                          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. 1856

                                          8
(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.




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