                                      PUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 16-4345


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

HEMZA MENADE LEFSIH,

                     Defendant - Appellant.


Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Terrence W. Boyle, District Judge. (5:16-cr-00004-BO-1)


Argued: May 10, 2017                                           Decided: August 14, 2017


Before TRAXLER, FLOYD, and HARRIS, Circuit Judges.


Vacated and remanded by published opinion. Judge Harris wrote the opinion, in which
Judge Traxler and Judge Floyd joined.


ARGUED: Jorgelina E. Araneda, ARANEDA LAW FIRM, Raleigh, North Carolina, for
Appellant. Barbara Dickerson Kocher, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: John Stuart Bruce,
Acting United States Attorney, Jennifer P. May-Parker, First Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
PAMELA HARRIS, Circuit Judge:

       A jury convicted Hemza Menade Lefsih, an Algerian native who entered the

United States through the Diversity Immigrant Visa Program, of immigration fraud.

During Lefsih’s trial, the district court interjected numerous times, expressing skepticism

of the Diversity Immigrant Visa Program and a negative impression of individuals who

participate in the program. We find that this judicial intervention was improper and

denied Lefsih the opportunity for a fair and impartial trial, and therefore vacate the

judgment of conviction.



                                            I.

                                            A.

       Hemza Menade Lefsih immigrated to the United States through the Diversity

Immigrant Visa Program (“Diversity Program”).           The Diversity Program awards

permanent residence immigration visas – “diversity visas” – to individuals from countries

with historically low immigration numbers, on the basis of a random lottery system.

Lefsih, from Algeria, won a Diversity Program lottery and received a diversity visa. As

allowed under the Diversity Program, he then sought United States citizenship,

submitting an N-400 form – the application form for naturalization – five years after

entering the country.

       Questions 22 through 28 of the N-400 relate to an applicant’s criminal history.

Specifically, Question 22 inquires whether an applicant has “ever committed . . . a crime

or offense for which [he or she was] not arrested”; Question 24, whether an applicant has

                                            2
“ever been charged with committing . . . a crime or offense”; and Question 25, whether

an applicant has “ever been convicted of a crime or offense[.]” S.A. 375 (emphases in

original). 1 And between those questions is Question 23 – the question at issue here –

asking whether an applicant has “ever been arrested, cited, or detained by any law

enforcement officer . . . for any reason.” Id. (emphasis in original).

       Lefsih answered “no” to Question 23. Id. In fact, however, Lefsih had been

“cited” by several law enforcement officers, receiving a total of 11 traffic citations while

working as a cab driver in North Carolina. Lefsih later would testify that he understood

Question 23 as referring only to serious criminal offenses that resulted in arrests or

detentions, and not to traffic tickets, and so believed that he was answering the question

truthfully. But Lefsih concedes that in actuality, his assertion that he never had been

“cited” was false.

       Because Lefsih failed to acknowledge his traffic tickets in answer to Question 23,

the government charged Lefsih with two counts of making a false statement on a

naturalization form, see 18 U.S.C. § 1015(a), and two counts of immigration fraud, see 18

U.S.C. § 1546(a). In order to obtain a conviction under either provision, the government

was required to prove Lefsih’s state of mind:        that contrary to his account, Lefsih

knowingly provided a false answer to Question 23. See 18 U.S.C. §§ 1015(a), 1546(a).




       1
        Citations to the “J.A.” refer to the Joint Appendix, and citations to the “S.A.” to
the Supplemental Joint Appendix.


                                              3
                                            B.

       Lefsih’s two-day trial began on April 27, 2016. The government could present no

direct evidence that Lefsih knew, at the time he filled out his N-400 form, that his answer

to Question 23 was false. Instead, as is common in establishing a defendant’s state of

mind, the government relied on circumstantial evidence. See United States v. Santos, 553

U.S. 507, 521 (2008) (government customarily proves knowledge with circumstantial

evidence).

       Through its first witness, Special Agent Tony Bell of the Immigration and

Customs Enforcement division of Homeland Security Investigations, the government

sought to establish that Lefsih was fully capable of correctly understanding Question 23.

Bell, who had investigated and interviewed Lefsih prior to Lefsih’s indictment, testified

that Lefsih was a proficient English speaker. He also reviewed Lefsih’s educational

background, including work toward a master’s degree in physics at a Paris school;

excellent performance in classes at Wake Tech Community College; and high grades on

English proficiency and placement tests.

       In addition, Bell’s testimony called into question Lefsih’s motives in entering the

country through the Diversity Program. Bell testified that in his experience, it was

unusual that someone like Lefsih would apply only for a diversity visa through the

Diversity Program lottery – with low odds of success – and not for a student visa.

According to Bell, Lefsih explained this decision as turning on the “better class of entry”

offered by a diversity visa. J.A. 114. Bell understood Lefsih to be referring to the fact

that students are admitted only for the purpose of attending school and “tracked” while

                                            4
they are in the country, J.A. 115, whereas diversity-visa holders enter as legal permanent

residents and without similar restrictions.

       The government’s next witness was Gary Freitas, a senior officer with the United

States Citizenship and Immigration Services, who testified about the Diversity Program

and the naturalization application process. Freitas began by explaining that the Diversity

Program was established by Congress so that people from countries with historically low

immigration rates would have an opportunity to live permanently in the United States.

Upon hearing that, the district court asked Freitas a series of pointed questions about the

Program:

       District court: You’re saying that Congress has set up a law that your
       agency enforces that invites people to come to America from places where
       they don’t normally come to America?

       Freitas: Yes.

       District court: That’s a shorthand way of saying it?

       Freitas: Yes, it is.

       District court: That’s incredible. And the reason that they don’t come to
       America is because they haven’t tried to come to America? Is that it?

       Freitas: Usually because of – they may not have family members here from
       those countries or employment opportunities.

       ….

       District court: Okay. Do you think anybody in America knows about this,
       other than the Committee that sent it through Congress? Probably not.

       Freitas: I didn’t know it before I started –




                                              5
      District court: And it’s your job. Don’t you love Congress? I mean,
      unbelievable, unbelievable. I’m sitting here 32 years, first time I ever heard
      this.

J.A. 146–47, 149. The district court continued, now focused on the particular nations

covered by the Diversity Program:

      District court: And you’re talking about the hundred countries that nobody
      could name if they had a list of 180 countries in the world?

      Freitas: Yes.

      District court: The bottom hundred.

      Freitas: Yes.

      District court: Like Mauritania.

      Freitas: Exactly.

      District court: Moldavia or something like that.

      Freitas: Correct.

J.A. 147–48.

      Finally, the district court turned its questioning to the individuals – like Lefsih –

who participate in the Program:

      District court: And Congress is aggressively trying to bring those people to
      America by creating a lottery where they have special treatment?

      Freitas: The [sic] set up the lottery. It’s – I’m not sure what the percentage
      overall of between total immigrants that immigrant [sic] into the United
      States per year.

      District court: Aren’t there quotas on people coming from countries that
      send a lot of people here, and you have to show you’re a doctor, an
      engineer or a rocket scientist or someone who is going to contribute to the
      well-being of the United States of America and make it a better place to
      live because of your skill or personal characteristics?

                                            6
       Freitas: Yes, there are limits on those.

       District court: But if you’re in the bottom hundred countries in the world,
       just come on.

       Freitas: Well, they can apply for the lottery. They get a chance.

       District court: But they don’t have to be a back surgeon or anything?

       Freitas: No, they just need minimum qualifications equivalent to a high
       school education.

J.A. 148–49. Shortly thereafter, the district court returned to a discussion of the kind of

people who enter the United States with diversity visas:

       District court: So if you get lucky and win the lottery and get a card to
       come to America you can drag along your ten kids and four wives or what?

       Freitas: Well, your spouse.

       District court: Your spouse and your kids and your uncle and your brother?

       Freitas: No, no, just immediate.

J.A. 152.

       At no point did Lefsih object to any of the district court’s questions or comments.

At the close of the government’s case-in-chief, Lefsih moved for a judgment of acquittal

under Federal Rule of Criminal Procedure 29, arguing that the government had not

proved beyond a reasonable doubt that he knew he was answering falsely when he replied

“no” to Question 23. The court took the motion under advisement.

       Lefsih was the only witness for the defense. And the core of Lefsih’s testimony

was that his incorrect answer to Question 23 was an honest mistake, rather than a

knowing falsity. According to Lefsih, he did not understand what the word “cited”

                                             7
meant, or that “traffic tickets are actually included in the word cited.” J.A. 229. Instead,

because the word “cited” appears between “arrested” and “detained” in Question 23,

Lefsih assumed that it carried a similar meaning: being taken into custody. Because he

had not been detained as a result of his traffic violations, Lefsih did not understand that

those infractions fell within the scope of Question 23. As Lefsih testified, “It never

occurred to [me] that [a] traffic ticket could be [a] criminal offense.” J.A. 226.

       The defense sought to bolster Lefsih’s account by introducing other immigration

forms that expressly clarify whether traffic tickets are within the scope of questions

regarding criminal history. In light of Question 23’s failure to provide this clarification,

the defense argued, the government could not meet its burden of proving that Lefsih’s

answer was a knowing and purposeful false statement rather than an inadvertent error.

       After closing arguments, the district court instructed the jury. Reiterating a point

made during its preliminary instructions at the start of trial, the judge told the jurors:

“My job . . . is to preside over the trial. I don’t have any position about the outcome of it.

I’m like the referee or the umpire. You’re the actual judges of the facts.” J.A. 272. Later

in the instructions, the court added: “[I]f during the course of the trial I made any

comments or asked any questions or made any rulings, you should not interpret from that

that I have any position or opinion about the outcome of the case. I simply do not.” J.A.




                                              8
274. 2 After approximately 30 minutes of deliberation, the jury returned a verdict of

guilty on all counts.

       After the verdict, the government dismissed the two false statement counts against

Lefsih in order to avoid potential double jeopardy issues. Lefsih renewed his Rule 29

motion for a judgment of acquittal on the remaining immigration fraud counts. The

district court denied that motion at sentencing, and sentenced Lefsih to time served. 3

This timely appeal followed.



                                               II.

       We begin with Lefsih’s first argument: that the district court improperly denied

his Rule 29 motion for a judgment of acquittal, because the government’s evidence was

insufficient to show that he knowingly gave a false answer to Question 23. “A defendant

challenging the sufficiency of the evidence to support his conviction bears a heavy

burden.”    United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (internal

quotation marks omitted). In reviewing the evidence, we must draw “all reasonable


       2
        In its preliminary instructions to the jury before the start of trial, the district court
used similar language: “[N]othing that I say or do during the course of the trial is
intended to indicate, nor should you take it as indicating, what your verdict should be. In
other words, I don’t have any position about the outcome of the case. I’m the referee.
I’m not on one side or the other. So don’t think that because I make a ruling one way or
another that I think it ought to be decided a certain way; I don’t.” J.A. 82.
       3
        After sentencing, Lefsih immediately was taken into custody by ICE agents to
await deportation proceedings. Lefsih was detained in Louisiana, pending removal
proceedings before an immigration court.


                                               9
inferences from the facts proven to those sought to be established” by the government.

United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). And Lefsih can prevail

only if no “rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” United States v. Green, 599 F.3d 360, 367 (4th Cir. 2010).

We agree with the district court that Lefsih cannot meet this “high bar.” J.A. 335

(“Given this high bar and heavy burden, the Court elects not to disturb the jury’s

verdict.”) (internal quotation marks omitted).

       The government started its case with a concededly false statement: Lefsih’s false

answer to Question 23. It then presented ample evidence from which a rational jury

could conclude that there was no language barrier or other impediment that would have

prevented Lefsih from understanding the correct meaning of Question 23 and applying it

properly to his numerous traffic citations. The only remaining question was whether the

jury would credit Lefsih’s testimony that he nevertheless made an honest mistake when

he answered “no” on his N-400 form. And while a reasonable jury might have believed

Lefsih’s account of confusion and misunderstanding, there is nothing that would have

compelled it to do so.   Cf. United States v. Hester, 880 F.2d 799, 803 (4th Cir. 1989)

(finding sufficient evidence where jury could have inferred knowledge from “sufficiently

strong” circumstantial evidence). Such credibility determinations fall squarely within the

purview of the jury, and are not to be reassessed on appeal. See Green, 599 F.3d at 367;

United States v. Roe, 606 F.3d 180, 186 (4th Cir. 2010). Because a rational jury could




                                            10
infer the requisite knowledge on Lefsih’s part, Lefsih cannot prevail on his claim of

insufficient evidence. 4



                                             III.

           We turn next to Lefsih’s argument that the district court improperly conveyed

negative views of Diversity Program immigrants to the jury, thus depriving him of a fair

trial. Because Lefsih did not raise a timely objection, we review this alleged impropriety

for plain error only. See United States v. Martinovich, 810 F.3d 232, 238 (4th Cir. 2016).

       Under that standard, our review is limited to plain errors that affect a defendant’s

substantial rights. Id.; United States v. Olano, 507 U.S. 725, 734 (1993). In this context,

that means that “we may not intervene unless the judge’s comments were so prejudicial

as to deny the defendant[] an opportunity for a fair and impartial trial.” Martinovich, 810

F.3d at 238 (quoting United States v. Smith, 452 F.3d 323, 331 (4th Cir. 2006)). We

conclude that the judicial intervention in this case was sufficiently prejudicial to meet this

       4
         For the first time on appeal, Lefsih also argues that the government’s evidence
falls short of establishing another element of immigration fraud: that a false statement be
“material” to the naturalization process. See 18 U.S.C. § 1546. We find no defect here,
let alone the kind of “plain error” that would warrant reversal where a defendant fails to
make a timely objection at trial. See United States v. Olano, 507 U.S. 725, 732 (1993).
A false statement to a government agency is “material” if “it has a natural tendency to
influence agency action or is capable of influencing agency action.” See United States v.
Ismail, 97 F.3d 50, 60 (4th Cir. 1996) (internal quotation marks omitted). Here, the
government presented unrebutted testimony that knowledge of Lefsih’s repeated traffic
violations would have allowed it to better evaluate Lefsih’s moral character and fitness
for entry by, for instance, exploring whether the incidents involved bodily injury, drugs
or alcohol, or a general “disregard for the law.” J.A. 159. A reasonable jury could have
relied on that testimony to find materiality.


                                             11
high threshold and “undermine confidence” in Lefsih’s conviction, see id. at 242, and

accordingly, we vacate the conviction. 5

                                            A.

       The crux of Lefsih’s claim is that the district court improperly interfered with his

trial through “ill-advised” questions and comments, see Martinovich, 810 F.3d at 239

(finding error in district court’s “ill-advised comments and interference”), posed to the

government’s second witness, Gary Freitas. Specifically, Lefsih argues that the district

court impermissibly conveyed to the jury, through questions and comments that

otherwise were wholly extraneous, the court’s skepticism of the Diversity Program

through which Lefsih entered the country, as well as its negative view of the immigrants

– like Lefsih – who avail themselves of the Program. We must agree.

       It is of course true, as the government reminds us, that federal judges need not sit

silently during the presentation of evidence at trial. The Federal Rules of Evidence

charge district courts with “exercis[ing] reasonable control over the mode and order of

examining witnesses and presenting evidence,” Fed. R. Evid. 611(a), and that authority

extends to both “direct participation in the examination of witnesses” and “commenting,

with proper deference to the jury, upon the evidence.” Sit-Set, A.G. v. Universal Jet

Exchange, Inc., 747 F.2d 921, 925 (4th Cir. 1984). Indeed, in discharging his or her

duties, it may be incumbent on a trial judge to question a witness “for the purpose of


       5
          In light of this ruling, we need not address Lefsih’s final argument that the
district court erred in denying his motion for a continuance and change of venue.


                                            12
developing the facts,” Hoffler v. United States, 231 F.2d 660, 661 (4th Cir. 1956), or to

ensure that the “case on trial is presented in such way as to be understood by the jury,”

United States v. Parodi, 703 F.2d 768, 775 (4th Cir. 1983). Similarly, a judge may find it

necessary to comment on the evidence presented at trial, in order to “assist the jury in

understanding the facts and issues in dispute.” United States v. Tello, 707 F.2d 85, 90

(4th Cir. 1983). And there is no question that in these core matters of trial management, a

district court is granted broad discretion. See United States v. Godwin, 272 F.3d 659, 676

(4th Cir. 2001).

       But there are limits to that discretion. See id. at 677 (with respect to judicial

interventions in trial, “a judge has no ‘impregnable cloak of immunity’” (quoting Wallace

v. United States, 281 F.2d 656, 665 (4th Cir. 1960))). And as we have made clear, those

limits are breached when judicial intrusion gives rise to an “appearance of bias or

partiality,” Parodi, 703 F.2d at 776, creating for the jury “an impression of partiality” or

“apparent [] favor or disfavor for one side or the other,” United States v. Head, 697 F.2d

1200, 1210 (4th Cir. 1982). If a district court, through its questions of a witness,

interjects a “negative impression” of the defendant into a trial, or conveys “skepticism” of

the defendant or his evidence, then the court has crossed the line from active trial

management to “unfairly lending the court’s credibility” to the government’s case.

Godwin, 272 F.3d at 678, 675, 674.

       We have applied that principle to find error when a district court becomes “overly

involved,” id. at 679, in one party’s presentation of its case, giving rise to an appearance

of partiality. Through a pattern of one-sided interruptions and questions of defense

                                            13
witnesses, for instance, a court may convey to the jury that it is on the side of the

government. See id. Most recently, in Martinovich, we considered a court’s repeated and

unnecessary interruptions of defense counsel and questioning of defense witnesses, and

concluded that the court had “strayed too far from convention.” 810 F.3d at 240. The

concern in such cases is not necessarily with the content of the court’s questions or

comments, but rather that the jury may infer from the very fact of repeated interventions

or interruptions that the court is sympathetic to one side of the case. See Godwin, 272

F.3d at 677 (“[W]hen a judge cross-examines a defendant and his witnesses extensively

and vigorously, he may present to others an appearance of partisanship[.]”) (internal

quotation marks omitted) (emphasis removed); United States v. Cassiagnol, 420 F.2d

868, 879 (4th Cir. 1970) (“Constant or persistent interruption of defense counsel may

have the effect of contaminating the jury’s verdict by indicating the judge’s evaluation of

the weight of the evidence and the merits of the defense.”).

       This is the more unusual case in which the primary problem is not the extent of

judicial participation at trial, but instead the actual content of the court’s questions and

comments. See United States v. Fuller, 162 F.3d 256, 259 (4th Cir. 1998) (describing as

“most troubling” district court statement, during jury instructions, that it did not credit

part of defendant’s testimony). This jury, in other words, would have no need to deduce

from a pattern of interruptions or questions that the district court was skeptical of the

defendant; here, the district court conveyed that skepticism directly. In the context of an

immigration-fraud case – that is, with immigration front and center before the jury – the

court began with a series of questions and comments suggesting a negative view of the

                                            14
very immigration program through which Lefsih had entered the country:

“[U]nbelievable, unbelievable.” J.A. 149. And contrary to the government’s argument,

what reasonably could have appeared to the jury as the court’s disapproval did not stop

with the Diversity Program itself, or the Congress that established it. Instead, the court

went on to provide a negative assessment of the people – like Lefsih himself – who make

use of the Diversity Program to come to the United States. According to the court, such

immigrants, unlike those admitted through other programs, need not exhibit the “skill or

personal characteristics” to “contribute to the well-being of the United States.” J.A. 148.

And the court further questioned whether these individuals – again, including Lefsih, on

trial for immigration fraud – act in good faith when participating in the Program,

suggesting that lottery winners could abuse the system by “drag[ging] along [their] ten

kids and four wives or what[.]” J.A. 152. As we have explained in reviewing the

sufficiency of the evidence, this is a case in which the credibility of the defendant was of

“crucial importance,” and as a result, aspersions cast by the court on the trustworthiness

of Diversity Program entrants would have carried special weight. See Godwin, 272 F.3d

at 678.

          We need not go through a line-by-line analysis of the court’s largely rhetorical

questions and comments. It is enough to say that taken together, they would have

conveyed to the jury the court’s “negative impression,” id., of the Diversity Program and

the immigrants who avail themselves of the Program, and thus of Lefsih himself. And

the impropriety of the judicial intervention here is magnified by the fact that on the other

side of the balance – the obligation of a court to keep “reasonable control” of the

                                             15
proceedings, Fed. R. Evid. 611(a), and ensure that relevant issues are comprehensible to

the jury, see Hoffler, 231 F.2d at 661 – there is nothing. A level of judicial participation

that might be understandable in a “multi-week trial that involved highly complex factual

issues . . . numerous witnesses, and several hundred exhibits,” see Martinovich, 810 F.3d

at 241, will be less appropriate in the context of the two-day, three-witness trial at issue

here. Cf. Smith, 452 F.3d at 333 (trial court intervention “crossed no line” where it

represented “attempt to cabin and control a two-week trial that featured numerous

witnesses, extensive amounts of evidence, and, even on appeal, an eight-volume joint

appendix totaling well over 2600 pages”). And the court’s interruptions and questions in

this case did nothing to elucidate important evidence that otherwise would have been

difficult for the jury to understand. Cf. Colombo v. Flemings, 43 F.3d 1465, 1994 WL

708486 at *4 (4th Cir. Dec. 14, 1994) (unpublished). On the contrary, the court’s critique

of the Diversity Program and the individuals who utilize that program had little, if

anything, to do with the actual evidence in the case against Lefsih, who was not on trial

for his method of entry into the United States but only for his answer to Question 23.

       We have no reason to believe that the district court intended to convey a negative

impression of Lefsih to the jury, or to lend the “imprimatur” of its office to the case

against him. See Godwin, 272 F.3d at 678. But the court’s questions and comments –

sustained, one-sided, and in the context of this short and uncomplicated trial, wholly

gratuitous – nevertheless had that effect. Accordingly, we find that the district court’s

actions were in error.



                                            16
                                              B.

       As noted above, because Lefsih failed to object at trial to the district court’s

interventions, we may correct the court’s error only if it is both plain and one that affects

Lefsih’s substantial rights by denying him the “opportunity for a fair and impartial trial.”

Godwin, 272 F.3d at 673, 679 (internal quotation marks omitted); see Martinovich, 810

F.3d at 238. Because “the legal principles governing judicial interference claims have

been long settled,” the district court’s error qualifies as “plain” for purposes of plain error

review. Godwin, 272 F.3d at 679. And on the facts of this case, we must also conclude

that the error was sufficiently prejudicial that it denied Lefsih the “fair and impartial

trial,” id., to which he was entitled and “undermine[d] confidence in [his] conviction[],”

Martinovich, 810 F.3d at 242.

       The most important factor here is the closeness of the government’s case against

Lefsih. Where the case against a defendant is “compelling and overwhelming,” we have

been prepared to infer that a jury did not convict because of a court’s erroneous

interventions.   Godwin, 272 F.3d at 680 (erroneous intervention does not affect

substantial rights where “the evidence is overwhelming and a perfect trial would reach

the same result”); see Fuller, 162 F.3d at 260 (judge’s expression as to defendant’s guilt

does not warrant reversal where “facts required for conviction were admitted by the

defendant during his testimony and were not controverted by any other evidence”). In

Martinovich, for example, we denied relief under the plain error standard where

“[t]estimony from 28 witnesses and approximately 250 exhibits” added up to an

“overwhelming” case against the defendants, so that we could not conclude that the

                                              17
district court’s improper interruptions and questions had an impact on the trial’s outcome.

810 F.3d at 242.

       Here, by contrast, the government’s case was substantially weaker.                    The

government could present no direct evidence on the critical question at the heart of its

case: whether Lefsih knew when he answered Question 23 of the N-400 form that his

answer was false, or whether, as Lefsih testified, he honestly but mistakenly believed that

traffic tickets fell outside the scope of the form’s inquiry into criminal history. And while

it is not unusual for the government to rely exclusively on circumstantial evidence in

proving state of mind, see Santos, 553 U.S. at 521, the government’s circumstantial

evidence in this case was not especially strong. It may be, as the government sought to

establish, that Lefsih speaks English and excels in certain academic subjects. But there is

space between speaking the language and understanding the meaning of “arrested, cited,

or detained” as it pertains to traffic tickets, and indeed, after the jury’s verdict, the district

court here characterized as “sincere” Lefsih’s account of his “unknowing mistake.” J.A.

307.   The evidence against Lefsih is constitutionally sufficient, but it is not “compelling

and overwhelming,” see Godwin, 272 F.3d at 680.

       Additional factors point in the same direction. First, the timing and context of the

district court’s interjections could only have amplified their prejudicial effect. Lefsih’s

sole defense – that he did not believe Question 23 included traffic tickets – depended

critically on his credibility. But before Lefsih could take the stand, the district court had

negatively characterized the program through which he entered the United States and

commented on the risk that individuals like him would take undue advantage of the

                                               18
Diversity Program. And those concerns would have been especially resonant for the jury,

because the government already had cast as suspicious Lefsih’s choice to rely on the

Diversity Program for entry rather than seek a student visa. Given this context, the

court’s commentary was “potentially fatal” to Lefsih’s credibility-based defense. See id.

at 678.

          Second, factors we have relied on in other cases to mitigate the prejudicial effect

of improper judicial interventions are absent here. This is not a case involving a “single

comment” by a court, see United States v. Williams, 49 F. App’x 420, 426 (4th Cir. 2002)

(“single comment” by district court not so prejudicial as to warrant correction on plain

error review), or even multiple comments spread “throughout several weeks of trial” so

as to minimize their relative impact, see Martinovich, 810 F.3d at 242.            Here, the

improper questions and comments were “persistent and repeated,” see Cassiagnol, 420

F.2d at 879, posed to one of only two government witnesses at a trial lasting for less than

two full days. Nor were the court’s interventions even-handed, directed at both parties

alike. See Martinovich, 810 F.3d at 241 (finding no effect on substantial rights where

district court interrupted and questioned both defense and government witnesses); Head,

697 F.2d at 1210 (finding no prejudice where court’s “patent overinvolvement” and

criticism were directed at and affected both sides). Instead, the improper questions and

comments were entirely to the government’s benefit, expressing disapproval only of the

Diversity Program and its beneficiaries. And while a lengthy jury deliberation followed

by a divided verdict may provide some assurance that a jury was not affected by

improper judicial interjections, Martinovich, 810 F.3d at 242; see United States v.

                                              19
Cornell, 780 F.3d 616, 627 (4th Cir. 2015), the jury here deliberated for only 30 minutes

before returning with a guilty verdict on all counts.

       Against all of this, the government points to the district court’s “curative

instructions,” Br. for Appellee at 33, given before and after trial, instructing the jury that

the court has no “position about the outcome of the case” and that “nothing that I say or

do during the course of the trial is intended to indicate, nor should you take it as

indicating, what your verdict should be.” J.A. 82. It is true, as the government argues,

that proper curative instructions may “save [a] trial from reversal” where a district court

has improperly intervened. Fuller, 162 F.3d at 260; see Smith, 452 F.3d at 333. But we

also have recognized that instructions will not always be enough to “undo” the effects of

judicial intervention even under plain error review, see Martinovich, 810 F.3d at 241, and

the instructions here cannot bear the weight the government puts on them.

       As we have explained, a curative instruction regarding a judge’s improper

expression of opinion should be given contemporaneously with or at least close in time to

the inappropriate comment itself, so that the jury readily can connect the two. See Tello,

707 F.2d at 88 (judge “should give [the curative] instruction in sufficient proximity to his

comment so that the jury will have it clearly in mind when the comment is made”). In

Fuller, for instance, we relied on the effectiveness of curative “admonitions” that were

“given to the jury immediately preceding and following the judge’s expression of

opinion” about the defendant. 162 F.3d at 260; see also Tello, 707 F.2d at 89–90 (relying

on judge’s statement at conclusion of improper comments). In this case, on the other

hand, the court did not issue a curative instruction immediately after its improper

                                             20
comments, or even at the conclusion of Freitas’s testimony, during which the court’s

interventions occurred. Nor, importantly, did the standard instructions ultimately given at

the close of trial make any direct reference to the court’s commentary on Diversity

Program immigrants. Neither the timing nor the content of the “boilerplate” instructions,

in other words, clearly tied those instructions to the error purportedly addressed. See

Universal Jet Exchange, Inc., 747 F.2d at 926 (finding district court’s “boilerplate final

instruction to the jury” after persistent judicial intervention insufficient to “remove[] the

impression . . . necessarily conveyed of judicial partiality”). As a result, and in light of

all of the factors bearing on prejudice, we cannot find these instructions sufficient to

“undo” the harm, see Martinovich, 239 F.3d at 241, caused by the district court’s error.

       Again, we do not doubt that the district court in this case acted without any intent

to influence the jury improperly. And we appreciate that the defendant’s failure to object

at trial – which might have allowed the district court to correct its error in real time –

creates an especially “high bar for appellate review.” See id. at 239. But in the particular

circumstances of this case, we conclude that the court’s interventions were not only

plainly erroneous but also “so prejudicial as to deny the defendant[] an opportunity for a

fair and impartial trial,” thus affecting Lefsih’s “substantial rights.”     See id. at 238

(internal quotation marks omitted). And because the error here is of the kind that may

seriously affect the “fairness, integrity or public reputation of judicial proceedings,” we

will correct it by vacating Lefsih’s conviction. See Olano, 507 U.S. at 736 (describing

circumstances under which court of appeals may exercise discretion to correct a plain

error affecting substantial rights).

                                             21
                                            IV.

      For the foregoing reasons, we vacate the judgment of conviction and remand for

proceedings consistent with this opinion.



                                                       VACATED AND REMANDED




                                            22
