United States v. Frame

United States Court of Appeals
Fifth Circuit
F I L E D
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 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
statement in violation of 18 U.S.C. § 1001.
The convictions stem from Frame’s orchestra-
tion of the payment of his personal legal bills
from Seitel’s funds and deceptive statements
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

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he made (and disclosures he failed to make)
about the scheme. Frame challenges the dis-
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
questions about the prospective jurors’ opin-
ions about the infamous Enron case.
II.
“A district court’s refusal to include a de-
fendant’s proposed jury instruction in the
charge is reviewed under an abuse of discre-
tion standard, and the trial judge is afforded
substantial latitude in formulating his instruc-
tions.” 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 sub-
stantivelycorrect; (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 ade-
quately” address the issues, there is no abuse
of discretion. Daniels, 247 F.3d at 601. A re-
jection of a defendant’s request for an instruc-
tion on reliance on the advice of counsel is not
an abuse of discretion if there is insufficient
evidence that the defendant consulted with at-
torneys. United States v. Tannehill, 49 F.3d
1049, 1057-58 (5th Cir. 1995).
The court issued a specific intent instruc-
tion and instructions defining “knowingly” and
“willfully”1 but did not include Frame’s re-
quested instructions on good faith2 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 defen-
dant 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 intend-
ing 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 in-
tentionally and not because of mistake or acci-
dent.
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, in-
consistent with the criminal intent required for
conviction of the charges (sic) offenses, as de-
fined 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...)

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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 in-
clusion 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 “know-
ingly” makes false or fraudulent pretenses, rep-
resentations, 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 tak-
ing 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 de-
fendant’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 re-
quired 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 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 disclo-
sure to his attorney of all important material
facts which he or she had knowledge of or had
means of knowing, then acted strictly in accor-
dance with the advice of that attorney. That ad-
vice that the attorney gave following this full
report of disclosure, defendant would not be
willfully or deliberately doing wrong in per-
forming 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 re-
ceived 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...)

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that the omission of a good faith jury instruc-
tion is not an abuse of discretion if the defen-
dant 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 was required 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 in-
sufficient evidence to warrant the instruction.
Frame’s counsel conceded, at the jury charge
conference, that no evidence had been ad-
vanced showing that Frame had discussed this
matter with his lawyers; counsel claimed only
that “it appears clear that he did rely” on law-
yers who reviewed documents for him.
Finally, the court stated that Frame was free
to argue both defenses during closing. Indeed,
Frame’s good faith and his reliance on the ad-
vice of counsel were central to his attorney’s
closing arguments.6 Because the jury instruc-
tions “fairly and adequately” addressed
Frame’s defenses, the decision to deny the re-
4(...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 (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 coun-
sel 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 (5th Cir. 1996); United States v. Dan-
iels, 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.

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quested instructions was not an abuse of dis-
cretion.
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 exer-
cising 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. Hino-
josa, 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 bur-
den the question’s exclusion must “render the
defendant’s trial fundamentally unfair.” Mu’-
Min, 500 U.S. at 416 (citing Murphy v. Flori-
da, 421 U.S. 794, 799 (1975)).
The court admonished the jury that this was
not the Enron case. It asked whether any po-
tential juror had a problem giving the pre-
sumption of innocence to a corporate defen-
dant; none did.7 Frame’s counsel asked
whether any potential juror had a preconceived
notion of Frame’s guilt; none did. Several po-
tential 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
potential jurors’ feelings about his CEO capac-
ity as long as the questions were relevant to
Frame’s case.
The only evidence Frame advances con-
cerning the alleged insufficiency of voir dire is
the dismissal of a juror who approached the
case manager at a recess during the examina-
tion 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 preju-
dice, but that she had changed her mind after
hearing opening arguments. Although the
court suspected that the juror was being insin-
cere 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 funda-
mentally 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 of Frame’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 op-
ening statements.
Frame was permitted to question potential
jurors about their thoughts and feelings toward
corporate defendants in general and Frame in
particular. The court admonished the jury that
this was not the Enron case, and the potential
jurors represented that they would reach a ver-
dict based only on the evidence advanced dur-
ing 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 explor-
ing “the venire’s feelings toward corporate Amer-
ica.” To the contrary, the potential jurors were
asked about their feelings toward corporate defen-
dants and affirmed that they were not biased
against them.

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thus the court acted within its discretion.
AFFIRMED.

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