## Facts

- Warren P. Tilghman, a former U.S. Department of Agriculture employee, received federal disability benefits for about thirteen years.
- Tilghman incorporated a one-person EEO consulting business, Tilghman Enterprises Ltd. (TEL), and pursued federal contracts investigating discrimination complaints.
- To keep receiving disability payments, Tilghman annually submitted Department of Labor Form 1032, which required disclosure of self-employment, other employment, earnings, the market rate for uncompensated work, and work in any revenue-producing enterprise even if it operated at a loss.
- Except for one year, Tilghman answered “no” to Form 1032 questions about being employed or self-employed and wrote “n/a” for earnings; in 1991 he reported $1,500 in self-employment income.
- The government indicted Tilghman for mail fraud and for making false statements to obtain compensation and to a federal agency, based on alleged concealment of his consulting work.
- At trial, Tilghman’s defense was lack of intent: he claimed TEL operated at a loss, he took no salary, and a Department of Labor employee told him he could earn up to $300 per month without reporting it.
- During Tilghman’s testimony, the trial judge questioned him extensively, including asking twice about the alleged phone call, “We just have to take your word for it?” and remarking about TEL, “It’s a peculiar business where everybody stays in for years and loses money all the time.”
- The jury convicted Tilghman on one mail-fraud count and four misdemeanor false-statement counts tied to Form 1032 filings.

## Issues

1. Whether the trial judge’s questioning of the defendant under Federal Rule of Evidence 614(b) improperly conveyed disbelief to the jury, depriving the defendant of a fair trial.
2. If the questioning was improper, whether the error was harmless given the role of the defendant’s credibility in the case.

## Decision

- The court of appeals reversed the convictions and remanded for a new trial.
- The court held that the judge’s questions and comments could have communicated to the jury that the judge disbelieved Tilghman.
- Because Tilghman’s defense depended heavily on his personal credibility, the court could not conclude the judicial conduct was harmless.

## Legal Principles

- Federal Rule of Evidence 614(b) permits a judge to question witnesses, but the judge must maintain impartiality and avoid conduct that suggests belief or disbelief in a witness.
- In a criminal case where the defendant’s credibility is central to intent, judicial questioning that appears skeptical or disparaging poses a substantial risk of unfairly influencing the jury.
- Harmless-error analysis turns on context, including the nature and tone of the questions, the likely effect of the judge’s authority on the jury, and whether credibility was dispositive.

## Conclusion

The court ordered a new trial because the trial judge’s pointed questioning and comments could reasonably have led jurors to think the judge discredited the defendant, and the appellate court could not deem that risk harmless where the verdict depended largely on the defendant’s credibility.


United States v. Tilghman, 134 F.3d 414 (D.C. Cir. 1998)