                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                                                  In the                                  May 25, 2007
                       United States Court of Appeals                               Charles R. Fulbruge III
                                      for the Fifth Circuit                                 Clerk
                                            _______________

                                              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,                        Paul Frame appeals his conviction. Finding
  Circuit Judges.                                      no abuse of discretion, we affirm.

JERRY E. SMITH, Circuit Judge:*                                                I.
                                                          Frame was the President and CEO of Seitel,
                                                       Inc. (“Seitel”), a large public corporation. He
                                                       was convicted by a jury of mail fraud, wire
   *                                                   fraud, money laundering, and making a false
    Pursuant to 5TH CIR. R. 47.5, the court has de-
                                                       statement in violation of 18 U.S.C. § 1001.
termined that this opinion should not be published
and is not precedent except under the limited cir-
                                                       The convictions stem from Frame’s orchestra-
cumstances set forth in 5TH CIR. R. 47.5.4.            tion of the payment of his personal legal bills
                                                       from Seitel’s funds and deceptive statements
he made (and disclosures he failed to make)              “willfully”1 but did not include Frame’s re-
about the scheme. Frame challenges the dis-              quested instructions on good faith2 and reli
trict court’s refusal to include jury instructions
on good faith and reliance on the advice of
counsel and its refusal to ask seven voir dire              1
                                                                The three instructions were as follows:
questions about the prospective jurors’ opin-
ions about the infamous Enron case.                            The offenses charged in this case require
                                                            proof of specific intent on the part of the defen-
                       II.                                  dant before the defendant can be convicted.
    “A district court’s refusal to include a de-            Specific intent, as that term implies, means
fendant’s proposed jury instruction in the                  more than general intent to commit the act. To
charge is reviewed under an abuse of discre-                establish specific intent, the government must
tion standard, and the trial judge is afforded              prove that the defendant knowingly did an act
substantial latitude in formulating his instruc-            which the law forbids or knowingly failed to do
                                                            an act which the law requires, purposely intend-
tions.” United States v. Daniels, 247 F.3d
                                                            ing to violate the law.
598, 601 (5th Cir. 2001) (quoting United
States v. Rochester, 898 F.2d 971, 978 (5th                   The word “knowingly,” as that term has been
Cir. 1990)). The court abuses its discretion                used from time to time in these instructions,
only if “(1) the requested instruction is sub-              means that the act was done voluntarily and in-
stantivelycorrect; (2) the requested instruction            tentionally and not because of mistake or acci-
is not substantially covered in the charge given            dent.
to the jury; and (3) it concerns an important
point in the trial so that the failure to give it             The word “willfully,” as that term has been
seriously impairs the defendant’s ability to                used from time to time in these instructions,
effectively present a particular defense.”                  means that the act was committed voluntarily
United States v. St. Gelais, 952 F.2d 90, 93                and purposely with the specific intent to do
(5th Cir. 1992) (citing United States v. Hunt,              something the law forbids; that is to say, with
794 F.2d 1095, 1097 (5th Cir. 1986)).                       bad purpose either to disobey or disregard the
                                                            law.
   If the given instructions “fairly and ade-               2
                                                              Frame’s proposed good faith instruction was
quately” address the issues, there is no abuse           as follows:
of discretion. Daniels, 247 F.3d at 601. A re-
jection of a defendant’s request for an instruc-               The good faith of a defendant is a complete
tion on reliance on the advice of counsel is not            defense to the charges in this case because good
an abuse of discretion if there is insufficient             faith on the part of the defendant is, simply, in-
evidence that the defendant consulted with at-              consistent with the criminal intent required for
torneys. United States v. Tannehill, 49 F.3d                conviction of the charges (sic) offenses, as de-
1049, 1057-58 (5th Cir. 1995).                              fined in the foregoing instructions.

   The court issued a specific intent instruc-                A person who acts, or causes another to act,
                                                            on a belief or an opinion honestly held is not
tion and instructions defining “knowingly” and
                                                            punishable merely because the belief or opinion
                                                            turns out to be inaccurate, incorrect, or wrong.
                                                            An honest mistake in judgment or an honest
                                                                                              (continued...)

                                                     2
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
  2
   (...continued)                                          an instruction on reliance on counsel. The
  error in management does not give rise to the            court emphasized that Frame would have the
  level (sic) of criminal conduct.                         opportunity to present both defenses to the
                                                           jury during closing arguments.
    A defendant does not act in “good faith” if,
  even though he or she honestly holds a certain              Frame correctly identifies cases in which
  opinion or belief, that defendant also “know-            we found abuse of discretion where a court
  ingly” makes false or fraudulent pretenses, rep-         omitted a good faith instruction despite the in-
  resentations, or promises to others.                     clusion of instructions defining specific intent,
                                                           “knowingly,” and “willfully.” See United
    While the term “good faith” has no precise             States v. Goss, 650 F.2d 1336, 1344 (5th Cir.
  definition, it encompasses, among other things,
                                                           1981); United States v. Fowler, 735 F.2d 823,
  a belief or opinion honestly held, absence of
                                                           828-29 (5th Cir. 1984). But, “later caselaw
  malice or ill will, and an intention to avoid tak-
  ing unfair advantage of another.                         has effectively by-passed [Goss and Fowler].”
                                                           United States v. Hunt, 794 F.2d 1095, 1098
    In determining whether or not the government           (5th Cir. 1986).4 Since Hunt, we have held
  has proven that a defendant acted with requisite
  criminal intent or whether the defendant acted
                                                              3
  in good faith, the jury must consider all of the             (...continued)
  evidence received in the case bearing on the de-            and made a full and accurate report of disclo-
  fendant’s state of mind.                                    sure to his attorney of all important material
                                                              facts which he or she had knowledge of or had
     The burden of proving good faith does not                means of knowing, then acted strictly in accor-
  rest with the defendant because the defendant               dance with the advice of that attorney. That ad-
  does not have any obligation to prove anything              vice that the attorney gave following this full
  in this case. It is the government’s burden to              report of disclosure, defendant would not be
  prove to you, beyond a reasonable doubt, that               willfully or deliberately doing wrong in per-
  the defendant acted with the criminal intent re-            forming some act as to those terms, as those
  quired to convict him of the crimes charged.                terms are used in these instructions.

    If the evidence in the case leaves the jury with            Whether the defendant acted in good faith for
  a reasonable doubt as to whether the defendant              the purpose of truly seeking guidance as to the
  acted with the requisite criminal intent or in              question about which he was in doubt and
  good faith, the jury must acquit the defendant.             whether he made a full and complete reported
                                                              disclosure to an attorney and whether he or she
  3
      The requested instruction was as follows:               acted strictly in accordance with the advice re-
                                                              ceived are all questions for you to determine.
     Defendant, before taking any action, while
                                                              4
  acting in good faith for the purposes of asking               In Hunt we held that Goss and Fowler were
  for advice of a lawyer, for his or her possible          inconsistent with earlier cases such as United
  future conduct sought and obtained advice of an          States v. Wellendorf, 574 F.2d 1289 (5th Cir.
  attorney whom he considered to be competent              1978), and that the conflict had to be resolved in
                                    (continued...)                                              (continued...)

                                                       3
that the omission of a good faith jury instruc-            vice of counsel were central to his attorney’s
tion is not an abuse of discretion if the defen-           closing arguments.6 Because the jury instruc-
dant is able to present his good faith defense to          tions “fairly and adequately” addressed
the jury through, inter alia, witnesses, closing           Frame’s defenses, the decision to deny the re-
arguments, and the other jury instructions.5
   Frame was able to present his good faith
                                                              6
defense to the jury. The instructions defining                 The following quotations are from the closing
specific intent, “knowingly,” and “willingly”              argument of Frame’s counsel:
make plain that the jury was required to acquit
Frame if, because of his good faith, he lacked                SS [In order to convict] you have to believe that
specific intent. As for reliance on counsel, the              whatever those acts were that he committed
court did not abuse its discretion in finding in-             were done with a certain type of state of mind
sufficient evidence to warrant the instruction.               . . . . If you don’t believe that Mr. Frame had
                                                              the requisite state of mind in order to commit
Frame’s counsel conceded, at the jury charge
                                                              that offense, then you cannot convict him. You
conference, that no evidence had been ad-                     must find him not guilty.
vanced showing that Frame had discussed this
matter with his lawyers; counsel claimed only                 SS [O]ther people who were testifying for him
that “it appears clear that he did rely” on law-              told you that they believed that he acted in good
yers who reviewed documents for him.                          faith for the benefit of his corporation.

   Finally, the court stated that Frame was free              SS Mr. Frame told you that he thought he acted
to argue both defenses during closing. Indeed,                in good faith for the benefit of the corporation.
Frame’s good faith and his reliance on the ad-
                                                              SS [Frame] also told you that he relied on his
                                                              employees, he relied on a staff of CPAs at Ernst
   4                                                          & Young that they paid a lot of money to, he
     (...continued)
favor of the earlier cases. Hunt, 794 F.2d at 1098            relied on his attorney.
(citing United States v. Gray, 751 F.2d 733, 735-
36 (5th Cir.1985)).                                           SS I know there was no intent on Paul Frame’s
                                                              part to commit a crime. And in order to convict
   5
      See, e.g., Hunt, 794 F.2d at 1098; United               him of any of these charges, you have to believe
States v. Fooladi, 746 F.2d 1027, 1030 (5th Cir.              that there was a specific intent.
1984); United States v. Gray, 751 F.2d 733, 736-
37 (5th Cir. 1985); United States v. St. Gelais, 952          SS [In order to convict] you have to believe that
F.2d 90, 93-94 (5th Cir. 1992) (“We find that the             he had a specific intent to defraud his company.
court’s charge adequately conveyed the concept of
good faith to the jury and that, while defense coun-          SS [Frame] did what he ordinarily does not do.
sel did not mention the words “good faith” in his             He stepped back and he let two layers, who he
closing argument, his remarks put the concept of              thought were good people and who he trusted
good faith and innocent motive before the jury.               and who he thought had his best interest at
Thus, the district court did not commit reversible            heart, handle a sticky personal situation.
error . . . .”); United States v. Peterson, 101 F.3d
375, 382-83 (5th Cir. 1996); United States v. Dan-            SS Now, if you’re going to find him guilty of
iels, 247 F.3d 598 (5th Cir. 2001); United States             something, add another little line there: Paul
v. Gonzales, 436 F.3d 560, 571 (5th Cir.), cert.              Frame is an idiot for trusting [his lawyers] to
denied, 126 S. Ct. 2363 (2006).                               take care of this lawsuit for him.

                                                       4
quested instructions was not an abuse of dis-             that he could impartially hear and decide the
cretion.                                                  case. Frame was free to probe further into the
                                                          potential jurors’ feelings about his CEO capac-
                       III.                               ity as long as the questions were relevant to
    Frame argues that his Sixth Amendment                 Frame’s case.
right to an impartial jury was violated because
the court refused his request to ask seven voir               The only evidence Frame advances con-
dire questions concerning the well-publicized             cerning the alleged insufficiency of voir dire is
Enron trial. “Voir dire examination serves the            the dismissal of a juror who approached the
dual purposes of enabling the court to select             case manager at a recess during the examina-
an impartial jury and assisting counsel in exer-          tion of the first witness to say that she could
cising peremptory challenges.” Mu’Min v.                  not be impartial. She was questioned outside
Virginia, 500 U.S. 415, 431 (1991). “We                   the presence of the jury and told the court that
grant broad discretion to the trial judge in              during voir dire she had thought that she could
making determinations of impartiality and will            be impartial, and hence she had represented to
not interfere with such decisions absent a clear          the court that she harbored no bias or preju-
abuse of discretion.” United States v. Hino-              dice, but that she had changed her mind after
josa, 958 F.2d 624, 631 (5th Cir. 1992). The              hearing opening arguments. Although the
mere fact that an excluded question would                 court suspected that the juror was being insin-
have been helpful is insufficient to render its           cere and merely attempting to avoid jury duty,
exclusion unconstitutionalSSto meet this bur-             it dismissed her from the jury.
den the question’s exclusion must “render the
defendant’s trial fundamentally unfair.” Mu’-                Frame fails to articulate how this episode
Min, 500 U.S. at 416 (citing Murphy v. Flori-             evinces that voir dire rendered the trial funda-
da, 421 U.S. 794, 799 (1975)).                            mentally unfair. During voir dire (after the
                                                          court had mentioned Enron three times), the
   The court admonished the jury that this was            juror said she had no bias toward corporate
not the Enron case. It asked whether any po-              executives or preconceived notions of Frame’s
tential juror had a problem giving the pre-               guilt. After hearing opening statements, she
sumption of innocence to a corporate defen-               changed her mind. Frame fails to explain why
dant; none did.7 Frame’s counsel asked                    detailed questions concerning Enron would
whether any potential juror had a preconceived            have caused her change to her mind before op-
notion of Frame’s guilt; none did. Several po-            ening statements.
tential jurors had knowledge of someone who
had been charged with fraud, and each said                   Frame was permitted to question potential
                                                          jurors about their thoughts and feelings toward
                                                          corporate defendants in general and Frame in
   7
     Frame argues that by not allowing detailed           particular. The court admonished the jury that
questions concerning the potential jurors’ feelings       this was not the Enron case, and the potential
about Enron, the court prevented him from explor-         jurors represented that they would reach a ver-
ing “the venire’s feelings toward corporate Amer-
                                                          dict based only on the evidence advanced dur-
ica.” To the contrary, the potential jurors were
                                                          ing trial. The omission of Frame’s requested
asked about their feelings toward corporate defen-
dants and affirmed that they were not biased
                                                          questions about Enron, an unrelated case, did
against them.                                             not render his trial fundamentally unfair, and

                                                      5
thus the court acted within its discretion.

   AFFIRMED.




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