge Agent Arcuri with respect to a disputed portion of the videotape, in which the agent cut Mr. xxxxxxxx off when he started to ask a question about one of the employment questions on the DOL form.

In the absence of the missing bench conferences, appellate counsel's review of the cold record is impaired and "[this Court's] review is turned into an exercise in creative imagination." Workcuff, 422 F.2d at 702.

CONCLUSION

For the foregoing reasons, the judgment against Mr. xxxxxxxx must be vacated and the case remanded to the district court for a new trial.



Respectfully submitted,





A.J. KRAMER

FEDERAL PUBLIC DEFENDER





_____________________________

LISA B. WRIGHT

Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500



Counsel for Appellant James A. xxxxxxxx





CERTIFICATE OF LENGTH

I hereby certify that the foregoing Brief for Appellant James A. xxxxxxxx does not exceed the number of words permitted pursuant to D.C. Circuit Rule 28(d).



_________________________________

LISA B. WRIGHT

Assistant Federal Public Defender







CERTIFICATE OF SERVICE



I hereby certify that two copies of the foregoing Brief for Appellant James A. xxxxxxxx have been delivered by hand to the United States Attorney's Office, John R. Fisher, Esq., Appellate Division, 555 Fourth Street, N.W., Washington, D.C., 20001, this 8th day of August, 1995.



_________________________________

LISA B. WRIGHT

Assistant Federal Public Defender



1. "A." refers to pages of the Appendix filed with this brief. "11/22 Tr." refers to a 10-page excerpt of proceedings immediately preceding voir dire on November 22, 1993. "11/23 Tr." refers to the 189-page transcript of trial proceedings on November 23, 1993. "11/24 Tr." refers to the 116-page transcript of trial proceedings on November 24, 1993. "11/29 Tr." refers to the 84-page transcript of trial proceedings on November 29, 1993. The Appendix includes, inter alia, the complete testimony of Sergeant James Thomas, Agent Kim Arcuri, and Sergeant Nathaniel Queen.

2. Queen explained that a physical may not be required in some circumstances, such as if the enlistee is coming from active duty (11/24 Tr. 112).

3. Because Mr. xxxxxxxx's case was pending on direct review at the time of the Gaudin decision, he is entitled to the full benefit of that ruling. See Griffith v. Kentucky, 479 U.S. 314, 322 (1987) ("failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication"); United States v. Wynn, No. 92-3024, slip op. at 12 (D.C. Cir. Aug. 1, 1995) (following Griffith); United States v. Washington, 12 F.3d 1128, 1138 (D.C. Cir.) ("In the interests of justice, 'we are bound to consider any change, either in fact or in law, which has supervened since the [trial court's] judgment was entered.'"), cert. denied, 115 S. Ct. 98 (1994), quoting Patterson v. Alabama, 294 U.S. 600, 607 (1935).

4. Under Sullivan v. Louisiana, 113 S. Ct. 2078, 2081-83 (1993), this constitutional error is a "structural error," not subject to harmless error review under Chapman v. California, 386 U.S. 18 (1967):



Since . . . there has been no jury verdict within the meaning of the Sixth Amendment, the entire premise of Chapman review is absent. . . . There is no object, so to speak upon which harmless-error scrutiny can operate. . . . The Sixth Amendment requires more than appellate speculation about a hypothetical jury's action, or else directed verdicts for the State would be sustainable on appeal; it requires an actual jury finding of guilty.



Sullivan, 113 S. Ct. at 2082. See also Rose v. Clark, 478 U.S. 570, 578, 580 n.8 (1986) (error cannot be harmless where right to jury trial is "altogether denied" and "the wrong entity judged the defendant guilty;" burden-shifting presumption harmless where it did "not remove [an element] from the jury's consideration"); Henderson v. Morgan, 426 U.S. 637, 650 (1976) (White, J., concurring) ("It cannot be 'harmless error' wholly to deny a defendant a jury trial on one or all elements of the offense with which he is charged."). The Ninth Circuit in Gaudin concluded that, under Sullivan, removal of an element from the jury's consideration "cannot be harmless," 28 F.3d 943, 951 (9th Cir. 1994) (en banc), and the government did not challenge that ruling on appeal. Gaudin, 115 S. Ct. at 2321 (Rehnquist, C.J., concurring), citing Brief for United States 8, n.5.

5. The record supports the inference that Mr. xxxxxxxx had his cane with him in court. First, the judge's questions only make sense if he had seen Mr. xxxxxxxx "ha[ve] to walk around with a cane and ha[ve] great difficulty walking" (11/24 Tr. 38). Second, Sergeant Queen testified that Mr. xxxxxxxx used his cane whenever he came to the National Guard drills (11/24 Tr. 112). Third, Mr. xxxxxxxx told Agent Arcuri on the 1991 videotape that he had to use his cane frequently -- at least three days a week (G. Ex. 26). Finally, at a point in the transcript on the first day of trial where the court asked Mr. xxxxxxxx to step up to the podium (11/22 Tr. 3), the court reporter's audiotape recorded what appears to be the sound of a person slowly walking with a cane (Tape P1 -- Miller Reporting Company).

6. The implications of this second explanation were not lost on the prosecutor, who made a point of the fact that Mr. xxxxxxxx was paid for his "alternate" annual training (11/24 Tr. 110) and for coming to the weekend drills with his cane (11/24 Tr. 112), and then referred to Mr. xxxxxxxx sarcastically as a "weekend warrior" in her closing argument (11/29 Tr. 37).

7. A similar issue is currently before this Court in United States v. Carrazana, No. 89-3213.

8. Although this Court has not always found the unavailability of a complete transcript to be reversible error, those cases are distinguishable from the case at bar. In United States v. Perkins, 498 F.2d 1054 (D.C. Cir. 1974), and United States v. Robinson, 459 F.2d 1164 (1972), the parties and trial court were able to reconstruct the missing parts of the trial record. In United States v. Butler, 462 F.2d 1195, 1197 (D.C. Cir. 1972), the matter at issue in the untranscribed sentencing was "fully determinable" from the existing transcript.