United States v. Saenz

REVISED, March 31, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 96-40546
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BALTAZAR SAENZ,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
February 2, 1998
Before DeMOSS and DENNIS, Circuit Judges, and ROSENTHAL*,
District Judge.
PER CURIAM:
Defendant-appellant Baltazar Saenz was convicted
following a jury trial on one count of conspiracy to possess with
the intent to distribute a quantity in excess of 100 kilograms of
marijuana, and one count of possession with the intent to
distribute approximately 1,185 pounds of marijuana.
*
District Judge of the Southern District of Texas, sitting by
designation.
p:\cases\5thcir\96-40546\96-40546.op6 1
The primary basis for Saenz’s challenge to his conviction
is that the district court deprived him of a fair trial by
questioning witnesses in a manner and to a degree that made the
court appear to be partial to the prosecution.1 Saenz argues that
the district court’s questions of the chief prosecution witness and
of the defendant confused the jury as to the court’s function and
led the jury to believe that the court favored the prosecution’s
case. The government responds that the court was merely attempting
to clarify fact issues for the jury and that it did not create an
appearance of favoring the prosecution’s case.
We hold that under the unusual combination of
circumstances present here, the cumulative effect of the trial
court’s questions deprived Saenz of a fair trial. We reverse and
remand for a new trial.
I. Factual Background
In late 1994 and early 1995, the United States Customs
Service (“Customs”) office in Brownsville, Texas began an
undercover sting operation designed to identify marijuana
traffickers. Customs suspected Israel Soto-Zamarano (“Soto”) of
running a drug trafficking organization. Customs planned to have
an undercover agent pose as a truck driver and offer to transport
a large shipment of marijuana for Soto. The goal was not to make
1
Saenz also asserts that the government made prejudicial and
inflammatory remarks that deprived Saenz of a fair trial; the district court
improperly charged the jury; and the government presented insufficient evidence
to convict Saenz of possession of marijuana with intent to distribute. This
court does not reach these grounds.
2
immediate arrests, but to identify other suspected traffickers and
expand the investigation.
An undercover Customs agent established contact with Soto
as planned. Soto arranged to deliver approximately 1,185 pounds of
marijuana to the undercover agent in Brownsville on February 8,
1995, for shipment to the Tampa, Florida area. Israel Soto’s
brother, Ernesto Soto, was to receive the marijuana in the Tampa,
Florida area. Israel Soto gave the agent a Florida telephone number
for Ernesto Soto. Israel Soto intended to travel to Florida to
oversee the delivery of the marijuana to his brother. However, on
February 9, 1995, Israel Soto was arrested in Brownsville on an
unrelated charge of weapons possession and incarcerated in the
Cameron County jail. Customs agents found Baltazar Saenz’s name
and telephone number on a piece of paper in Israel Soto’s wallet.
Despite Israel Soto’s arrest, Customs proceeded with the
marijuana delivery as planned. Customs flew the marijuana to
Tampa. The delivery to Ernesto Soto was scheduled to occur at 6:00
p.m. on February 14, 1995, in a motel parking lot in Wesley Chapel,
Florida. At 3:00 p.m. that day, a Customs agent conducting
surveillance of the motel parking lot saw a white-paneled “bobtail”
truck and a beige, wood-paneled Jeep Cherokee pull into the motel
parking lot. The agent described the maneuvers he observed as
“counter-surveillance” measures. The Jeep left the parking lot at
approximately 3:45 p.m. The agent saw four people in the Jeep but
could not identify them at that time.
3
Later that afternoon, an undercover Cameron County
deputy sheriff, Abraham Rodriguez, met Ernesto Soto in a motel room
in Wesley Chapel, Florida. Rodriguez was to receive $20,000 for
the marijuana. Ernesto Soto did not have the money but said that
he would return shortly to make the payment. At approximately
6:00 p.m., Ernesto Soto returned to the motel parking lot in the
Jeep Cherokee. He gave deputy Rodriguez approximately $9,780 and
the keys to the white truck to use to deliver the marijuana.
Rodriguez agreed to meet Ernesto Soto later that night in a nearby
parking lot to make the delivery. Deputy Rodriguez drove the truck
back to a Customs warehouse and loaded the marijuana. Customs also
installed a “kill-switch” in the truck that would allow the driver
to stall the vehicle.
At 7:30 p.m., Customs agents observed the Jeep Cherokee
in the designated parking lot. At approximately 7:45 p.m., deputy
Rodriguez drove the delivery truck to within one-half block of the
parking lot and flipped the kill-switch, stalling the truck near
the entrance of the lot. When deputy Rodriguez got out of the
truck and lifted the hood, the Jeep drove into the parking lot.
Rodriguez saw four people in the Jeep and was able to identify
Ernesto Soto in the back seat. As part of the prearranged plan,
after Rodriguez gave Ernesto Soto the keys to the delivery truck,
a police car pulled up behind the truck. Rodriguez told Ernesto
Soto that the deal was off and left the parking lot. Ernesto Soto
entered a restaurant next to the parking lot. Customs agents kept
4
him under surveillance. Ernesto Soto and Israel Soto were arrested
at a later date.
On December 5, 1995, Saenz was charged in two counts of
a multicount indictment: in count one with conspiracy to possess
marijuana with the intent to distribute, and in count three with
possession of marijuana with the intent to distribute, in violation
of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and 846, and 18 U.S.C. § 2.
Saenz was arrested in Florida on January 8, 1996. After a jury
trial held on March 7 and 8, 1996, the jury convicted Saenz on both
counts. The court sentenced Saenz to a total of seventy-eight
months of imprisonment. Saenz timely appealed.
II. The Evidence as to Baltazar Saenz
The government’s case against Saenz on both the
conspiracy and possession counts was short on physical evidence.
Customs obtained the license plate number of the Jeep Cherokee and
later learned that it was registered to Baltazar Saenz. Saenz’s
name and telephone number were on a piece of paper found in Israel
Soto’s wallet.
Neither deputy Rodriguez nor the Customs agents involved
in the events of February 14, 1995 in Florida were able to place
Saenz inside the Jeep. Rodriguez testified that he saw four
individuals in the Jeep; he identified one of the back seat
passengers as Ernesto Soto and described the other back seat
passenger as “a short guy with an Afro.” From photographs,
Rodriguez later identified the front seat passenger as Joe Saenz,
Baltazar Saenz’s brother. Rodriguez could only state that Baltazar
5
Saenz “[t]ends to look like the driver of the vehicle. Of the
Cherokee.”
The government’s case against Saenz was based largely on
Israel Soto’s testimony. Soto pleaded guilty and as part of his
plea agreement agreed to testify against Saenz. Soto’s sentencing
was delayed until after the trial. At trial, Soto testified that
he met Saenz in Florida in 1983, when they both worked for a sod
company. Soto testified that he and Saenz “sometimes . . . used to
get together, have a few beers.” Soto testified that he and Saenz
“used to be pretty good friends,” and went so far as to say that he
“love[s] the guy [Saenz].” Soto testified that he kept in touch
with Saenz after Soto moved to Brownsville, Texas in 1989. In
approximately 1993, Soto borrowed $1,000 from Saenz and did not
repay the loan. Soto testified that he and Saenz agreed that “if
we ever get something done, he could have deducted from that.”
Soto testified that “something” meant “[g]et some marijuana
business done”; their agreement was that “[i]f I ever get some
marijuana or something, [to] give [Saenz] a call and we work it out
together.” Soto testified that in December 1994, after he arranged
to transport the marijuana to Florida, he called Saenz to ask
whether Saenz would receive the shipment and try to sell the
marijuana. According to Soto, Saenz agreed.
Soto testified that on February 9, 1995, he made a
collect call to Saenz to tell him that “everything was going to be
fine” and that the load was “on its way.” Soto placed this call
from the Cameron County jail. Telephone records confirmed two
6
collect calls, each lasting seven to ten minutes, made from the
Cameron County jail to Saenz’s Florida residence on February 12 and
13, 1995. The records also showed seventeen telephone calls, each
lasting approximately one minute, placed from Soto’s residence in
Lyford, Texas to Saenz’s Florida residence between December 30,
1994 and March 1, 1995. The telephone records also showed several
calls from Saenz’s residence in Florida to the Brownsville, Texas
area during the same period, but none to Soto’s Lyford, Texas
residence.
Soto testified that on February 15, 1995, after his
release from jail, he called Saenz to “find out how things were
going [with the load].” According to Soto, Saenz said that
“everything went wrong” and that he suspected a set-up because the
delivery truck had been in good condition when delivered to deputy
Rodriguez. Saenz said that the load had been confiscated and that
he had paid $9,780 to Rodriguez. Soto also testified that during
the telephone call, Saenz said that he had gone back to pick up
Ernesto Soto in the parking lot about an hour after Saenz had left
in the Jeep.
Soto denied that he held “anything against Mr. Saenz
personally” and explained that he was testifying against Saenz
“[b]ecause I realize we made a mistake and I wanted to make it up
to me.” No other witnesses testified to Saenz’s involvement in
any aspect of the trafficking operation.
Beatrice Saenz, Saenz’s wife, testified for the defense.
She testified that she accepted two collect telephone calls from
7
Soto because she thought that the calls were from her cousin, whose
first name is also Israel. In each of the two collect calls, the
caller asked if Saenz was home; Saenz’s wife replied that her
husband was at work and hung up. Saenz’s wife also testified that
she did not take a telephone call from “Israel” on February 15, but
that her brothers, who lived at the Saenz residence, may have done
so. Saenz’s wife also testified that her husband took her out for
dinner the night of February 14, 1995.
Saenz testified on his own behalf. His testimony
differed from Soto’s in numerous respects. Saenz testified that he
first met Soto in 1986, not 1983. Saenz denied that he and Soto
were “close friends” or “best friends,” but described Soto as a
“co-worker” that Saenz knew “at work but that was about it.” Saenz
conceded that he had loaned Soto money, but only $500, not $1,000.
Saenz agreed that Soto never paid him back, but denied the
existence of any agreement about repaying the loan.
Saenz vigorously denied that he and Soto agreed to sell
marijuana. Saenz denied speaking with Soto about a shipment of
marijuana; speaking with Soto when he called from the Cameron
County jail; and knowing Soto’s brother, Ernesto Soto.
III. The Challenge to the District Court’s Questions to the
Witnesses
A. The Applicable Legal Standard
Because Saenz’s trial counsel did not object at trial to
the district court’s questions to the witnesses, this court reviews
the district court’s actions for plain error. See United States v.
Gray, 105 F.3d 956, 964 (5th Cir.), cert. denied, 117 S. Ct. 18568
(1997). Plain error is “‘clear’ or ‘obvious,’ and, ‘[a]t a
minimum,’ contemplates an error which was ‘clear under current law’
at the time of trial.” United States v. Calverley, 37 F.3d 160,
162-63 (5th Cir. 1994) (en banc) (quoting United States v. Olano,
113 S. Ct. 1770, 1777 (1993)). “[T]o be reviewable under this
standard an obvious legal error must affect substantial rights. .
. . [P]lain forfeited errors affecting substantial rights should be
corrected on appeal only if they ‘seriously affect the fairness,
integrity, or public reputation of judicial proceedings.’” Id. at
164 (quoting United States v. Atkinson, 56 S. Ct. 391, 392 (1936)).
“A trial judge has wide discretion over the ‘tone and
tempo’ of a trial and may elicit further information from a witness
if he believes it would benefit the jury.” United States v.
Rodriguez, 835 F.2d 1090, 1094 (5th Cir. 1988) (quoting United
States v. Adkins, 741 F.2d 744, 747 (5th Cir. 1984)). Federal Rule
of Evidence 614(b) permits the trial judge to “interrogate
witnesses, whether called by itself or by a party.” FED. R. EVID.
614(b). In exercising this discretion, the trial court “‘may
question witnesses and elicit facts not yet adduced or clarify
those previously presented.’” United States v. Williams, 809 F.2d
1072, 1087 (5th Cir. 1987) (quoting Moore v. United States, 598
F.2d 439, 442 (5th Cir. 1979)). A judge’s questions must be for
the purpose of aiding the jury in understanding the testimony. See
United States v. Bermea, 30 F.3d 1539, 1570 (5th Cir. 1994) (citing
Rodriguez, 835 F.2d at 1094). However, the trial court’s efforts
to move the trial along may not come at the cost of “strict
9
impartiality.” United States v. Davis, 752 F.2d 963, 974 (5th Cir.
1985).
In reviewing a claim that the trial court appeared
partial, this court must “‘determine whether the judge’s behavior
was so prejudicial that it denied the [defendant] a fair, as
opposed to a perfect, trial.’” Williams, 809 F.2d at 1086 (quoting
United States v. Pisani, 773 F.2d 397, 402 (2d Cir. 1985)). We
recently set out the standard to be applied in making this
determination:
To rise to the level of constitutional error,
the district judge’s actions, viewed as a
whole, must amount to an intervention that
could have led the jury to a predisposition of
guilt by improperly confusing the functions of
judge and prosecutor.
Bermea, 30 F.3d at 1569; see also United States v. Mizell, 88 F.3d
288, 296 (5th Cir.), cert. denied, 117 S. Ct. 620 (1996).
Our review of the trial court’s actions must be based on
the entire trial record. United States v. Carpenter, 776 F.2d
1291, 1294 (5th Cir. 1985). “We have consistently held that in
determining whether a trial judge overstepped the bounds of
acceptable conduct -- that is, violated his duty to conduct the
trial impartially -- we must ‘view the proceedings as a whole.’”
United States v. Lance, 853 F.2d 1177, 1182 (5th Cir. 1988)
(quoting Williams, 809 F.2d at 1088-89). A trial judge’s comments
or questions are placed in the proper context by viewing the
“totality of the circumstances, considering factors such as the
context of the remark, the person to whom it is directed, and the
presence of curative instructions.” Id. The totality of the
10
circumstances must show that the trial judge’s intervention was
“quantitatively and qualitatively substantial.” Bermea, 30 F.3d at
1569. The number and nature of the court’s questions are
important. United States v. Borchardt, 698 F.2d 697, 700 (5th Cir.
1983). The cumulative effect must be “substantial” and must
prejudice the defendant’s case. Lance, 853 F.2d at 1182;
Carpenter, 776 F.2d at 1294.
B. The Totality of the Circumstances: An Overview
Several aspects of this trial are particularly important
to this court’s assessment of the impact of the trial court’s
questions of the witnesses. The government’s case against Saenz
rested largely on the testimony of one witness, Israel Soto.
Soto’s testimony provided the jury with Saenz’s motivation for
participating in the marijuana distribution operation. No other
witness corroborated Soto’s testimony about his relationship with
Saenz or the alleged agreement to sell marijuana. No witness
corroborated Soto’s explanation for the telephone calls made from
his residence and from the Cameron County jail to the Saenz
residence in Florida. No other witnesses identified Saenz as among
the participants in the attempted marijuana delivery in Wesley
Chapel, Florida on February 14, 1995.2 The only physical evidence
linking Saenz to the drug operation was that a vehicle registered
to Saenz was used to meet undercover officers in the motel parking
2
Only deputy Rodriguez’s testimony that Saenz “[t]ends to look like
the driver of the vehicle” corroborated Soto’s version of the events. Officer
Rodriguez observed the Jeep in the dark and could not swear that Saenz was the
driver.
11
lot. In short, Soto’s credibility was critical to the government’s
case.
Saenz’s testimony was equally critical. Saenz flatly
contradicted Soto on their alleged agreement to traffic marijuana
as a way for Soto to repay Saenz, and on Saenz’s knowledge of, and
participation in, the marijuana delivery. Saenz presented no
witnesses to corroborate most of his testimony. His credibility
was critical to his defense.
When the jury’s evaluation of witnesses’ credibility is
likely to determine the outcome of a case, questions a judge asks
those witnesses implicating their credibility assume heightened
importance. See United States v. Cisneros, 491 F.2d 1068, 1074
(5th Cir. 1974); United States v. Filani, 74 F.3d 378, 385-87 (2d
Cir. 1996); United States v. Mazzilli, 848 F.2d 384, 388-89 (2d
Cir. 1988); cf. United States v. Fischer, 531 F.2d 783, 786, 787
(5th Cir. 1976) (holding that the court’s negative comment on the
credibility of defense witnesses unduly prejudiced the defendant
because the credibility of the witnesses was decisive to the
outcome). In Filani, the defendant was stopped at a Customs
inspection station in J.F.K. airport. Customs agents searched a
briefcase believed to belong to the defendant and found heroin.
Filani, 74 F.3d at 380. The initial issue at trial was whether the
briefcase belonged to the defendant. The appellate court noted
that the outcome of the trial depended on credibility:
The only witness for the defense was the
defendant himself. He testified that he did
not own the heroin-filled briefcase and never
imported or possessed the contraband. Filani
12
acknowledged having possession of the
briefcase, and explained that he had assisted
an elderly couple with their bags by carrying
their attaché case on his baggage trolley.
When he arrived at the customs checkpoint,
defendant continued, he left the couple’s bag
on his trolley. He brought it to [the Customs
agent] only because the customs agent
specifically directed him to.
Id. at 381. “When the brief trial concluded, the jury had been
presented with two divergent accounts of the events at J.F.K.
Customs. . . . Thus, the outcome of the trial hinged on
credibility.” Id. Holding that the trial court’s questioning of
the witnesses was error, the court stated:
This failure [to maintain an appearance of
impartiality] was especially significant where
so much hinged on the jury’s assessment of the
defendant’s credibility. We have explained
that “a jury’s impression that the court
disbelieves [defendant’s] testimony surely
affects its deliberations. The jury cannot be
regarded as having freely come to its own
conclusions about the defendant’s credibility
when the court has already indicated, directly
or indirectly, that it disbelieves his
testimony.”
Id. at 386 (quoting Mazzilli, 848 F.2d at 388) (second brackets in
original).
In Cisneros, the government’s principal witness was a
police officer who testified that he bought heroin from Cisneros
and an accomplice. Cisneros and the alleged accomplice testified
that only the accomplice had sold the heroin to the officer.
Cisneros, 491 F.2d at 1070-71. The court noted:
The testimony presented by each side
concerning Cisneros’ involvement in the heroin
sale was in stark, irreconcilable conflict;
indeed, the trial judge’s comment that
“somebody is lying” aptly characterizes the
13
case. Thus the credibility of the witnesses,
particularly [the accomplice], was of
overriding importance. . . . For Cisneros to
prevail, the jury had to believe [the
accomplice’s] version of the events.
Id. at 1075. The fact that the credibility of the witness was a
“central element” in the case was crucial to the court’s holding
that the trial court had appeared partial to the prosecution. Id.
at 1074, 1075-76.
Similarly, in this case, the jury was presented with
contradictory accounts of the critical events. The outcome hinged
on whether the jury believed the story offered by Soto, a
cooperating codefendant, or the defendant himself. The trial
court’s questions to these witnesses impacting their credibility
were likely to be of significance to the jury.
Another aspect of this case critical to this court’s
review is that the trial was short and the disputed issues were
neither confusing nor complex. The trial lasted less than two
days. A total of fifteen witnesses testified, many of whom were
law enforcement officers presenting cumulative testimony about the
events of February 14, 1995. The primary issues before the jury
were whether Saenz participated in the conspiracy -- the existence
of which was not challenged -- to carry out the marijuana
trafficking operation; and whether Saenz was in the Jeep Cherokee.
The need for a trial court to question witnesses to
clarify testimony is greatest in a complex or lengthy case with
multiple witnesses. See Williams, 809 F.2d at 1087 (noting with
respect to a complex, eight-week long RICO trial that “[f]or such
14
a trial to proceed smoothly, it was necessary for the trial judge
to exercise tight control over the presentation of the evidence to
the jury”); United States v. Manko, 979 F.2d 900, 905 (2d Cir.
1992); United States v. Slone, 833 F.2d 595, 597 (6th Cir. 1987)
(citing United States v. Hickman, 592 F.2d 931, 933 (6th Cir.
1979)); United States v. Lueth, 807 F.2d 719, 729 n.5 (8th Cir.
1986). There is a correspondingly reduced need for the court
frequently or actively to question witnesses in a short trial with
clearly defined and straightforward issues.
This case also lacked another justification for a court’s
interrogation of witnesses: the need to expedite testimony on
certain issues or by certain witnesses. See Adkins, 741 F.2d at
748; Borchardt, 698 F.2d at 700; Slone, 833 F.2d at 597; United
States v. Parodi, 703 F.2d 768, 775 (4th Cir. 1983). A review of
the record shows that neither Soto’s nor Saenz’s testimony was
repetitive or confusing. There is no indication that counsel were
“unprepared or obstreperous” or incompetently trying the case.
Slone, 833 F.2d at 597; see also United States v. Bland, 697 F.2d
262, 266 (8th Cir. 1983); United States v. Daniels, 572 F.2d 535,
541 (5th Cir. 1978); United States v. Cassiagnol, 420 F.2d 868, 879
(4th Cir. 1970). The judge did not comment that the lawyers were
moving too slowly or wasting time. The judge often allowed the
lawyers to return to the topic on which they had been questioning
the witness before the judge interrupted to question that witness
himself.
15
In relevant aspects, this trial resembled one in which
the Sixth Circuit found the trial court’s interrogation of
witnesses to be excessive:
This was a one-day trial. The principal issue
for the jury was whether it would impute
possession of the contraband in the apartment
to one or another defendant. Counsel for both
sides were able and, at all times, conducted
themselves properly. The testimony was
relatively clear and any difficulties could
easily have been handled by counsel had the
judge restrained himself.
Hickman, 592 F.2d at 936.
With these aspects of the trial in mind, we consider the
cumulative impact of the specific instances in which the trial
court interrogated Soto and Saenz.
C. The Court’s Questions of Soto
The district court asked numerous questions during Soto’s
direct, cross, and redirect examinations.3 Saenz argues that the
trial court appeared to be partial to the prosecution by eliciting
key details from Soto about Saenz’s agreement to receive and
distribute the marijuana load.
3
The duration of the court’s interruption of the questioning of a
witness is a factor in the totality-of-the-circumstances inquiry this court must
conduct. See Williams, 809 F.2d at 1087 (“A statistical count of court
interruptions is pertinent to the inquiry.”).
The entire transcript consists of approximately 7,425 lines of
witness questions and answers. Soto’s direct examination consists of
approximately 725 lines of the trial transcript, including objections made during
the testimony. The court’s questioning of Soto, and Soto’s answers to those
questions, consist of approximately 152 lines of trial transcript, or 21.0
percent of Soto’s direct examination. The court’s exchange with Soto during
defense counsel’s cross-examination consists of approximately 80 out of 600 lines
of transcript, or 13.3 percent of the cross-examination. The court’s exchange
with Soto during redirect examination consists of approximately 32 out of 135
lines, or 23.7 percent of the redirect examination. Overall, the court’s
questions and Soto’s answers consist of approximately 264 out of 1460 lines of
transcript, or 18.1 percent.
16
During Soto’s direct examination, the prosecutor
questioned Soto about the beginning of the plan to sell the
marijuana load. When the prosecutor asked Soto if he already had
“buyers or people to deliver it to in Florida,” Soto began to
answer that he “called Baltazar.” The court interrupted and led
Soto through a series of questions that elicited the details of the
agreement between Soto and Saenz:
THE COURT: You called who?
THE WITNESS: Baltazar.
THE COURT: Which Baltazar?
THE WITNESS: Excuse me?
THE COURT: What Baltazar did you call?
THE WITNESS: Baltazar Saenz.
THE COURT: This defendant?
THE WITNESS: Yes, sir.
THE COURT: What did you call him for?
THE WITNESS: I called him to tell him I -- it was a load of
marijuana going to Florida. To be -- to sell
it.
THE COURT: To find buyers?
THE WITNESS: Yeah. Yes.
THE COURT: He was going to sell it?
THE WITNESS: Yes, sir.
THE COURT: Okay. Where did you call him from?
THE WITNESS: I called him from -- I was -- I got arrested
at that time and I called him from jail.
THE COURT: You called him from jail?
THE WITNESS: From the detention center.
17
THE COURT: You had been arrested?
THE WITNESS: Yes, sir.
THE COURT: Okay. So you called him from jail?
THE WITNESS: Yes, sir.
THE COURT: To Florida?
THE WITNESS: Yes, sir, to his house.
THE COURT: What did you tell him?
THE WITNESS: Well, before that we had an agreement, if
something come up, just to give him a call and
we would get things squared up. And send it
to him.
THE COURT: You and he had talked about it before, or
what?
THE WITNESS: Yes, sir.
THE COURT: About marijuana?
THE WITNESS: Yes, sir.
THE COURT: So in connection with that agreement you made
this telephone call?
THE WITNESS: That is correct.
THE COURT: And you were expecting him to do what? To
receive it?
THE WITNESS: Yes, to receive it and to sell it.
THE COURT: And to sell it?
THE WITNESS: Yes.
THE COURT: That was what he was going to do?
THE WITNESS: That is correct.
The court’s questions had the effect of emphasizing for
the jury that Saenz agreed to sell the marijuana and that Saenz and
18
Soto had previously agreed to sell marijuana. The government had
not yet questioned Soto on this topic.
The prosecution then questioned Soto about his first
telephone conversation with Saenz about the marijuana. The
questions began as follows:
MR. LARA [prosecutor]: As to this specific 1100-pound load
that was seized, when was it that you first
made contact with [Saenz]? Do you remember?
THE WITNESS: Well, it was before -- it was before I got in
jail. I think I gave him a call.
The court then interrupted and questioned Soto about
where he made the first call to Saenz:
THE COURT: Where did you call him from on that occasion?
THE WITNESS: My house.
THE COURT: Your house where?
THE WITNESS: In Lyford.
THE COURT: In Lyford.
THE WITNESS: Yes, sir.
THE COURT: To Florida?
THE WITNESS: To Florida.
THE COURT: Before you were arrested?
THE WITNESS: Yes, sir.
THE COURT: What were you arrested for?
THE WITNESS: Well, I was --
THE COURT: Was it this case or something else?
THE WITNESS: No, it was something else. They were charging
me with possession of weapon.
THE COURT: But it was something else?
19
THE WITNESS: Yes, sir.
THE COURT: That’s why you were in jail?
THE WITNESS: Correct.
The prosecution then resumed questioning Soto about his
arrest for weapons possession. The court again intervened:
MR. LARA: What happened with the deal with the weapon?
What were you -- what happened?
THE WITNESS: I asked a friend of mine to give me a ride and
he happened -- he had a gun under his seat.
He was drunk. He didn’t have a driver’s
license. He didn’t have insurance. So the
officer that arrested us, put charge -- DWI
charge on him and they tried to put the weapon
charge on me. But I never -- I didn’t know
the gun was there. So I started going to
court and they --
THE COURT: Did they find you guilty for it?
THE WITNESS: No, sir. They dismissed.
THE COURT: So you were acquitted?
THE WITNESS: Yes, sir.
THE COURT: That’s why you were in jail?
THE WITNESS: That is the reason I was in jail.
Before Saenz’s counsel had had an opportunity to question
Soto on this potential ground of impeachment, the court elicited
both that Soto had been acquitted of the charge and his explanation
for being incarcerated. The court continued, asking Soto
additional questions about his conversations with Saenz:
THE COURT: How long before you went to jail do you
remember you talked to him about this?
THE WITNESS: Okay. Okay.
THE COURT: As best you remember.
20
THE WITNESS: I think it was December something.
THE COURT: December?
THE WITNESS: Yes, sir.
THE COURT: ‘94?
THE WITNESS: Yes, sir.
THE COURT: December, ‘94. And what is it that you told
him then?
THE WITNESS: I told him that I probably will get a load of
marijuana.
THE COURT: What did he tell you?
THE WITNESS: That it was all right. Excuse me. I told him
it was right to work it out. He said, “Yes”.
And then I said, “Well, as soon as I get it,
and get everything straight up, I will send it
there and you will be in charge”.
THE COURT: Did you tell him what you wanted him to do
with it?
THE WITNESS: Yes, to sell it.
THE COURT: You told him that?
THE WITNESS: Yes.
THE COURT: When you were out of jail?
THE WITNESS: Yes.
THE COURT: Did he agree?
THE WITNESS: Yes, sir. I even asked him the price. What
the price was around there.
THE COURT: What was the price?
THE WITNESS: He told me it was between 750 and 800.
Between 500 and 800.
THE COURT: Between 500 and $800?
THE WITNESS: 750 and 800. That’s what he told me.
THE COURT: That he would sell it for?
21
THE WITNESS: Yes, sir.
These questions, eliciting details of Soto’s and Saenz’s
alleged agreement, began only ten transcript pages into Soto’s
direct examination. The court’s string of short, direct, and
sometimes leading questions created an appearance that the court
was assisting the government in proving its case. See Cisneros,
491 F.2d at 1074. The court’s questioning was similar to that
found to be improper in Bland, 697 F.2d at 263-64, in which the
court’s interrogation of a government witness effectively
established an element of the offense charged against the
defendant. Contrary to the government’s assertion, the court
cannot fairly be said to have been “clarifying” Soto’s testimony;
the prosecution had not yet asked a single question about Saenz’s
involvement in the marijuana trafficking operation.
The court’s questions did not elicit information that the
prosecution was likely to have missed. The mere fact that the
trial court itself, not the prosecution, elicited such damaging
information contributed to the perception that the court was
helping the government. See United States v. Orr, 68 F.3d 1247,
1250 (10th Cir. 1995) (“Interrogation of witnesses by a judge in a
criminal case creates a unique risk that the judge will be
perceived as an advocate.”), cert. denied, 116 S. Ct. 747 (1996).
The court’s questions contributed to the appearance that the court
was taking over the responsibility of proving part of the
government’s case. Saenz also argues that several of the
court’s exchanges with Soto had the effect of bolstering Soto’s
22
credibility. The first such exchange occurred shortly after
defense counsel began cross-examining Soto. Attempting to impeach
Soto’s credibility through questions about Soto’s prior arrests and
convictions, Saenz’s counsel asked Soto whether he had been
arrested after 1990:
MR. WEISFELD: Okay. And the next time you were arrested
after 1990?
THE WITNESS: I got a couple of times arrested for PI.
MR. WEISFELD: Where was that?
THE WITNESS: Here in Brownsville.
THE COURT: PI is public intoxication?
THE WITNESS: That is correct.
MR. WEISFELD: When was that? Do you remember?
THE WITNESS: Well, I believe it was in 1993.
MR. WEISFELD: And from 1993 till 1995, 1996, were you
arrested in the interim? Were you arrested
again?
THE WITNESS: No, sir.
The court then interrupted defense counsel’s cross-
examination to question Soto about the details of the alleged
agreement with Saenz to receive and sell the marijuana load in this
case, a topic defense counsel had not yet covered in cross-
examination.
THE COURT: Listen to this question. We are about to take
our afternoon recess. You said that you
called Mr. Saenz in December of ‘94.
THE WITNESS: Yes, sir.
THE COURT: And asked him if he was interested -- and you
told us the nature of the conversation.
23
Before that time you had been living here in
Brownsville?
THE WITNESS: Yes, sir.
THE COURT: When was the last time you had talked to him?
How much time lapsed or, as we say, passed
from the last time you had talked to him?
THE WITNESS: Okay. We talked a few times in-between.
Because I went -- I went to Florida to work
for a little while and then I came back.
THE COURT: So you would talk to him is what I am asking?
THE WITNESS: That is correct.
One court has warned that there is a “danger that undue
interference with cross-examination rights will result if a judge
takes over examination by defense counsel.” Hickman, 592 F.2d at
934. In this case, defense counsel had no opportunity to resume
questioning Soto before the court took an afternoon recess. This
stopped counsel’s efforts to cast doubt on Soto’s credibility until
after the court’s questions allowed Soto to reaffirm a part of his
earlier testimony crucial to the government’s case.
After this exchange, and before the afternoon break, the
court continued questioning Soto on a subject covered during Soto’s
direct examination: Soto’s motivation for testifying against Saenz.
The following exchange occurred:
THE COURT: By the way, what did the Government do for you
for testifying in this case?
THE WITNESS: What did they do for me?
THE COURT: Yes. Did they offer you something for
testifying today?
THE WITNESS: Nothing. Well, they just told me if I tell
the truth, I might, I might get maybe little
low sentence.
24
THE COURT: Oh, you haven’t been sentenced?
THE WITNESS: No, sir.
THE COURT: You have not?
THE WITNESS: I have not.
THE COURT: So your case hasn’t been disposed of yet?
THE WITNESS: That is correct.
THE COURT: It is still pending?
THE WITNESS: Yes, sir.
THE COURT: When did you plead guilty?
THE WITNESS: When?
THE COURT: Yes, sir.
THE WITNESS: About a month ago.
The government characterizes this exchange as the court’s
attempt to clarify Soto’s testimony for the jury. A trial court
may ask questions to clarify witnesses’ testimony, even if the
questions elicit facts harmful to the defendant. See, e.g.,
Bermea, 30 F.3d at 1570-71. The court’s question about Soto’s
guilty plea followed earlier questions by both the government and
the court about the plea agreement.4 The fact that Soto had not
4
During Soto’s direct examination, the government had already
established that Soto was testifying pursuant to a plea agreement:
MR. LARA: Okay. You were arrested, you were indicted, for
participating in a conspiracy with possession with
intent to distribute over a hundred kilograms of
marijuana, is that correct?
THE WITNESS: Yes, sir.
MR. LARA: And you have pled guilty to that offense, is that
correct?
THE WITNESS: Yes, sir.
25
been sentenced, however, had not been brought out by either the
government or Saenz’s counsel.5 The court’s last questions before
the afternoon recess emphasized this fact:
THE COURT: So you are still pending sentencing?
THE WITNESS: Yes, sir, I came in front of you.
THE COURT: Before me?
THE WITNESS: Yes, sir, to plead guilty.
THE COURT: Who do you understand has the ultimate
decision, makes the final decision, as far as
what sentence you are going to receive?
MR. LARA: As part of your plea agreement with the Government, was
it for you to tell us everything you know about this
case, is that right?
THE WITNESS: Yes, sir.
. . . .
MR. LARA: Okay. So besides telling us what you knew about
everything, the other part of the agreement with the
Government was that you would make yourself available to
testify, is that correct?
THE WITNESS: Correct.
MR. LARA: Okay. And we have asked you to come and testify today,
is that right?
THE WITNESS: Yes, sir.
The court then interrupted to ask the following questions:
THE COURT: The 1100 pound case that you are talking about is this
case, the one in which you are listed as a defendant?
THE WITNESS: That is correct.
THE COURT: Is that the one you pled guilty to that he is talking
about? Is that the one he is talking about?
THE WITNESS: It is.
5
The court’s questions to Soto about his pending sentence during
questioning unrelated to his sentencing distinguishes this case from those in
which the trial court waited until the lawyers’ examinations were completed
before attempting to clarify issues. See, e.g., United States v. Evans, 994 F.2d
317, 323 (7th Cir. 1993); Slone, 833 F.2d at 600.
26
THE WITNESS: As far as I know, you are, sir.
The court then broke for the afternoon recess.
In its questions of Soto just before the recess, the
court elicited the following facts about Soto’s plea agreement: (1)
Soto had not yet been sentenced; (2) he had been told that he might
receive a lesser sentence for testifying truthfully; and (3) the
court itself would impose his sentence. The court’s questions may
have been perceived as rehabilitating Soto in the middle of defense
counsel’s cross-examination, on a subject that defense counsel had
not yet addressed and could not immediately address because of the
recess. In United States v. Filani, the Second Circuit held a
similar set of questions to have conveyed an appearance of
partiality: “Questions to [an important prosecution witness],
interrupting the defense cross-examination, read almost as a
‘redirect’ that served to rehabilitate that witness’s testimony,
and further demonstrate that the district court did not believe
defendant’s version of the events.” Filani, 74 F.3d at 386; see
also Hickman, 592 F.2d at 935.
During Soto’s redirect examination, the trial court again
returned to Soto’s pending sentencing. The government was
questioning Soto about an unrelated topic: his alleged agreement
with Saenz to sell marijuana as a way for Soto to repay Saenz. The
court interrupted to ask about Soto’s sentencing:
THE COURT: Clarify something for me. And you may have
already done it. I just maybe not have
remembered it. What is it that you are
getting in return for your plea of guilty?
Are they dismissing those other cases against
you that they may have known about?
27
THE WITNESS: Well, sir, just told me -- if I tell the
truth, if I tell all the truth about this --
all these things that happened, they just
might recommend to get maybe little low
sentence.
THE COURT: Reduction?
THE WITNESS: Reduction.
THE COURT: Reduction of your sentence?
THE WITNESS: That is correct. That’s it. They didn’t
write.
THE COURT: Nobody promised you a thing?
THE WITNESS: Promised me nothing. That’s it.
The trial judge prefaced these questions by saying that
he could not remember Soto’s testimony about the sentencing.
However, the judge’s questions had the effect of emphasizing for
the jury that the court found it important that Soto had not been
promised any benefit for testifying. Such emphasis may have
created the impression that the court believed that Soto had a
particular reason to be truthful. See United States v.
Middlebrooks, 618 F.2d 273, 276 (5th Cir.) (noting that it is the
jury’s likely perception of the judge’s purpose in asking a
question that is determinative), modified on reh’g on other
grounds, 624 F.2d 36 (5th Cir. 1980); Bland, 697 F.2d at 264.
D. The Court’s Examination of Saenz
“[T]his Court is particularly sensitive to a trial
judge’s questioning of the defendant, because ‘[w]hen a defendant
takes the stand in his own behalf, any unnecessary comments by the
court are too likely to have a detrimental effect on the jury’s
ability to decide the case impartially.’” Carpenter, 776 F.2d at
28
1294 (quoting Middlebrooks, 618 F.2d at 277). This is particularly
true during a defendant’s direct examination, when his credibility
is being established. See Mazzilli, 848 F.2d at 388 (“The jury
cannot be regarded as having freely come to its own conclusions
about the defendant’s credibility when the court has already
indicated, directly or indirectly, that it disbelieves his
testimony.”). As the Second Circuit wrote in United States v.
Manko:
A district court must show particular
restraint in questioning a criminal defendant
during the defendant’s direct testimony. At
this critical phase of the trial, the court
must scrupulously insure that its questions do
not indicate that the court doubts that the
witness is telling the truth. Impeaching the
defendant is the job of the prosecution, not
the court.
Manko, 979 F.2d at 906 (citations omitted). The Second Circuit has
held that the risks to the defendant posed by the court’s
interrogation during direct examination are so great that “[i]t is
‘clear error for a trial judge to ask questions bearing on the
credibility of a defendant-witness prior to the completion of
direct examination.’” Filani, 74 F.3d at 387 (quoting United
States v. Victoria, 837 F.2d 50, 55 (2d Cir. 1988)). While this
circuit has not adopted a per se rule, a careful examination of the
likely impact of the court’s questions to Saenz during direct
examination is required.
The first exchange between the court and Saenz occurred
shortly after Saenz’s lawyer began direct examination. Defense
counsel was questioning Saenz about the loan to Soto that,
29
according to Soto, formed the basis for the subsequent agreement to
distribute marijuana. Defense counsel asked Saenz how much he lent
Soto and why. Saenz was explaining the amount of and reason for
the loan, when the court initiated the following exchange:
THE COURT: When did you loan him the money? In 1993?
THE DEFENDANT: It was one day of 1993. Yes.
THE COURT: Has he ever paid you?
THE DEFENDANT: He never paid me.
THE COURT: Did you ever ask him for it?
THE DEFENDANT: Well, I never talked to him before that. I
mean after that.
THE COURT: You loaned him $300 and you never talked to
him again?
THE DEFENDANT: No, sir. Because he never came back. Like I
say, I was always working, and the only time
that I see him is when he came --
THE COURT: Did you know how to get ahold of him?
THE DEFENDANT: No, sir.
THE COURT: You did not?
THE DEFENDANT: No, sir.
. . . .
THE COURT: What kind of relationship did you have with
him?
THE DEFENDANT: I knew him from work. Like a co-worker. I
would do that to -- I am that kind of person.
If somebody comes and asks -- especially I see
him coming in his pickup truck with a camper
and he had -- he had his children in the back.
And his wife was right there, too. When he
asked me, that’s why I believed him, because
he was looking for work.
THE COURT: Then you loaned money to somebody that you
didn’t -- that you didn’t know where he lived.
30
THE DEFENDANT: Yes, sir. Yes, sir. I did.
THE COURT: How did you expect to collect it?
THE DEFENDANT: Well, just hoping that he come back and pay
me. I am just that kind of person. I am
always getting in trouble with my wife doing
that.
THE COURT: Because you loan people [sic] to people?
THE WITNESS: Yes, sir.
The record of this exchange suggests that the trial court
expressed disbelief in Saenz’s testimony. The court emphasized
that Saenz did not seek repayment of the money he loaned to Soto:
“You loaned him $300 and you never talked to him again?” Saenz
answered that he trusted Soto to pay him back when he could. The
court’s next question, transcribed by the court reporter as a
statement, expresses incredulity: “Then you loaned money to
somebody that you didn’t -- that you didn’t know where he lived.”
A judge’s expression of disbelief in the defendant’s
testimony is likely to affect the jury’s assessment of the
defendant’s credibility. See Filani, 74 F.3d at 385-86; Mazzilli,
848 F.2d at 388; Victoria, 837 F.2d at 54-55. When a judge’s
questions focus on particular portions of a witness’s testimony,
the jury is likely to attach more weight to the portions on which
the judge’s questions focus. See Cisneros, 491 F.2d at 1075 (“It
strikes us as unlikely that a juror would willingly admit to having
missed something the trial judge considered important, and even
more unlikely that the jury would decline an invitation to consider
something the trial judge clearly believed to be significant.”).
The court’s skeptical questions about Saenz’s explanation of the
31
loan was likely to affect the jury’s evaluation of Saenz’s
credibility.
Later in the direct examination, defense counsel asked
Saenz if he had participated in this attempted marijuana delivery.
Saenz denied any involvement. He denied even knowing Ernesto Soto.
The court interrupted to ask Saenz if he was involved in the
transaction. The court’s questions came just after Saenz’s counsel
had thoroughly questioned Saenz about his alleged involvement and
Saenz had repeatedly denied his involvement:
THE COURT: Did you have anything to do with the marijuana
transaction involved in this case?
THE DEFENDANT: No, sir. I am just a hard working man. I
have been working ever since I was out of
school. I got out of school because I didn’t
go -- because I needed to go to work to
support my -- help my parents. And I never --
never been in that kind of deal. Never used
that kind of drugs. Never been in that.
The court went on:
THE COURT: Well, do you admit that was your vehicle that
was -- that we saw a picture of?
THE DEFENDANT: In the picture, it looks like my vehicle. And
if they are saying they got the tag, that’s --
that it was my Jeep. It looks like it.
THE COURT: Assuming it was your Jeep, can you explain why
it was there when this transaction was going
down?
THE DEFENDANT: Why? Well, I didn’t have -- I wasn’t driving
the Jeep that day. To me it looked -- if it
was -- that Jeep, it was in the shop a little
bit over a week for mechanical problems.
Between that period of time that they are
saying that they saw the Jeep. It was in that
shop where I had my forklift repaired.
32
THE COURT: So what is it that you are telling the jury?
That somebody from the shop used it for these
purposes?
THE DEFENDANT: All --
THE COURT: If it was used for those purposes shown or
indicated?
THE DEFENDANT: Well --
THE COURT: What is it you are telling the jury?
THE DEFENDANT: I didn’t have the Jeep. I didn’t have control
of that Jeep that week. That week it was in
the auto repair shop for mechanical problems.
But it was still drivable.
. . . .
THE COURT: So it is your testimony to this jury that it
was at the shop that you -- that you think
that that -- that was the place from which
that Jeep was used, the Cherokee was used?
THE DEFENDANT: That’s where the Jeep was supposed to be
parked, there waiting for parts to get fixed.
That’s where it was in-between that period of
time.
THE COURT: But it could still travel?
In Filani, the Second Circuit found that similarly
phrased questions of a defendant by a trial court, such as: “Is
that what you are telling me?”; “All I asked you is, do you support
the other children?”; and “No, sir, listen to me,” tainted the
trial. See Filani, 74 F.3d at 382, 385-86.
The court’s repeated question, “so what is it you are
telling the jury?” may have conveyed an impression of the court as
prosecutorial, rather than impartial.6 While courts have been
6
The court twice cut off Saenz’s attempt to answer the court’s
question:
33
willing to overlook similarly phrased questions that concerned
collateral or unimportant details, see, e.g., Manko, 979 F.2d at
907, the questions asked here, as in Filani, went to the heart of
the defense.
The court’s questions also forced Saenz to take a
position on whether he believed that someone else may have taken
his Jeep from the repair shop and driven it to the parking lots.
The court renewed its questions about whether anyone else may have
had access to Saenz’s Jeep:
THE COURT: Now, do you know whether any of your brothers
drove that Jeep to the event in question?
THE DEFENDANT: I don’t know, sir.
THE COURT: Beg your pardon?
THE DEFENDANT: I don’t know. I didn’t know --
THE COURT: Did any of your brothers ask you for
permission to use that Cherokee?
THE DEFENDANT: No, sir.
THE COURT: Would they have asked you for your permission
to use it?
THE DEFENDANT: No, sir.
THE COURT: They would use it without asking you?
THE COURT: So what is it that you are telling the jury?
That somebody from the shop used it for these
purposes?
THE DEFENDANT: All --
THE COURT: If it was used for purposes shown or indicated?
THE DEFENDANT: Well --
THE COURT: What is it you are telling the jury?
34
THE DEFENDANT: Well, couple of my brothers work for me. And
they have -- they use my Jeep. You know, like
if we are doing a job, if they needed to go to
store or something, they just go and get it.
THE COURT: Without asking you?
THE DEFENDANT: Same way with my other employees.
THE COURT: Wasn’t that Cherokee used for your family?
THE DEFENDANT: No, sir.
THE COURT: It was not?
THE DEFENDANT: No, sir.
THE COURT: What would your family use?
THE DEFENDANT: Jeep.
THE COURT: Another one?
THE DEFENDANT: Yes. That’s my -- that was one of my work
vehicles. Remember I had more than one work
vehicle. Also had another Jeep that my wife -
- the one that my wife drives back and forth
to do the bills and collect money and to do
other things.
THE COURT: But your brothers had access to the Cherokee?
THE DEFENDANT: Yes, sir.
THE COURT: And you are telling this jury that you are
sure or you are not sure they were the ones
driving the Cherokee on the day in question?
THE DEFENDANT: If I would say I was sure -- no, I am not
sure. I am going to be lying if I say they
were the ones. I am not sure.
The effect of repeatedly questioning Saenz as to whether
his brothers would use the Jeep without his permission was to
convey skepticism as to Saenz’s explanation that someone else may
have driven the Jeep to the parking lot. The effect was more
pronounced because it was the court’s questions, not counsel’s,
35
that made Saenz commit to the explanation that the court then
challenged.7
IV. The Cumulative Effect of the Court’s Questions
Soto provided the only testimony of an agreement between
Soto and Saenz to distribute marijuana. Saenz flatly denied the
agreement and the conversations Soto described. The only physical
evidence linking Saenz to the February 14 meetings was that the
Jeep was registered in Saenz’s name and that Saenz’s name and
telephone number were in Soto’s wallet. However, it was Saenz’s
brother, not Saenz, who was identified as present in the Jeep.
Saenz testified that his brothers had access to the Jeep, even when
it was in the repair shop. The telephone calls from Soto to the
Saenz residence on February 12, 13, and 15, 1995 were evidence
supporting the government’s case. Saenz testified, however, that
he did not take these calls. Saenz’s wife testified about other
persons who might have taken the calls. The jury could reasonably
have believed Saenz’s testimony over Soto’s.
This trial was not complex or lengthy. It did not
involve repetitive or convoluted testimony. The court’s questions
on occasion repeated points already made by the parties. The
lawyers did not appear to be lagging or confusing the jury. See,
e.g., Orr, 68 F.3d at 1251-52 (“In the context of this somewhat
complicated trial, the court’s brief questioning of three witnesses
7
The court’s questioning of Saenz during direct examination, and
Saenz’s answers to those questions, consist of approximately 253 lines out of a
total of 1075 lines of transcript, or 23.5 percent of the direct examination.
The court did not significantly interrupt Saenz’s cross or redirect examinations.
36
did not create an appearance of partiality toward the
government.”); Lueth, 807 F.2d at 727 (“We have always been
reluctant to disturb a judgment of conviction ‘by reason of a few
isolated, allegedly prejudicial comments of a trial judge,’
particularly in a long trial.” (quoting Bland, 697 F.2d at 265));
Lance, 853 F.2d at 1183; Williams, 809 F.2d at 1090; Adkins, 741
F.2d at 748. The court’s questions did not address collateral
matters and were not asked of insignificant witnesses. Rather, the
court extensively questioned the two key witnesses, one of whom was
the defendant, on matters at the heart of the case. The factors
recognized as justifying extensive court involvement in the
interrogation of witnesses were not present.
The relatively scant evidence against Saenz is another
factor that distinguishes this case from cases in which
overinvolvement was not found to be prejudicial. See, e.g.,
Carpenter, 776 F.2d at 1295 (declining to find prejudice resulting
from improper comments by the trial court in part because the
government had presented “substantial” and “abundant” evidence in
support of the defendant’s guilt); Middlebrooks, 618 F.2d at 277
(noting that the trial court’s prejudicial comments were “isolated
incidents in a four-day trial in which there was ample evidence
upon which to convict the defendant”).
The district court twice instructed the jury that the
court had no opinion about the case and that they were to disregard
37
questions or comments that may reveal an opinion.8 Courts have
often recognized that curative instructions may render
nonprejudicial the court’s partial comments or questions. See,
e.g., Bermea, 30 F.3d at 1571-72; Williams, 809 F.2d at 1088.
“Some comments, however, may be so prejudicial that even good
instructions will not cure the error.” Id. at 1088; see also
Carpenter, 776 F.2d at 1295-96. Several courts have explicitly
found judicial overinvolvement despite curative instructions. See,
e.g., Filani, 74 F.3d at 386; Hickman, 592 F.2d at 936; Cisneros,
491 F.2d at 1075-76; United States v. Hoker, 483 F.2d 359, 368 (5th
Cir. 1973); Bursten v. United States, 395 F.2d 976, 984 (5th Cir.
1968).
The cumulative effect of the questioning by the district
court, in a trial lasting only two days, in which the outcome
hinged on the jury’s evaluation of the credibility of two
witnesses, mandates the conclusion that in this case, the court’s
8
Before opening statements the court told the jury:
Federal judges can express their opinion about things,
I guess. And Federal judges can and will ask questions.
But as we begin our case, I will tell you that I do not
have an opinion about this case. And if I do anything
during the course of the trial to lead you to believe
that I have an opinion about the case, please disregard
it. That’s your thing. I don’t want to invade it. I
will remember to -- if I remember, I will tell you the
same thing at the conclusion of the case. If I ask a
question, do not give it any more or less weight than if
anybody else asked it. I don’t have an opinion about
the case.
At the close of evidence, the court stated:
As we begin our trial, I told you that I did not have an
opinion about the case. I still don’t. So if I did
anything during the course of the trial that lead you to
believe that I have an opinion about the case, please
disregard it. It was not my intention to do so.
38
instructions were insufficient to overcome the prejudicial impact
of the court’s questions and comments. The problem this record
presents is similar to that described in United States v. Cisneros,
in which this court stated:
[W]e believe that the comments here challenged
were simply too harmful to be cured by the
other instructions given to the jury. The
credibility issues before the jury were close,
difficult, and extremely important. In such a
case commenting on the evidence is a perilous
endeavor, to be undertaken with caution lest
the slightest suggestion of favor for one side
or the other from the supposedly impartial
moderator tip the balance and impel a
decision. Here the trial judge, in the guise
of fair comment, overreached, and by adding
evidence on the credibility of a key witness
seriously impaired appellant’s right to a fair
and impartial trial.
Cisneros, 491 F.2d at 1075-76.
We do not suggest that the district court intended to
skew the jury’s view of the evidence or to convey a bias in favor
of the prosecution. The court’s instructions make this clear.
However, our review focuses on the cumulative effect of the judge’s
questions upon the jury, in the unusual circumstances presented by
this short trial in which the outcome depended largely on the
credibility of two witnesses. See Middlebrooks, 618 F.2d at 276;
see also Lueth, 807 F.2d at 727 (“Our cases addressing the
impartiality of trial judge conduct stress the importance of the
jury’s perception that the judge is favoring the prosecution or
believes the defendant to be guilty.” (emphasis in original)). The
totality of the circumstances in this case lead us to conclude that
the court’s questioning “could have led the jury to a
39
predisposition of guilt by improperly confusing the functions of
judge and prosecutor.” Bermea, 30 F.3d at 1569. The court’s
overinvolvement was plain error.
We do not reach Saenz’s three remaining points of error.
We reverse Saenz’s conviction and remand the case for a new trial.
40