UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SHAMEEM NOEL RASSAM,
Plaintiff-Appellee,

v.

OSAMA FAWZI YOUSEF, a/k/a Osama
Fawzi,
                                                                     No. 93-1960
Defendant-Appellant,

and

ARAB HOUSTON TIMES CORPORATION;
ALLAA KASEM,
Defendants.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CA-92-1527-A)

Submitted: November 29, 1994

Decided: August 7, 1996

Before HALL and LUTTIG, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

_________________________________________________________________

COUNSEL

Osama Fawzi Yousef, Appellant Pro Se. Joseph Peter Drennan, Alex-
andria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Following a jury trial, Shameem Noel Rassam, a former radio and
television personality from Iraq living in Virginia, was awarded
$9000 in compensatory damages and $150,000 in punitive damages
from Arab Houston Times Corp. and Osama Fawzi Yousef ("Fawzi"),
for statements Defendants published in Houston Arab Times--The
International Newspaper of Arabs ("Arab Times"). Fawzi appeals,
contending that there was insufficient evidence to support the jury's
verdict, the damages award was excessive, and the trial judge's con-
duct deprived him of a fair trial. For the reasons stated below, we
affirm in part, vacate in part, and remand.

In June 1992, Rassam served as a promoter and the emcee of a fun-
draiser to benefit "Iraqi orphans and other young victims of the Gulf
War." The gala lost money, so none went to the intended beneficia-
ries. In August 1992, Arab Times published an allegedly anonymous
letter to the editor stating that Rassam had embezzled money from the
gala benefit for personal use. Rassam filed this action against Arab
Houston Times Corp., the publisher of Arab Times , and Osama Fawzi
Yousef, the editor-in-chief of Arab Times, 1 alleging common law libel
and the statutory tort of insulting words, Va. Code Ann. § 8.01-45
(Michie 1992), and demanding a retraction of the letter. Defendants
refused to print a retraction. Instead, in December 1992, the paper
printed an editorial about the lawsuit, claiming that Rassam's transla-
tor lied by mistranslating the August 1992 letter. In January 1993, the
paper published an editorial stating that "[t]he Iraqi announcer
Shameem Rassam claim [sic] that she was exposed to harassment
from Iraqi Intelligence while the rumors says [sic] that she is, pardon
me, a member of the House, and the whole story is a joke." Rassam
_________________________________________________________________
1 Initially, Rassam also sued Allaa Kasem, but she later dismissed the
claims against this Defendant.

                    2
amended her complaint to include claims for these statements, argu-
ing that the December 1992 editorial accused her of paying a transla-
tor to lie under oath and that the January 1993 editorial linked her to
Iraqi Intelligence.

The case proceeded to a jury trial. Through an Arabic language
expert and other witnesses, Rassam presented translations of the
alleged libelous statements. She also presented evidence that she nei-
ther earned nor took money from the gala, that she was not affiliated
with Iraqi Intelligence, and that the materials published in Arab Times
hurt her reputation. The organizer of the gala testified that no one at
Arab Times ever contacted him concerning Rassam or her involve-
ment in the gala.

Rassam's attorney called Fawzi as a witness. Fawzi first testified
that he never verified the claims asserted in the anonymous letter that
accused Rassam of misappropriating the gala funds; he claimed that
it was written by an Iraqi who would not give his real name for fear
of reprisal by the Iraqi government. Then, on examination of his own
attorney, Fawzi testified that he asked for and received documentation
from the letter writer supporting the allegations in the letter. He
denied that the August 1992 letter called Rassam a thief, claiming
instead that the letter said that the gala funds had been mishandled
and that Rassam and the gala organizer spent the proceeds on them-
selves. He asserted that the word "liss," an Arabic word used to
describe Rassam in the August 1992 letter, had many meanings, only
one of which was "thief," and that it had not been used in that context.

Fawzi testified that in the December 1992 editorial, he did not
accuse Rassam of paying the translator to lie under oath about the
translation of the August 1992 letter. He admitted stating that the
translator had lied about the translation. Fawzi also denied accusing
Rassam of being affiliated with Iraqi Intelligence, claiming that his
January 1993 editorial merely expressed his surprise at Rassam's
claim that Iraqi Intelligence in Washington threatened her because he
had not realized Iraqi Intelligence had a presence in Washington.
Fawzi conceded that he had no evidence that Rassam was involved
with Iraqi Intelligence.

Defendants called as a witness an American originally from Iraq,
who wrote periodically for Arab Times. He testified that the letter

                    3
published in August 1992 merely said that Rassam mismanaged the
gala proceeds and that the letter did not change his good opinion
about her. The court directed that the insulting words counts be
merged with the libel counts. The jury entered judgment for Rassam,
awarding her $3000 in compensatory damages and $50,000 in puni-
tive damages for each of the statements published in Arab Times in
August 1992, December 1992, and January 1993, for a total of $9000
in compensatory damages and $150,000 in punitive damages.

I. Jury Verdict

Fawzi contends on appeal that the evidence was insufficient to sup-
port the jury's verdict. In Virginia, the elements of libel are (1) publi-
cation (2) of an actionable statement (3) with the requisite intent. See
generally, Gazette, Inc. v. Harris, 325 S.E.2d 713 (Va.), cert. denied,
472 U.S. 1032 (1985). To be "actionable," the statement must not
only be false, but also "defamatory," in that it must "tend[ ] so to harm
the reputation of another as to lower him in the estimation of the com-
munity or to deter third persons from associating or dealing with
him." Restatement (Second) of Torts § 559 (1977); see Harris, 325
S.E.2d at 731.

By her own admission, Rassam is a public figure. To recover dam-
ages for libel, a public figure must show actual malice. Reuber v.
Food Chemical News, Inc., 925 F.2d 703, 708 (4th Cir.), cert. denied,
501 U.S. 1212 (1991). "Actual malice is defined as either knowledge
of falsity or reckless disregard for the truth or falsity of the state-
ment." Church of Scientology Internat'l v. Daniels, 992 F.2d 1329,
1332 (4th Cir. 1993). Consequently, the jury's verdict may be upheld
only if the evidence shows with convincing clarity that Fawzi knew
that the statements he published about Rassam were false or that he
recklessly disregarded the truth or falsity of those statements. Reuber,
925 F.2d at 714. Reckless disregard for the truth amounts to actual
malice if the evidence supports a conclusion that the defendant actu-
ally had doubts about the veracity of the published statements. The
failure to investigate a source does not amount to actual malice if
there was no reason to doubt the accuracy of the source. Daniels, 992
F.2d at 1334.

We find that a preponderance of the evidence supported the jury's
finding that the August 1992 letter was published and was false and

                     4
defamatory because it asserted that Rassam had embezzled money
from a charity. We find further that Rassam showed actual malice
with convincing clarity. Rassam presented evidence that Defendants
never contacted her or anyone associated with the gala before publish-
ing the offending letter. Fawzi first claimed that he never verified the
statements in the letter, but then said that he was contacted by the
anonymous letter writer who said the statements were true, but who
refused to give his name for fear of reprisal by the Iraqi government.
When Rassam first filed her lawsuit and demanded a retraction of the
letter, Defendants responded by publishing further inflammatory
statements about her. Consequently, the jury reasonably could con-
clude that Rassam's evidence was more credible than Defendants'
evidence and that Rassam's evidence was sufficient to demonstrate
actual malice with convincing clarity.

As for the December 1992 editorial, however, we find that there
was not sufficient evidence to support the jury's verdict. Rassam
claims she was libelled because the editorial said that she paid a trans-
lator to lie under oath about the translation of the August 1992 letter.
In fact, however, based on Rassam's expert's translation, the article
accused the translator of lying--it made no claim that Rassam was
responsible for the alleged mistranslation. Rassam failed to show that
the publication was defamatory because, while it might harm the
translator's reputation, it would not harm hers. In fact, Rassam pres-
ented no evidence that her reputation was harmed by the December
1992 editorial.

Similarly, Rassam failed to show that the January 1993 editorial
libelled her by linking her to Iraqi Intelligence. Rassam denied, and
Fawzi admitted that he had no evidence that she had any such associa-
tions; however, Fawzi claimed that his editorial made no such accusa-
tions. A reasonable reading of Rassam's translation of the editorial in
fact shows that the publication merely said that there were rumors that
Rassam was associated with Iraqi Intelligence. Saying that there were
rumors of an association with Iraqi Intelligence is different from say-
ing that Rassam actually was affiliated with this organization. Rassam
presented no evidence disputing that such a rumor existed. Further-
more, Rassam presented no evidence that her reputation was harmed
because people believed she was involved with Iraqi Intelligence due
to the editorial. We find that Rassam failed to show that the article

                     5
defamed her, much less that Defendants published it with actual mal-
ice.

II. Excessive Damages

Fawzi contends that the damages award was excessive. Because
Rassam failed to meet the burden of proof for libel regarding the
December 1992 and January 1993 editorials, she was not entitled to
damages for these claims. Consequently, we consider only whether
the jury awarded excessive damages for the August 1992 letter.

Where a plaintiff must prove actual malice to recover damages in
a libel action, "an appellate court has an obligation to make an inde-
pendent examination of the entire record in order to insure that the
judgment of the trial court does not constitute a forbidden intrusion
on the exercise of free expression." The Gazette, 325 S.E.2d at 727.
Thus, to uphold the award of compensatory or punitive damages, the
appellate court must find clear and convincing evidence of actual mal-
ice. Id. "Where a punitive award is substantially in excess of what
ordinarily might be expected as punishment for the particular conduct,
the reviewing court has a duty to annul the award unless the circum-
stances are so egregious as to constitute a sufficient punishment for
the wrongful activity." Id. at 746. Finally, this Court has held that
under Virginia law, punitive damages must be proportional to the
compensatory damages award, must not give the plaintiff a double
recovery, and must be awarded only after consideration of the effect
of the award on the defendant. Johnson v. Hugo's Skateway, 974 F.2d
1408, 1418 (4th Cir. 1992).

The judge's instructions to the jury on punitive damages embodied
these standards. The jury awarded Rassam $3000 in compensatory
damages and $50,000 in punitive damages for the August 1992 letter
accusing her of misappropriating the funds from the benefit gala.

As stated above, there was clear and convincing evidence of actual
malice concerning the August 1992 letter. People called Rassam a
thief after the letter was published, the accusation published in the
paper was false, Rassam received disturbing calls and stopped going
out in public, Defendants never checked with anyone associated with
the gala to confirm the letter's accusation, and after the lawsuit was

                    6
filed and Rassam demanded a retraction, Defendants instead pub-
lished additional inflammatory remarks about her. Fawzi testified that
the retail price of Arab Times was one dollar per issue and that the
paper had a typical circulation of about 9000 copies, but sometimes
published up to 50,000 copies per issue. The jury's $50,000 punitive
damages award could have reflected the maximum gross income Arab
Times could have received for the August 1992 issue containing the
libellous statements, namely $50,000 reflecting the sale of 50,000
copies of the August 1992 issue at one dollar per copy. We find that
neither the $3000 compensatory damages award nor the $50,000
punitive damages award for the August 1992 letter was excessive.

III. Judicial Misconduct

Fawzi also complains that he was denied a fair trial because the
trial judge's conduct demonstrated partiality. Specifically, he charges
that the judge improperly questioned witnesses and allowed only por-
tions of a deposition of an unavailable witness 2 to be read into evi-
dence.

Rule 614(b) of the Federal Rules of Evidence allows a court to "in-
terrogate witnesses, whether called by itself or by a party." See also
Glasser v. United States, 315 U.S. 60, 82 (1942); United States v.
Seeright, 978 F.2d 842, 847 (4th Cir. 1992). This Court has described
the trial judge's duties as follows:

            [T]he role of the district judge . . . is"not that of an umpire
            or of a moderator at a town meeting. He sits to see that jus-
            tice is done in the cases before him; and it is his duty to see
            that a case on trial is presented in such way as to be under-
            stood by the jury, as well as by himself. He should not hesi-
            tate to ask questions for the purpose of developing the facts;
_________________________________________________________________
2 Defendants subpoenaed Saba Shami, a friend of Rassam's attorney,
to testify, but he did not appear. Rassam's counsel's private investigator
discovered that Shami was actually in town but had not appeared in
accordance with the subpoena. The court allowed Defendants to have
portions of Shami's deposition, selected by Defendants' counsel, read
into evidence.

                    7
          and it is no ground of complaint that the facts so developed
          may hurt or help one side or the other."

United States v. Parodi, 703 F.2d 768, 775 (4th Cir. 1983) (quoting
Simon v. United States, 123 F.2d 80, 83 (4th Cir.), cert. denied, 314
U.S. 694 (1941)). If, however, a trial judge's questions or comments
are so prejudicial that they deprive a defendant of a fair trial, as
opposed to a perfect trial, then the defendant is entitled to a new trial.
Parodi, 703 F.2d at 776. To decide whether such abuses have
occurred, the appellate court must look not only at the challenged
questions, but also at the judge's demeanor and conduct "throughout
the trial, to search the record for evidence of partiality or bias that
might indicate a belief on the judge's part that the defendant[ ] [was]
`guilty' or suggest that he had usurped the function of prosecutor." Id.
We reviewed the record with these standards in mind and conclude
that the district court did not exceed its discretion in questioning the
witnesses.

Finally, although on appeal Fawzi complains that the trial court
should have allowed Shami's entire deposition to be read into the
record, Defendants' counsel was able to introduce the portions of the
transcript he deemed important and there is no evidence that the out-
come of the trial would have been different had the entire deposition
been read. Consequently, we find that there was no judicial miscon-
duct in this case.

Conclusion

For these reasons, we affirm the portion of the district court's order
upholding the jury's verdict and the damages awarded to Rassam for
the August 1992 letter, but vacate the portion of the order upholding
the jury's finding of libel and award of damages as to the December
1992 and January 1993 editorials and remand for an entry of judg-
ment reflecting these changes. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the Court and argument would not aid the decisional
process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

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