United States v. Melendez-Rivas , 566 F.3d 41 ( 2009 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 07-1962
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    ANGEL A. MELENDEZ-RIVAS,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. José A. Fusté, U.S. District Judge]
    Before
    Lynch, Chief Judge,
    Selya and Lipez, Circuit Judges.
    Rafael F. Castro Lang for appellant.
    Nelson Pérez-Sosa, Assistant United States Attorney, with
    whom Rosa Emilia Rodriguez-Velez, United States Attorney, was on
    brief for appellee.
    May 15, 2009
    LYNCH, Chief Judge.         In a crime apparently motivated by
    jealousy over a woman, the woman's suitor, Kelvin Ramos, was taken
    from his motorcycle in a Puerto Rican housing project, forced into
    a van by a group of assailants, including defendant, and murdered
    by the father of her children.         The murderer was killed, perhaps by
    Ramos's friends, before any federal charges were brought.
    The defendant here, Angel Melendez-Rivas, maintained his
    innocence on the stand and said he was forced to participate in the
    crime.    He was convicted of conspiracy and of aiding and abetting
    a motor vehicle hijacking with intent to cause death, as well as of
    a firearms offense during and in relation to the crime.                   Three
    other co-defendants were also charged, but the indictments against
    them were dismissed without prejudice, at the government's request,
    on the eve of trial.        Melendez-Rivas, who had no prior criminal
    record,   was   sentenced    to   50    years'   imprisonment,     after   the
    government declined to seek the death penalty.
    Melendez-Rivas     appeals,       primarily   arguing   that    the
    evidence was insufficient to meet the elements of the offenses of
    conviction and that he is entitled to an acquittal.            We disagree.
    Defendant's second argument is that the intervention of the trial
    court in questioning a defense witness went beyond the appropriate
    limits and put prejudicial, inadmissible hearsay before the jury,
    to his detriment. We are sufficiently concerned about the possible
    interference with defendant's fair trial rights engendered by the
    -2-
    particular questions and answers that we vacate the conviction and
    remand for a new trial.
    I.
    Appeal From Denial of Rule 29 Motion
    We     first    address    the       defendant's   argument     that   the
    evidence was insufficient.           If defendant is correct, then the case
    ends and he may not be tried again.                See Smith v. Massachusetts,
    
    543 U.S. 462
    , 467 (2005) ("[T]he Double Jeopardy Clause of the
    Fifth    Amendment       prohibits    reexamination         of    a    court-decreed
    acquittal to the same extent it prohibits reexamination of an
    acquittal by jury verdict.").               "For purposes of assessing the
    sufficiency claim, we recite the facts in the light most favorable
    to the verdict."      United States v. Upton, 
    559 F.3d 3
    , 6 (1st Cir.
    2009).
    A.         Factual background
    On the evening of June 16, 2005, Kelvin Ramos drove his
    Hyabusa Suzuki motorcycle to the Quintana Housing Project, where
    his girlfriend Taishanet Falu lived.                He wore a red shirt, short,
    black    pants,    and     jewelry,       including    a    bracelet      watch   and
    distinctive gold chain.        The chain was a thick "Cuban-type" chain
    with two panthers and the letter "K" on it.                           While visiting
    Taishanet,   Kelvin       received    a    phone     call   and   went    to   leave.
    Taishanet also left her home and went over to visit her sister
    -3-
    GinLin Falu Garcia and her cousin Glenda Falu Rivera, both of whom
    also lived at the Quintana Project.
    As Kelvin got on his motorcycle, three men surrounded
    him.       At trial, Taishanet identified them as Edwin, Taishanet's
    estranged husband and the father of her children, Johal, a known
    associate of Edwin, and Melendez-Rivas.      Edwin held a gun up to
    Kelvin's face on one side of the motorcycle, while Johal stood on
    the other side of the motorcycle, and Melendez-Rivas stood behind
    Johal.       Taishanet yelled at Edwin and begged him not to harm
    Kelvin, at which point Edwin said to her: "Don't you get up close
    here, because I will hit you with the gun, you little bitch."
    Johal grabbed Taishanet while Edwin confronted Kelvin and told him
    to pull up his shirt.      Kelvin pulled out his gun from under his
    shirt and gave it to Edwin, who handed the gun to Melendez-Rivas.
    Taishanet continued to beg Edwin not to hurt Kelvin.     Kelvin told
    her he would be fine and asked her to leave.
    Soon after, "Bondy," co-defendant Luis Nieves-Burgos,
    arrived in a white and gray van.1       Bondy got out of the van as
    Edwin and Melendez-Rivas struggled with Kelvin to get him off the
    1
    The government's theory of the events of June 16 differs
    substantially from the defendant's account of the events that
    evening, as we discuss later in more detail.        The government
    theorized based on Taishanet's testimony that Bondy drove the van
    to the scene of the kidnapping, that Johal drove the van away, and
    that the defendant was already there with Edwin and Johal before
    the van arrived. The defendant testified that he drove the van to
    and from the scene, an account consistent with the testimony of one
    government eyewitness.
    -4-
    motorcycle and into the back of the van.   Edwin and Melendez-Rivas
    forced Kelvin into the van, which Johal then drove away.
    Shortly afterward, "Jonty," co-defendant John T. Ayala,
    arrived with "Pupen," co-defendant José Luis Cora-Meléndez.    They
    tried to start the motorcycle but were unable to ride it.     Later,
    Guillermo Rodriguez arrived and drove the motorcycle away.
    Taishanet then returned to her house with her sister, who
    contacted Kelvin's wife, Irysa García-Reyes to let her know what had
    happened   to   Kelvin and that she thought he had been killed.
    Taishanet tried to call Kelvin's cell phone several times; once,
    Edwin picked up, and when Taishanet told him not to harm Kelvin,
    Edwin started laughing.
    Taishanet testified that later that evening, she saw
    Edwin and Melendez-Rivas in the project.    She saw that Edwin was
    wearing Kelvin's jewelry. Edwin said to her, "I gave him 30 because
    he is a pig."
    Kelvin's body was found two days later with thirty-two
    gunshot wounds.     There was no physical evidence other than the
    jewelry linking the death to the defendant.       The government's
    argument at trial was that the defendant's presence at the scene
    where Kelvin was forced off his motorcycle and the fact that Edwin
    handed Melendez-Rivas Kelvin's gun proved intent to aid and abet.
    -5-
    B.        Sufficiency challenge
    Defendant's argument that the district court erred in
    denying his motion for acquittal is based on a misapprehension of
    the elements of the statutory offense; it is also foreclosed by
    circuit precedent.   Our review is de novo both because we are
    reviewing evidentiary sufficiency and because we are interpreting
    the terms of a statute.   United States v. Teleguz, 
    492 F.3d 80
    , 86
    (1st Cir. 2007) ("Our review of legal questions is de novo, and we
    review the entire record on [the defendant's] sufficiency claim.").
    If a reasonable factfinder could have found the defendant
    guilty beyond a reasonable doubt, we must affirm.   United States v.
    Lipscomb, 
    539 F.3d 31
    , 40 (1st Cir. 2008) ("Viewing the evidence in
    the light most flattering to the jury's guilty verdict, we assess
    whether a reasonable factfinder could have concluded that the
    defendant was guilty beyond a reasonable doubt.").
    Here, the jury answered a special verdict that "the
    taking of the motorcycle occur[red] with the intent to cause death
    or serious bodily injury [to Kelvin Ramos]" and that "[t]he intent
    or motive behind the killing of [Ramos] was . . . jealousy."
    Melendez-Rivas argues from this second finding.    He says
    the relevant motive which separates the federal crime from a state
    crime is the motive for the ultimate killing (not the taking of the
    vehicle), and since the motive for the killing found by the jury
    here was jealousy, no federal crime was committed.
    -6-
    He is wrong.     Not only does the specific language of the
    statute say otherwise but our case law has already rejected this
    argument.
    The statute reads:
    Whoever, with the intent to cause death or
    serious bodily harm takes a motor vehicle that
    has been transported, shipped, or received in
    interstate or foreign commerce from the person
    or presence of another by force and violence
    or by intimidation, or attempt to do so, shall
    . . . (3) if death results, be fined under
    this title or imprisoned for any number of
    years up to life, or both, or sentenced to
    death.
    18 U.S.C § 2119(3) (emphasis added).
    The requisite intent was that first found by the jury:
    that at the time the victim's motorcycle was taken, it was done with
    the intent to cause death or serious bodily injury.           The relevant
    intent may be conditional -- that is, the intent requirement is
    satisfied   if   at   the   time   Melendez-Rivas   took   control   of   the
    motorcycle, he had an intent to kill or cause serious bodily injury
    to the driver, whether or not the intent was necessary to take the
    vehicle.    Holloway v. United States, 
    526 U.S. 1
    , 12 (1999) ("The
    intent requirement of § 2119 is satisfied when the Government proves
    that at the moment the defendant demanded or took control over the
    driver's [vehicle] the defendant possessed the intent to seriously
    harm or kill the driver if necessary to steal the [vehicle] (or,
    alternatively, if unnecessary to steal the [vehicle]).").                 The
    statute does not require that the taking of the motor vehicle be "an
    -7-
    ultimate motive for the crime."       United States v. Rivera-Figueroa,
    
    149 F.3d 1
    , 4 (1st Cir. 1998).         Rather, "[i]t is enough that the
    defendant be aware that the action in which he is engaged, whether
    by himself or through direction or assistance to another, involves
    the taking of a motor vehicle."        
    Id.
    More recently, in United States v. García-Álvarez, 
    541 F.3d 8
     (1st Cir. 2008), this court rejected an argument similar to
    defendant's.     Defendant there argued that he took the victim's car
    solely for use as a getaway vehicle and that the taking of the car
    was never the motive for the crime.          García-Álvarez affirmed the
    Rivera-Figueroa holding that the taking of a vehicle need not be the
    ultimate motive for the crime under § 2119(3).             Id. at 6.
    Based on the evidence here, Melendez-Rivas had to be
    aware that he was involved in the taking of a motor vehicle, and
    that Ramos had already started the motorcycle when Melendez-Rivas
    and his co-defendants surrounded him.        They had to take control of
    the motorcycle in order to subdue Ramos.        In doing so, they pointed
    a gun at the victim, showing an intent to cause death or serious
    injury, an intent reinforced by what happened next.            The evidence,
    viewed   in    the   light   most   favorable   to   the    government,   was
    sufficient.
    We affirm the denial of his motion for judgment of
    acquittal.
    -8-
    II.
    Questioning by the District Court and Answers Elicited
    Two separate strands of legal doctrine are combined in
    defendant's     second   challenge.      He   first   argues   that   certain
    questions, which were asked by the trial judge, elicited answers
    that   were   inadmissible   and   prejudicial    because      the   responses
    erroneously suggested to the jury that Melendez-Rivas was involved
    in other crimes not charged in the instant indictment.
    Secondly, defendant argues, the prejudicial effect on
    defendant was made worse by the fact that it was the trial judge who
    asked the questions sua sponte and then refused to give any curative
    instruction.     In reviewing the district court's questioning, our
    "inquiry . . . necessarily turns on the question of whether the
    complaining party can show serious prejudice."          Logue v. Dore, 
    103 F.3d 1040
    , 1045 (1st Cir. 1997).
    A.            Conflicting testimony presented at trial
    We set the stage.       The evidence presented was largely
    testimonial, and the witnesses' accounts often conflicted. The jury
    faced credibility contests on several central issues in the case.2
    First, Melendez-Rivas testified that he was driving the van home,
    2
    Indeed, at closing argument, the prosecution emphasized
    the inconsistencies and credibility contests in the case,
    characterizing the defendant's account as too "convenient" to be
    believed, and insisting that Taishanet could not have simply
    "ma[d]e . . . up" her account.
    -9-
    when he arrived at a spot in the street where he was blocked by the
    kidnappers who were confronting Kelvin.         He further testified that
    he only became involved in driving the getaway van because he had
    been threatened by Edwin and Johal, who carried loaded guns when
    they demanded he become involved and drive the van.            He feared he
    would be killed if he did not participate.       He said he did not force
    Kelvin into the van.      Finally, he also testified that he had no
    prior criminal record and was not friendly with the other men
    accused of kidnapping Kelvin.        The crime was motivated by Edwin's
    jealousy, the defendant claimed, and he carried no grudge against
    Kelvin and had no reason to be involved in killing him. We describe
    the testimony in more detail below.
    The prosecution anticipated and countered defendant's
    themes with Taishanet's testimony, which was the primary evidence
    presented against the defendant at trial.3         Taishanet's testimony
    painted a picture of voluntary participation by the defendant.
    Taishanet placed the defendant as already at the basketball court
    with   Edwin   and   Johal:   she   testified   that   the   three   of   them
    3
    Defendant also argues that the prosecution engaged in
    improper vouching during its questioning of Taishanet and that the
    district court erred in admitting her testimony that the FBI had
    instructed her to tell the truth. The defendant did not object on
    this basis in the district court, and therefore our review is for
    plain error. There was no error in this regard, let alone plain
    error.
    -10-
    confronted Kelvin and forced him off his motorcycle.4   Indeed, the
    defendant took the gun from Edwin when Edwin disarmed Kelvin.   This
    was the strongest evidence at trial contradicting defendant's claim
    of coercion.
    Taishanet testified that Bondy, not Melendez-Rivas, then
    arrived in a white van and that it was Edwin, Johal, and the
    defendant who forced Kelvin into the van. She stated that Bondy got
    out of the truck, that Edwin and Melendez-Rivas forced Kelvin into
    the back of the van, and that Johal (not defendant) then got into
    the van and drove it away.   Further, she testified that later that
    evening, she saw Edwin, accompanied by Melendez-Rivas, and that
    Edwin (and not Melendez-Rivas) was wearing Kelvin's jewelry.    The
    defendant, by contrast, claimed he did not see Edwin and Johal until
    the next day.
    To attack Taishanet's credibility, defense counsel on
    cross-examination elicited testimony from Taishanet that she never
    reported Kelvin's kidnapping to the police, that she had received
    $2600 for her testimony, and that she associated with several
    notorious local criminals and had never reported their criminal
    activities.
    One of the prosecution's two other eyewitnesses, GinLin,
    arrived on the scene after the altercation had already begun and so
    4
    Although witnesses and the government described Kelvin as
    Taishanet's boyfriend, she denied having a romantic relationship
    with him and stated that they were just friends.
    -11-
    could not address whether defendant initially had been forced to
    participate.      Her testimony confirmed only that Melendez-Rivas had
    driven the van away, a point Melendez-Rivas admitted, but that
    conflicted with Taishanet's testimony that Johal had driven the
    getaway vehicle.      She further testified that Edwin and Johal (and
    not    Melendez-Rivas)    dragged   Kelvin    into   the   van,   which   was
    consistent with Melendez-Rivas's testimony.           She also said that
    later that evening, she saw the defendant (rather than Edwin, as
    Taishanet had testified) wearing Kelvin's "K" necklace, and that he
    was standing with Edwin and Johal.
    The     prosecution's    third     eyewitness, Glenda, whose
    credibility was under heavy attack at trial, testified she saw Edwin
    point a gun at Kelvin to force him off the motorcycle and that Johal
    and the defendant were there.         She testified that she then ran
    upstairs into her aunt's house.            Her testimony did not address
    whether defendant was participating voluntarily. She testified that
    she then ran out onto the balcony and saw Edwin put Kelvin into the
    van.    She stated that Melendez-Rivas got into the front passenger
    door of the van before it drove away.        She did not see who drove the
    van away.    She testified that she later saw Edwin, but that she
    could not identify who he was with.
    Glenda admitted that she initially told the FBI agents
    that she only saw Edwin and Johal on June 16, and that after being
    shown a picture of Melendez-Rivas she told the agents that she had
    -12-
    not seen him.        Cross-examination further elicited that two FBI
    agents had approached Glenda three months later and told her that
    they believed that Melendez-Rivas was involved and that she had
    committed a very serious crime by not giving them the information
    they wanted.        Only after that did she say that she had seen the
    defendant on the evening of June 16.
    The   prosecution    presented   additional   evidence    in   an
    effort to refute Melendez-Rivas's defense theories in several ways.
    It tried to establish that: (1) Melendez-Rivas was friends with
    members of the group which had accosted Kelvin (thus making it
    improbable that he was forced into participating); (2) Melendez-
    Rivas had admitted this connection to FBI agents who investigated
    the crime in the project; and (3) Melendez-Rivas had Kelvin's
    distinctive jewelry, a Cuban-type chain with two panthers containing
    a   letter.     Despite    the    difference   between   "A"   and   "K,"    the
    prosecution's theory was that defendant's "A" necklace was the same
    "K" necklace that originally belonged to Kelvin, and that defendant,
    prior to Kelvin's murder, had worn a simpler gold chain.             Melendez-
    Rivas denied the first two and put on evidence (including from his
    wife and two jewelers who claimed to have made the necklace) of his
    prior ownership of the similar Cuban-type "A" chain.
    During the defense case, Melendez-Rivas testified that
    although he was driving the white van, he was coerced into becoming
    involved in the altercation between Kelvin and Edwin, Johal, and
    -13-
    Pupen.   Defendant testified that he was driving from the project
    basketball court when he stopped the van near where the others were
    already confronting Kelvin on his motorcycle. Defendant stated that
    at that time, he saw Taishanet, GinLin, and Glenda in the street.
    At that point, defendant testified, Edwin and Johal had a gun on
    Kelvin and they forced Kelvin into the rear of the van.   Edwin then
    went to the front passenger door and "told me to take off."
    Melendez-Rivas said he obeyed because Edwin "had two weapons and I
    understood that if I didn't take off, they were going to kill me."
    He testified that Edwin and Johal let him out of the van once they
    left the housing project with Kelvin, he walked to his mother's
    house, which was also in the project, and Edwin and Johal drove the
    van away with Kelvin still alive inside.    Although Taishanet and
    GinLin testified they saw defendant that evening in the project with
    Edwin,5 defendant said he did not see Edwin and Johal until the next
    day, when they came by to threaten defendant not to tell anything
    to the police.
    Melendez-Rivas further testified that he had no prior
    record and he did not "hang with" the conspirators.    He said that
    although he knew Kelvin as an acquaintance from vocational school,
    he had carried no grudge against Kelvin and had never been in a
    5
    GinLin testified to having seen Edwin, Johal, and
    defendant, while Taishanet testified she saw only Edwin and
    defendant. Glenda saw Edwin that evening, but she testified that
    she could not identify who was with Edwin.
    -14-
    fight with him.      He also stated that he was afraid to go to the
    police because he was afraid of Edwin and Johal because they ran the
    drug point at the Quintana project.
    B.          Questioning by the district court
    The   district   court's   questioning,    challenged    by   the
    defendant, occurred during the re-cross-examination of a defense
    witness    and   police   officer,   Victor   Rivera   Martinez,    who   was
    Melendez-Rivas's father-in-law.6       On re-direct, Rivera stated that
    he was familiar with the neighborhood, that he knew of no close
    relationship between Melendez-Rivas and Edwin and Johal, and that
    this was despite the fact that Edwin and Johal were notorious
    figures at the Quintana project.
    Before beginning re-cross-examination, the prosecutor
    requested a bench conference where she stated that, in order to
    undermine the defense's lack of connection theory, she wanted to ask
    Rivera about whether he knew that defendant had admitted to the FBI
    that he was in the van with Edwin and Johal on the evening of June
    16.   This statement was the subject of a pending suppression
    motion.7    The district court determined that it would not allow
    6
    When Rivera took the stand, the defendant had not yet
    testified.
    7
    The court completed the suppression hearing later in the
    trial, at defense counsel's request. The court determined that
    defendant's statements to the FBI during two separate interviews
    were voluntary admissions, that the statements to the FBI only
    confirmed what was already in the record, and that not only was the
    information admissible, "some of it [was] even exculpatory, up to
    -15-
    questions directly about the statements to the FBI, but that the
    prosecution could ask about rumors regarding connections between
    Melendez-Rivas and the kidnappers on the evening of the kidnapping.
    On   re-cross-examination,   the   prosecution,   trying   to
    undermine the defense's lack of connection theory, asked Rivera
    about whether he had heard that the defendant, Edwin, and Johal had
    taken Kelvin outside the project on the night of June 16.       A bench
    conference ensued over the questioning, the court directed the
    prosecution to ask about rumors.
    The prosecution then asked whether Rivera had heard
    rumors as to what had happened to Kelvin on June 16.             Rivera
    answered "yes, that's right."    The district court then asked "what
    have you heard?"    Rivera stated that he had heard a rumor "[t]hat
    Mr. Cora, Edwin and Johal took [Kelvin] out [of] the housing
    project."   Defendant was not mentioned.   The prosecution then asked
    whether Rivera had heard that it was Melendez-Rivas who took Kelvin
    out of the project.   Rivera responded "Never" and proceeded to deny
    hearing about any connection between the defendant and the men who
    had kidnapped Kelvin.
    At that point the district court intervened and asked
    questions, apparently meant to refer back to the prosecution's
    suggestion that defendant had earlier admitted his connection to
    a certain point, in favor of [defendant]."
    -16-
    other kidnappers to the FBI agents.          The questioning went as
    follows:
    The Court:   Did the FBI ever interview you
    about the facts of this case?
    Rivera: They made a comment to me one time
    when they came by the front of my house.
    The Court:   And can I ask you what the comment
    was?
    Rivera: They went to the house of a neighbor,
    and when I am coming to my house, one of the
    agents comes up to me and says to me that my
    son-in-law was involved in a series of felony
    crimes that could lead to the death penalty.
    Defense Counsel:   I have an objection at this
    time.
    The Court: That is what they told you?      That
    is what they told you?
    Rivera:   That is correct.
    Defense Counsel:    I have an objection and a
    motion.
    The Court:    You can make your motion. Please
    approach.
    The Court:   And, of course, you did not believe
    that?
    Rivera:   No, never in my life.
    A bench conference ensued.    The defense objected and immediately
    moved for a mistrial on the grounds that "[Rivera] has now said that
    the FBI told him that there were a series of felonies that could
    lead to the death penalty.     That has been introduced.      There is
    nothing to that." The court responded, "You heard what I said, 'and
    -17-
    you did not believe that?' And he said, 'No.'"          Defense counsel
    responded, "But the FBI said it."    The court then overruled defense
    counsel's objection and denied his motion for a mistrial.8
    The court also denied a subsequent written motion for
    reconsideration of the defendant's motion for a mistrial, which
    elaborated on defense counsel's objections to the testimony. In the
    memorandum accompanying the motion, defense counsel made three
    central arguments regarding the judge's interjection into the cross-
    examination of Rivera.      First, defense counsel argued that the
    judge's question called for a hearsay answer and that the answer
    elicited was hearsay.      Second, defense counsel stated that the
    departure from the district court's otherwise neutral conduct during
    the trial posed particular risks:
    The Court has more credibility than either
    party before a jury. The manner in which this
    was done would reasonably make it seem to a
    juror that the Court is imparting information
    to them that it wants them especially to have
    because of its importance.
    Finally,   defense   counsel   explained   the   prejudicial   effect   on
    defendant's trial strategy:      "A crucial element for the defense
    . . . was to highlight the fact that the defendant had no prior
    involvement with the criminal justice system, and was therefore an
    8
    Following the suppression hearing the next day on the
    admissibility of defendant's statements to the FBI, the prosecution
    recalled Rivera to ask only whether it would surprise him to learn
    that the defendant had admitted to the FBI that he was with Edwin
    and Johal in the van on the evening of June 16 and that defendant
    had "hung out" with them. Rivera said it would surprise him.
    -18-
    unlikely person to have been chosen to engage in the conduct of
    which he stands accused," and that as a result of the district
    court's question, "the average juror will [receive] the impression
    that the Court has doubts about a key element of the defense."      In
    what defense counsel described as "a close case on the evidence
    [where] [t]here is no overwhelming proof of guilt," any such
    influence by the district court must affect the jury's verdict.
    In the same written motion, defense counsel requested, in
    the alternative, a curative instruction as follows:
    You are instructed that a judge may ask
    questions during a case. However, on occasion
    a judge may ask a question that is not proper
    and which you should not consider.        This
    happened in this case. This Court asked a
    question of the witness, Police Officer Victor
    Rivera[,] which brought about an answer that
    is improper for you to consider. Therefore,
    you are instructed to strike from your minds
    the question asked by the Court and the
    response of the witness. It would be a
    violation of your oath as jurors to consider
    that question and the response to it.
    The district court denied the motion altogether, including the
    requested instruction.
    C.        The district court's denial of      the   motions   for   a
    mistrial and curative instruction
    We consider the court's questions, the elicited answers,
    the refusal to give any curative instructions, and what impact they
    may have had.
    -19-
    1.       Judge's power to question witnesses
    The prosecution argues that the court did nothing more
    than to exercise its power under Fed. R. Evid. 614(b) to interrogate
    witnesses.        It is well-established that judges are free to ask
    questions to elicit facts to facilitate a "clear presentation of the
    issues."   United States v. Rosario-Peralta, 
    199 F.3d 552
    , 560 (1st
    Cir. 1999).   Nonetheless, the judge's right to ask questions should
    be "exercised with care," Logue, 
    103 F.3d at 1045
    , particularly when
    doing so may affect the rights of a criminal defendant.       The need
    for restraint is related to the need for a judge to "be balanced;
    he cannot become an advocate or otherwise use his judicial powers
    to advantage or disadvantage a party unfairly."      
    Id.
    There is particular concern when it is the judge's
    questioning which brings in evidence which is both inadmissible and
    prejudicial hearsay.       4 J.B. Weinstein & M.A. Berger, Weinstein's
    Federal Evidence § 614.04[1][b], at 614-15 (J.M. McLaughlin ed., 2d
    ed. 2006) ("There is . . . the danger that the judge may elicit from
    the witness responses hurtful to the accused, and to which the jury
    may assign peculiar weight because of their ostensible judicial
    sponsorship.").      Defendant argues that in a close case, the risk is
    particularly acute: the judge's interjection suggested that the
    court might have additional information about defendant's guilt, and
    cast serious doubt on Melendez-Rivas's central defenses.
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    The prosecution contends the court was only seeking
    clarity to assist the jury.9        See Rodriguez v. Banco Cent. Corp.,
    
    990 F.2d 7
    , 12 (1st Cir. 1993).           Although the prosecution did not
    create the problem, it is held accountable for it.
    The mere crossing of the line by a diligent trial judge
    will not itself lead to reversal.         United States v. Paiva, 
    892 F.2d 148
    , 159 (1st Cir. 1989). In evaluating whether defendant has shown
    sufficient prejudice, we consider all the factors in the case.               If
    this   case   were   solely   to   rest    on   a   claim   that   the   court's
    questioning evidenced partiality to the prosecution, we would deny
    relief.    Cf. Deary v. City of Gloucester, 
    9 F.3d 191
    , 194-95 (1st
    Cir. 1993) (rejecting allegation that trial judge was so biased as
    to deprive defendant of a fair trial).                 A different type of
    prejudice is at issue here, as we explain below.
    2.     Introduction    of     inadmissible     and   prejudicial
    hearsay
    We conclude that defendant was seriously prejudiced.
    First, the question about what comments the FBI had made to the
    witness called for inadmissible hearsay.            The witness's answer was
    not only inadmissible, but was very harmful to the defendant: the
    FBI agent purportedly stated "that [Melendez-Rivas] was involved in
    9
    The problem is not one of the judge's questioning
    interfering with the jury's proper role.    See United States v.
    Ofray-Campos, 
    534 F.3d 1
    , 18 (1st Cir. 2008). Nor is the problem
    really one of the judge becoming a witness. See Quercia v. United
    States, 
    289 U.S. 466
    , 470 (1933).
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    a series of felony crimes that could lead to the death penalty."
    The jury could easily have understood this to be a representation
    that Melendez-Rivas was involved in other serious crimes, crimes so
    serious as to raise the prospect of the death penalty.              That was
    simply untrue.        Second, this certainly undercut the defendant's
    testimony that he had no criminal record or charges against him and
    did not associate with two notorious criminals in the project.
    Further, the jurors could have perceived the question as
    enhancing the prosecution's effort to impeach a defense witness.
    See   4   Weinstein    &   Berger,   supra,    §   614.04[4][b],   at   614-27
    (suggesting that the trial court ought not conduct questioning that
    resembles a cross-examination challenging the credibility of a
    witness).
    Over counsel's objection, the court did not strike the
    answer and tell the jury to disregard it.           Instead, the court asked
    again whether that is what the FBI agents had told the witness. The
    witness answered, "That is correct."           This repetition, made within
    earshot of the jurors, reinforced the prejudicial effect.
    Counsel objected again.           Before counsel could approach
    the bench, the court, perhaps realizing the potential prejudice to
    defendant, may have attempted to ameliorate the problem by asking
    if the witness believed the FBI, and then repeated that the witness
    disbelieved what the FBI agents had said.               We cannot say with
    confidence this ameliorated the harm.               In addition, this then
    -22-
    created an issue for the jury of whether the defendant's father-in-
    law or the FBI was lying.      There was never any curative instruction
    given.     The prejudice was not offset by the judge's preliminary
    instructions at the start of trial.         Those instructions were that
    "nothing that I may say or nothing that I may do is intended to
    indicate, nor should [it] be taken by you as indicating, what your
    verdict should be," and that the jury "should never be influenced
    by any ruling that I make or for the reasons behind the ruling."
    These instructions are mismatches to the problem at
    hand.10    Nor were instructions given which were closer to a match.
    The   totality   of   the   record   shows   that   the   judge's
    questions    elicited   inadmissible,      prejudicial    testimony.      The
    testimony was not stricken, nor was a curative instruction given.
    The inadmissible evidence contradicted one of defendant's central
    10
    There was, for example, no instruction that the jury
    should not assume the court had any view on the subject of the
    court's questions and that the jury could disregard all the court's
    questions. 4 Weinstein & Berger, supra, § 614.04[4][c], at 614-
    28.1 to -28.2 ("The risk that a judge's questioning conveys a
    message regarding a defendant's guilt may be reduced by instructing
    the jurors that they should not assume that the judge holds any
    opinion on the subject of the court's questions and that the jury
    may disregard all the court's comments in arriving at its findings
    of fact."); see also Rivera-Torres v. Ortiz Velez, 
    341 F.3d 86
    , 100
    (1st Cir. 2003) ("[A]ny possible risk of prejudice to [defendant]
    as a result of the judge's questions was abated by the clear
    instruction to the jury that it should ignore any impression that
    his questions might have had on them." (alterations in original)
    (quoting United States v. Henry, 
    136 F.3d 12
    , 19 (1st Cir. 1998)));
    United States v. Candelaria-Silva, 
    166 F.3d 19
    , 36 (1st Cir. 1999)
    (strong jury instructions sufficient to eliminate any potential
    prejudice stemming from judge's "facial expressions" or other signs
    of frustration exhibited in contentious trial).
    -23-
    defenses and cast doubt on the credibility of his coercion defense.
    We cannot say this error was harmless.
    III.
    We vacate and remand to the district court for a new
    trial.
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