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

_______________



### U NITED 

### S TATES OF 

### AMERICA 

### , Plaintiff-Appellee,

VERSUS


### P AUL 

### ARTHUR 

### FRAME 

### , J R 

### .,

Defendant-Appellant.

_________________________ Appeal from the United States District Court fo r the Southern District of Texas 

### m 4:04-CR-491-ALL

______________________________

Before G ARWOOD , S MITH , and D EM OSS , Circuit Judges.
J ERRY E. S MITH , Circuit Judge: * Paul Frame appeals his conviction. Finding no abuse of discretion, we affirm.

I. Frame was the President and CEO of Seitel, Inc. (“Seitel”), a large public corporation. He was convicted by a jury of mail fr aud, wi re fraud, mo ney laundering, and making a false statem ent in vio lat io n of 18 U.S.C. § 1001. The convictions stem from Frame’s orchestration of the payment of his personal legal bills from Seitel’ s f

unds and deceptive statements * Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be published and is not precedent except u nder the limited circumstances set forth in 5 TH C IR

. R

. 47.5.4.2

he made (and disclosures he failed to make) about the scheme. Frame challenges the district court’s refusal to include jury inst ructions on good fait h and reliance on t he advice of counsel and it s refusal to ask seven voir dire questions about the prospective jurors’ opinio ns about the infamous Enron case.

II. “A district cou r t’s refusal to include a defendant’s proposed jury instruction in the c harge i s reviewed under an abuse of discretion standard, and the trial judge is afforded sub s tantial lat it ude in fo rm ulating his inst ructions.” U

nited 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 di scretion only if “(1) the requested inst ruc ti on is substantively correct; (2) the requested inst ruction is not substantially covered in the charge given to the jury; and (3) it concerns an impo rtant point in the trial so that the failure to give it seriously impairs the defendant’s abilit y to effectively present a partic u lar defense.” United States v. St. Gelais , 952 F. 2 d 90, 93 (5th Cir. 1992) (citing United States v. Hunt , 794 F.2d 1095, 1097 (5th Cir. 1986)).
If the given inst ructions “fair ly and adequatel y” address the issues, there is no abuse of discretion. D aniels , 247 F.3d at 601. A rejection of a defendant’s request fo r an inst ruction on reliance on the advice of counsel is not an abuse of discretion if there is insufficient evidence th at the defendant consulted wit h attorney s
. U

nited States v. Tannehill , 49 F.3d 1049, 1057-58 (5th Cir. 1995).
The court issued a specific int ent inst ruction and inst ructions defining “knowingly” and “willf ully” 1 but did not include Frame’s requested inst ructions on good f ait h2 and reli

1 The three instructions were as follows:
The offenses cha rg ed 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 mor e than general intent to commit the act. To establish specific intent, the government must prove that the defendant knowingly did an ac t 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 tim

e in these instructions, mea ns that the act was done voluntarily and intentionally and not because of mistake or accident. The word “willfully,” as tha t term has been used from time to time in the se instructions, mea ns that the act w as com mitted 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 Fram e’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 mer ely 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 ins truction on reliance on counsel. The court emphasized th at Fr ame would have the opportunity to present both defenses t o the jury during closing arguments.
Frame correctl

y id entifies cases in which we fo und abuse of discret io n where a court om it ted a good fait h inst ruction despite the inclusion of inst ructions defining specific int ent, “knowing ly, ” 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 H unt , we have held 2 (...continued) error in ma nagement does not give rise to the level (sic) of criminal conduct.
A defenda nt does not act in “good faith” if, even thou gh he or she honestly holds a certain o pinion or belief, that defendant also “know

ingly” makes false or fraudulent pretenses, repre sentations, or promises to others. While the term “good fa ith” has no precise definition, it encompasses, am ong other things, a belief or op inion honestly held, absence of ma lice 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 def e ndant acted in good f aith, 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 re st 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 re ason able 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 re asonable doubt as to whether the defendant acted with the requisite crimin al intent or in good faith, the jury must acquit the defendant.

3 The requested instruction was as follows: Defendant, before taking any a ction, while acting in good faith for the purposes of asking for advice of a lawyer, for his or her possible future conduct sought and obtained advice of 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 mea ns of knowing, then acted strictly in accordance with the advice of that attorney. That advice that the attor ney gave following this full re port of disclosure , defendant would not bewillfully or deliberately doing wrong in performing some act as to those terms, as tho s e 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 ma de a fu ll 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.2 d 1289 (5th Cir. 1978), and that the conflict had to be resolved in (continued...)4

th at the om

issio n of a good fait h jury inst ruction is not an abuse of discretion if t he defendant is able to present his good fait h defense to the jury th rough, inter alia , wit nesses, clo sing arguments, and the other jury instructions. 5 Frame was able to present his good faith defense to the jury. The instructions defining specif i c int ent, “knowingly,” and “willingly” make plain th at the jury was required to acquit Frame if, because of his good faith, he lacked specific int ent. As fo r rel

iance on counsel, the court did not abuse it s discretion in finding insufficient evidence to warrant the instruction. Frame’s counsel conceded, at the jury charge conference, th at no evidence had been advanced showing th at Frame had discussed this mat ter wit h his lawyers; counsel claimed only th at “it appears clear th at he did rely” on lawyers who reviewed documents for him. Finally, the court stated th at Frame was free to argue both defenses during clo sing. Indeed, Frame’s good fait h and his reliance on the advice of counsel were c entral to his attorney’s clo sing 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. H unt , 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 (5th Cir. 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 bef ore the jury. Thus, the district court did not commit reversible error . . . .”) ; United States v. Peterson , 101 F.3d 375, 382-83 (5th Cir. 1996); United States v. Daniels , 247 F.3d 598 (5th Cir. 2001); United States
v. Gonzal e s , 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 what ever 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 c ommit 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. Fram

e told you that he thought he acted in good faith for the benefit of the corporation. SS [Fram e] also told you that he r elied on his employees, he relied on a staff of CPAs at Ernst & Young that they paid a l ot of money to, he relied on his attorney. SS I know there was no intent on Paul Fram e’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 [Fram e] 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 g oing to find him guilty of s omething, add another little line there: Paul Fram e 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 th at his Sixt h Amendment right to an impartial jury was vio lat ed 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 perem

ptory challenges.” Mu’Min v. Virginia , 500 U. S. 415, 431 (1991). “We grant broad discretion to the t ri al judge in making determ

inat io ns of impartiality and will not int erfere wit h such decisions absent a clear abuse of discretion.” U

nited States v. Hi nojosa , 958 F.2d 624, 631 (5th Cir. 1992). The mere fact th at an excluded question would have been helpful is insufficient to render it s exclusion unconstitutional

### SS to 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 th at this was not the Enron case. It asked whether any potential juror had a problem giving the presumption of inno c ence to a corporate defendant; none did. 7 Frame’s counsel asked whether any potential juror had a preconceived notion of Frame’s guilt ; none did. Several potential jurors had knowledge of som eone who had been charged wit h fraud, and each said th at he could impartially hear and decide the case. Frame was free to probe further into the potential jurors’ feelings about his CEO capacit y as lo ng as the questions were relevant to Frame’s case.
The only evidence Frame advances c o ncerning the alleged insufficiency of voir dire is th e dism issal of a juror who approached the case manager at a recess during the examination of the fir st witness to say th at she could not be impartial. She was questioned outside the presence of the jury and told the court th at during voir dire she had thought th at she could be impartial, and hence she had represented to the court th at she harbored no bias or prejudice, but th at she had changed her mind after hearing opening arguments. Alt hough the court suspected th at the juror was being insincere and merely attem

pting to avoid jury duty , it dismissed her from the jury.
Frame fails to articulate how this ep iso de evinces th at voir dire rendered the trial fundament ally unfair. During voir dire (after the court had ment io ned Enron three times), the juror said she had no bias tow ard corporate executives or preconceived notions of Frame’s guilt

. Aft er 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 feelings toward corporate defendants in general and Frame in particular. The court adm onished the jury that this was not the Enron case, and the potential jurors represented th at they would reach a verdict based only on the evidence advanced during tri al. The omission of Frame’s requested questions about Enron, an unrelated case, did not render his trial fundamentally unfair, and 7 Fram e 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 wi

thin it s discretion.
AFFIRMED.