United States v. Joseph Pritchard ( 2012 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 29 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 10-50438
Plaintiff - Appellee, D.C. No. 8:08-cr-00267-R-2
v.
MEMORANDUM*
JOSEPH GRANSON PRITCHARD,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 10-50459
Plaintiff - Appellee, D.C. No. 8:08-cr-00267-R-3
v.
RONNIE JOSEPH JOHNSON, AKA
Ronnie Johnson,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 10-50490
Plaintiff - Appellee, D.C. No. 2:99-cr-01214-R-1
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
v.
RONNIE JOSEPH JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted March 7, 2012
Pasadena, California
Before: THOMAS, WARDLAW, and BERZON, Circuit Judges.
Joseph Granson Pritchard and Ronnie Joseph Johnson appeal their
convictions for conspiracy to commit bank robbery (18 U.S.C. § 371), armed bank
robbery (18 U.S.C. § 2113(a); (d)), and using a firearm during a crime of violence
(18 U.S.C. § 924(c)). We reverse. Because the parties are familiar with the factual
and procedural history of the case, we need not recount it here.
Appellants contend that the trial judge interfered with the trial so extensively
as to render it unfair. After a thorough review of the record, we agree.
Accordingly, we reverse and remand this case for a new trial before a different
judge.
While a district court judge has considerable discretion in the management
of his courtroom, the judge “must be ever mindful of the sensitive role [he] plays
-2-
in a jury trial and avoid even the appearance of advocacy or partiality.” United
States v. Harris, 501 F.2d 1, 10 (9th Cir. 1974). A trial court’s participation in the
proceedings warrants reversal “if the record ... leaves the reviewing court with an
abiding impression that the judge’s remarks and questioning of witnesses projected
to the jury an appearance of advocacy or partiality.” United States v. Mostella, 802
F.2d 358, 361 (9th Cir. 1986) (internal quotation marks omitted).
The trial judge interrupted the defense over 70 times, but he interrupted the
government only once. His interruptions of the defense’s cross-examination of a
cooperating witness effectively prevented the defense from presenting its theory of
impeachment. He referred to “gang members” in front of the jury; although the
statement was ambiguous, the jury could well have understood it as applying to the
defendants. We have criticized some of the trial judge’s statements in the past, and
he repeated them here, almost verbatim. Compare United States v. Scott, 642 F.3d
791, 799 (9th Cir. 2011) (noting the trial judge’s criticism of defense counsel for
“failing to ‘give th[e] jury [ ] credit for brains’”) with the judge’s statement in this
case (“THE COURT: Counsel, the jury can see it. Please. Give them some
principles of brains.”). He also accused defense counsel of “playing games” for
legitimately cross-examining a witness. During Johnson’s closing argument, the
trial judge sua sponte instructed the jury that “[t]he investigation [of the
-3-
government] is not on trial here; the defendants are” – erroneously implying that
the jury was not to scrutinize the government’s investigation or consider the
absence of evidence in reaching its verdict.
Considered in isolation, these errors might not warrant reversal. However,
considered cumulatively, they lead us to conclude that the trial judge “created an
atmosphere in which an objectively fair trial could not be conducted.” Harris, 501
F.2d at 11 n. 20. “[T]he cumulative effect was so pervasive and prejudicial as to
require a new trial.” United States v. Pena–Garcia, 505 F.2d 964, 967 (9th Cir.
1974).
We therefore REVERSE Appellants’ convictions, VACATE their sentences,
and REMAND for a new trial with instructions that the Clerk of the Court for the
Central District of California reassign this case to a different judge.
REVERSED AND REMANDED WITH INSTRUCTIONS.
-4-