United States Court of Appeals

Fifth Circuit

FILED

May 25, 2007

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

_______________

m 05-20908

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

PAUL ARTHUR FRAME, JR.,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

m 4:04-CR-491-ALL

______________________________

Before GARWOOD, SMITH, and DEMOSS,

Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Paul Frame appeals his conviction. Finding

no abuse of discretion, we affirm.

I.

Frame wasthe President and CEO ofSeitel,

Inc. (“Seitel”), a large public corporation. He

was convicted by a jury of mail fraud, wire

fraud, money laundering, and making a false

statement in violation of 18 U.S.C. § 1001.

The convictionsstemfrom Frame’s orchestration of the payment of his personal legal bills

from Seitel’s funds and deceptive statements

* Pursuant to 5THCIR.R. 47.5, the court has determined that this opinion should not be published

and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
2

he made (and disclosures he failed to make)

about the scheme. Frame challenges the district court’srefusal to include jury instructions

on good faith and reliance on the advice of

counsel and its refusal to ask seven voir dire

questions about the prospective jurors’ opinions about the infamous Enron case.

II.

“A district court’s refusal to include a defendant’s proposed jury instruction in the

charge is reviewed under an abuse of discretion standard, and the trial judge is afforded

substantial latitude in formulating his instructions.” United States v. Daniels, 247 F.3d

598, 601 (5th Cir. 2001) (quoting United

States v. Rochester, 898 F.2d 971, 978 (5th

Cir. 1990)). The court abuses its discretion

only if “(1) the requested instruction is substantivelycorrect;(2)the requested instruction

is not substantially covered in the charge given

to the jury; and (3) it concerns an important

point in the trial so that the failure to give it

seriously impairs the defendant’s ability to

effectively present a particular defense.”

United States v. St. Gelais, 952 F.2d 90, 93

(5th Cir. 1992) (citing United States v. Hunt,

794 F.2d 1095, 1097 (5th Cir. 1986)). 

If the given instructions “fairly and adequately” address the issues, there is no abuse

of discretion. Daniels, 247 F.3d at 601. A rejection of a defendant’srequest for an instruction on reliance on the advice of counsel is not

an abuse of discretion if there is insufficient

evidence that the defendant consulted with attorneys. United States v. Tannehill, 49 F.3d

1049, 1057-58 (5th Cir. 1995).

The court issued a specific intent instruction and instructions defining “knowingly” and

“willfully”1but did not include Frame’s requested instructions on good faith

2

and reli

1 The three instructions were as follows:

The offenses charged in this case require

proof of specific intent on the part of the defendant before the defendant can be convicted.

Specific intent, as that term implies, means

more than general intent to commit the act. To

establish specific intent, the government must

prove that the defendant knowingly did an act

which the law forbids or knowingly failed to do

an act which the law requires, purposely intending to violate the law.

The word “knowingly,” as that term has been

used from time to time in these instructions,

means that the act was done voluntarily and intentionally and not because of mistake or accident.

The word “willfully,” as that term has been

used from time to time in these instructions,

means that the act was committed voluntarily

and purposely with the specific intent to do

something the law forbids; that is to say, with

bad purpose either to disobey or disregard the

law.

2 Frame’s proposed good faith instruction was

as follows:

The good faith of a defendant is a complete

defense to the charges in this case because good

faith on the part of the defendant is, simply, inconsistent with the criminal intent required for

conviction of the charges (sic) offenses, as defined in the foregoing instructions.

A person who acts, or causes another to act,

on a belief or an opinion honestly held is not

punishable merely because the belief or opinion

turns out to be inaccurate, incorrect, or wrong.

An honest mistake in judgment or an honest

(continued...)
3

ance on the advice of counsel.3 The court reasoned that Frame’s good faith defense was

adequately covered in the instructions given,

and there was insufficient evidence to support

an instruction on reliance on counsel. The

court emphasized that Frame would have the

opportunity to present both defenses to the

jury during closing arguments. 

Frame correctly identifies cases in which

we found abuse of discretion where a court

omitted a good faith instruction despite the inclusion of instructions defining specific intent,

“knowingly,” and “willfully.” See United

States v. Goss, 650 F.2d 1336, 1344 (5th Cir.

1981); United States v. Fowler, 735 F.2d 823,

828-29 (5th Cir. 1984). But, “later caselaw

has effectively by-passed [Goss and Fowler].”

United States v. Hunt, 794 F.2d 1095, 1098

(5th Cir. 1986).4 Since Hunt, we have held

2

(...continued)

error in management does not give rise to the

level (sic) of criminal conduct.

A defendant does not act in “good faith” if,

even though he or she honestly holds a certain

opinion or belief, that defendant also “knowingly” makes false or fraudulent pretenses, representations, or promises to others.

While the term “good faith” has no precise

definition, it encompasses, among other things,

a belief or opinion honestly held, absence of

malice or ill will, and an intention to avoid taking unfair advantage of another.

In determining whether or not the government

has proven that a defendant acted with requisite

criminal intent or whether the defendant acted

in good faith, the jury must consider all of the

evidence received in the case bearing on the defendant’s state of mind.

The burden of proving good faith does not

rest with the defendant because the defendant

does not have any obligation to prove anything

in this case. It is the government’s burden to

prove to you, beyond a reasonable doubt, that

the defendant acted with the criminal intent required to convict him of the crimes charged.

If the evidence in the case leaves the jury with

a reasonable doubt as to whether the defendant

acted with the requisite criminal intent or in

good faith, the jury must acquit the defendant.

3 The requested instruction was as follows:

Defendant, before taking any action, while

acting in good faith for the purposes of asking

for advice of a lawyer, for his or her possible

future conductsought and obtained adviceof an

attorney whom he considered to be competent

(continued...)

3

(...continued)

and made a full and accurate report of disclosure to his attorney of all important material

facts which he or she had knowledge of or had

means of knowing, then acted strictly in accordance with the advice of that attorney. That advice that the attorney gave following this full

report of disclosure, defendant would not be

willfully or deliberately doing wrong in performing some act as to those terms, as those

terms are used in these instructions.

Whether the defendant acted in good faith for

the purpose of truly seeking guidance as to the

question about which he was in doubt and

whether he made a full and complete reported

disclosure to an attorney and whether he or she

acted strictly in accordance with the advice received are all questions for you to determine.

4

In Hunt we held that Goss and Fowler were

inconsistent with earlier cases such as United

States v. Wellendorf, 574 F.2d 1289 (5th Cir.

1978), and that the conflict had to be resolved in

(continued...)
4

that the omission of a good faith jury instruction is not an abuse of discretion if the defendant is able to present his good faith defense to

the jury through, inter alia, witnesses, closing

arguments, and the other jury instructions.5

Frame was able to present his good faith

defense to the jury. The instructions defining

specific intent, “knowingly,” and “willingly”

make plain that the jury wasrequired to acquit

Frame if, because of his good faith, he lacked

specific intent. As for reliance on counsel, the

court did not abuse its discretion in finding insufficient evidence to warrant the instruction.

Frame’s counsel conceded, at the jury charge

conference, that no evidence had been advanced showing that Frame had discussed this

matter with his lawyers; counsel claimed only

that “it appears clear that he did rely” on lawyers who reviewed documents for him.

Finally, the courtstated that Frame wasfree

to argue both defenses during closing. Indeed,

Frame’s good faith and his reliance on the advice of counsel were central to his attorney’s

closing arguments.6 Because the jury instructions “fairly and adequately” addressed

Frame’s defenses, the decision to deny the re4

(...continued)

favor of the earlier cases. Hunt, 794 F.2d at 1098

(citing United States v. Gray, 751 F.2d 733, 735-

36 (5th Cir.1985)).

5

See, e.g., Hunt, 794 F.2d at 1098; United

States v. Fooladi, 746 F.2d 1027, 1030 (5th Cir.

1984); United States v. Gray, 751 F.2d 733, 736-

37 (5thCir. 1985); United States v. St. Gelais, 952

F.2d 90, 93-94 (5th Cir. 1992) (“We find that the

court’s charge adequately conveyed the concept of

good faith to the jury and that, while defense counsel did not mention the words “good faith” in his

closing argument, his remarks put the concept of

good faith and innocent motive before the jury.

Thus, the district court did not commit reversible

error . . . .”); United States v. Peterson, 101 F.3d

375, 382-83 (5thCir. 1996); United States v. Daniels, 247 F.3d 598 (5th Cir. 2001); United States

v. Gonzales, 436 F.3d 560, 571 (5th Cir.), cert.

denied, 126 S. Ct. 2363 (2006).

6 The following quotations are from the closing

argument of Frame’s counsel:

SS [In order to convict] you have to believe that

whatever those acts were that he committed

were done with a certain type of state of mind

. . . . If you don’t believe that Mr. Frame had

the requisite state of mind in order to commit

that offense, then you cannot convict him. You

must find him not guilty.

SS [O]ther people who were testifying for him

told you that they believed that he acted in good

faith for the benefit of his corporation.

SS Mr. Frame told you that he thought he acted

in good faith for the benefit of the corporation.

SS [Frame] also told you that he relied on his

employees, he relied on a staff of CPAs at Ernst

& Young that they paid a lot of money to, he

relied on his attorney.

SS I know there was no intent on Paul Frame’s

part to commit a crime. And in order to convict

him of any of these charges, you have to believe

that there was a specific intent.

SS [In order to convict] you have to believe that

he had a specific intent to defraud his company.

SS [Frame] did what he ordinarily does not do.

He stepped back and he let two layers, who he

thought were good people and who he trusted

and who he thought had his best interest at

heart, handle a sticky personal situation.

SS Now, if you’re going to find him guilty of

something, add another little line there: Paul

Frame is an idiot for trusting [his lawyers] to

take care of this lawsuit for him.
5

quested instructions was not an abuse of discretion.

III.

Frame argues that his Sixth Amendment

right to an impartial jury was violated because

the court refused his request to ask seven voir

dire questions concerning the well-publicized

Enron trial. “Voir dire examination serves the

dual purposes of enabling the court to select

an impartial jury and assisting counsel in exercising peremptory challenges.” Mu’Min v.

Virginia, 500 U.S. 415, 431 (1991). “We

grant broad discretion to the trial judge in

making determinations of impartiality and will

not interfere with such decisions absent a clear

abuse of discretion.” United States v. Hinojosa, 958 F.2d 624, 631 (5th Cir. 1992). The

mere fact that an excluded question would

have been helpful is insufficient to render its

exclusion unconstitutionalSSto meet this burden the question’s exclusion must “render the

defendant’s trial fundamentally unfair.” Mu’-

Min, 500 U.S. at 416 (citing Murphy v. Florida, 421 U.S. 794, 799 (1975)).

The court admonished the jury that this was

not the Enron case. It asked whether any potential juror had a problem giving the presumption of innocence to a corporate defendant; none did.7 Frame’s counsel asked

whether anypotentialjuror had a preconceived

notion of Frame’s guilt; none did. Several potential jurors had knowledge of someone who

had been charged with fraud, and each said

that he could impartially hear and decide the

case. Frame was free to probe further into the

potentialjurors’feelings about hisCEO capacity as long as the questions were relevant to

Frame’s case.

The only evidence Frame advances concerning the alleged insufficiency of voir dire is

the dismissal of a juror who approached the

case manager at a recess during the examination of the first witness to say that she could

not be impartial. She was questioned outside

the presence of the jury and told the court that

during voir dire she had thought that she could

be impartial, and hence she had represented to

the court that she harbored no bias or prejudice, but that she had changed her mind after

hearing opening arguments. Although the

court suspected that the juror was being insincere and merely attempting to avoid jury duty,

it dismissed her from the jury.

Frame fails to articulate how this episode

evinces that voir dire rendered the trial fundamentally unfair. During voir dire (after the

court had mentioned Enron three times), the

juror said she had no bias toward corporate

executives or preconceived notions ofFrame’s

guilt. After hearing opening statements, she

changed her mind. Frame fails to explain why

detailed questions concerning Enron would

have caused her change to her mind before opening statements.

Frame was permitted to question potential

jurors about their thoughts and feelingstoward

corporate defendants in general and Frame in

particular. The court admonished the jury that

this was not the Enron case, and the potential

jurorsrepresented that theywould reach a verdict based only on the evidence advanced during trial. The omission of Frame’s requested

questions about Enron, an unrelated case, did

not render his trial fundamentally unfair, and

7 Frame argues that by not allowing detailed

questions concerning the potential jurors’ feelings

about Enron, the court prevented him from exploring “the venire’s feelings toward corporate America.” To the contrary, the potential jurors were

asked about their feelings toward corporate defendants and affirmed that they were not biased

against them.
6

thus the court acted within its discretion.

AFFIRMED.