DocketNumber: No. 06-50251
Judges: Beezer, Kozinski, Reinhardt
Filed Date: 3/12/2007
Status: Precedential
Modified Date: 11/5/2024
concurring in part and concurring in the judgment:
I agree that the district court’s failure to provide the cautionary instruction was not plain error. I would hold unequivocally, however, that the district court erred in taking on “the task of the prosecution” by cross-examining Wheeler in a manner that had the effect of impeaching his credibility. See United States v. Pena-Garcia, 505 F.2d 964, 967 (9th Cir.1974); see also United States v. Allsup, 566 F.2d 68, 72-73 (9th Cir.1977). The district judge’s questions were not designed to clarify the evidence, but to “elicit answers favorable to the Government.” See United States v. Harris, 501 F.2d 1,10-11 (9th Cir.1974). I do not believe that my colleagues would disagree with my legal conclusion. In any event, because I agree that the error was harmless due to the overwhelming evidence of Wheeler’s guilt, I concur in the majority’s judgment.