          United States Court of Appeals
                       For the First Circuit

No. 07-1962

                      UNITED STATES OF AMERICA,

                              Appellee,

                                 v.

                      ANGEL A. MELENDEZ-RIVAS,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

              [Hon. José A. Fusté, U.S. District Judge]


                               Before

                         Lynch, Chief Judge,
                  Selya and Lipez, Circuit Judges.



     Rafael F. Castro Lang for appellant.
     Nelson Pérez-Sosa, Assistant United States Attorney, with
whom Rosa Emilia Rodriguez-Velez, United States Attorney, was on
brief for appellee.




                            May 15, 2009
           LYNCH, Chief Judge.         In a crime apparently motivated by

jealousy over a woman, the woman's suitor, Kelvin Ramos, was taken

from his motorcycle in a Puerto Rican housing project, forced into

a van by a group of assailants, including defendant, and murdered

by the father of her children.         The murderer was killed, perhaps by

Ramos's friends, before any federal charges were brought.

           The defendant here, Angel Melendez-Rivas, maintained his

innocence on the stand and said he was forced to participate in the

crime.    He was convicted of conspiracy and of aiding and abetting

a motor vehicle hijacking with intent to cause death, as well as of

a firearms offense during and in relation to the crime.                   Three

other co-defendants were also charged, but the indictments against

them were dismissed without prejudice, at the government's request,

on the eve of trial.        Melendez-Rivas, who had no prior criminal

record,   was   sentenced    to   50    years'   imprisonment,     after   the

government declined to seek the death penalty.

           Melendez-Rivas     appeals,       primarily   arguing   that    the

evidence was insufficient to meet the elements of the offenses of

conviction and that he is entitled to an acquittal.            We disagree.

Defendant's second argument is that the intervention of the trial

court in questioning a defense witness went beyond the appropriate

limits and put prejudicial, inadmissible hearsay before the jury,

to his detriment. We are sufficiently concerned about the possible

interference with defendant's fair trial rights engendered by the


                                       -2-
particular questions and answers that we vacate the conviction and

remand for a new trial.

                                           I.

                  Appeal From Denial of Rule 29 Motion

           We     first    address    the       defendant's   argument     that   the

evidence was insufficient.           If defendant is correct, then the case

ends and he may not be tried again.                See Smith v. Massachusetts,

543 U.S. 462, 467 (2005) ("[T]he Double Jeopardy Clause of the

Fifth    Amendment       prohibits    reexamination         of    a    court-decreed

acquittal to the same extent it prohibits reexamination of an

acquittal by jury verdict.").               "For purposes of assessing the

sufficiency claim, we recite the facts in the light most favorable

to the verdict."      United States v. Upton, 559 F.3d 3, 6 (1st Cir.

2009).

A.         Factual background

           On the evening of June 16, 2005, Kelvin Ramos drove his

Hyabusa Suzuki motorcycle to the Quintana Housing Project, where

his girlfriend Taishanet Falu lived.                He wore a red shirt, short,

black    pants,    and     jewelry,       including    a    bracelet      watch   and

distinctive gold chain.        The chain was a thick "Cuban-type" chain

with two panthers and the letter "K" on it.                           While visiting

Taishanet,   Kelvin       received    a    phone     call   and   went    to   leave.

Taishanet also left her home and went over to visit her sister




                                          -3-
GinLin Falu Garcia and her cousin Glenda Falu Rivera, both of whom

also lived at the Quintana Project.

              As Kelvin got on his motorcycle, three men surrounded

him.       At trial, Taishanet identified them as Edwin, Taishanet's

estranged husband and the father of her children, Johal, a known

associate of Edwin, and Melendez-Rivas.      Edwin held a gun up to

Kelvin's face on one side of the motorcycle, while Johal stood on

the other side of the motorcycle, and Melendez-Rivas stood behind

Johal.       Taishanet yelled at Edwin and begged him not to harm

Kelvin, at which point Edwin said to her: "Don't you get up close

here, because I will hit you with the gun, you little bitch."

Johal grabbed Taishanet while Edwin confronted Kelvin and told him

to pull up his shirt.      Kelvin pulled out his gun from under his

shirt and gave it to Edwin, who handed the gun to Melendez-Rivas.

Taishanet continued to beg Edwin not to hurt Kelvin.     Kelvin told

her he would be fine and asked her to leave.

              Soon after, "Bondy," co-defendant Luis Nieves-Burgos,

arrived in a white and gray van.1       Bondy got out of the van as

Edwin and Melendez-Rivas struggled with Kelvin to get him off the

       1
          The government's theory of the events of June 16 differs
substantially from the defendant's account of the events that
evening, as we discuss later in more detail.        The government
theorized based on Taishanet's testimony that Bondy drove the van
to the scene of the kidnapping, that Johal drove the van away, and
that the defendant was already there with Edwin and Johal before
the van arrived. The defendant testified that he drove the van to
and from the scene, an account consistent with the testimony of one
government eyewitness.

                                  -4-
motorcycle and into the back of the van.   Edwin and Melendez-Rivas

forced Kelvin into the van, which Johal then drove away.

           Shortly afterward, "Jonty," co-defendant John T. Ayala,

arrived with "Pupen," co-defendant José Luis Cora-Meléndez.    They

tried to start the motorcycle but were unable to ride it.     Later,

Guillermo Rodriguez arrived and drove the motorcycle away.

           Taishanet then returned to her house with her sister, who

contacted Kelvin's wife, Irysa García-Reyes to let her know what had

happened   to   Kelvin and that she thought he had been killed.

Taishanet tried to call Kelvin's cell phone several times; once,

Edwin picked up, and when Taishanet told him not to harm Kelvin,

Edwin started laughing.

           Taishanet testified that later that evening, she saw

Edwin and Melendez-Rivas in the project.    She saw that Edwin was

wearing Kelvin's jewelry. Edwin said to her, "I gave him 30 because

he is a pig."

           Kelvin's body was found two days later with thirty-two

gunshot wounds.     There was no physical evidence other than the

jewelry linking the death to the defendant.       The government's

argument at trial was that the defendant's presence at the scene

where Kelvin was forced off his motorcycle and the fact that Edwin

handed Melendez-Rivas Kelvin's gun proved intent to aid and abet.




                                -5-
B.        Sufficiency challenge

          Defendant's argument that the district court erred in

denying his motion for acquittal is based on a misapprehension of

the elements of the statutory offense; it is also foreclosed by

circuit precedent.   Our review is de novo both because we are

reviewing evidentiary sufficiency and because we are interpreting

the terms of a statute.   United States v. Teleguz, 492 F.3d 80, 86

(1st Cir. 2007) ("Our review of legal questions is de novo, and we

review the entire record on [the defendant's] sufficiency claim.").

          If a reasonable factfinder could have found the defendant

guilty beyond a reasonable doubt, we must affirm.   United States v.

Lipscomb, 539 F.3d 31, 40 (1st Cir. 2008) ("Viewing the evidence in

the light most flattering to the jury's guilty verdict, we assess

whether a reasonable factfinder could have concluded that the

defendant was guilty beyond a reasonable doubt.").

          Here, the jury answered a special verdict that "the

taking of the motorcycle occur[red] with the intent to cause death

or serious bodily injury [to Kelvin Ramos]" and that "[t]he intent

or motive behind the killing of [Ramos] was . . . jealousy."

          Melendez-Rivas argues from this second finding.    He says

the relevant motive which separates the federal crime from a state

crime is the motive for the ultimate killing (not the taking of the

vehicle), and since the motive for the killing found by the jury

here was jealousy, no federal crime was committed.


                                -6-
            He is wrong.     Not only does the specific language of the

statute say otherwise but our case law has already rejected this

argument.

            The statute reads:

            Whoever, with the intent to cause death or
            serious bodily harm takes a motor vehicle that
            has been transported, shipped, or received in
            interstate or foreign commerce from the person
            or presence of another by force and violence
            or by intimidation, or attempt to do so, shall
            . . . (3) if death results, be fined under
            this title or imprisoned for any number of
            years up to life, or both, or sentenced to
            death.

18 U.S.C § 2119(3) (emphasis added).

            The requisite intent was that first found by the jury:

that at the time the victim's motorcycle was taken, it was done with

the intent to cause death or serious bodily injury.           The relevant

intent may be conditional -- that is, the intent requirement is

satisfied   if   at   the   time   Melendez-Rivas   took   control   of   the

motorcycle, he had an intent to kill or cause serious bodily injury

to the driver, whether or not the intent was necessary to take the

vehicle.    Holloway v. United States, 526 U.S. 1, 12 (1999) ("The

intent requirement of § 2119 is satisfied when the Government proves

that at the moment the defendant demanded or took control over the

driver's [vehicle] the defendant possessed the intent to seriously

harm or kill the driver if necessary to steal the [vehicle] (or,

alternatively, if unnecessary to steal the [vehicle]).").                 The

statute does not require that the taking of the motor vehicle be "an

                                     -7-
ultimate motive for the crime."       United States v. Rivera-Figueroa,

149 F.3d 1, 4 (1st Cir. 1998).         Rather, "[i]t is enough that the

defendant be aware that the action in which he is engaged, whether

by himself or through direction or assistance to another, involves

the taking of a motor vehicle."        Id.

              More recently, in United States v. García-Álvarez, 541

F.3d 8 (1st Cir. 2008), this court rejected an argument similar to

defendant's.     Defendant there argued that he took the victim's car

solely for use as a getaway vehicle and that the taking of the car

was never the motive for the crime.          García-Álvarez affirmed the

Rivera-Figueroa holding that the taking of a vehicle need not be the

ultimate motive for the crime under § 2119(3).             Id. at 6.

              Based on the evidence here, Melendez-Rivas had to be

aware that he was involved in the taking of a motor vehicle, and

that Ramos had already started the motorcycle when Melendez-Rivas

and his co-defendants surrounded him.        They had to take control of

the motorcycle in order to subdue Ramos.        In doing so, they pointed

a gun at the victim, showing an intent to cause death or serious

injury, an intent reinforced by what happened next.            The evidence,

viewed   in    the   light   most   favorable   to   the    government,   was

sufficient.

              We affirm the denial of his motion for judgment of

acquittal.




                                     -8-
                                      II.

       Questioning by the District Court and Answers Elicited

              Two separate strands of legal doctrine are combined in

defendant's     second   challenge.      He   first   argues   that   certain

questions, which were asked by the trial judge, elicited answers

that   were   inadmissible   and   prejudicial    because      the   responses

erroneously suggested to the jury that Melendez-Rivas was involved

in other crimes not charged in the instant indictment.

              Secondly, defendant argues, the prejudicial effect on

defendant was made worse by the fact that it was the trial judge who

asked the questions sua sponte and then refused to give any curative

instruction.     In reviewing the district court's questioning, our

"inquiry . . . necessarily turns on the question of whether the

complaining party can show serious prejudice."          Logue v. Dore, 103

F.3d 1040, 1045 (1st Cir. 1997).

A.            Conflicting testimony presented at trial

              We set the stage.       The evidence presented was largely

testimonial, and the witnesses' accounts often conflicted. The jury

faced credibility contests on several central issues in the case.2

First, Melendez-Rivas testified that he was driving the van home,



       2
          Indeed, at closing argument, the prosecution emphasized
the inconsistencies and credibility contests in the case,
characterizing the defendant's account as too "convenient" to be
believed, and insisting that Taishanet could not have simply
"ma[d]e . . . up" her account.


                                      -9-
when he arrived at a spot in the street where he was blocked by the

kidnappers who were confronting Kelvin.         He further testified that

he only became involved in driving the getaway van because he had

been threatened by Edwin and Johal, who carried loaded guns when

they demanded he become involved and drive the van.            He feared he

would be killed if he did not participate.       He said he did not force

Kelvin into the van.      Finally, he also testified that he had no

prior criminal record and was not friendly with the other men

accused of kidnapping Kelvin.        The crime was motivated by Edwin's

jealousy, the defendant claimed, and he carried no grudge against

Kelvin and had no reason to be involved in killing him. We describe

the testimony in more detail below.

           The prosecution anticipated and countered defendant's

themes with Taishanet's testimony, which was the primary evidence

presented against the defendant at trial.3         Taishanet's testimony

painted a picture of voluntary participation by the defendant.

Taishanet placed the defendant as already at the basketball court

with   Edwin   and   Johal:   she   testified   that   the   three   of   them




       3
          Defendant also argues that the prosecution engaged in
improper vouching during its questioning of Taishanet and that the
district court erred in admitting her testimony that the FBI had
instructed her to tell the truth. The defendant did not object on
this basis in the district court, and therefore our review is for
plain error. There was no error in this regard, let alone plain
error.


                                     -10-
confronted Kelvin and forced him off his motorcycle.4   Indeed, the

defendant took the gun from Edwin when Edwin disarmed Kelvin.   This

was the strongest evidence at trial contradicting defendant's claim

of coercion.

           Taishanet testified that Bondy, not Melendez-Rivas, then

arrived in a white van and that it was Edwin, Johal, and the

defendant who forced Kelvin into the van. She stated that Bondy got

out of the truck, that Edwin and Melendez-Rivas forced Kelvin into

the back of the van, and that Johal (not defendant) then got into

the van and drove it away.   Further, she testified that later that

evening, she saw Edwin, accompanied by Melendez-Rivas, and that

Edwin (and not Melendez-Rivas) was wearing Kelvin's jewelry.    The

defendant, by contrast, claimed he did not see Edwin and Johal until

the next day.

           To attack Taishanet's credibility, defense counsel on

cross-examination elicited testimony from Taishanet that she never

reported Kelvin's kidnapping to the police, that she had received

$2600 for her testimony, and that she associated with several

notorious local criminals and had never reported their criminal

activities.

           One of the prosecution's two other eyewitnesses, GinLin,

arrived on the scene after the altercation had already begun and so

     4
          Although witnesses and the government described Kelvin as
Taishanet's boyfriend, she denied having a romantic relationship
with him and stated that they were just friends.

                                -11-
could not address whether defendant initially had been forced to

participate.      Her testimony confirmed only that Melendez-Rivas had

driven the van away, a point Melendez-Rivas admitted, but that

conflicted with Taishanet's testimony that Johal had driven the

getaway vehicle.      She further testified that Edwin and Johal (and

not    Melendez-Rivas)    dragged   Kelvin    into   the   van,   which   was

consistent with Melendez-Rivas's testimony.           She also said that

later that evening, she saw the defendant (rather than Edwin, as

Taishanet had testified) wearing Kelvin's "K" necklace, and that he

was standing with Edwin and Johal.

            The     prosecution's    third     eyewitness, Glenda, whose

credibility was under heavy attack at trial, testified she saw Edwin

point a gun at Kelvin to force him off the motorcycle and that Johal

and the defendant were there.         She testified that she then ran

upstairs into her aunt's house.            Her testimony did not address

whether defendant was participating voluntarily. She testified that

she then ran out onto the balcony and saw Edwin put Kelvin into the

van.    She stated that Melendez-Rivas got into the front passenger

door of the van before it drove away.        She did not see who drove the

van away.    She testified that she later saw Edwin, but that she

could not identify who he was with.

            Glenda admitted that she initially told the FBI agents

that she only saw Edwin and Johal on June 16, and that after being

shown a picture of Melendez-Rivas she told the agents that she had

                                    -12-
not seen him.        Cross-examination further elicited that two FBI

agents had approached Glenda three months later and told her that

they believed that Melendez-Rivas was involved and that she had

committed a very serious crime by not giving them the information

they wanted.        Only after that did she say that she had seen the

defendant on the evening of June 16.

              The   prosecution    presented   additional   evidence    in   an

effort to refute Melendez-Rivas's defense theories in several ways.

It tried to establish that: (1) Melendez-Rivas was friends with

members of the group which had accosted Kelvin (thus making it

improbable that he was forced into participating); (2) Melendez-

Rivas had admitted this connection to FBI agents who investigated

the crime in the project; and (3) Melendez-Rivas had Kelvin's

distinctive jewelry, a Cuban-type chain with two panthers containing

a   letter.     Despite    the    difference   between   "A"   and   "K,"    the

prosecution's theory was that defendant's "A" necklace was the same

"K" necklace that originally belonged to Kelvin, and that defendant,

prior to Kelvin's murder, had worn a simpler gold chain.             Melendez-

Rivas denied the first two and put on evidence (including from his

wife and two jewelers who claimed to have made the necklace) of his

prior ownership of the similar Cuban-type "A" chain.

              During the defense case, Melendez-Rivas testified that

although he was driving the white van, he was coerced into becoming

involved in the altercation between Kelvin and Edwin, Johal, and


                                     -13-
Pupen.   Defendant testified that he was driving from the project

basketball court when he stopped the van near where the others were

already confronting Kelvin on his motorcycle. Defendant stated that

at that time, he saw Taishanet, GinLin, and Glenda in the street.

At that point, defendant testified, Edwin and Johal had a gun on

Kelvin and they forced Kelvin into the rear of the van.   Edwin then

went to the front passenger door and "told me to take off."

Melendez-Rivas said he obeyed because Edwin "had two weapons and I

understood that if I didn't take off, they were going to kill me."

He testified that Edwin and Johal let him out of the van once they

left the housing project with Kelvin, he walked to his mother's

house, which was also in the project, and Edwin and Johal drove the

van away with Kelvin still alive inside.    Although Taishanet and

GinLin testified they saw defendant that evening in the project with

Edwin,5 defendant said he did not see Edwin and Johal until the next

day, when they came by to threaten defendant not to tell anything

to the police.

           Melendez-Rivas further testified that he had no prior

record and he did not "hang with" the conspirators.    He said that

although he knew Kelvin as an acquaintance from vocational school,

he had carried no grudge against Kelvin and had never been in a



     5
          GinLin testified to having seen Edwin, Johal, and
defendant, while Taishanet testified she saw only Edwin and
defendant. Glenda saw Edwin that evening, but she testified that
she could not identify who was with Edwin.

                               -14-
fight with him.      He also stated that he was afraid to go to the

police because he was afraid of Edwin and Johal because they ran the

drug point at the Quintana project.

B.          Questioning by the district court

            The   district   court's   questioning,    challenged    by   the

defendant, occurred during the re-cross-examination of a defense

witness    and   police   officer,   Victor   Rivera   Martinez,    who   was

Melendez-Rivas's father-in-law.6       On re-direct, Rivera stated that

he was familiar with the neighborhood, that he knew of no close

relationship between Melendez-Rivas and Edwin and Johal, and that

this was despite the fact that Edwin and Johal were notorious

figures at the Quintana project.

            Before beginning re-cross-examination, the prosecutor

requested a bench conference where she stated that, in order to

undermine the defense's lack of connection theory, she wanted to ask

Rivera about whether he knew that defendant had admitted to the FBI

that he was in the van with Edwin and Johal on the evening of June

16.   This statement was the subject of a pending suppression

motion.7    The district court determined that it would not allow


      6
            When Rivera took the stand, the defendant had not yet
testified.
      7
          The court completed the suppression hearing later in the
trial, at defense counsel's request. The court determined that
defendant's statements to the FBI during two separate interviews
were voluntary admissions, that the statements to the FBI only
confirmed what was already in the record, and that not only was the
information admissible, "some of it [was] even exculpatory, up to

                                     -15-
questions directly about the statements to the FBI, but that the

prosecution could ask about rumors regarding connections between

Melendez-Rivas and the kidnappers on the evening of the kidnapping.

            On   re-cross-examination,   the   prosecution,   trying   to

undermine the defense's lack of connection theory, asked Rivera

about whether he had heard that the defendant, Edwin, and Johal had

taken Kelvin outside the project on the night of June 16.       A bench

conference ensued over the questioning, the court directed the

prosecution to ask about rumors.

            The prosecution then asked whether Rivera had heard

rumors as to what had happened to Kelvin on June 16.             Rivera

answered "yes, that's right."    The district court then asked "what

have you heard?"    Rivera stated that he had heard a rumor "[t]hat

Mr. Cora, Edwin and Johal took [Kelvin] out [of] the housing

project."   Defendant was not mentioned.   The prosecution then asked

whether Rivera had heard that it was Melendez-Rivas who took Kelvin

out of the project.   Rivera responded "Never" and proceeded to deny

hearing about any connection between the defendant and the men who

had kidnapped Kelvin.

            At that point the district court intervened and asked

questions, apparently meant to refer back to the prosecution's

suggestion that defendant had earlier admitted his connection to




a certain point, in favor of [defendant]."

                                 -16-
other kidnappers to the FBI agents.          The questioning went as

follows:

           The Court:   Did the FBI ever interview you
           about the facts of this case?

           Rivera: They made a comment to me one time
           when they came by the front of my house.

           The Court:   And can I ask you what the comment
           was?

           Rivera: They went to the house of a neighbor,
           and when I am coming to my house, one of the
           agents comes up to me and says to me that my
           son-in-law was involved in a series of felony
           crimes that could lead to the death penalty.

           Defense Counsel:   I have an objection at this
           time.

           The Court: That is what they told you?      That
           is what they told you?

           Rivera:   That is correct.

           Defense Counsel:    I have an objection and a
           motion.

           The Court:    You can make your motion. Please
           approach.

           The Court:   And, of course, you did not believe
           that?

           Rivera:   No, never in my life.

A bench conference ensued.    The defense objected and immediately

moved for a mistrial on the grounds that "[Rivera] has now said that

the FBI told him that there were a series of felonies that could

lead to the death penalty.     That has been introduced.      There is

nothing to that." The court responded, "You heard what I said, 'and


                                -17-
you did not believe that?' And he said, 'No.'"          Defense counsel

responded, "But the FBI said it."    The court then overruled defense

counsel's objection and denied his motion for a mistrial.8

           The court also denied a subsequent written motion for

reconsideration of the defendant's motion for a mistrial, which

elaborated on defense counsel's objections to the testimony. In the

memorandum accompanying the motion, defense counsel made three

central arguments regarding the judge's interjection into the cross-

examination of Rivera.      First, defense counsel argued that the

judge's question called for a hearsay answer and that the answer

elicited was hearsay.      Second, defense counsel stated that the

departure from the district court's otherwise neutral conduct during

the trial posed particular risks:

           The Court has more credibility than either
           party before a jury. The manner in which this
           was done would reasonably make it seem to a
           juror that the Court is imparting information
           to them that it wants them especially to have
           because of its importance.

Finally,   defense   counsel   explained   the   prejudicial   effect   on

defendant's trial strategy:      "A crucial element for the defense

. . . was to highlight the fact that the defendant had no prior

involvement with the criminal justice system, and was therefore an


     8
          Following the suppression hearing the next day on the
admissibility of defendant's statements to the FBI, the prosecution
recalled Rivera to ask only whether it would surprise him to learn
that the defendant had admitted to the FBI that he was with Edwin
and Johal in the van on the evening of June 16 and that defendant
had "hung out" with them. Rivera said it would surprise him.

                                  -18-
unlikely person to have been chosen to engage in the conduct of

which he stands accused," and that as a result of the district

court's question, "the average juror will [receive] the impression

that the Court has doubts about a key element of the defense."      In

what defense counsel described as "a close case on the evidence

[where] [t]here is no overwhelming proof of guilt," any such

influence by the district court must affect the jury's verdict.

          In the same written motion, defense counsel requested, in

the alternative, a curative instruction as follows:

          You are instructed that a judge may ask
          questions during a case. However, on occasion
          a judge may ask a question that is not proper
          and which you should not consider.        This
          happened in this case. This Court asked a
          question of the witness, Police Officer Victor
          Rivera[,] which brought about an answer that
          is improper for you to consider. Therefore,
          you are instructed to strike from your minds
          the question asked by the Court and the
          response of the witness. It would be a
          violation of your oath as jurors to consider
          that question and the response to it.

The district court denied the motion altogether, including the

requested instruction.

C.        The district court's denial of      the   motions   for   a
          mistrial and curative instruction

          We consider the court's questions, the elicited answers,

the refusal to give any curative instructions, and what impact they

may have had.




                               -19-
             1.       Judge's power to question witnesses

             The prosecution argues that the court did nothing more

than to exercise its power under Fed. R. Evid. 614(b) to interrogate

witnesses.        It is well-established that judges are free to ask

questions to elicit facts to facilitate a "clear presentation of the

issues."   United States v. Rosario-Peralta, 199 F.3d 552, 560 (1st

Cir. 1999).   Nonetheless, the judge's right to ask questions should

be "exercised with care," Logue, 103 F.3d at 1045, particularly when

doing so may affect the rights of a criminal defendant.       The need

for restraint is related to the need for a judge to "be balanced;

he cannot become an advocate or otherwise use his judicial powers

to advantage or disadvantage a party unfairly."      Id.

             There is particular concern when it is the judge's

questioning which brings in evidence which is both inadmissible and

prejudicial hearsay.       4 J.B. Weinstein & M.A. Berger, Weinstein's

Federal Evidence § 614.04[1][b], at 614-15 (J.M. McLaughlin ed., 2d

ed. 2006) ("There is . . . the danger that the judge may elicit from

the witness responses hurtful to the accused, and to which the jury

may assign peculiar weight because of their ostensible judicial

sponsorship.").      Defendant argues that in a close case, the risk is

particularly acute: the judge's interjection suggested that the

court might have additional information about defendant's guilt, and

cast serious doubt on Melendez-Rivas's central defenses.




                                   -20-
              The prosecution contends the court was only seeking

clarity to assist the jury.9        See Rodriguez v. Banco Cent. Corp.,

990 F.2d 7, 12 (1st Cir. 1993).           Although the prosecution did not

create the problem, it is held accountable for it.

              The mere crossing of the line by a diligent trial judge

will not itself lead to reversal.         United States v. Paiva, 892 F.2d

148, 159 (1st Cir. 1989). In evaluating whether defendant has shown

sufficient prejudice, we consider all the factors in the case.               If

this   case   were   solely   to   rest    on   a   claim   that   the   court's

questioning evidenced partiality to the prosecution, we would deny

relief.    Cf. Deary v. City of Gloucester, 9 F.3d 191, 194-95 (1st

Cir. 1993) (rejecting allegation that trial judge was so biased as

to deprive defendant of a fair trial).                 A different type of

prejudice is at issue here, as we explain below.

              2.     Introduction    of     inadmissible     and   prejudicial
                     hearsay

              We conclude that defendant was seriously prejudiced.

First, the question about what comments the FBI had made to the

witness called for inadmissible hearsay.            The witness's answer was

not only inadmissible, but was very harmful to the defendant: the

FBI agent purportedly stated "that [Melendez-Rivas] was involved in



       9
          The problem is not one of the judge's questioning
interfering with the jury's proper role.    See United States v.
Ofray-Campos, 534 F.3d 1, 18 (1st Cir. 2008). Nor is the problem
really one of the judge becoming a witness. See Quercia v. United
States, 289 U.S. 466, 470 (1933).

                                    -21-
a series of felony crimes that could lead to the death penalty."

The jury could easily have understood this to be a representation

that Melendez-Rivas was involved in other serious crimes, crimes so

serious as to raise the prospect of the death penalty.              That was

simply untrue.        Second, this certainly undercut the defendant's

testimony that he had no criminal record or charges against him and

did not associate with two notorious criminals in the project.

            Further, the jurors could have perceived the question as

enhancing the prosecution's effort to impeach a defense witness.

See   4   Weinstein    &   Berger,   supra,    §   614.04[4][b],   at   614-27

(suggesting that the trial court ought not conduct questioning that

resembles a cross-examination challenging the credibility of a

witness).

            Over counsel's objection, the court did not strike the

answer and tell the jury to disregard it.           Instead, the court asked

again whether that is what the FBI agents had told the witness. The

witness answered, "That is correct."           This repetition, made within

earshot of the jurors, reinforced the prejudicial effect.

            Counsel objected again.           Before counsel could approach

the bench, the court, perhaps realizing the potential prejudice to

defendant, may have attempted to ameliorate the problem by asking

if the witness believed the FBI, and then repeated that the witness

disbelieved what the FBI agents had said.               We cannot say with

confidence this ameliorated the harm.               In addition, this then


                                     -22-
created an issue for the jury of whether the defendant's father-in-

law or the FBI was lying.      There was never any curative instruction

given.     The prejudice was not offset by the judge's preliminary

instructions at the start of trial.         Those instructions were that

"nothing that I may say or nothing that I may do is intended to

indicate, nor should [it] be taken by you as indicating, what your

verdict should be," and that the jury "should never be influenced

by any ruling that I make or for the reasons behind the ruling."

             These instructions are mismatches to the problem at

hand.10    Nor were instructions given which were closer to a match.

             The   totality   of   the   record   shows   that   the   judge's

questions    elicited   inadmissible,      prejudicial    testimony.      The

testimony was not stricken, nor was a curative instruction given.

The inadmissible evidence contradicted one of defendant's central


      10
          There was, for example, no instruction that the jury
should not assume the court had any view on the subject of the
court's questions and that the jury could disregard all the court's
questions. 4 Weinstein & Berger, supra, § 614.04[4][c], at 614-
28.1 to -28.2 ("The risk that a judge's questioning conveys a
message regarding a defendant's guilt may be reduced by instructing
the jurors that they should not assume that the judge holds any
opinion on the subject of the court's questions and that the jury
may disregard all the court's comments in arriving at its findings
of fact."); see also Rivera-Torres v. Ortiz Velez, 341 F.3d 86, 100
(1st Cir. 2003) ("[A]ny possible risk of prejudice to [defendant]
as a result of the judge's questions was abated by the clear
instruction to the jury that it should ignore any impression that
his questions might have had on them." (alterations in original)
(quoting United States v. Henry, 136 F.3d 12, 19 (1st Cir. 1998)));
United States v. Candelaria-Silva, 166 F.3d 19, 36 (1st Cir. 1999)
(strong jury instructions sufficient to eliminate any potential
prejudice stemming from judge's "facial expressions" or other signs
of frustration exhibited in contentious trial).

                                    -23-
defenses and cast doubt on the credibility of his coercion defense.

We cannot say this error was harmless.

                               III.

          We vacate and remand to the district court for a new

trial.




                               -24-
