                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                 AUG 1 2000
                                    TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                     Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                          No. 99-8078
                                                       (D.C. No. 96-CR-15-4-B)
 JAMES L. McALEER,                                      (District of Wyoming)

           Defendant-Appellant.




                                 ORDER AND JUDGMENT*


Before BALDOCK, Circuit Judge, MURPHY, Circuit Judge, and McWILLIAMS,
Senior Circuit Judge.


       On January 26, 1996, James McAleer, his wife, Shirley McAleer, and five others,

namely, James Gilmore, his daughter, Mary Gilmore, Anthony Carta, Floyd Wise and

Lauree Wise, were variously indicted in a 21-page indictment filed in the United States

District Court for the District of Wyoming with conspiracy to launder money in violation

of 18 U.S.C. § 1956(h), with wire fraud in violation of 18 U.S.C. § 1343, with securities

fraud in violation of 15 U.S.C. §§ 77(q)(a) and 77(x), and with mail fraud in violation of



       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
18 U.S.C. § 1341. All defendants except for the one defendant, James Gilmore, were

jointly tried in a jury trial which commenced on November 4, 1996.1 All six defendants

were convicted by the jury. A motion for new trial filed by each of the six convicted

defendants was granted on the grounds that there had been prosecutorial misconduct on

the part of the prosecuting attorney who had repeatedly inquired of Mary Gilmore, in his

cross-examination of her, as to whether she had “taken the Fifth Amendment” during

certain administrative proceedings. (The government conceded error in its cross-

examination of Mary Gilmore.) The defendants in that first trial then filed motions to

dismiss the indictment on the grounds that to retry them would violate the Double

Jeopardy Clause of the Fifth Amendment of the United States Constitution. The district

court denied those motions and, on appeal, we affirmed. United States v. McAleer, 138

F.3d 852 (10th Cir. 1998), cert. denied, 525 U.S. 854 (1998).

       James and Shirley McAleer were the only two defendants tried in the second trial

of this case, the other four defendants having entered into plea agreements with the

government. By the time of the second trial Mary Gilmore had married Anthony Carta

and both agreed to testify as government witnesses against the two McAleers.

       The second jury acquitted Shirley McAleer on all counts, but convicted James

McAleer on one count of securities fraud and one count of mail fraud. James McAleer




       The one defendant, James Gilmore, was not tried, he having remained in England
       1

and extradition efforts having proved unsuccessful.

                                           -2-
was subsequently sentenced to five months of custody followed by five months of home

detention. He now appeals his conviction and the sentence imposed.

       On appeal, counsel asserts three grounds for reversal: (1) prosecutorial misconduct

in closing argument to the jury deprived McAleer of a fair trial as guaranteed by the Sixth

Amendment to the United States Constitution; (2) the district court erred in allowing one

of the government’s witnesses, Donald MacPherson, an attorney, to testify concerning

various communications he had with McAleer, since such came within the attorney-client

privilege; and (3) the district court erred in limiting counsel’s cross-examination of Mary

Carta (nee Gilmore) in violation of the Confrontation Clause of the Sixth Amendment.2

       At oral argument of this case, counsel’s principal argument related to the court’s

limitation of his cross-examination of Mary Carta, and we shall consider that issue first.

Prior to the second trial, McAleer’s counsel filed a motion in limine in which he asked,

inter alia, as follows:

            Prohibit Witnesses from Referring to the Prior Trial or the
       Outcome of that Trial

                  Evidence regarding the outcome of the prior trial is
              irrelevant and unduly prejudicial to Defendant James


       2
        At trial, counsel’s theory of the case was that James McAleer at all times was
acting in “good faith” and that McAleer was a “victim” of James Gilmore’s elaborate
scam in which McAleer did not in any way participate. On appeal, counsel does not
contend that the evidence is insufficient to support the jury’s verdict that McAleer was
guilty on one count of securities fraud and one count of mail fraud. Accordingly, the
chronology of events will not be recounted here. For background facts, see United States
v. McAleer, 138 F.3d 852 (10th Cir. 1998), cert. denied, 525 U.S. 854 (1998).

                                            -3-
             McAleer. Therefore, the Defendant requests that it be
             excluded from the second trial pursuant to Evidence Rules
             401, 402, and 403.
                 The Defendant requests that all parties be ordered to
             admonish each of their witnesses not to refer to the outcome
             of that trial. If a witness is impeached with his or her prior
             testimony from the first trial, that witness should be
             admonished to only refer to their “prior testimony” without
             any mention of the jury verdict or the Court’s decision to
             grant the motions for new trial (emphasis added).

      In a written response to counsel’s motion the government spoke as follows:

                Defendant requests that all parties be prohibited from
             referring to the prior outcome of the trial as being irrelevant
             and the United States agrees. The United States proposes that
             the language for impeaching or refreshing the recollection of
             a witness be as follows: “Do you recall testifying at a prior
             hearing . . . .”

      The district court, prior to the second trial granted McAleer’s motion and the

colloquy between court and counsel on this matter reads as follows:

                 THE COURT: A hearing in the case of United States
             versus McAleer and McAleer on the defendants’ motions in
             limine. The first is a motion to instruct the jury on the
             definitions of conspiracy and good faith. I will do that, so we
             need not argue it.
                 The next is to prohibit witnesses from referring to the
             outcome of the prior trial. I don’t think anybody is going to
             do that, are they? So let’s go at it.
                 MR. PICO: We are going to avoid even referring to a prior
             trial. We will refer at best as we can and all our witnesses
             will be instructed to refer to a prior hearing because
             obviously we have a full transcript of testimony here and I
             think it is going to be clumsy just to say, “Didn’t you give
             testimony?” I think we need to refer to some sort of a prior
             hearing.
                 THE COURT: You can call it a hearing but not a trial.

                                          -4-
                 MR. ENGELHARD: Your Honor, if I could be heard on
              that point, perhaps --
                 THE COURT: Well, we can’t deal with it as if it never
              occurred, so it did occur so we’ve got to call it something. A
              hearing is as good as any.
                 MR. ENGELHARD: But, Your Honor, there may be times
              – and I’m not sure at this point, but I would like to leave that
              matter open or at least --
                 THE COURT: No, it is already ruled on. That’s the
              difficulty with it.3

       Counsel’s argument, as we understand it, is that the district court committed

reversible error in refusing to allow him to show that Mary Carta’s “prior testimony”

occurred during the “first trial,” when McAleer, Mary Carta, and four others were all on

trial. As indicated, the district court in its pre-trial ruling ordered that any reference to

testimony given by any witness in the “first trial” be phrased as testimony given in a

“prior hearing.” In this connection, we note that it was counsel for McAleer who first

asked the district court to “Prohibit Witnesses from Referring to the Prior Trial or the

Outcome of that Trial.” Further, in that same motion, counsel asked that in impeaching a

witness by his prior testimony at the first trial “the witness should be admonished to only

refer to their ‘prior testimony’ . . . .” The government agreed and suggested that the

appropriate language for impeaching a witness or refreshing his memory would be to

ask: “Do you recall testifying at a prior hearing . . . .” It is correct that at the hearing on

McAleer’s motion in limine his counsel backed off, a bit, from his original request and at


       3
         At a subsequent point in the hearing on counsel’s motion in limine, counsel stated
that a reference to prior “court proceeding [as opposed to a “prior trial”] would be okay.”

                                              -5-
that time indicated he “would like to leave that matter open or at least . . . .” Further, the

record indicates that during his cross-examination of Mary Carta, counsel apparently

changed his mind and decided that he wanted the jury to know that Mary Carta’s “prior

testimony” occurred at a so-called “first trial,” where James McAleer, his wife Shirley,

and Mary Carta, along with her husband, Anthony Carta, and Floyd and Lauree Wise

were all on trial. At a sidebar conference during his cross-examination of Mary Carta,

counsel stated that he wanted the court “to allow me to cross-examine Miss Gilmore

[Mary Carta] on the fact that her prior testimony was in a jury trial here in court” and that

“she lied in a very similar situation while she was being tried for her own guilt . . . .” The

district court denied counsel’s request and said his prior ruling on the matter would

“stand.” Counsel’s reply was that he did not want to ask “any questions about the result

in the case” and only wanted to show that her prior testimony was given in a jury trial

with “12 people sitting in that jury box just as they are now and that she lied to them.”

In this general connection, we note that in his cross-examination of Mary Carta, counsel

did establish that her prior testimony “back on December 10, 1996” occurred “right here

in this court” at which time “she raised her right hand” and “swore to tell the truth” and

that her prior testimony was “in front of Judge Brimmer.”

       As indicated, on appeal counsel argues that the district court erred in not allowing

him in his cross-examination of Mary Carta to show that her “prior testimony” occurred

during a so-called “first trial,” rather than at a “prior hearing” or “prior proceeding ,” and


                                             -6-
that had he been allowed to show that her “prior testimony” occurred at a “prior trial,” he

could have then argued to the jury in the second trial that Mary Carta had, in his view, at

least, lied to an earlier jury and that such supported counsel’s belief that she had lied in

her testimony before the second jury. We are not persuaded by this line of reasoning. It

is just too tenuous. In this regard, it is well to note that counsel for McAleer first raised

this issue in his motion in limine wherein he suggested that the district court at the

second trial should “admonish” a witness at the second trial “to only refer to their ‘prior

testimony’ . . . .”

       We recognize that at the hearing on the motion in limine counsel hedged a bit on

his earlier request, although at that hearing counsel did indicate that referring to the prior

hearing as a prior “court proceeding would be okay.” Further, it was clearly established

on cross-examination of Mary Carta that her “prior testimony” was in a hearing, or

proceeding, where she raised her right hand and swore to tell the truth before a judge.

Clearly, the jury knew that the “prior testimony” did not occur at some prior informal

hearing. If the jury had learned that Mary Carta’s prior testimony occurred at a prior trial

of McAleer, the obvious next step would be what was the outcome of the trial, which all

agree would be improper. We think that, all things considered, the district court “drew

the line” in about the proper place. Under the facts and circumstances of the present

case, we perceive no particular prejudice from the court’s rulings, and any possible error




                                             -7-
would be harmless error.4

       Counsel next argues that improper closing argument to the jury by the prosecution

dictates a reversal of McAleer’s conviction and sentence. In his final argument to the

jury the prosecuting attorney characterized certain testimony of McAleer as being a “bald

faced lie.” Counsel objected to that statement as being the prosecutor’s “personal belief”

and that such was “inappropriate.” The objection was overruled without argument. The

prosecutor then immediately thereafter suggested to the jury that the basis for his

statement was that McAleer’s testimony at trial regarding a particular matter was at odds

with a tax return for 1994 which McAleer had signed. Moments later, after the

prosecutor had concluded his argument, counsel, outside the presence of the jury,

renewed his objection to the prosecutor’s statements, arguing that the prosecutor’s

“personal belief” that McAleer lied in his testimony was improper and that the prosecutor

in his final closing argument improperly suggested that if the jury returned a “not guilty”

verdict, “then get ready for you and your friends or whoever to buy some units.”

Counsel then asked for a mistrial, or in the alternative for a “curative” instruction. The

district court denied the motion for a mistrial, but gave the following curative instruction



       4
        We reject counsel’s suggestion that the reasoning of the Second Circuit in United
States v. Giovanelli, 945 F.2d 479 (2nd Cir. 1991), if followed, would dictate a reversal of
the present judgment and sentence. That case presented an unusual fact situation not
presented by the instant case. In that case the Second Circuit, in holding that the
distinction between “proceeding” and “trial” was not “minimal,” tied its holding to the
“context of this case.” Id. at 493. Our case is not the factual equivalent of Giovanelli.

                                            -8-
to the

jury:

                    Ladies and gentlemen, I found it necessary to give you a
                further instruction that you should take with you to the jury
                room along with the other instructions to consider, and it is
                this: In closing arguments, Assistant United States Attorney
                Mr. Pico may have stated a personal opinion that the
                defendants lied about having put their own money in the
                Gilmore programs. It is improper for a prosecutor to state a
                personal opinion.
                    Second, Mr. Pico’s reference to the McAleers’ 1994 tax
                return in support of the government’s claim only relates to the
                McAleers’ costs in 1994. You should rely on all the evidence
                in this case to determine whether or not the McAleers paid
                money to purchase units in other calendar years and any
                inferences to be drawn therefrom.
                    Finally, any argument that you should find the defendants
                guilty to stop others from continuing Gilmore-related
                programs or any argument to send a message to anyone is not
                a proper argument and you should disregard such argument
                entirely.

         We find no error in the district court’s handling of this matter. It is agreed that a

prosecutor’s expression of his personal belief that a defendant is guilty, or lying in his

testimony before the jury, is improper. However, as we read the record, the prosecutor’s

argument was that the tax return for 1994 demonstrated that McAleer was lying in some

of his testimony before the jury. In any event, in our view the curative instruction

prepared by defense counsel, which covered both matters, took care of any problem.

Neither, under the circumstances, warrants a reversal.

         In his brief, counsel for McAleer also asserts that the district court erred in


                                               -9-
allowing Donald MacPherson to testify as a government witness, arguing that such

violated the attorney-client privilege, the work product doctrine and the common interest

privilege. In both of McAleer’s trials the district court overruled counsel’s objections to

MacPherson’s testimony on the grounds, inter alia, that there was no showing of the

existence of any attorney-client relationship between MacPherson and McAleer and that

the latter had disclosed many of the documents in question to numerous third parties,

thereby waiving any possible privilege. In his oral argument in this court, counsel made

no mention whatsoever of this particular matter and only argued the two matters set forth

above. Be that as it may, we are not persuaded that the district court erred in allowing

MacPherson to testify against McAleer. Nor are we persuaded by counsel’s suggestion

that there was some sort of an attorney-client relationship between MacPherson and

McAleer. MacPherson may well have been representing other persons or entities in

connection with other aspects of this wide ranging scam, but not McAleer. The district

court did not abuse its discretion.

       Judgement affirmed.

                                                    Entered for the court,



                                                    Robert H. McWilliams
                                                    Senior Circuit Judge




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